Medina Mayor Dennis Hanwell is pushing the idea of a joint city-county court complex. This would be created by building a new Medina Municipal Court building behind the existing county courthouses. He has forwarded both an outline of his plan and a site map to the Medina County Bar Association. The Bar Association in turn forwarded it on to its members.
You can see the site plan in pdf format by clicking here.
You can see the plan outline in pdf format by clicking here.
Wednesday, June 23, 2010
The Law is Communication
by Judge James L. Kimbler
Lincoln said: A lawyer’s advice is his stock in trade.
That advice is only valuable if it is communicated to someone.
Everything a lawyer does involves communication to someone. That someone may be a client, opposing party, opposing attorney, heirs to an estate, or a judge.
The practice of law is communication.
Most of the time when you are communicating to judges you are writing.
Less than 10% of all cases get tried. The percentage is probably closer to less than 5%.
Every case begins with a written communication.
Most appearances are initially made in writing.
Motions are usually made in writing.
Arguments are often made in writing.
As a practical matter trial judges may want communications in writing because they can read a lot faster than they can listen.
This means that you must make sure your written communications are the best that they can be because often they may be the only opportunity you get to persuade a judge to do something that your client needs that judge to do.
What can you do to make your writing better?
Here are 10 suggestions:
1. Avoid passive voice Use active voice.
A. Active voice: the subject of the sentence is doing the action.
Passive voice: the subject of the sentence is receiving the action.
Examples:
Smith assaulted Jones. Active voice. Smith did the action.
Jones was assaulted by Smith. Passive voice. Jones received the
action.
B. Usually active voice is easier to read and has more impact.
C. Passive voice may be used to hide the identity of the person doing the action.
A very familiar line from Watergate crisis:
Mistakes were made. Notice that the sentence doesn’t require the identity of the maker of the mistakes. May be preferred when you are writing for the defense. May want to blur responsibility.
D. Not saying you won’t sometimes want to use passive voice, but I am saying that I want you to make a conscious decision to use passive voice.
2. Identify parties by real names, not by their position in the action.
A. It is easier for the reader to understand if you are using names instead of titles in the action.
B. Usually has more impact because you are “humanizing” the case.
C. You want the reader emotionally involved, not emotionally distant.
The plaintiff was injured.
Donna Smith broke her leg.
3. “Chain” your writing.
A. Take the reader from:
Old to new.
Past to present
Familiar to unfamiliar.
Donna Smith broke her leg. She broke her leg in the collision with Mary Jones. Mary Jones caused the collision by running the red light. The red light controlled the intersection at Bank and Main Streets in Spencer, Ohio.
B. Chain your sentences and then chain your paragraphs.
C. This is a very persuasive form of writing, especially if you can get the reader to agree with your initial premise.
4. Use short sentences.
A. Sentences should usually not exceed 15-18 words. Anything over that becomes harder for the reader to retain.
B. Breaking up sentences allows the reader to absorb the information faster and more effectively.
5. Use more paragraphs.
A. This goes along with the idea of shorter sentences. Shorter paragraphs let the reader understand what you are saying faster.
6. Avoid nominalization of verbs.
A. This occurs when we take verbs and make them into nouns
The device detects small signals. (detects is a verb)
The device is used for the detection of small signals.
(detection is a noun)
The screen displays the test results
The screen is utilized for the display of the test results.
They installed the new equipment.
They did the installation of the new equipment.
B. Notice the shift from the active to the passive voice in the examples given above.
C. Nominalization will often lead to passive voice use.
7. Be careful with adverbs and adjectives.
A. Often use of adverbs and adjectives weaken the impact of your writing.
He ran quickly to the injured girl.
He sprinted to the injured girl.
He dashed to the injured girl.
He raced to the injured girl.
B. When you use adverbs and adjectives stop and ask yourself if there is a more descriptive word, a more powerful word, you can use.
8. Use footnotes to reference material.
A. Do not mean “talking footnotes” where you convey information that should be in the body of the text.
B. Mean reference footnotes, such as in case citations or references to supporting facts.
Examples:
The Ohio Supreme Court recently held that when a driver of a car is arrested, the officer could search the passenger compartment as a search incident to an arrest.
Jones admitted that he ran the red light.
C. Notice that using the footnotes allows the reader to check out your sources without breaking up the flow of the text.
D. More and more appellate judges are using this technique.
E. Avoid talking footnotes, however, which are often seen in law reviews. If you are putting substantive information in a footnote, chances are it belongs in the text, and if it shouldn’t be in the text, chances are it shouldn’t be in the writing at all.
9. Use proper citation form.
A. Ohio has its own citation rules, which can be found on the Supreme Court’s website. The major difference is that in Ohio the date of the decision follows the caption, coming before the volume and page numbers.
B. Since May of 2001 there is no longer any difference between published and unpublished opinions. No matter what format, any opinion of the Ninth District Court of Appeals is controlling on any trial judge in the Ninth District Court of Appeals.
C. Appellate court opinions from other districts, however, are not controlling on trial judges in the Ninth Appellate District. Trial judges may consider them persuasive; they do not have to follow them.
D. If you cite decisions from other appellate districts, you should make it clear that the decision is not from the Ninth District Appellate District. If your opponent cites to a case from another appellate district, you should make it clear to the trial judge that the decision is not from the Ninth Appellate District and its holding is not binding on him/her.
E. Make sure you read and understand the Rules for Reporting of Opinions which are found on the Ohio Supreme Court website and also in the various books containing Ohio’s Rules of Court.
10. Edit and the edit again.
A. If you have the time, make sure you edit your work. Go over the text and see if you can take out unnecessary words. I have found that my opinions are better if I edit them after my secretary gives them back to me after she has edited them.
B. Have someone else read them to make sure that the text is clear. A problem with editing you own text is that you tend to skip over mistakes because you know what you mean. Having someone else proof your text means that they might find mistakes you missed because of they are looking at it fresh.
C. Beware of relying just on spell check to catch mistakes. Remember spell check looks for misspellings, not necessarily for how the word is used. Example: trails instead of trials.
Copyright by Judge James L. Kimbler. All rights reserved. Do not use without permission. If interested in reprinting, please email to JudgeJamesKimbler@yahoo.com.
Lincoln said: A lawyer’s advice is his stock in trade.
That advice is only valuable if it is communicated to someone.
Everything a lawyer does involves communication to someone. That someone may be a client, opposing party, opposing attorney, heirs to an estate, or a judge.
The practice of law is communication.
Most of the time when you are communicating to judges you are writing.
Less than 10% of all cases get tried. The percentage is probably closer to less than 5%.
Every case begins with a written communication.
Most appearances are initially made in writing.
Motions are usually made in writing.
Arguments are often made in writing.
As a practical matter trial judges may want communications in writing because they can read a lot faster than they can listen.
This means that you must make sure your written communications are the best that they can be because often they may be the only opportunity you get to persuade a judge to do something that your client needs that judge to do.
What can you do to make your writing better?
Here are 10 suggestions:
1. Avoid passive voice Use active voice.
A. Active voice: the subject of the sentence is doing the action.
Passive voice: the subject of the sentence is receiving the action.
Examples:
Smith assaulted Jones. Active voice. Smith did the action.
Jones was assaulted by Smith. Passive voice. Jones received the
action.
B. Usually active voice is easier to read and has more impact.
C. Passive voice may be used to hide the identity of the person doing the action.
A very familiar line from Watergate crisis:
Mistakes were made. Notice that the sentence doesn’t require the identity of the maker of the mistakes. May be preferred when you are writing for the defense. May want to blur responsibility.
D. Not saying you won’t sometimes want to use passive voice, but I am saying that I want you to make a conscious decision to use passive voice.
2. Identify parties by real names, not by their position in the action.
A. It is easier for the reader to understand if you are using names instead of titles in the action.
B. Usually has more impact because you are “humanizing” the case.
C. You want the reader emotionally involved, not emotionally distant.
The plaintiff was injured.
Donna Smith broke her leg.
3. “Chain” your writing.
A. Take the reader from:
Old to new.
Past to present
Familiar to unfamiliar.
Donna Smith broke her leg. She broke her leg in the collision with Mary Jones. Mary Jones caused the collision by running the red light. The red light controlled the intersection at Bank and Main Streets in Spencer, Ohio.
B. Chain your sentences and then chain your paragraphs.
C. This is a very persuasive form of writing, especially if you can get the reader to agree with your initial premise.
4. Use short sentences.
A. Sentences should usually not exceed 15-18 words. Anything over that becomes harder for the reader to retain.
B. Breaking up sentences allows the reader to absorb the information faster and more effectively.
5. Use more paragraphs.
A. This goes along with the idea of shorter sentences. Shorter paragraphs let the reader understand what you are saying faster.
6. Avoid nominalization of verbs.
A. This occurs when we take verbs and make them into nouns
The device detects small signals. (detects is a verb)
The device is used for the detection of small signals.
(detection is a noun)
The screen displays the test results
The screen is utilized for the display of the test results.
They installed the new equipment.
They did the installation of the new equipment.
B. Notice the shift from the active to the passive voice in the examples given above.
C. Nominalization will often lead to passive voice use.
7. Be careful with adverbs and adjectives.
A. Often use of adverbs and adjectives weaken the impact of your writing.
He ran quickly to the injured girl.
He sprinted to the injured girl.
He dashed to the injured girl.
He raced to the injured girl.
B. When you use adverbs and adjectives stop and ask yourself if there is a more descriptive word, a more powerful word, you can use.
8. Use footnotes to reference material.
A. Do not mean “talking footnotes” where you convey information that should be in the body of the text.
B. Mean reference footnotes, such as in case citations or references to supporting facts.
Examples:
The Ohio Supreme Court recently held that when a driver of a car is arrested, the officer could search the passenger compartment as a search incident to an arrest.
Jones admitted that he ran the red light.
C. Notice that using the footnotes allows the reader to check out your sources without breaking up the flow of the text.
D. More and more appellate judges are using this technique.
E. Avoid talking footnotes, however, which are often seen in law reviews. If you are putting substantive information in a footnote, chances are it belongs in the text, and if it shouldn’t be in the text, chances are it shouldn’t be in the writing at all.
9. Use proper citation form.
A. Ohio has its own citation rules, which can be found on the Supreme Court’s website. The major difference is that in Ohio the date of the decision follows the caption, coming before the volume and page numbers.
B. Since May of 2001 there is no longer any difference between published and unpublished opinions. No matter what format, any opinion of the Ninth District Court of Appeals is controlling on any trial judge in the Ninth District Court of Appeals.
C. Appellate court opinions from other districts, however, are not controlling on trial judges in the Ninth Appellate District. Trial judges may consider them persuasive; they do not have to follow them.
D. If you cite decisions from other appellate districts, you should make it clear that the decision is not from the Ninth District Appellate District. If your opponent cites to a case from another appellate district, you should make it clear to the trial judge that the decision is not from the Ninth Appellate District and its holding is not binding on him/her.
E. Make sure you read and understand the Rules for Reporting of Opinions which are found on the Ohio Supreme Court website and also in the various books containing Ohio’s Rules of Court.
10. Edit and the edit again.
A. If you have the time, make sure you edit your work. Go over the text and see if you can take out unnecessary words. I have found that my opinions are better if I edit them after my secretary gives them back to me after she has edited them.
B. Have someone else read them to make sure that the text is clear. A problem with editing you own text is that you tend to skip over mistakes because you know what you mean. Having someone else proof your text means that they might find mistakes you missed because of they are looking at it fresh.
C. Beware of relying just on spell check to catch mistakes. Remember spell check looks for misspellings, not necessarily for how the word is used. Example: trails instead of trials.
Copyright by Judge James L. Kimbler. All rights reserved. Do not use without permission. If interested in reprinting, please email to JudgeJamesKimbler@yahoo.com.
Tuesday, June 22, 2010
Denial of Maternity Leave Based on Minimum Service Requirement Is Not Direct Evidence of Sex Discrimination
When No Employee is Eligible for Leave During First Year of Employment
McFee v. Nursing Care Mgt. of Am., Inc., Slip Opinion No. 2010-Ohio-2744.
Licking App. No. 08CA3000, 181 Ohio App.3d 632, 2009-Ohio-1107. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2744.pdf
(June 22, 2010) The Supreme Court of Ohio ruled today that where a company employment policy imposes a minimum length of service requirement before any employee is eligible for leave, and does not grant an exception from the minimum service requirement for maternity leave, that policy is not direct evidence of sex discrimination under the state’s civil rights statutes.
The Court’s 5-1 decision, authored by Justice Robert R. Cupp, reversed a ruling by the 5th District Court of Appeals.
The case involved nursing home worker Tiffany McFee, who applied for but was denied maternity leave after approximately eight months of employment at the Pataskala Oaks Care Center. At the time she was hired, McFee received an employee handbook stating that all company employees were required to complete one year of employment before they would be eligible for any leave of any kind. After missing work because of medical issues related to her pregnancy and subsequent childbirth, McFee was terminated from her position based on her absence from work without leave.
McFee filed a complaint with the Ohio Civil Rights Commission, claiming that her termination constituted unlawful sex discrimination on the basis of pregnancy. An administrative law judge recommended that the complaint be dismissed. Nevertheless, the Civil Rights Commission rejected that recommendation and found instead that Pataskala Oaks’ policy constituted unlawful sex discrimination. Pataskala Oaks appealed. On review, the Licking County Common Pleas Court held that Pataskala Oaks’ leave policy did not violate the antidiscrimination laws of Ohio and reversed the decision of the Civil Rights Commission.
OCRC then appealed the common pleas court’s ruling to the 5th District Court of Appeals, which reversed the trial court and reinstated McFee’s claim. The court of appeals held that the antidiscrimination laws of Ohio expressly require that employers provide employees with a reasonable period of maternity leave. Because Pataskala Oaks’ leave policy did not provide maternity leave for employees with less than one year of service, the court of appeals held that the policy violated the sex-discrimination laws. The court also held that the policy was direct evidence of discrimination and, therefore, McFee did not have the burden to offer other evidence of sex discrimination. Pataskala Oaks sought and was granted Supreme Court review of the 5th District’s ruling.
In today’s decision, Justice Cupp wrote: “R.C. 4112.02(A) provides that pregnant employees must be treated the same for employment-related purposes as employees who are not pregnant but who are similar in their ability or inability to work. ... The second sentence of R.C. 4112.01(B) directs that pregnant women ‘shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.’ ... The phrase ‘treated the same’ in R.C. 4112.01(B) ensures that pregnant employees will receive the same consideration as other employees ‘not so affected but similar in their ability or inability to work.’ Thus, the statute does not provide greater protections for pregnant employees than nonpregnant employees. Other courts that have considered this issue have also applied this interpretation of R.C. 4112.01(B). ... As stated by the Tenth District Court of Appeals (in Priest v. TFH-EB, Inc., 1998), ‘Ohio courts implicitly ... and expressly ... recognize that an employer need not accommodate pregnant women to the extent that such accommodation amounts to preferential treatment. Accordingly, to prevail on her pregnancy discrimination claim, plaintiff must show that defendant treated her differently because of her pregnancy.’”
“Pataskala Oaks’ length-of-service requirements treat all employees the same. Every employee must reach 12 months of employment before becoming eligible for leave. In this sense, the policy is ‘pregnancy-blind.’ ... Thus, a pregnant employee may be terminated for unauthorized absence just as any other employee who has not yet met the minimum-length-of-service requirement but takes leave based upon a similar inability to work. Unless there is other evidence of discrimination or pretext, R.C. Chapter 4112 does not prohibit termination of an employee affected by pregnancy under these circumstances. ... (A)n employer may maintain a uniform minimum-length-of-service leave policy consistent with Ohio law. Pataskala Oaks’ policy is ‘pregnancy-blind’ in that it does not treat employees affected by pregnancy differently from employees ‘not so affected but similar in their ability or inability to work.’ ... An employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination under R.C. Chapter 4112. ... The parties agree that McFee was terminated because she took leave from work even though she was not eligible for leave under Pataskala Oaks’ policy. McFee has not alleged any other basis for a finding of discrimination, nor has she produced independent evidence that the proffered basis for the termination was a pretext for discrimination. Accordingly, McFee has failed to make a prima facie case of sex discrimination. The trial court properly dismissed the case.”
The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.
Justice Paul E. Pfeifer entered a dissenting opinion in which he wrote: “The facts of this case are such that an ordinary citizen would think, ‘There ought to be a law against that.’ Until today, there was. R.C. 4112.02(A) makes it unlawful for any employer ‘to discharge without just cause’ an employee because of his or her sex. R.C. 4112.01(B) makes clear that the prohibition in R.C. 4112.02(A) includes discrimination and discharge on the basis of pregnancy and pregnancy-related illness ... McFee provided a doctor’s note to Pataskala Oaks indicating that she had a pregnancy-related illness, pregnancy-related swelling, that rendered her unable to continue her job duties until six weeks after she gave birth. Pataskala Oaks says that it did not fire McFee because she was ill, but because she missed work because she was ill. What did the General Assembly mean when it protected women from discharge based upon pregnancy-related illness? Did it intend women not to treat their illness, but instead to go to work ill? That they should follow their doctor’s advice for bed rest by bringing their beds to their place of employment? Does not the word ‘illness’ connote missed work time?”
“The Civil Rights Commission was perfectly in line with R.C. 4112.01(B) when it promulgated Ohio Adm.Code 4112-5-05(G), establishing what constitutes pregnancy discrimination ... McFee is protected under Ohio Adm.Code 4112-5-05(G)(2): ‘Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.’ Pursuant to the Pataskala Oaks employment policy, there was no maternity leave available to McFee. Therefore, her termination constituted direct evidence of unlawful sex discrimination.”
Justice Pfeifer concluded by noting the practicalities of the case: “It should be noted that McFee was not asking to be paid for her time off, and the law does not require her to be paid. The ironic postscript to this whole matter is that Pataskala Oaks called McFee three weeks after firing her and offered her a job. The burden of allowing McFee unpaid leave to deal with the medical effects of her pregnancy had turned out to be not such a burden. Now, as McFee’s child likely is graduating from kindergarten, Pataskala Oaks is finally emerging from litigation. It fought the statutorily mandated decency contained in R.C. 4112.01(B) and 4112.02(A) and won. Who is better for it?”
Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.
Contacts
Benjamin C. Mizer, 614.466.8980, for the Ohio Civil Rights Commission.
Jan E. Hensel, 614.227.4267, for Nursing Care Mgt. of America d.b.a. Pataskala Oaks Care Center.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
McFee v. Nursing Care Mgt. of Am., Inc., Slip Opinion No. 2010-Ohio-2744.
Licking App. No. 08CA3000, 181 Ohio App.3d 632, 2009-Ohio-1107. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2744.pdf
(June 22, 2010) The Supreme Court of Ohio ruled today that where a company employment policy imposes a minimum length of service requirement before any employee is eligible for leave, and does not grant an exception from the minimum service requirement for maternity leave, that policy is not direct evidence of sex discrimination under the state’s civil rights statutes.
The Court’s 5-1 decision, authored by Justice Robert R. Cupp, reversed a ruling by the 5th District Court of Appeals.
The case involved nursing home worker Tiffany McFee, who applied for but was denied maternity leave after approximately eight months of employment at the Pataskala Oaks Care Center. At the time she was hired, McFee received an employee handbook stating that all company employees were required to complete one year of employment before they would be eligible for any leave of any kind. After missing work because of medical issues related to her pregnancy and subsequent childbirth, McFee was terminated from her position based on her absence from work without leave.
McFee filed a complaint with the Ohio Civil Rights Commission, claiming that her termination constituted unlawful sex discrimination on the basis of pregnancy. An administrative law judge recommended that the complaint be dismissed. Nevertheless, the Civil Rights Commission rejected that recommendation and found instead that Pataskala Oaks’ policy constituted unlawful sex discrimination. Pataskala Oaks appealed. On review, the Licking County Common Pleas Court held that Pataskala Oaks’ leave policy did not violate the antidiscrimination laws of Ohio and reversed the decision of the Civil Rights Commission.
OCRC then appealed the common pleas court’s ruling to the 5th District Court of Appeals, which reversed the trial court and reinstated McFee’s claim. The court of appeals held that the antidiscrimination laws of Ohio expressly require that employers provide employees with a reasonable period of maternity leave. Because Pataskala Oaks’ leave policy did not provide maternity leave for employees with less than one year of service, the court of appeals held that the policy violated the sex-discrimination laws. The court also held that the policy was direct evidence of discrimination and, therefore, McFee did not have the burden to offer other evidence of sex discrimination. Pataskala Oaks sought and was granted Supreme Court review of the 5th District’s ruling.
In today’s decision, Justice Cupp wrote: “R.C. 4112.02(A) provides that pregnant employees must be treated the same for employment-related purposes as employees who are not pregnant but who are similar in their ability or inability to work. ... The second sentence of R.C. 4112.01(B) directs that pregnant women ‘shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.’ ... The phrase ‘treated the same’ in R.C. 4112.01(B) ensures that pregnant employees will receive the same consideration as other employees ‘not so affected but similar in their ability or inability to work.’ Thus, the statute does not provide greater protections for pregnant employees than nonpregnant employees. Other courts that have considered this issue have also applied this interpretation of R.C. 4112.01(B). ... As stated by the Tenth District Court of Appeals (in Priest v. TFH-EB, Inc., 1998), ‘Ohio courts implicitly ... and expressly ... recognize that an employer need not accommodate pregnant women to the extent that such accommodation amounts to preferential treatment. Accordingly, to prevail on her pregnancy discrimination claim, plaintiff must show that defendant treated her differently because of her pregnancy.’”
“Pataskala Oaks’ length-of-service requirements treat all employees the same. Every employee must reach 12 months of employment before becoming eligible for leave. In this sense, the policy is ‘pregnancy-blind.’ ... Thus, a pregnant employee may be terminated for unauthorized absence just as any other employee who has not yet met the minimum-length-of-service requirement but takes leave based upon a similar inability to work. Unless there is other evidence of discrimination or pretext, R.C. Chapter 4112 does not prohibit termination of an employee affected by pregnancy under these circumstances. ... (A)n employer may maintain a uniform minimum-length-of-service leave policy consistent with Ohio law. Pataskala Oaks’ policy is ‘pregnancy-blind’ in that it does not treat employees affected by pregnancy differently from employees ‘not so affected but similar in their ability or inability to work.’ ... An employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination under R.C. Chapter 4112. ... The parties agree that McFee was terminated because she took leave from work even though she was not eligible for leave under Pataskala Oaks’ policy. McFee has not alleged any other basis for a finding of discrimination, nor has she produced independent evidence that the proffered basis for the termination was a pretext for discrimination. Accordingly, McFee has failed to make a prima facie case of sex discrimination. The trial court properly dismissed the case.”
The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.
Justice Paul E. Pfeifer entered a dissenting opinion in which he wrote: “The facts of this case are such that an ordinary citizen would think, ‘There ought to be a law against that.’ Until today, there was. R.C. 4112.02(A) makes it unlawful for any employer ‘to discharge without just cause’ an employee because of his or her sex. R.C. 4112.01(B) makes clear that the prohibition in R.C. 4112.02(A) includes discrimination and discharge on the basis of pregnancy and pregnancy-related illness ... McFee provided a doctor’s note to Pataskala Oaks indicating that she had a pregnancy-related illness, pregnancy-related swelling, that rendered her unable to continue her job duties until six weeks after she gave birth. Pataskala Oaks says that it did not fire McFee because she was ill, but because she missed work because she was ill. What did the General Assembly mean when it protected women from discharge based upon pregnancy-related illness? Did it intend women not to treat their illness, but instead to go to work ill? That they should follow their doctor’s advice for bed rest by bringing their beds to their place of employment? Does not the word ‘illness’ connote missed work time?”
“The Civil Rights Commission was perfectly in line with R.C. 4112.01(B) when it promulgated Ohio Adm.Code 4112-5-05(G), establishing what constitutes pregnancy discrimination ... McFee is protected under Ohio Adm.Code 4112-5-05(G)(2): ‘Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.’ Pursuant to the Pataskala Oaks employment policy, there was no maternity leave available to McFee. Therefore, her termination constituted direct evidence of unlawful sex discrimination.”
Justice Pfeifer concluded by noting the practicalities of the case: “It should be noted that McFee was not asking to be paid for her time off, and the law does not require her to be paid. The ironic postscript to this whole matter is that Pataskala Oaks called McFee three weeks after firing her and offered her a job. The burden of allowing McFee unpaid leave to deal with the medical effects of her pregnancy had turned out to be not such a burden. Now, as McFee’s child likely is graduating from kindergarten, Pataskala Oaks is finally emerging from litigation. It fought the statutorily mandated decency contained in R.C. 4112.01(B) and 4112.02(A) and won. Who is better for it?”
Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.
Contacts
Benjamin C. Mizer, 614.466.8980, for the Ohio Civil Rights Commission.
Jan E. Hensel, 614.227.4267, for Nursing Care Mgt. of America d.b.a. Pataskala Oaks Care Center.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Judge Collier's Criminal Docket for June 21, 2010
Medina County Prosecutor Dean Holman reports that the following people appeared for criminal cases in Judge Collier's court on June 21:
Michael Bilpuch, 42, of Lorain Avenue in Fairview Park, was sentenced to one year in prison for a probation violation on an original charge of Non-Support of Dependants, a fifth-degree felony.
Alex Ciesielski, 23, of Knight Lane in Brunswick, was sentenced to 86 days in jail for a probation violation on an original charge of Possession of Drugs, a fifth-degree felony.
Ken Finan, 34, of West Clifton Boulevard in Lakewood, was sentenced to six months in prison on one count of Trafficking in Marijuana, a fifth-degree felony. His car was ordered forfeited to law enforcement.
Anna Lamb, 26, of Wooster Road in Barberton, was sentenced to one year in prison on two counts of Theft from the Elderly, both of which are fourth-degree felonies. She also was ordered to pay $8,204.78 in restitution to her victim’s estate.
Jason Tice, 40, of North Main Street in West Salem, was sentenced to two years of community control sanctions on one count of Possession of Drugs, a fifth-degree felony.
Todd Bollett, 44, of County Road 25 in Fostoria, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for September 22.
Eric Cool, 39, of Hastings Road in Oberlin, pleaded not guilty to one count of Illegal Manufacture of Drugs, a third-degree felony. A jury trial is scheduled for August 4.
Kevin Dowler, 46, of LaVista West in Lodi, pleaded not guilty to one count of Illegal Manufacture of Drugs, a third-degree felony. A jury trial is scheduled for August 9.
Jeremy Emert, 19, of Norwalk Road in Medina, pleaded no contest to one count of Theft, a fifth-degree felony. Sentencing is scheduled for August 2.
Daniel Frank, 28, of Torrington Avenue in Parma, pleaded not guilty to one count of Improperly Handling Firearms in a Motor Vehicle, a fifth-degree felony. A jury trial is scheduled for September 29.
Rhett Hall, 22, of Virginia Avenue in Elyria, pleaded not guilty to one count of Carrying a Concealed Weapon, a fourth-degree felony. A jury trial is scheduled for September 22.
Avery Jackson, 22, of Stadelman Avenue in Akron, pleaded not guilty to one count of Possession of Crack Cocaine, a third-degree felony. A jury trial is scheduled for July 14.
Melissa King, 40, of Eastern Road in Norton, pleaded no contest to one count of Identity Theft, a third-degree felony. Sentencing is scheduled for August 2.
Mitchel Osborn, 31, of Royal Crest Drive in Seville, pleaded no contest to one count of Theft, a fifth-degree felony. Sentencing is scheduled for August 2.
Timothy Pickard, 26, of Euclid Avenue in Sharon, Pennsylvania, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for September 22.
Brian Young, 29, of Main Street in Wadsworth, pleaded not guilty to the following charges: one count of Felonious Assault, a second-degree felony; one count of Abduction, a third-degree felony; one count of Unauthorized Use of Property, a fifth-degree felony; and Dereliction of Duty, a second-degree misdemeanor. A jury trial is scheduled for September 15.
Matthew Zeiser, 41, of Greenleaf Avenue in Parma Heights, pleaded not guilty to one count of Violation of a Protection Order, a fifth-degree felony. A jury trial is scheduled for August 9.
Michael Bilpuch, 42, of Lorain Avenue in Fairview Park, was sentenced to one year in prison for a probation violation on an original charge of Non-Support of Dependants, a fifth-degree felony.
Alex Ciesielski, 23, of Knight Lane in Brunswick, was sentenced to 86 days in jail for a probation violation on an original charge of Possession of Drugs, a fifth-degree felony.
Ken Finan, 34, of West Clifton Boulevard in Lakewood, was sentenced to six months in prison on one count of Trafficking in Marijuana, a fifth-degree felony. His car was ordered forfeited to law enforcement.
Anna Lamb, 26, of Wooster Road in Barberton, was sentenced to one year in prison on two counts of Theft from the Elderly, both of which are fourth-degree felonies. She also was ordered to pay $8,204.78 in restitution to her victim’s estate.
Jason Tice, 40, of North Main Street in West Salem, was sentenced to two years of community control sanctions on one count of Possession of Drugs, a fifth-degree felony.
Todd Bollett, 44, of County Road 25 in Fostoria, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for September 22.
Eric Cool, 39, of Hastings Road in Oberlin, pleaded not guilty to one count of Illegal Manufacture of Drugs, a third-degree felony. A jury trial is scheduled for August 4.
Kevin Dowler, 46, of LaVista West in Lodi, pleaded not guilty to one count of Illegal Manufacture of Drugs, a third-degree felony. A jury trial is scheduled for August 9.
Jeremy Emert, 19, of Norwalk Road in Medina, pleaded no contest to one count of Theft, a fifth-degree felony. Sentencing is scheduled for August 2.
Daniel Frank, 28, of Torrington Avenue in Parma, pleaded not guilty to one count of Improperly Handling Firearms in a Motor Vehicle, a fifth-degree felony. A jury trial is scheduled for September 29.
Rhett Hall, 22, of Virginia Avenue in Elyria, pleaded not guilty to one count of Carrying a Concealed Weapon, a fourth-degree felony. A jury trial is scheduled for September 22.
Avery Jackson, 22, of Stadelman Avenue in Akron, pleaded not guilty to one count of Possession of Crack Cocaine, a third-degree felony. A jury trial is scheduled for July 14.
Melissa King, 40, of Eastern Road in Norton, pleaded no contest to one count of Identity Theft, a third-degree felony. Sentencing is scheduled for August 2.
Mitchel Osborn, 31, of Royal Crest Drive in Seville, pleaded no contest to one count of Theft, a fifth-degree felony. Sentencing is scheduled for August 2.
Timothy Pickard, 26, of Euclid Avenue in Sharon, Pennsylvania, pleaded not guilty to one count of Theft, a fifth-degree felony. A jury trial is scheduled for September 22.
Brian Young, 29, of Main Street in Wadsworth, pleaded not guilty to the following charges: one count of Felonious Assault, a second-degree felony; one count of Abduction, a third-degree felony; one count of Unauthorized Use of Property, a fifth-degree felony; and Dereliction of Duty, a second-degree misdemeanor. A jury trial is scheduled for September 15.
Matthew Zeiser, 41, of Greenleaf Avenue in Parma Heights, pleaded not guilty to one count of Violation of a Protection Order, a fifth-degree felony. A jury trial is scheduled for August 9.
Monday, June 21, 2010
Judge Kimbler's Criminal Docket for Monday, June 21
Two defendants appeared in Judge Kimbler's courtroom Monday morning and entered a change of plea. Kelly P. Shelton of Grand Avenue in Akron, Ohio, was charged with one court of Forgery, a fifth degree felony. She entered a plea of no contest and was found guilty. Judge Kimbler continued her bond and ordered a pre-sentence investigation. Judge Kimbler will sentence her on July 22, 2010 at 8:30 am.
The other defendant who appeared was Steve G. Kroska of Manchester Avenue in Canal Fulton, Ohio. Mr. Kroska was charged with three counts of Drug Trafficking, (Marijuana. Two of the counts were fifth degree felonies and the third count was a fourth degree felony. Judge Kimbler also ordered a pre-sentence investigation in his case and scheduled a sentencing date of July 22, 2010. Judge Kimbler also continued his bond.
The other defendant who appeared was Steve G. Kroska of Manchester Avenue in Canal Fulton, Ohio. Mr. Kroska was charged with three counts of Drug Trafficking, (Marijuana. Two of the counts were fifth degree felonies and the third count was a fourth degree felony. Judge Kimbler also ordered a pre-sentence investigation in his case and scheduled a sentencing date of July 22, 2010. Judge Kimbler also continued his bond.
Changes Coming for Out of State Attorneys Looking to Appear in Ohio Courts
Pro hac vice process to be centralized in Ohio Supreme Court.
In about six months out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice) will notice some significant changes to the process.
The Supreme Court of Ohio adopted the pro hac vice amendments last year, which become effective Jan. 1, 2011. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis.
Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:
Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services.
Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.
Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not been granted permission to appear pro hac vice in more than three proceedings before Ohio tribunals in the current calendar year.
Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.
Susan Christoff, Attorney Services Division director, said the changes implemented in Ohio bring the state in line with how other states have handled temporary appearances by out-of-state attorneys.
“Attorneys who regularly practice in other states in the Midwest should be familiar with some of the requirements instituted by Ohio, because they are similar to what those other states require,” she said. “That being said, it’s important to note that pro hac vice has changed in Ohio, and we would hope that Ohio’s courts and administrative agencies as well as Ohio judges and attorneys are aware of these coming changes.”
She noted that attorneys seeking pro hac vice registration will be able to submit registration applications electronically. She also noted that the Office of Attorney Services will maintain an online public directory that includes the names of attorneys who have registered under the new rule and the cases in which they have received permission to appear pro hac vice.
Contact: Chris Davey or Bret Crow at 614.387.9250.
In about six months out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice) will notice some significant changes to the process.
The Supreme Court of Ohio adopted the pro hac vice amendments last year, which become effective Jan. 1, 2011. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis.
Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:
Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services.
Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.
Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not been granted permission to appear pro hac vice in more than three proceedings before Ohio tribunals in the current calendar year.
Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.
Susan Christoff, Attorney Services Division director, said the changes implemented in Ohio bring the state in line with how other states have handled temporary appearances by out-of-state attorneys.
“Attorneys who regularly practice in other states in the Midwest should be familiar with some of the requirements instituted by Ohio, because they are similar to what those other states require,” she said. “That being said, it’s important to note that pro hac vice has changed in Ohio, and we would hope that Ohio’s courts and administrative agencies as well as Ohio judges and attorneys are aware of these coming changes.”
She noted that attorneys seeking pro hac vice registration will be able to submit registration applications electronically. She also noted that the Office of Attorney Services will maintain an online public directory that includes the names of attorneys who have registered under the new rule and the cases in which they have received permission to appear pro hac vice.
Contact: Chris Davey or Bret Crow at 614.387.9250.
A Judicial Decision: Concurrent or Consecutive Prison Sentences?
by Judge James L. Kimbler
A Facebook friend recently asked why I imposed a concurrent prison sentence in a criminal case. The case involved a defendant who had drove recklessly and caused a automobile collision. Two people where killed in the collision and another person was seriously injured. The people who were killed were in the other car while the person who was seriously injured was a passenger in the defendant's car. That person and the defendant were good friends.
The crime for which the defendant was indicted for recklessly causing the two deaths is known as Aggravated Vehicular Homicide, and is a third degree felony. The crime for which the defendant was indicted for recklessly causing serious injury to is known as Aggravated Vehicular Assault, a fourth degree felony.
When I sentenced the defendant, I sentenced him to four years in prison for each of two deaths, which was a total prison sentence of eight years. Those sentences I ran consecutively. I also sentenced him to one year in prison for causing the injuries to his friend. That sentence I ran concurrently. It was that sentence that prompted my friend's question.
When a judge is sentencing a defendant in a case where there are multiple charges, often that judge has to decide whether prison sentences should be served consecutively or concurrently. If the sentences are to be served consecutively, then the second sentence doesn't start until the first one is finished. If the sentences are to be served concurrently, then both are being served at the same time.
An example would be if a defendant was charged with two separate offenses that involved two different dates. Let's say the judge orders a three year prison sentence for each offense. If the sentences are served concurrently, then the defendant serves three years for both offenses. If they are served consecutively, then the defendant serves six years for both offenses.
The decision to impose either consecutive or concurrent sentences is obviously one of the most important decisions a judge makes when sentencing a defendant.
There are many factors a trial judge must consider when making such a decision. The first is the language of the Ohio Revised Code.
The Ohio General Assembly has mandated that certain sentences be served consecutively. An example of this is sentences for what are called "firearm specifications." A firearm specification is language added to the indictment by the grand jury that states that the defendant either used the firearm or possessed the firearm while committing the offense. These sentences can add one or three years onto a prison sentence and must be served consecutively to the sentence for the underlying offense.
Other factors include whether the crimes arose from the same set of facts or out of the same conduct; whether the defendant and the prosecution make a joint recommendation on sentencing; how much total prison time a judge thinks a defendant should serve; the nature of the offenses; and, in some cases, the wishes of the victim of the defendant's crime.
It was the last reason that was determinative in the case mentioned in the first paragraph of this article. The defendant's friend did not want the defendant to serve a prison sentence for injuring him. Although a victim's wishes are not binding on a trial judge, I do consider them when imposing a sentence.
In this particular case I considered the fact that the friend had voluntarily got into the defendant's car along with the fact that the friend did not want the defendant to go to prison for the charge of Aggravated Vehicular Assault. In his victim's impact statement he indicated that he wanted the defendant to be placed on probation. Since I was imposing a prison sentence for the death of the people in the other car, probation was not an option. Therefore I ran the prison sentence for the crime of Aggravated Vehicular Assault concurrent with the other sentences.
This meant that while the defendant would serve a prison sentence for injuring his friend, he would not serve any additional prison time for that crime.
A Facebook friend recently asked why I imposed a concurrent prison sentence in a criminal case. The case involved a defendant who had drove recklessly and caused a automobile collision. Two people where killed in the collision and another person was seriously injured. The people who were killed were in the other car while the person who was seriously injured was a passenger in the defendant's car. That person and the defendant were good friends.
The crime for which the defendant was indicted for recklessly causing the two deaths is known as Aggravated Vehicular Homicide, and is a third degree felony. The crime for which the defendant was indicted for recklessly causing serious injury to is known as Aggravated Vehicular Assault, a fourth degree felony.
When I sentenced the defendant, I sentenced him to four years in prison for each of two deaths, which was a total prison sentence of eight years. Those sentences I ran consecutively. I also sentenced him to one year in prison for causing the injuries to his friend. That sentence I ran concurrently. It was that sentence that prompted my friend's question.
When a judge is sentencing a defendant in a case where there are multiple charges, often that judge has to decide whether prison sentences should be served consecutively or concurrently. If the sentences are to be served consecutively, then the second sentence doesn't start until the first one is finished. If the sentences are to be served concurrently, then both are being served at the same time.
An example would be if a defendant was charged with two separate offenses that involved two different dates. Let's say the judge orders a three year prison sentence for each offense. If the sentences are served concurrently, then the defendant serves three years for both offenses. If they are served consecutively, then the defendant serves six years for both offenses.
The decision to impose either consecutive or concurrent sentences is obviously one of the most important decisions a judge makes when sentencing a defendant.
There are many factors a trial judge must consider when making such a decision. The first is the language of the Ohio Revised Code.
The Ohio General Assembly has mandated that certain sentences be served consecutively. An example of this is sentences for what are called "firearm specifications." A firearm specification is language added to the indictment by the grand jury that states that the defendant either used the firearm or possessed the firearm while committing the offense. These sentences can add one or three years onto a prison sentence and must be served consecutively to the sentence for the underlying offense.
Other factors include whether the crimes arose from the same set of facts or out of the same conduct; whether the defendant and the prosecution make a joint recommendation on sentencing; how much total prison time a judge thinks a defendant should serve; the nature of the offenses; and, in some cases, the wishes of the victim of the defendant's crime.
It was the last reason that was determinative in the case mentioned in the first paragraph of this article. The defendant's friend did not want the defendant to serve a prison sentence for injuring him. Although a victim's wishes are not binding on a trial judge, I do consider them when imposing a sentence.
In this particular case I considered the fact that the friend had voluntarily got into the defendant's car along with the fact that the friend did not want the defendant to go to prison for the charge of Aggravated Vehicular Assault. In his victim's impact statement he indicated that he wanted the defendant to be placed on probation. Since I was imposing a prison sentence for the death of the people in the other car, probation was not an option. Therefore I ran the prison sentence for the crime of Aggravated Vehicular Assault concurrent with the other sentences.
This meant that while the defendant would serve a prison sentence for injuring his friend, he would not serve any additional prison time for that crime.
Friday, June 18, 2010
Judge Kimbler's Criminal Docket for Monday, June 21, 2010
The following defendant will appear in Judge Kimbler's courtroom on Monday, June 21, 2010, at 8:30 am for a final pre-trial:
Stephen G. Kroska, of Canal Fulton, Ohio, who is charged with three counts of Trafficking in Drugs, two of which are felonies of the fifth degree and one of which is a felony of the fourth degree.
The following defendants will appear in Judge Kimbler's courtroom on Monday, June 21, 2010 for arraignment. The cases will be arraigned in the afternoon starting at 1: 20 pm:
Makeda D. Carey of Akron, Ohio, will be arraigned on one count of Receiving Stolen Property, a fifth degree felony and one count of Possession of Criminal Tools, a fifth degree felony.
Marvin R. Neal of Spencer, Ohio will be arraigned on two counts of Felonious Assault, both second degree felonies.
The following defendants will appear in Judge Kimbler's courtroom on Monday, June 21, 2010 for probation violations:
Bradley J. Barnum, of Medina, Ohio, who is on probation for one count of Burglary, a third degree felony and one count of Theft from the Elderly, a second degree felony.
Allison M. Lawson, of Strongsville, Ohio, who is on probation for one count of Forgery, a fifth degree felony.
Sharon L. Simpson, of Medina, Ohio, who is on probation for Permitting Drug Abuse, a fifth degree felony.
Jamie T. Smith, address unknown, will be arraigned on one count of Possession of Drugs, a third degree felony.
Ryan A Walter, of Mansfield, Ohio will be arraigned on one count of Theft, a fifth degree felony.
The following defendant will appear in Judge Kimbler's courtroom for a change of plea, which is scheduled for 1:30 pm:
Arlene M. Dobbins, who is charged with Assault on a Police Officer, a fourth degree felony.
The following defendants will appear in Judge Kimbler's courtroom for motions regarding bond at 1:30 pm:
Nathan D. Haynes, of Akron, Ohio who is charged with Possession of Drugs, (Cocaine), a fifth degree felony.
Robert E. Dunn, of Cleveland, Ohio who is charged with Failure to Give Notice of Change of Address.
Stephen G. Kroska, of Canal Fulton, Ohio, who is charged with three counts of Trafficking in Drugs, two of which are felonies of the fifth degree and one of which is a felony of the fourth degree.
The following defendants will appear in Judge Kimbler's courtroom on Monday, June 21, 2010 for arraignment. The cases will be arraigned in the afternoon starting at 1: 20 pm:
Makeda D. Carey of Akron, Ohio, will be arraigned on one count of Receiving Stolen Property, a fifth degree felony and one count of Possession of Criminal Tools, a fifth degree felony.
Marvin R. Neal of Spencer, Ohio will be arraigned on two counts of Felonious Assault, both second degree felonies.
The following defendants will appear in Judge Kimbler's courtroom on Monday, June 21, 2010 for probation violations:
Bradley J. Barnum, of Medina, Ohio, who is on probation for one count of Burglary, a third degree felony and one count of Theft from the Elderly, a second degree felony.
Allison M. Lawson, of Strongsville, Ohio, who is on probation for one count of Forgery, a fifth degree felony.
Sharon L. Simpson, of Medina, Ohio, who is on probation for Permitting Drug Abuse, a fifth degree felony.
Jamie T. Smith, address unknown, will be arraigned on one count of Possession of Drugs, a third degree felony.
Ryan A Walter, of Mansfield, Ohio will be arraigned on one count of Theft, a fifth degree felony.
The following defendant will appear in Judge Kimbler's courtroom for a change of plea, which is scheduled for 1:30 pm:
Arlene M. Dobbins, who is charged with Assault on a Police Officer, a fourth degree felony.
The following defendants will appear in Judge Kimbler's courtroom for motions regarding bond at 1:30 pm:
Nathan D. Haynes, of Akron, Ohio who is charged with Possession of Drugs, (Cocaine), a fifth degree felony.
Robert E. Dunn, of Cleveland, Ohio who is charged with Failure to Give Notice of Change of Address.
Court Clarifies When ‘Hearsay’ Evidence of Child’s Statements to Child Advocacy Interviewer Is Admissible
Ruling Distinguishes Between Statements Made for Medical, Forensic Purposes
State v. Arnold, Slip Opinion No. 2010-Ohio-2742.
Franklin App. No. 07AP-789, 2008-Ohio-3471. Judgment of the court of appeals affirmed in part and reversed in part, and cause remanded to the court of appeals.
Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Pfeifer and O'Donnell, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2742.pdf
(June 17, 2010) In a decision announced today, the Supreme Court of Ohio held that a child’s statements made to an interviewer at a child advocacy center for purposes of medical diagnosis and treatment are non-testimonial and therefore admissible evidence at trial. The Court held further, however, that statements made to an interviewer at a child advocacy center that serve primarily a forensic or investigatory purpose are testimonial in nature and therefore are inadmissible evidence at trial.
The Court’s 4-2 majority decision, authored by Justice Maureen O’Connor, partially affirmed and partially reversed a decision of the 10th District Court of Appeals, and remanded the case to that court for additional proceedings.
In December 2005, the mother of a 4-year-old Columbus girl identified as M.A. called police to report her suspicion that the child had been sexually assaulted that evening by Michael Arnold. The child was transported to an emergency room where a rape kit examination was performed. She was then sent home overnight. The following morning M.A. was taken to the Center for Child and Family Advocacy (CCFA), a special multidisciplinary unit for victims of child and domestic abuse located at Nationwide Children’s Hospital. Kerri Marshall, a social worker employed by CCFA, conducted an in-depth interview with M.A. outside the presence of her mother during which Marshall asked a number of questions about what had taken place between the child and Arnold. The purpose of Marshall’s interview was to “gather as much information as possible,” while only subjecting the child to one interview. Thus, the interview was viewed live via closed-circuit television by several observers in another room, including a police detective and a nurse practitioner. The entire interview was also recorded on a digital video disk. Following the interview, the nurse practitioner examined M.A. The nurse practitioner testified at trial that the interview guided her examination and enabled her to determine whether to conduct a genital examination and whether to test M.A. for sexually transmitted infection. During the examination, the nurse practitioner found two abrasions on M.A.’s hymen, which she testified were “diagnostic” of sexual abuse.
Based on M.A.’s statements during the CCFA interview and other evidence, Arnold was arrested and charged with two counts of rape of a child under the age of 10. The court determined that M.A. was unavailable to testify and be cross examined in court. Over Arnold’s objections, the trial court allowed the state to show the full video of M.A.’s interview with Marshall at the CCFA to the jury. Arnold was subsequently convicted on one count of child rape and sentenced to life in prison.
Arnold appealed, arguing that by admitting M.A.’s out-of-court statements into evidence without an opportunity for cross-examination, the trial court had violated his constitutional right to confront witnesses against him. The 10th District Court of Appeals upheld Arnold’s conviction, holding that M.A.’s out-of-court statements during the CCFA interview were admissible under an exception to the hearsay rule because they were not “testimonial” statements elicited through an interrogation by a police employee or agent, but rather were statements elicited by a social worker for the purpose of determining what additional medical examination and treatment the child might require. Arnold sought Supreme Court review of the case, and the Court agreed to determine whether, in a criminal prosecution, the admission of a child’s out-of-court statements made to an interviewer employed by a child advocacy center violates the defendant’s constitutional right to confront witnesses against him.
Writing for the majority in today’s decision, Justice O’Connor reviewed recent federal and state court decisions holding that hearsay evidence (statements made by a person who is not available for questioning or cross examination at trial) that is “testimonial” in nature cannot be admitted into evidence in a criminal prosecution without violating a defendant’s rights under the Confrontation Clause. Statements are “testimonial” in nature when the questioning that elicited the proffered statements was conducted by law enforcement personnel or an agent of the police, under non-emergency circumstances, and for the primary purpose of gathering information to aid in the prosecution of a suspected crime.
She also cited this court’s decisions in State v. Stahl (2006) and State v. Muttart (2007), holding that statements made by an adult rape victim in an interview with a nurse and by a child victim of sexual abuse in an interview with a social worker prior to receiving medical care were non-testimonial in nature, and thus admissible at trial, because the primary purpose for those interviews was to diagnose and provide proper medical treatment for the victim, not to gather information for a criminal prosecution.
In applying those precedents to Arnold’s case, Justice O’Connor noted that the victim interview conducted by Marshall at CCFA served the dual purposes of eliciting information necessary for proper medical diagnosis and care of M.A., and gathering forensic information necessary to investigate and potentially prosecute suspected criminal conduct. She wrote: “Certainly, some of the statements that M.A. made to Marshall primarily served a forensic or investigative purpose. Those statements include M.A.’s assertion that Arnold shut and locked the bedroom door before raping her; her descriptions of where her mother and brother were while she was in the bedroom with Arnold, of Arnold’s boxer shorts, of him removing them, and of what Arnold’s “pee-pee” looked like; and her statement that Arnold removed her underwear. These statements likely were not necessary for medical diagnosis or treatment. Rather, they related primarily to the state’s investigation. Marshall effectively acted as an agent of the police for the purpose of obtaining these statements. ... The primary purpose of that portion of the interview was not to meet an ongoing emergency but, rather, to further the state’s forensic investigation. Thus, these statements were testimonial in nature and their admission without a prior opportunity for cross-examination is prohibited by the Confrontation Clause.”
Justice O’Connor also observed, however, that other statements by M.A. elicited during her interview with Marshall at CCFA, including those describing the sexual conduct between Arnold and M.A., provided information that was necessary to diagnose and medically treat M.A. She wrote: “In eliciting these medically necessary statements, Marshall acted as an agent of the nurse practitioner who examined M.A., not of the investigating police officers. Because Marshall did not act as an agent of the police in obtaining these statements, they are not inadmissible. ... There is no basis in the law for concluding that Marshall’s dual capacity renders statements made by M.A. for the purpose of medical diagnosis and treatment inadmissible pursuant to the Confrontation Clause. Indeed, in Davis (v. Washington, 2006), the United States Supreme Court acknowledged that the same interview or interrogation might produce both testimonial and nontestimonial statements. As the court statedin Davis, ‘This presents no great problem.’ ‘[T]rial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.’”
“In interviewing M.A. at the CCFA, Marshall occupied dual capacities; she was both a forensic interviewer collecting information for use by the police and a medical interviewer eliciting information necessary for diagnosis and treatment. We hold that statements made to interviewers at child-advocacy centers that are made for medical diagnosis and treatment are nontestimonial and are admissible without offending the Confrontation Clause. Thus, we affirm the judgment of the court of appeals to the extent that that M.A.’s statements to Marshall for the purpose of medical treatment and diagnosis were properly admitted. We further hold that statements made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause. We agree with Arnold that the trial court erred in admitting the forensic statements made by M.A. to Marshall and reverse the court of appeals insofar as it held that these forensic statements were admissible. However, because the court of appeals did not consider whether the admission of M.A.’s forensic statement to Marshall was harmless ... we remand the case to the court of appeals to consider this issue.”
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp. Justices Paul E. Pfeifer and Terrence O’Donnell entered separate dissenting opinions.
Justice Pfeifer noted that Marshall is not a health care professional, and wrote that while some of the information she obtained during her interview of M.A. at the CCFA may have been medically useful, it was not “necessary” to the child’s treatment because M.A. had already been examined by a doctor the night before and was about to be examined again by a nurse practitioner who was fully trained to diagnose and treat her for any injuries arising from a sexual assault. He wrote: “The circumstances of the interview indicate that its primary purpose was ‘to establish or prove past events potentially relevant to later criminal prosecution.’ Police observed the interview, which the state concedes is a customary practice. A DVD recording of the interview was preserved, a strong indication that the purpose of the interview was to obtain evidence for use by the prosecution. I am unaware of doctors videotaping patient interviews to assist them in medical treatments or of doctors allowing police officers to routinely observe them when they examine their patients. Furthermore, many of the questions asked were investigatory in nature and similar to the questions asked in a direct examination in a judicial proceeding.”
“ ... I conclude that the primary purpose of Marshall's forensic interview was to establish or prove past events potentially relevant to later criminal prosecution. I conclude, therefore, that the statements were testimonial and that their admission violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. I would reverse the decision of the court of appeals.”
In his dissent, Justice O’Donnell wrote: “Today’s majority, however, charts a course different from the Confrontation Clause jurisprudence of the Supreme Court of the United States and adopts its own dual-capacity test in which the interrogation is examined on a question-by-question basis to determine whether the interviewer acted as an agent of law enforcement or as an agent of some other entity when eliciting a particular statement. Applying this test, it finds that testimonial and nontestimonial statements are interspersed throughout Marshall’s interview and that Marshall acted variously as an agent of law enforcement and as a medical examiner. This analysis is contrary to United States Supreme Court jurisprudence, which directs that we should look to the primary purpose of the interrogation, not the secondary or tertiary purpose. Here, Marshall acted as an agent of law enforcement when she interviewed M.A., as she asked questions on behalf of the police in the absence of an ongoing emergency to establish or prove past events relevant to later criminal prosecution. The interview she conducted focused solely on confirming the single instance of sexual abuse that Otto had accused Arnold of committing ... ”
“It is manifest that Marshall’s questions sought to confirm the allegations of sexual abuse and that proving these past events would be relevant at a criminal prosecution, and the totality of the circumstances indicates that the whole interview served primarily an investigative and prosecutorial purpose. ... The fact that the answers to Marshall’s questions may also be used for a nontestimonial purpose does not mean that M.A.’s statements are not testimonial or that the nontestimonial purpose takes precedence. ... In my view, the primary purpose of Marshall’s questioning was to establish what had been done to M.A. and who had done it. Accordingly, M.A.’s statements are testimonial, and their admission at trial without a prior opportunity to cross-examine M.A. violated Arnold’s right to confront the witnesses against him.”
Contacts
David L. Strait, 614.719.8872, for Michael Arnold.
Kimberly Bond, 614.462.3555, for the state and Franklin County prosecutor’s office.
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State v. Arnold, Slip Opinion No. 2010-Ohio-2742.
Franklin App. No. 07AP-789, 2008-Ohio-3471. Judgment of the court of appeals affirmed in part and reversed in part, and cause remanded to the court of appeals.
Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Pfeifer and O'Donnell, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2742.pdf
(June 17, 2010) In a decision announced today, the Supreme Court of Ohio held that a child’s statements made to an interviewer at a child advocacy center for purposes of medical diagnosis and treatment are non-testimonial and therefore admissible evidence at trial. The Court held further, however, that statements made to an interviewer at a child advocacy center that serve primarily a forensic or investigatory purpose are testimonial in nature and therefore are inadmissible evidence at trial.
The Court’s 4-2 majority decision, authored by Justice Maureen O’Connor, partially affirmed and partially reversed a decision of the 10th District Court of Appeals, and remanded the case to that court for additional proceedings.
In December 2005, the mother of a 4-year-old Columbus girl identified as M.A. called police to report her suspicion that the child had been sexually assaulted that evening by Michael Arnold. The child was transported to an emergency room where a rape kit examination was performed. She was then sent home overnight. The following morning M.A. was taken to the Center for Child and Family Advocacy (CCFA), a special multidisciplinary unit for victims of child and domestic abuse located at Nationwide Children’s Hospital. Kerri Marshall, a social worker employed by CCFA, conducted an in-depth interview with M.A. outside the presence of her mother during which Marshall asked a number of questions about what had taken place between the child and Arnold. The purpose of Marshall’s interview was to “gather as much information as possible,” while only subjecting the child to one interview. Thus, the interview was viewed live via closed-circuit television by several observers in another room, including a police detective and a nurse practitioner. The entire interview was also recorded on a digital video disk. Following the interview, the nurse practitioner examined M.A. The nurse practitioner testified at trial that the interview guided her examination and enabled her to determine whether to conduct a genital examination and whether to test M.A. for sexually transmitted infection. During the examination, the nurse practitioner found two abrasions on M.A.’s hymen, which she testified were “diagnostic” of sexual abuse.
Based on M.A.’s statements during the CCFA interview and other evidence, Arnold was arrested and charged with two counts of rape of a child under the age of 10. The court determined that M.A. was unavailable to testify and be cross examined in court. Over Arnold’s objections, the trial court allowed the state to show the full video of M.A.’s interview with Marshall at the CCFA to the jury. Arnold was subsequently convicted on one count of child rape and sentenced to life in prison.
Arnold appealed, arguing that by admitting M.A.’s out-of-court statements into evidence without an opportunity for cross-examination, the trial court had violated his constitutional right to confront witnesses against him. The 10th District Court of Appeals upheld Arnold’s conviction, holding that M.A.’s out-of-court statements during the CCFA interview were admissible under an exception to the hearsay rule because they were not “testimonial” statements elicited through an interrogation by a police employee or agent, but rather were statements elicited by a social worker for the purpose of determining what additional medical examination and treatment the child might require. Arnold sought Supreme Court review of the case, and the Court agreed to determine whether, in a criminal prosecution, the admission of a child’s out-of-court statements made to an interviewer employed by a child advocacy center violates the defendant’s constitutional right to confront witnesses against him.
Writing for the majority in today’s decision, Justice O’Connor reviewed recent federal and state court decisions holding that hearsay evidence (statements made by a person who is not available for questioning or cross examination at trial) that is “testimonial” in nature cannot be admitted into evidence in a criminal prosecution without violating a defendant’s rights under the Confrontation Clause. Statements are “testimonial” in nature when the questioning that elicited the proffered statements was conducted by law enforcement personnel or an agent of the police, under non-emergency circumstances, and for the primary purpose of gathering information to aid in the prosecution of a suspected crime.
She also cited this court’s decisions in State v. Stahl (2006) and State v. Muttart (2007), holding that statements made by an adult rape victim in an interview with a nurse and by a child victim of sexual abuse in an interview with a social worker prior to receiving medical care were non-testimonial in nature, and thus admissible at trial, because the primary purpose for those interviews was to diagnose and provide proper medical treatment for the victim, not to gather information for a criminal prosecution.
In applying those precedents to Arnold’s case, Justice O’Connor noted that the victim interview conducted by Marshall at CCFA served the dual purposes of eliciting information necessary for proper medical diagnosis and care of M.A., and gathering forensic information necessary to investigate and potentially prosecute suspected criminal conduct. She wrote: “Certainly, some of the statements that M.A. made to Marshall primarily served a forensic or investigative purpose. Those statements include M.A.’s assertion that Arnold shut and locked the bedroom door before raping her; her descriptions of where her mother and brother were while she was in the bedroom with Arnold, of Arnold’s boxer shorts, of him removing them, and of what Arnold’s “pee-pee” looked like; and her statement that Arnold removed her underwear. These statements likely were not necessary for medical diagnosis or treatment. Rather, they related primarily to the state’s investigation. Marshall effectively acted as an agent of the police for the purpose of obtaining these statements. ... The primary purpose of that portion of the interview was not to meet an ongoing emergency but, rather, to further the state’s forensic investigation. Thus, these statements were testimonial in nature and their admission without a prior opportunity for cross-examination is prohibited by the Confrontation Clause.”
Justice O’Connor also observed, however, that other statements by M.A. elicited during her interview with Marshall at CCFA, including those describing the sexual conduct between Arnold and M.A., provided information that was necessary to diagnose and medically treat M.A. She wrote: “In eliciting these medically necessary statements, Marshall acted as an agent of the nurse practitioner who examined M.A., not of the investigating police officers. Because Marshall did not act as an agent of the police in obtaining these statements, they are not inadmissible. ... There is no basis in the law for concluding that Marshall’s dual capacity renders statements made by M.A. for the purpose of medical diagnosis and treatment inadmissible pursuant to the Confrontation Clause. Indeed, in Davis (v. Washington, 2006), the United States Supreme Court acknowledged that the same interview or interrogation might produce both testimonial and nontestimonial statements. As the court statedin Davis, ‘This presents no great problem.’ ‘[T]rial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.’”
“In interviewing M.A. at the CCFA, Marshall occupied dual capacities; she was both a forensic interviewer collecting information for use by the police and a medical interviewer eliciting information necessary for diagnosis and treatment. We hold that statements made to interviewers at child-advocacy centers that are made for medical diagnosis and treatment are nontestimonial and are admissible without offending the Confrontation Clause. Thus, we affirm the judgment of the court of appeals to the extent that that M.A.’s statements to Marshall for the purpose of medical treatment and diagnosis were properly admitted. We further hold that statements made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause. We agree with Arnold that the trial court erred in admitting the forensic statements made by M.A. to Marshall and reverse the court of appeals insofar as it held that these forensic statements were admissible. However, because the court of appeals did not consider whether the admission of M.A.’s forensic statement to Marshall was harmless ... we remand the case to the court of appeals to consider this issue.”
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp. Justices Paul E. Pfeifer and Terrence O’Donnell entered separate dissenting opinions.
Justice Pfeifer noted that Marshall is not a health care professional, and wrote that while some of the information she obtained during her interview of M.A. at the CCFA may have been medically useful, it was not “necessary” to the child’s treatment because M.A. had already been examined by a doctor the night before and was about to be examined again by a nurse practitioner who was fully trained to diagnose and treat her for any injuries arising from a sexual assault. He wrote: “The circumstances of the interview indicate that its primary purpose was ‘to establish or prove past events potentially relevant to later criminal prosecution.’ Police observed the interview, which the state concedes is a customary practice. A DVD recording of the interview was preserved, a strong indication that the purpose of the interview was to obtain evidence for use by the prosecution. I am unaware of doctors videotaping patient interviews to assist them in medical treatments or of doctors allowing police officers to routinely observe them when they examine their patients. Furthermore, many of the questions asked were investigatory in nature and similar to the questions asked in a direct examination in a judicial proceeding.”
“ ... I conclude that the primary purpose of Marshall's forensic interview was to establish or prove past events potentially relevant to later criminal prosecution. I conclude, therefore, that the statements were testimonial and that their admission violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. I would reverse the decision of the court of appeals.”
In his dissent, Justice O’Donnell wrote: “Today’s majority, however, charts a course different from the Confrontation Clause jurisprudence of the Supreme Court of the United States and adopts its own dual-capacity test in which the interrogation is examined on a question-by-question basis to determine whether the interviewer acted as an agent of law enforcement or as an agent of some other entity when eliciting a particular statement. Applying this test, it finds that testimonial and nontestimonial statements are interspersed throughout Marshall’s interview and that Marshall acted variously as an agent of law enforcement and as a medical examiner. This analysis is contrary to United States Supreme Court jurisprudence, which directs that we should look to the primary purpose of the interrogation, not the secondary or tertiary purpose. Here, Marshall acted as an agent of law enforcement when she interviewed M.A., as she asked questions on behalf of the police in the absence of an ongoing emergency to establish or prove past events relevant to later criminal prosecution. The interview she conducted focused solely on confirming the single instance of sexual abuse that Otto had accused Arnold of committing ... ”
“It is manifest that Marshall’s questions sought to confirm the allegations of sexual abuse and that proving these past events would be relevant at a criminal prosecution, and the totality of the circumstances indicates that the whole interview served primarily an investigative and prosecutorial purpose. ... The fact that the answers to Marshall’s questions may also be used for a nontestimonial purpose does not mean that M.A.’s statements are not testimonial or that the nontestimonial purpose takes precedence. ... In my view, the primary purpose of Marshall’s questioning was to establish what had been done to M.A. and who had done it. Accordingly, M.A.’s statements are testimonial, and their admission at trial without a prior opportunity to cross-examine M.A. violated Arnold’s right to confront the witnesses against him.”
Contacts
David L. Strait, 614.719.8872, for Michael Arnold.
Kimberly Bond, 614.462.3555, for the state and Franklin County prosecutor’s office.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Court Holds Loss of Revenue Is Sufficient Cause to Deny Transfer of Property to Different School District
When State Board of Education Reviews Owners’ Petition for Transfer
Spitznagel v. State Bd. of Edn., Slip Opinion No. 2010-Ohio-2715.
Franklin App. No. 07AP-757, 2008-Ohio-5059 and 2008-Ohio-6080. Judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
Pfeifer, J., concurs in judgment only.
O'Donnell and Cupp, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2715.pdf
(June 17, 2010) The Supreme Court of Ohio held today that evidence of a loss of revenue to the school district in which property is currently located is a legally sufficient basis for the State Board of Education to deny a petition by the owners of that property to transfer to a different school district. The Court’s 4-2 majority opinion, which affirmed a decision of the 10th District Court of Appeals, was authored by Justice Evelyn Lundberg Stratton.
In 2004, more than 75 percent of the property owners in the Cuyahoga County village of Walton Hills, including Brian Spitznagel, signed a petition asking the state board of education to approve the transfer of all property within the village from the Bedford City School District to the Cuyahoga Heights Local School District. A 2005 evidentiary hearing before a state board referee resulted in a recommendation that the transfer be denied. The referee based his recommendation primarily on findings that the proposed transfer would have a negative financial impact on the Bedford district, and that the resulting loss of tax revenue would require cutbacks in the district’s services to its remaining students.
In light of changes to state school funding laws enacted by the General Assembly in June 2005, the board sent the case back to the referee for a second evidentiary hearing to reconsider the economic impact of the proposed transfer. While finding that the Bedford district’s loss of tax revenue resulting from the transfer would be less severe under the revised school funding formula, the referee again recommended disapproval of the property transfer based on his finding that it would still have a significant negative financial impact on Bedford. The state board issued a decision denying the transfer in December 2006. The Walton Hills residents exercised their right to appeal that decision to the Franklin County Court of Common Pleas, which upheld the board’s ruling. They then appealed the trial court’s decision to the 10th District Court of Appeals.
On review, the 10th District reversed and remanded the case to the State Board of Education, holding that a loss of funding without a specific finding as to how the loss of funds would be a significant detriment to the transferring school district was not a legally sufficient basis to deny the transfer. In support of that ruling, the court of appeals cited its own 2007 decision in Bartchy v. State Bd. of Edn., a case that was then under review by the Supreme Court of Ohio. On the day the 10th District announced its decision in this case, the Supreme Court announced its own decision overturning Bartchy. In light of the Supreme Court’s ruling, the Bedford district and State Board of Education applied to the 10th District for reconsideration. The court of appeals reconsidered its prior decision and found that the Supreme Court’s opinion in Bartchy articulated a policy of deference to the board’s decisions, allowing consideration of revenue loss as a factor against transfer without specific findings quantifying the harm. Based on that finding, the court reversed its earlier decision and affirmed the trial court’s affirmation of the board’s decision.
Spitznagel and the other Walton Hills property owners sought and were granted Supreme Court review of the 10th District’s decision.
In today’s decision, Justice Stratton wrote: “In Bartchy, we affirmed the decision of the board in which a revenue loss was considered a factor against a territory transfer without specific findings regarding the nature of the detriment. ... (W)hile the referee in Bartchy found only that the revenue loss would be detrimental to the school district in ‘some way,’ the plurality opinion held that he ‘was within his authority’ when he did so and that he ‘was not required to ignore these concerns.’ The referee in this case was also within his authority to consider the financial loss to be detrimental to the fiscal or educational operation of Bedford, especially when the loss in this case is significantly higher than the loss in Bartchy and the evidence of the impact of the loss is stronger.”
“In Bartchy, while the loss in valuation was assessed at $373,840, here the loss of actual revenue was potentially in the millions. And whereas the school districts in cases cited by appellant did not specifically describe the harm possibly resulting from a loss of revenue ... the record here includes evidence tending to prove the harm that could occur if the district lost revenue. In his reports, the referee found it ‘wholly foreseeable’ that the revenue loss would result in ‘the closing of facilities, reduced educational programming, and staff and faculty cutbacks, and other curtailments damaging the district students.’ This conclusion was supported by the testimony of the treasurer of the Bedford district, who explained the school’s financial reports at the hearing and discussed the impact that a loss of revenue would have on programs such as summer school, extracurricular activities, transportation, special education, and teacher retention. Although the expected revenue loss was viewed as less after the legislative changes, the evidence does demonstrate the impact a financial loss could have on Bedford. With evidence of significant possible losses in revenue and their possible effects, the board did not err when it considered the loss as causing a financial or educational detriment that factored against the transfer.”
With regard to the impact of today’s ruling on future attempts by owners to transfer their property to a different school district, Justice Stratton wrote: “Our holding here will not render school territory transfer petitions meaningless, as argued by appellants, because courts will still be able to review the state board’s decisions regarding revenue loss under the abuse-of-discretion standard. Even if a loss in revenue is considered a factor against transfer, the overall decision must be supported by the evidence. The Bartchy plurality affirmed the board’s rejection of the requested transfer based on the small revenue loss only because there was so little evidence presented in favor of the transfer. ... In a different case, after considering all of the evidence, a court may find that the state board weighed a showing of a revenue loss too heavily against a transfer. ... A state board could also determine that a loss of revenue is so insubstantial to the operation of the district that it will not consider it as a factor against transfer.”
Justice Stratton’s opinion was joined by Justices Maureen O’Connor and Judith Ann Lanzinger. Justice Paul E. Pfeifer concurred in judgment only.
Justice Terrence O’Donnell entered a dissent, joined by Justice Robert R. Cupp, in which he disputed the majority’s holding that a mere loss of revenue by the relinquishing school district, without a specific showing of harm to the educational operations of that district, is legally sufficient to support denial of a requested property transfer by the state board of education. “Ohio Adm.Code 3301-89-02(B)(9) expressly recognizes that a loss of students and revenue will occur in every territory transfer and that those losses, per se, are insufficient to support the board’s denial of a transfer when there is no resulting detriment to the operations of the school district,” wrote Justice O’Donnell. “Rather, the school board must consider the impact of the revenue loss on the relinquishing district.”
In this case, Justice O’Donnell observed that the state board of education referee initially estimated that the Bedford district would lose up to 10 percent of its tax base if the requested transfer was approved, and found that a revenue loss of that magnitude would have a detrimental impact on the district’s operations. He pointed out, however, that at the second evidentiary hearing factoring in legislative changes in the school funding formula, evidence showed that the proposed transfer would result in less than a two percent reduction in funding for the Bedford district. “The referee thus did not and could not make specific factual findings regarding whether the revised projections of financial loss would result in a detrimental impact on the fiscal or educational operation of the Bedford City School District,” wrote Justice O’Donnell. “Instead, the referee merely assumed that the same detrimental impact would result from a smaller revenue loss. However, testimony that a ten-percent loss of revenue will cause a detriment to the school district does not prove that the same detriment results from a two-percent loss of revenue. ... In my view, speculation as to the potential impact of a potential loss of revenue does not support a decision to deny a petition for a school district transfer. Accordingly, my view is that the state board may not rely on evidence of a mere loss of revenue to deny a petition for transfer of territory when there is insufficient evidence that the revenue loss would be detrimental to the fiscal or educational operation of the relinquishing school district.”
Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.
Contacts
Stephen W. Funk, 330.376.2700, for Brian Spitznagel and other Walton Hills property owners.
D. Lewis Clark Jr., 614.365.2700, for the Bedford City School District.
Benjamin C. Mizer, 614.466.8980, for the State Board of Education.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Spitznagel v. State Bd. of Edn., Slip Opinion No. 2010-Ohio-2715.
Franklin App. No. 07AP-757, 2008-Ohio-5059 and 2008-Ohio-6080. Judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
Pfeifer, J., concurs in judgment only.
O'Donnell and Cupp, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2715.pdf
(June 17, 2010) The Supreme Court of Ohio held today that evidence of a loss of revenue to the school district in which property is currently located is a legally sufficient basis for the State Board of Education to deny a petition by the owners of that property to transfer to a different school district. The Court’s 4-2 majority opinion, which affirmed a decision of the 10th District Court of Appeals, was authored by Justice Evelyn Lundberg Stratton.
In 2004, more than 75 percent of the property owners in the Cuyahoga County village of Walton Hills, including Brian Spitznagel, signed a petition asking the state board of education to approve the transfer of all property within the village from the Bedford City School District to the Cuyahoga Heights Local School District. A 2005 evidentiary hearing before a state board referee resulted in a recommendation that the transfer be denied. The referee based his recommendation primarily on findings that the proposed transfer would have a negative financial impact on the Bedford district, and that the resulting loss of tax revenue would require cutbacks in the district’s services to its remaining students.
In light of changes to state school funding laws enacted by the General Assembly in June 2005, the board sent the case back to the referee for a second evidentiary hearing to reconsider the economic impact of the proposed transfer. While finding that the Bedford district’s loss of tax revenue resulting from the transfer would be less severe under the revised school funding formula, the referee again recommended disapproval of the property transfer based on his finding that it would still have a significant negative financial impact on Bedford. The state board issued a decision denying the transfer in December 2006. The Walton Hills residents exercised their right to appeal that decision to the Franklin County Court of Common Pleas, which upheld the board’s ruling. They then appealed the trial court’s decision to the 10th District Court of Appeals.
On review, the 10th District reversed and remanded the case to the State Board of Education, holding that a loss of funding without a specific finding as to how the loss of funds would be a significant detriment to the transferring school district was not a legally sufficient basis to deny the transfer. In support of that ruling, the court of appeals cited its own 2007 decision in Bartchy v. State Bd. of Edn., a case that was then under review by the Supreme Court of Ohio. On the day the 10th District announced its decision in this case, the Supreme Court announced its own decision overturning Bartchy. In light of the Supreme Court’s ruling, the Bedford district and State Board of Education applied to the 10th District for reconsideration. The court of appeals reconsidered its prior decision and found that the Supreme Court’s opinion in Bartchy articulated a policy of deference to the board’s decisions, allowing consideration of revenue loss as a factor against transfer without specific findings quantifying the harm. Based on that finding, the court reversed its earlier decision and affirmed the trial court’s affirmation of the board’s decision.
Spitznagel and the other Walton Hills property owners sought and were granted Supreme Court review of the 10th District’s decision.
In today’s decision, Justice Stratton wrote: “In Bartchy, we affirmed the decision of the board in which a revenue loss was considered a factor against a territory transfer without specific findings regarding the nature of the detriment. ... (W)hile the referee in Bartchy found only that the revenue loss would be detrimental to the school district in ‘some way,’ the plurality opinion held that he ‘was within his authority’ when he did so and that he ‘was not required to ignore these concerns.’ The referee in this case was also within his authority to consider the financial loss to be detrimental to the fiscal or educational operation of Bedford, especially when the loss in this case is significantly higher than the loss in Bartchy and the evidence of the impact of the loss is stronger.”
“In Bartchy, while the loss in valuation was assessed at $373,840, here the loss of actual revenue was potentially in the millions. And whereas the school districts in cases cited by appellant did not specifically describe the harm possibly resulting from a loss of revenue ... the record here includes evidence tending to prove the harm that could occur if the district lost revenue. In his reports, the referee found it ‘wholly foreseeable’ that the revenue loss would result in ‘the closing of facilities, reduced educational programming, and staff and faculty cutbacks, and other curtailments damaging the district students.’ This conclusion was supported by the testimony of the treasurer of the Bedford district, who explained the school’s financial reports at the hearing and discussed the impact that a loss of revenue would have on programs such as summer school, extracurricular activities, transportation, special education, and teacher retention. Although the expected revenue loss was viewed as less after the legislative changes, the evidence does demonstrate the impact a financial loss could have on Bedford. With evidence of significant possible losses in revenue and their possible effects, the board did not err when it considered the loss as causing a financial or educational detriment that factored against the transfer.”
With regard to the impact of today’s ruling on future attempts by owners to transfer their property to a different school district, Justice Stratton wrote: “Our holding here will not render school territory transfer petitions meaningless, as argued by appellants, because courts will still be able to review the state board’s decisions regarding revenue loss under the abuse-of-discretion standard. Even if a loss in revenue is considered a factor against transfer, the overall decision must be supported by the evidence. The Bartchy plurality affirmed the board’s rejection of the requested transfer based on the small revenue loss only because there was so little evidence presented in favor of the transfer. ... In a different case, after considering all of the evidence, a court may find that the state board weighed a showing of a revenue loss too heavily against a transfer. ... A state board could also determine that a loss of revenue is so insubstantial to the operation of the district that it will not consider it as a factor against transfer.”
Justice Stratton’s opinion was joined by Justices Maureen O’Connor and Judith Ann Lanzinger. Justice Paul E. Pfeifer concurred in judgment only.
Justice Terrence O’Donnell entered a dissent, joined by Justice Robert R. Cupp, in which he disputed the majority’s holding that a mere loss of revenue by the relinquishing school district, without a specific showing of harm to the educational operations of that district, is legally sufficient to support denial of a requested property transfer by the state board of education. “Ohio Adm.Code 3301-89-02(B)(9) expressly recognizes that a loss of students and revenue will occur in every territory transfer and that those losses, per se, are insufficient to support the board’s denial of a transfer when there is no resulting detriment to the operations of the school district,” wrote Justice O’Donnell. “Rather, the school board must consider the impact of the revenue loss on the relinquishing district.”
In this case, Justice O’Donnell observed that the state board of education referee initially estimated that the Bedford district would lose up to 10 percent of its tax base if the requested transfer was approved, and found that a revenue loss of that magnitude would have a detrimental impact on the district’s operations. He pointed out, however, that at the second evidentiary hearing factoring in legislative changes in the school funding formula, evidence showed that the proposed transfer would result in less than a two percent reduction in funding for the Bedford district. “The referee thus did not and could not make specific factual findings regarding whether the revised projections of financial loss would result in a detrimental impact on the fiscal or educational operation of the Bedford City School District,” wrote Justice O’Donnell. “Instead, the referee merely assumed that the same detrimental impact would result from a smaller revenue loss. However, testimony that a ten-percent loss of revenue will cause a detriment to the school district does not prove that the same detriment results from a two-percent loss of revenue. ... In my view, speculation as to the potential impact of a potential loss of revenue does not support a decision to deny a petition for a school district transfer. Accordingly, my view is that the state board may not rely on evidence of a mere loss of revenue to deny a petition for transfer of territory when there is insufficient evidence that the revenue loss would be detrimental to the fiscal or educational operation of the relinquishing school district.”
Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.
Contacts
Stephen W. Funk, 330.376.2700, for Brian Spitznagel and other Walton Hills property owners.
D. Lewis Clark Jr., 614.365.2700, for the Bedford City School District.
Benjamin C. Mizer, 614.466.8980, for the State Board of Education.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Medina County Judges Take in 225 Cases, Dispose of 240
In May of 2010 Judge Christopher J. Collier and Judge James L. Kimbler reported to the Ohio Supreme Court that they took in 225 cases and disposed of 240. The category with the most number of new cases was Foreclosures with 96 new cases filed. The second place category for new filings was Other Civil with 69 new cases filed. The third place category for new filings was Criminal with 39 new cases filed.
The category with the most disposed cases was Foreclosures with 91 total cases disposed. The second place category for disposed cases was Other Civil with 68 total cases disposed. The third place category for disposed cases was Criminal with 47 cases disposed.
Judge Collier and Judge Kimbler also either reactivated, re-designated, or transferred 26 cases. After counting the new filings, the reactivated, re-designated or transferred cases, and subtracting the disposed cases, Judge Collier had 758 cases pending on his docket at the end of May and Judge Kimbler had 757 cases pending on his docket.
The category with the most disposed cases was Foreclosures with 91 total cases disposed. The second place category for disposed cases was Other Civil with 68 total cases disposed. The third place category for disposed cases was Criminal with 47 cases disposed.
Judge Collier and Judge Kimbler also either reactivated, re-designated, or transferred 26 cases. After counting the new filings, the reactivated, re-designated or transferred cases, and subtracting the disposed cases, Judge Collier had 758 cases pending on his docket at the end of May and Judge Kimbler had 757 cases pending on his docket.
Judge Kimbler's Criminal Docket for June 17, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Kimbler's courtroom on Thursday, June 17, 2010, for criminal cases:
Terence Martter, 21, of Trease Road in Wadsworth, was sentenced to three years in prison on 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.
Robert Mote, 30, of Trease Road in Wadsworth, was sentenced to eight months in prison on one count of Possession of Heroin, a fifth-degree felony.
Lavinia Pierce-Rives, 42, of East 43rd Street in Cleveland, was sentenced to three years of community control sanctions, with six months in a Community Based Control Facility, on one count of Receiving Stolen Property, Motor Vehicle, a fourth-degree felony.
John Sullivan, 42, of Lakewood Avenue in Brunswick, was sentenced to three years of community control sanctions, with six months of house arrest, on two counts of Trafficking in Drugs, one of which is a fourth-degree felony and one of which is a fifth-degree felony, and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. His car was ordered forfeited to law enforcement.
Keith Bearden, 39, of First Street in Bedford, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for August 18.
John Kaiser, 47, of Nichols Road in Medina, pleaded not guilty to two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies. A jury trial is scheduled for August 16.
Brian Medvick, 26, of Easton Way in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for August 18.
Dustin Niemann, 23, of Lincoln Avenue in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for August 17.
David Sidwell, 32, of Laurel Road in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for August 11.
Diane Wallace, 39, of 3rd Street in Wadsworth, pleaded not guilty to one count of Permitting Drug Abuse and one count of Possession of Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for August 16.
Terence Martter, 21, of Trease Road in Wadsworth, was sentenced to three years in prison on 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.
Robert Mote, 30, of Trease Road in Wadsworth, was sentenced to eight months in prison on one count of Possession of Heroin, a fifth-degree felony.
Lavinia Pierce-Rives, 42, of East 43rd Street in Cleveland, was sentenced to three years of community control sanctions, with six months in a Community Based Control Facility, on one count of Receiving Stolen Property, Motor Vehicle, a fourth-degree felony.
John Sullivan, 42, of Lakewood Avenue in Brunswick, was sentenced to three years of community control sanctions, with six months of house arrest, on two counts of Trafficking in Drugs, one of which is a fourth-degree felony and one of which is a fifth-degree felony, and two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. His car was ordered forfeited to law enforcement.
Keith Bearden, 39, of First Street in Bedford, pleaded not guilty to one count of Possession of Cocaine, a fifth-degree felony. A jury trial is scheduled for August 18.
John Kaiser, 47, of Nichols Road in Medina, pleaded not guilty to two counts of Driving Under the Influence of Drugs or Alcohol, both of which are fourth-degree felonies. A jury trial is scheduled for August 16.
Brian Medvick, 26, of Easton Way in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fourth-degree felony. The charge carries a forfeiture specification. A jury trial is scheduled for August 18.
Dustin Niemann, 23, of Lincoln Avenue in Brunswick, pleaded not guilty to one count of Trafficking in Cocaine, a fifth-degree felony. A jury trial is scheduled for August 17.
David Sidwell, 32, of Laurel Road in Brunswick, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for August 11.
Diane Wallace, 39, of 3rd Street in Wadsworth, pleaded not guilty to one count of Permitting Drug Abuse and one count of Possession of Cocaine, both of which are fifth-degree felonies. A jury trial is scheduled for August 16.
Thursday, June 17, 2010
Akron Man Sentenced to Eight Years in Prison for Aggravated Vehicular Homicide
On Thursday, June 17, 2010, Judge James L. Kimbler sentenced Mr. Ferenc D. Schmidt of Akron, Ohio, to eight years in prison for two counts of Aggravated Vehicular Homicide and one count of Aggravated Vehicular Assault. On the two counts of Aggravated Vehicular Homicide Judge Kimbler imposed a four year sentence on each count and ran them consecutively. On the one count of Aggravated Vehicular Assault Judge Kimbler sentenced him to one year in prison, but ran that sentence concurrently with the prison sentences for the Aggravated Vehicular Homicides.
The charges against Mr. Schmidt rose out of an automobile collision on October 10, 2008 that occurred on US Route 224 in Harrisville Township. Mr. Schmidt, who was traveling with three of his friends in his Dodge Charger to Dragway 42, struck a van that was driven by Lawrence Erb. Mr. Erb's wife, Betty, was a passenger in the van. At the time of the impact, Mr. Erb was crossing US 224 while heading north on Harris Road.
Evidence admitted during the trial established that five seconds before the collision Mr. Schmidt was traveling at a speed of 124 mph. When he actually struck the van, his Charger was traveling around 75 mph. Mr. and Mrs. Erb were pronounced dead at the scene and one of Mr. Schmidt's passenger was life-flighted to Akron General Hospital.
At the sentencing hearing, Mr. Schmidt was visibly upset when he addressed Judge Kimbler. Prior to addressing Judge Kimbler, he asked for permission to address members of the Erb family who were present in the courtroom. He apologized to them.
After Mr. Schmidt was done addressing the court, Judge Kimbler imposed the eight year prison sentence and also imposed a mandatory three year period of post-release control. Judge Kimbler suspended Mr. Schmidt's license for 20 years. Judge Kimbler waived all court costs and gave Mr. Schmidt credit for the thirty days he had served in jail pending sentencing.
The charges against Mr. Schmidt rose out of an automobile collision on October 10, 2008 that occurred on US Route 224 in Harrisville Township. Mr. Schmidt, who was traveling with three of his friends in his Dodge Charger to Dragway 42, struck a van that was driven by Lawrence Erb. Mr. Erb's wife, Betty, was a passenger in the van. At the time of the impact, Mr. Erb was crossing US 224 while heading north on Harris Road.
Evidence admitted during the trial established that five seconds before the collision Mr. Schmidt was traveling at a speed of 124 mph. When he actually struck the van, his Charger was traveling around 75 mph. Mr. and Mrs. Erb were pronounced dead at the scene and one of Mr. Schmidt's passenger was life-flighted to Akron General Hospital.
At the sentencing hearing, Mr. Schmidt was visibly upset when he addressed Judge Kimbler. Prior to addressing Judge Kimbler, he asked for permission to address members of the Erb family who were present in the courtroom. He apologized to them.
After Mr. Schmidt was done addressing the court, Judge Kimbler imposed the eight year prison sentence and also imposed a mandatory three year period of post-release control. Judge Kimbler suspended Mr. Schmidt's license for 20 years. Judge Kimbler waived all court costs and gave Mr. Schmidt credit for the thirty days he had served in jail pending sentencing.
Wednesday, June 16, 2010
Wadsworth Man Wins Civil Jury Trial
Gregg T. Gordon who does business as Gordon's Landscaping won a civil lawsuit in which he was sued for breach of contract and violations of the Ohio Consumer Sales Protection Act. The jury trial started in Judge Kimbler's courtroom on Monday, June 14 and ended on Wednesday, June 16.
The lawsuit was filed by a Mr. Eric Smith of Doylestown. Mr. Smith alleged that he paid Mr. Gordon $6800.00 to do landscaping, install a new front yard, and put up two retaining walls at his home. He further alleged that the work was done in a un-workmanlike manner and that Mr. Gordon violated Ohio's consumer protection law by not giving him a written estimate.
The jury deliberated a little over one hour before returning its verdict.
The lawsuit was filed by a Mr. Eric Smith of Doylestown. Mr. Smith alleged that he paid Mr. Gordon $6800.00 to do landscaping, install a new front yard, and put up two retaining walls at his home. He further alleged that the work was done in a un-workmanlike manner and that Mr. Gordon violated Ohio's consumer protection law by not giving him a written estimate.
The jury deliberated a little over one hour before returning its verdict.
Arraignment Schedule for Judge Kimbler's Court for June 17, 2010
The following defendants are scheduled to appear in Judge Kimbler’s courtroom either in person or by video link with the Medina County Jail on Thursday, June 17, 2010 for arraignment:
James E. Polanski, Case No. 10-CR-0201, for Felonious Assault, a fourth degree felony and Abduction, a third degree felony.
Logan P. Clark, Case No. 10-CR-0262, for Felonious Assault, a second degree felony, and Abduction, a third degree felony.
Angelo T. Lenos, Case No. 10-CR-0251, for Driving While Under the Influence with Specifications, a fourth degree felony.
Keith Bearden, Case No. 10-CR-0242, for Drug Possession, a fifth degree felony.
Leah M. Walsh, Case No. 10-CR-0202, for three counts of Trafficking in the Vicinity of a School, a fourth degree felony.
David A. Sidwell, Case No. 10-CR-0214, for two counts of Trafficking, a fifth degree felony.
John T. Kaiser, Case No. 10-CR-0267, for two counts of Driving While Under the Influence, a fourth degree felony.
James E. Polanski, Case No. 10-CR-0201, for Felonious Assault, a fourth degree felony and Abduction, a third degree felony.
Logan P. Clark, Case No. 10-CR-0262, for Felonious Assault, a second degree felony, and Abduction, a third degree felony.
Angelo T. Lenos, Case No. 10-CR-0251, for Driving While Under the Influence with Specifications, a fourth degree felony.
Keith Bearden, Case No. 10-CR-0242, for Drug Possession, a fifth degree felony.
Leah M. Walsh, Case No. 10-CR-0202, for three counts of Trafficking in the Vicinity of a School, a fourth degree felony.
David A. Sidwell, Case No. 10-CR-0214, for two counts of Trafficking, a fifth degree felony.
John T. Kaiser, Case No. 10-CR-0267, for two counts of Driving While Under the Influence, a fourth degree felony.
Tuesday, June 15, 2010
Law Talk with Medina County Chief Public Defender Tim Lutz
Recently Attorney John Celebrezze sat down with Medina County's Chief Public Defender Tim Lutz and talked with Tim about what he does and how his office works. You can listen to their discussion by clicking on the links below.
In The Spotlight with: Tim Lutz, Medina County Chief Public Defender
By Kate Feeks
Tim Lutz, Medina County Chief Public Defender, sits down with Mr. John Celebrezze on his show, Law Talk, to explain the responsibilities of his job.
Mr. Lutz lives in Cleveland with his wife Susan and two adults sons. After graduating from Lake Catholic High School in Cleveland, Mr. Lutz received his undergraduate degree from The University of Akron in Political Science and Criminal Justice in 1983. In 1989, he graduated from The University of Akron School of Law. While maintaining his law license, Mr. Lutz made the decision to become a home maker to his two sons. In 2002, he began working for Summit County Legal Defenders Office which then led him to the position that he holds today as Medina’s Chief Public Defender.
Employed by the government, a public defender is required to represent those who are charged with certain crimes and are unable to afford an attorney. Public defenders are employed at the local, state and federal government levels. Public defenders are sometimes used in certain parts of the country as part-time employees, allowing them to work in a private law practice.
Mr. Lutz is a criminal trial lawyer responsible for his own client base that covers indigent/criminal cases in Medina, Wadsworth and Brunswick. He begins each day much like all trial attorneys reporting to court for motion, plea and sentence hearings, bench trials and jury trials. “We are trial attorneys and we pride ourselves on taking things to trial" explained Lutz. In his position he is also responsible for the administrative side of the job too, which includes; balancing the budget, human resources and public relations. “My job encompasses a variety of different details” noted Lutz.
The Medina County Public Defender’s Office will see approximately 500 clients per attorney per year, but not everyone is eligible for a public defender. Many are not aware that there are certain qualifications that are required to be able to use these services. A defendant may qualify to be represented by a public defender if charged with a crime that carries potential jail time, as well as providing proof of a certain income bracket.
Once a request to be represented by a public defender is made, the defendant must fill out the required paperwork which is based on each individual’s income. Everyone is entitled to an attorney, but to be represented by a public defender a person must sign an affidavit regarding their income. Those that do not qualify must find private counsel or represent themselves.
“Many people can’t afford a private attorney to make sure everything in their case is done right … It is important for everyone to realize that anybody is entitled to an attorney and if you don’t have enough money, one is going to be provided … As public defenders we are there to help these people with their cases. Everyone deserves to have things done right … and we are there to help” says Lutz.
It was the time spent at home with his children that gave him the patience and experience that prepared him for his position today. To be accomplished in a job Lutz feels it means giving your 100% best each day. “ … we might be the last person fighting for them. I think everyone is redeemable and has redeemable qualifications. My goal is to keep these people going and I want them to know I was there giving my best for them the whole time” Lutz said.
Editor's Note: The above article first appeared on the website www.czclep.org and is reprinted here with permission.
Tim Lutz, Medina County Chief Public Defender, sits down with Mr. John Celebrezze on his show, Law Talk, to explain the responsibilities of his job.
Mr. Lutz lives in Cleveland with his wife Susan and two adults sons. After graduating from Lake Catholic High School in Cleveland, Mr. Lutz received his undergraduate degree from The University of Akron in Political Science and Criminal Justice in 1983. In 1989, he graduated from The University of Akron School of Law. While maintaining his law license, Mr. Lutz made the decision to become a home maker to his two sons. In 2002, he began working for Summit County Legal Defenders Office which then led him to the position that he holds today as Medina’s Chief Public Defender.
Employed by the government, a public defender is required to represent those who are charged with certain crimes and are unable to afford an attorney. Public defenders are employed at the local, state and federal government levels. Public defenders are sometimes used in certain parts of the country as part-time employees, allowing them to work in a private law practice.
Mr. Lutz is a criminal trial lawyer responsible for his own client base that covers indigent/criminal cases in Medina, Wadsworth and Brunswick. He begins each day much like all trial attorneys reporting to court for motion, plea and sentence hearings, bench trials and jury trials. “We are trial attorneys and we pride ourselves on taking things to trial" explained Lutz. In his position he is also responsible for the administrative side of the job too, which includes; balancing the budget, human resources and public relations. “My job encompasses a variety of different details” noted Lutz.
The Medina County Public Defender’s Office will see approximately 500 clients per attorney per year, but not everyone is eligible for a public defender. Many are not aware that there are certain qualifications that are required to be able to use these services. A defendant may qualify to be represented by a public defender if charged with a crime that carries potential jail time, as well as providing proof of a certain income bracket.
Once a request to be represented by a public defender is made, the defendant must fill out the required paperwork which is based on each individual’s income. Everyone is entitled to an attorney, but to be represented by a public defender a person must sign an affidavit regarding their income. Those that do not qualify must find private counsel or represent themselves.
“Many people can’t afford a private attorney to make sure everything in their case is done right … It is important for everyone to realize that anybody is entitled to an attorney and if you don’t have enough money, one is going to be provided … As public defenders we are there to help these people with their cases. Everyone deserves to have things done right … and we are there to help” says Lutz.
It was the time spent at home with his children that gave him the patience and experience that prepared him for his position today. To be accomplished in a job Lutz feels it means giving your 100% best each day. “ … we might be the last person fighting for them. I think everyone is redeemable and has redeemable qualifications. My goal is to keep these people going and I want them to know I was there giving my best for them the whole time” Lutz said.
Editor's Note: The above article first appeared on the website www.czclep.org and is reprinted here with permission.
Monday, June 14, 2010
Judge Collier's Criminal Docket for June 13, 2010
Medina County Prosecutor Dean Holman reports that the following defendants appeared in Judge Collier's courtroom for criminal cases on Monday, June 14, 2010:
Jeremy Stafford, 21, of Congress Street in West Salem, was sentenced to five years of community control sanctions, with a period of time in a Community Based Control Facility, on one count of Possession of Cocaine, a fifth-degree felony.
Lawrence Tierney, 40, of Maiden Court in Brunswick, was sentenced to five years of probation, with 30 days in jail, on one count of Theft, a fourth-degree felony. He also was ordered to pay $39,574 in restitution, in equal monthly payments, to his victim, which was his former employer.
Glenda Alfano, 58, of Martin Court in Brunswick, pleaded not guilty to one count of Receiving Stolen Property, Credit Card, and one count of Forgery, both of which are fifth-degree felonies. A jury trial is scheduled for September 20.
Kelly Covic, 35, of Terrington Drive in Brunswick Hills, pleaded not guilty to three counts of Sexual Battery, all of which are third-degree felonies; one count to Contributing to the Unruliness of a Minor, and two counts of Endangering Children, all of which are first-degree misdemeanors. A jury trial is scheduled for September 15.
Cassandra DeJesus, 28, of Homewood Drive in Lorain, pleaded guilty to one count of Burglary, a third-degree felony and one count of Theft, a fifth-degree felony. Sentencing is scheduled for July 26.
Mitchell Firis, 28, of North Pardee Street in Wadsworth, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for September 22.
Thomas Porach Jr., 38, of Bryant Avenue in Columbia Station, pleaded not guilty to one count of Tampering with Evidence, a third-degree felony and one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for September 22.
Jeremy Stafford, 21, of Congress Street in West Salem, was sentenced to five years of community control sanctions, with a period of time in a Community Based Control Facility, on one count of Possession of Cocaine, a fifth-degree felony.
Lawrence Tierney, 40, of Maiden Court in Brunswick, was sentenced to five years of probation, with 30 days in jail, on one count of Theft, a fourth-degree felony. He also was ordered to pay $39,574 in restitution, in equal monthly payments, to his victim, which was his former employer.
Glenda Alfano, 58, of Martin Court in Brunswick, pleaded not guilty to one count of Receiving Stolen Property, Credit Card, and one count of Forgery, both of which are fifth-degree felonies. A jury trial is scheduled for September 20.
Kelly Covic, 35, of Terrington Drive in Brunswick Hills, pleaded not guilty to three counts of Sexual Battery, all of which are third-degree felonies; one count to Contributing to the Unruliness of a Minor, and two counts of Endangering Children, all of which are first-degree misdemeanors. A jury trial is scheduled for September 15.
Cassandra DeJesus, 28, of Homewood Drive in Lorain, pleaded guilty to one count of Burglary, a third-degree felony and one count of Theft, a fifth-degree felony. Sentencing is scheduled for July 26.
Mitchell Firis, 28, of North Pardee Street in Wadsworth, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for September 22.
Thomas Porach Jr., 38, of Bryant Avenue in Columbia Station, pleaded not guilty to one count of Tampering with Evidence, a third-degree felony and one count of Possession of Heroin, a fifth-degree felony. A jury trial is scheduled for September 22.
Friday, June 11, 2010
Judge Kimbler's Criminal Docket for June 10, 2010
Medina County Prosecutor Dean Holman reports that the following criminal defendants appeared in Judge Kimbler's courtroom on Thursday, June 10, 2010:
Dionel Rodriguez, 26, of Miami, Florida, was sentenced to two years of community control sanctions on one count of Forgery, a fifth-degree felony.
Michael Barber, 30, of Biggs Road in Grafton, pleaded not guilty to two counts of Burglary, both of which are second-degree felonies and one count of Possession of Criminal Tools, a fifth-degree felony. A jury trial is scheduled for August 11.
Jaclyn Gibbons, 19, of Alesia Kae Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for August 17.
Shane Griffin, 37, of Revere Court in Brunswick, pleaded not guilty to one count of Trafficking in Drugs in the Vicinity of a Juvenile, a third-degree felony, and one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for August 9.
Thomas Higgins, 26, of Winterberry Lane in Medina, pleaded not guilty to three counts of Illegal Processing of Drug Documents, all of which are fifth-degree felonies. A jury trial is scheduled for August 2.
Robert Krumwiede, 21, of Crestwood Avenue in Wadsworth, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for July 27.
Christine Leprevost, 34, of Hemlock Court in Brunswick, pleaded not guilty to one count of Trafficking in Drugs within the Vicinity of a School or Juvenile, a fourth-degree felony. A jury trial is scheduled for August 10.
Kimberly Mance, 39, of Muirland Drive in Broadview Heights, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for August 11.
Kyle Robison, 25, of Jacklin Drive in Hinckley, pleaded not guilty to one count of Assault of a Police Officer, a fourth-degree felony and one count of Escape, a fifth-degree felony. A jury trial is scheduled for August 10.
Lester Sanchez Alonso, 29, of Lansing, Michigan, pleaded guilty to one count of Theft and one count of Forgery, both of which are fifth-degree felonies. Sentencing is scheduled for July 15.
Oleh Yarochovitch, 24, of Pearl Road in Brunswick, pleaded not guilty to one count of Escape, a second-degree felony. A jury trial is scheduled for August 9.
Dionel Rodriguez, 26, of Miami, Florida, was sentenced to two years of community control sanctions on one count of Forgery, a fifth-degree felony.
Michael Barber, 30, of Biggs Road in Grafton, pleaded not guilty to two counts of Burglary, both of which are second-degree felonies and one count of Possession of Criminal Tools, a fifth-degree felony. A jury trial is scheduled for August 11.
Jaclyn Gibbons, 19, of Alesia Kae Drive in Brunswick, pleaded not guilty to two counts of Trafficking in Marijuana, both of which are fifth-degree felonies. A jury trial is scheduled for August 17.
Shane Griffin, 37, of Revere Court in Brunswick, pleaded not guilty to one count of Trafficking in Drugs in the Vicinity of a Juvenile, a third-degree felony, and one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for August 9.
Thomas Higgins, 26, of Winterberry Lane in Medina, pleaded not guilty to three counts of Illegal Processing of Drug Documents, all of which are fifth-degree felonies. A jury trial is scheduled for August 2.
Robert Krumwiede, 21, of Crestwood Avenue in Wadsworth, pleaded not guilty to one count of Receiving Stolen Property, a fifth-degree felony. A jury trial is scheduled for July 27.
Christine Leprevost, 34, of Hemlock Court in Brunswick, pleaded not guilty to one count of Trafficking in Drugs within the Vicinity of a School or Juvenile, a fourth-degree felony. A jury trial is scheduled for August 10.
Kimberly Mance, 39, of Muirland Drive in Broadview Heights, pleaded not guilty to one count of Trafficking in Drugs, a fifth-degree felony. A jury trial is scheduled for August 11.
Kyle Robison, 25, of Jacklin Drive in Hinckley, pleaded not guilty to one count of Assault of a Police Officer, a fourth-degree felony and one count of Escape, a fifth-degree felony. A jury trial is scheduled for August 10.
Lester Sanchez Alonso, 29, of Lansing, Michigan, pleaded guilty to one count of Theft and one count of Forgery, both of which are fifth-degree felonies. Sentencing is scheduled for July 15.
Oleh Yarochovitch, 24, of Pearl Road in Brunswick, pleaded not guilty to one count of Escape, a second-degree felony. A jury trial is scheduled for August 9.
Thursday, June 10, 2010
Ohio Court Can Assert Personal Jurisdiction over Nonresident Defendant in Internet Defamation Case
Where Defendant Indicated Intent to Impact Ohio Company’s Reputation
Kauffman Racing Equip., L.L.C. v. Roberts, Slip Opinion No. 2010-Ohio-2551.
Knox App. No. 07-CA-14, 2008-Ohio-1922. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, and Cupp, JJ., concur.
O'Donnell and Lanzinger, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2551.pdf
(June 10, 2010) The Supreme Court of Ohio ruled today that an Ohio trial court could properly exercise personal jurisdiction over a nonresident defendant in a defamation case in which an Ohio-based plaintiff alleged that the defendant posted disparaging statements on the public forum areas of several Internet sites with the intention of damaging the plaintiff’s business and personal reputation. The Court’s 4-2 majority decision, which affirmed a ruling of the 5th District Court of Appeals, was authored by Justice Paul E. Pfeifer.
In 2006 Kauffman Racing Equipment (KRE) of Knox County, which specializes in the manufacture and sale of race car parts, sold an auto engine block to a Virginia resident, Scott Roberts, who has never been to Ohio. Eight months later, Roberts called KRE to complain that the engine block was defective. KRE owner Steve Kaufman had Roberts ship the block back to Ohio, where his examination revealed that the block had been modified by Roberts, a fact that Roberts subsequently admitted. KRE declined to buy back the engine block because of the modifications made by Roberts, and shipped the block back to him.
During a two-month period following KRE’s refusal to replace the engine block, Roberts posted a number of comments that were highly critical of KRE products and business practices and of Steve Kauffman personally on the public-forum pages of several Internet sites dedicated to automobile racing equipment and related subjects. These included postings on the websites PerformanceYears.com and PontiacStreetPerformance.com, and in an item description on the internet auction website, eBay Motors. In some of those comments, Roberts indicated that it was his intention to get even for his economic loss on the engine block transaction by negatively impacting KRE’s reputation via his postings on Web sites frequented by car racing enthusiasts.
After receiving inquiries from at least five Ohio residents triggered by Roberts’ Web postings, KRE filed suit against Roberts in the Knox County Court of Common Pleas, alleging that Roberts had injured the company’s reputation and business by posting false and malicious statements on the Internet and seeking damages for defamation and intentional interference with contracts and business relationships. Roberts filed a motion to dismiss KRE’s claims against him on the basis that an Ohio trial court could not exercise personal jurisdiction over him because he was a Virginia resident with no legal presence in Ohio. The trial court granted Roberts’ motion to dismiss based on lack of personal jurisdiction.
KRE appealed. On review, the 5th District Court of Appeals reversed and remanded the case to the trial court for further proceedings. The court of appeals found that Ohio’s “long arm” statute, R.C. 2307.382, and Civil Rule 4.3(A) conferred jurisdiction on the trial court to hear KRE’s complaint, and held that the court’s exercise of personal jurisdiction over Roberts did not deprive him of his right to due process of law under the Fourteenth Amendment to the U.S. Constitution. Roberts sought and was granted Supreme Court review of the 5th District’s decision.
In today’s majority opinion affirming the judgment of the court of appeals, Justice Pfeifer wrote that KRE had established both of the necessary elements that: 1) Ohio’s long-arm jurisdiction statute and supporting civil rule confer jurisdiction over Roberts on the trial court; and 2) exercising that jurisdiction to require Roberts to answer for his alleged tortious conduct in an Ohio court does not violate his constitutional right to due process.
“Roberts contends that Ohio’s long-arm statute does not confer personal jurisdiction because he did not direct the alleged tortious statements to Ohio or publish them here,” wrote Justice Pfeifer. “Despite the fact that Roberts’s publication of his comments did not emanate from Ohio, those comments were received in Ohio. ... Roberts posted his allegedly defamatory statements on the Internet, ostensibly for the entire world to see. How much of the world saw the comments is unknown; but we do know that at least five Ohioans saw Roberts’s statements. The comments were thus published in Ohio. Because Roberts’s allegedly defamatory statements were published in Ohio, his alleged tort was committed in Ohio, and he falls within the grasp of R.C. 2307.382(A)(3) and Civ.R. 4.3(A)(3).
In finding the necessary nexus between Roberts’ Internet postings and Ohio to defeat his due process objections, Justice Pfeifer wrote: “Roberts argues that mere foreseeability by a nonresident defendant of the effects in the forum state is insufficient to justify the exercise of personal jurisdiction. Roberts’s reliance of this conclusion is inapposite because the effects of his conduct went well beyond foreseeability: Roberts intended the effects of his conduct to be felt in Ohio. His statements were communicated with the very purpose of having their consequences felt by KRE in Ohio. The contention that his statements were not made with the purpose of injuring some person in Ohio is unavailing. The postings themselves indicate his purpose of injuring Kauffman. For example, on his October 18, 2006, posting, Roberts stated: “[w]hat I loose [sic] in dollars I will make up in entertainment at their expence [sic].” On October 19, 2006, he wrote: “[a]gain, this is not to get a resolution. I have a much bigger and dastardly plan than that and this is a good place to start.” Many of the postings name Kauffman directly and specifically mention Ohio.”
“Here, Roberts not only knew that Ohio resident KRE could be the victim, he intended it be the victim. The allegedly defamatory communications concerned KRE’s activities in Ohio. We are not dealing with the situation in which jurisdiction is premised on a single, isolated transaction. The posts detailed the transactions between Roberts and KRE. Moreover, the purchase of the engine block and subsequent transfers from Virginia to Ohio and back again served as the foundation from which this dispute arose. Roberts’s allegedly defamatory posts were predicated on his course of dealing with an Ohio resident corporation. At least five Ohio residents other than Kauffman read these postings. Lastly, although KRE does business nationwide, its business reputation is centered in Ohio, because Ohio is the location of its sole base of operations. Roberts knew, and in fact intended, that the brunt of the harm caused be felt by KRE in Ohio. Thus, the focal point of the damage was Ohio, and Roberts’s actions therefore fulfill the requirement of causing a consequence in Ohio.”
Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Terrence O’Donnell entered a dissenting opinion, joined by Justice Judith Ann Lanzinger, stating that in his view the actions taken by Roberts in this case did not establish the “minimum contacts” with Ohio necessary to meet due process requirements set by prior U.S. Supreme Court decisions on the issue of personal jurisdiction, including the high court’s 1980 ruling in World-Wide Volkswagen Corp. v. Woodson. Under those precedents, Justice O’Donnell observed, a defendant’s actions must have created a “substantial connection” with the forum state to such a degree that he “‘should reasonably anticipate being haled into court there.’ ... When the defendant does not have an ongoing relationship with the forum state, a defendant must deliberately engage in significant activities within that state and ‘purposefully direct[]’ his activities at residents of the forum to satisfy this standard.”
In this case, he wrote, “Roberts posted his comments on three general auto-racing websites and an auction site, none of which have any specific connection to Ohio or are more likely to be viewed by a resident of Ohio than by a resident of any other state. ... By merely posting to general websites, Roberts neither deliberately engaged in significant activities within Ohio nor purposefully directed his activities at an Ohio resident sufficient to establish minimum contacts and satisfy due process – regardless of his intent. ... Notwithstanding this traditional jurisdictional principle, the majority has ostensibly provided an avenue for any affected Ohioan to sue the originator of any negative Internet post in an Ohio court when the product has been purchased in Ohio and the negative post is read by an Ohio resident. But this standard falls far short of due process.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Brett Jaffe, 614.443.7654, for Racing Equipment, LLC.
William J. Kepko, 740.392.2900, for Scott Roberts.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Kauffman Racing Equip., L.L.C. v. Roberts, Slip Opinion No. 2010-Ohio-2551.
Knox App. No. 07-CA-14, 2008-Ohio-1922. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, and Cupp, JJ., concur.
O'Donnell and Lanzinger, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2551.pdf
(June 10, 2010) The Supreme Court of Ohio ruled today that an Ohio trial court could properly exercise personal jurisdiction over a nonresident defendant in a defamation case in which an Ohio-based plaintiff alleged that the defendant posted disparaging statements on the public forum areas of several Internet sites with the intention of damaging the plaintiff’s business and personal reputation. The Court’s 4-2 majority decision, which affirmed a ruling of the 5th District Court of Appeals, was authored by Justice Paul E. Pfeifer.
In 2006 Kauffman Racing Equipment (KRE) of Knox County, which specializes in the manufacture and sale of race car parts, sold an auto engine block to a Virginia resident, Scott Roberts, who has never been to Ohio. Eight months later, Roberts called KRE to complain that the engine block was defective. KRE owner Steve Kaufman had Roberts ship the block back to Ohio, where his examination revealed that the block had been modified by Roberts, a fact that Roberts subsequently admitted. KRE declined to buy back the engine block because of the modifications made by Roberts, and shipped the block back to him.
During a two-month period following KRE’s refusal to replace the engine block, Roberts posted a number of comments that were highly critical of KRE products and business practices and of Steve Kauffman personally on the public-forum pages of several Internet sites dedicated to automobile racing equipment and related subjects. These included postings on the websites PerformanceYears.com and PontiacStreetPerformance.com, and in an item description on the internet auction website, eBay Motors. In some of those comments, Roberts indicated that it was his intention to get even for his economic loss on the engine block transaction by negatively impacting KRE’s reputation via his postings on Web sites frequented by car racing enthusiasts.
After receiving inquiries from at least five Ohio residents triggered by Roberts’ Web postings, KRE filed suit against Roberts in the Knox County Court of Common Pleas, alleging that Roberts had injured the company’s reputation and business by posting false and malicious statements on the Internet and seeking damages for defamation and intentional interference with contracts and business relationships. Roberts filed a motion to dismiss KRE’s claims against him on the basis that an Ohio trial court could not exercise personal jurisdiction over him because he was a Virginia resident with no legal presence in Ohio. The trial court granted Roberts’ motion to dismiss based on lack of personal jurisdiction.
KRE appealed. On review, the 5th District Court of Appeals reversed and remanded the case to the trial court for further proceedings. The court of appeals found that Ohio’s “long arm” statute, R.C. 2307.382, and Civil Rule 4.3(A) conferred jurisdiction on the trial court to hear KRE’s complaint, and held that the court’s exercise of personal jurisdiction over Roberts did not deprive him of his right to due process of law under the Fourteenth Amendment to the U.S. Constitution. Roberts sought and was granted Supreme Court review of the 5th District’s decision.
In today’s majority opinion affirming the judgment of the court of appeals, Justice Pfeifer wrote that KRE had established both of the necessary elements that: 1) Ohio’s long-arm jurisdiction statute and supporting civil rule confer jurisdiction over Roberts on the trial court; and 2) exercising that jurisdiction to require Roberts to answer for his alleged tortious conduct in an Ohio court does not violate his constitutional right to due process.
“Roberts contends that Ohio’s long-arm statute does not confer personal jurisdiction because he did not direct the alleged tortious statements to Ohio or publish them here,” wrote Justice Pfeifer. “Despite the fact that Roberts’s publication of his comments did not emanate from Ohio, those comments were received in Ohio. ... Roberts posted his allegedly defamatory statements on the Internet, ostensibly for the entire world to see. How much of the world saw the comments is unknown; but we do know that at least five Ohioans saw Roberts’s statements. The comments were thus published in Ohio. Because Roberts’s allegedly defamatory statements were published in Ohio, his alleged tort was committed in Ohio, and he falls within the grasp of R.C. 2307.382(A)(3) and Civ.R. 4.3(A)(3).
In finding the necessary nexus between Roberts’ Internet postings and Ohio to defeat his due process objections, Justice Pfeifer wrote: “Roberts argues that mere foreseeability by a nonresident defendant of the effects in the forum state is insufficient to justify the exercise of personal jurisdiction. Roberts’s reliance of this conclusion is inapposite because the effects of his conduct went well beyond foreseeability: Roberts intended the effects of his conduct to be felt in Ohio. His statements were communicated with the very purpose of having their consequences felt by KRE in Ohio. The contention that his statements were not made with the purpose of injuring some person in Ohio is unavailing. The postings themselves indicate his purpose of injuring Kauffman. For example, on his October 18, 2006, posting, Roberts stated: “[w]hat I loose [sic] in dollars I will make up in entertainment at their expence [sic].” On October 19, 2006, he wrote: “[a]gain, this is not to get a resolution. I have a much bigger and dastardly plan than that and this is a good place to start.” Many of the postings name Kauffman directly and specifically mention Ohio.”
“Here, Roberts not only knew that Ohio resident KRE could be the victim, he intended it be the victim. The allegedly defamatory communications concerned KRE’s activities in Ohio. We are not dealing with the situation in which jurisdiction is premised on a single, isolated transaction. The posts detailed the transactions between Roberts and KRE. Moreover, the purchase of the engine block and subsequent transfers from Virginia to Ohio and back again served as the foundation from which this dispute arose. Roberts’s allegedly defamatory posts were predicated on his course of dealing with an Ohio resident corporation. At least five Ohio residents other than Kauffman read these postings. Lastly, although KRE does business nationwide, its business reputation is centered in Ohio, because Ohio is the location of its sole base of operations. Roberts knew, and in fact intended, that the brunt of the harm caused be felt by KRE in Ohio. Thus, the focal point of the damage was Ohio, and Roberts’s actions therefore fulfill the requirement of causing a consequence in Ohio.”
Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Terrence O’Donnell entered a dissenting opinion, joined by Justice Judith Ann Lanzinger, stating that in his view the actions taken by Roberts in this case did not establish the “minimum contacts” with Ohio necessary to meet due process requirements set by prior U.S. Supreme Court decisions on the issue of personal jurisdiction, including the high court’s 1980 ruling in World-Wide Volkswagen Corp. v. Woodson. Under those precedents, Justice O’Donnell observed, a defendant’s actions must have created a “substantial connection” with the forum state to such a degree that he “‘should reasonably anticipate being haled into court there.’ ... When the defendant does not have an ongoing relationship with the forum state, a defendant must deliberately engage in significant activities within that state and ‘purposefully direct[]’ his activities at residents of the forum to satisfy this standard.”
In this case, he wrote, “Roberts posted his comments on three general auto-racing websites and an auction site, none of which have any specific connection to Ohio or are more likely to be viewed by a resident of Ohio than by a resident of any other state. ... By merely posting to general websites, Roberts neither deliberately engaged in significant activities within Ohio nor purposefully directed his activities at an Ohio resident sufficient to establish minimum contacts and satisfy due process – regardless of his intent. ... Notwithstanding this traditional jurisdictional principle, the majority has ostensibly provided an avenue for any affected Ohioan to sue the originator of any negative Internet post in an Ohio court when the product has been purchased in Ohio and the negative post is read by an Ohio resident. But this standard falls far short of due process.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Brett Jaffe, 614.443.7654, for Racing Equipment, LLC.
William J. Kepko, 740.392.2900, for Scott Roberts.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Law Bars Tort Claim Based on ‘Take Home’ Exposure to Asbestos from Workplace
Where Exposure Takes Place Away from Property Owner’s Premises
Boley v. Goodyear Tire & Rubber Co., Slip Opinion No. 2010-Ohio-2550.
Cuyahoga App. No. 91404, 2009-Ohio-491. Judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2550.pdf
(June 10, 2010) The Supreme Court of Ohio ruled today that a premises owner is not liable for tort claims arising from exposure to asbestos located on the owner’s property, unless the exposure occurred at the owner’s property. The Court’s 5-1 decision, which affirmed a judgment of the 8th District Court of Appeals, was authored by Justice Terrence O’Donnell.
Clayton Adams of Cleveland was exposed to workplace asbestos while he was employed by the Goodyear Tire & Rubber company between 1973 and 1983. During that period Clayton’s wife, Mary Adams, routinely shook asbestos-bearing dust from his work clothes in the course of doing her husband’s laundry. In March 2007, Mary was diagnosed with malignant mesothelioma, a lung disease linked to inhalation of asbestos fibers. She died of the disease four months later.
Clayton Adams and the administratrix of Mary’s estate, Cheryl Boley, filed a lawsuit against multiple defendants including Goodyear in the Cuyahoga County Court of Common Pleas, asserting among other claims that Goodyear had been negligent in exposing its workers’ family members to the risk of asbestos-related illness arising from asbestos dust the workers brought home on their persons and clothing.
Goodyear moved for summary judgment dismissing Boley and Adams’ claims against the company. They cited R.C. 2307.941(A)(1), a “tort reform” provision enacted by the General Assembly in 2005, which exempts property owners from liability “for any injury to any individual resulting from asbestos exposure unless that individual’s alleged exposure occurred while the individual was at the premises owner’s property.” The trial court granted summary judgment in favor of Goodyear, ruling that claims based on “second-hand” exposure of workers’ family members to asbestos the employee brought home from the workplace were explicitly barred by R.C. 2307.941(A)(1). On review, the 8th District Court of Appeals affirmed the trial court’s judgment. Clayton Adams and Boley sought and were granted Supreme Court review of the 8th District’s decision.
In today’s lead opinion, Justice O’Donnell wrote: “Clayton and Boley contend that R.C. 2307.941(A), which provides that subdivisions (A)(1), (2), and (3) are applicable only to tort actions for asbestos claims against a premises owner for ‘exposure to asbestos on the premises owner’s property’ (emphasis added), does not apply to their claims because Mary’s ‘exposure to asbestos’ occurred at her home rather than on Goodyear’s property. Therefore, they assert that R.C. 2307.941(A)(1) does not bar Goodyear’s liability, and they urge that a contrary interpretation would violate their rights to due process.”
“When the statute is read in its entirety, the legislative intent behind R.C. 2307.941(A) is apparent – R.C. 2307.941(A)(1) bars tort liability for asbestos claims stemming from exposure that does not occur at the premises owner’s property. ... Were we to apply the interpretation offered by Clayton and Boley, which is to read the phrase ‘exposure to asbestos’ in R.C. 2307.941(A) as modifying ‘on the premises owner’s property,’ we would be giving no meaning to subdivision (A)(1). Specifically, the event that would prohibit liability pursuant to subdivision (A)(1) – asbestos exposure away from the premises owner’s property – would also preclude R.C. 2307.941(A)(1) from barring such claims.”
“The better view is to read the statute to give effect to all of its parts. ... The only interpretation of R.C. 2307.941 that gives effect to the language employed by the General Assembly in subdivision (A)(1) is that which interprets the phrase ‘on the premises owner’s property’ to modify the word ‘asbestos.’ Moreover, when read together, R.C. 2307.941(A)(1), (2), and (3) further reveal the General Assembly’s intent to limit the liability of a premises owner to instances where the exposure occurred at its property. Specifically, subdivisions (A)(1), (2), and (3) each restrict the owner’s liability to exposure that occurred at the premises owner’s property. Subdivision (A)(1) provides a general exception from liability for a premises owner when the asbestos exposure does not occur at the owner’s property; subdivisions (2) and (3) further limit that liability by precluding liability in certain circumstances where exposure occurred at the owner’s property.”
“Thus, the General Assembly has manifested its intent to preclude liability for premises owners from claims for asbestos exposure that occurs away from the owner’s premises. ... Because Mary’s exposure did not occur at Goodyear’s property, R.C. 2307.941(A)(1) precludes Goodyear’s liability as to this claim.”
Justice O’Donnell’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice O’Connor also entered a separate opinion, joined by Justice Lanzinger, in which she responded to the appellants’ argument that the statute’s preclusion of employer liability for “take home” asbestos exposure of employees’ family members left them without legal recourse for Mary Adams’ asbestos-related illness and death.
Justice O’Connor observed that a different provision in the 2005 asbestos litigation reform bill, R.C. 2307.92(D)(2), provides a legal basis for asserting wrongful death claims against defendants other than the premises owner for take-home exposure of family members to occupational asbestos. She also noted that Clayton Adams and Boley had named more than 200 defendants other than Goodyear in their complaint, and that their attorneys had indicated during oral argument that they had proceeded to trial against at least one other defendant and had resolved and/or settled claims against others. While acknowledging the plaintiffs’ dissatisfaction with a statutory scheme that bars any recovery from Goodyear for Mary’s asbestos-related illness and death, Justice O’Connor wrote that the Ohio Constitution precludes courts and judges from usurping the power of the legislative branch to adopt or amend statutes that set the public policy of the state.
Justice Paul E. Pfeifer entered a dissent noting that the plain language of R.C. 2307.941 limits the application of that statute to claims brought against a premises owner “for exposure to asbestos on the premises owner’s property.” He wrote: “Boley does not claim that Adams was exposed to asbestos on Goodyear's property, and yet she is being told by this court that she can’t bring a claim for ‘exposure to asbestos on [Goodyear's] property.’ ... Boley has a completely different claim. She claims that Adams was exposed to asbestos in Adams’s own home, not on Goodyear’s property. She claims that the asbestos Adams was exposed to was brought to the home by Adams’s husband, who worked at Goodyear. Boley is not seeking relief pursuant to R.C 2307.941. She cannot because she never entered upon Goodyear's property. It seems mean-spirited to deny her claim while so obviously misconstruing it.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Thomas W. Bevan, 330.467.8571, for Clayton Adams and Cheryl Boley, Administratrix of Estate of Mary Adams.
Richard D. Schuster, 614.464.5475, for Goodyear Tire and Rubber Company.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Boley v. Goodyear Tire & Rubber Co., Slip Opinion No. 2010-Ohio-2550.
Cuyahoga App. No. 91404, 2009-Ohio-491. Judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2550.pdf
(June 10, 2010) The Supreme Court of Ohio ruled today that a premises owner is not liable for tort claims arising from exposure to asbestos located on the owner’s property, unless the exposure occurred at the owner’s property. The Court’s 5-1 decision, which affirmed a judgment of the 8th District Court of Appeals, was authored by Justice Terrence O’Donnell.
Clayton Adams of Cleveland was exposed to workplace asbestos while he was employed by the Goodyear Tire & Rubber company between 1973 and 1983. During that period Clayton’s wife, Mary Adams, routinely shook asbestos-bearing dust from his work clothes in the course of doing her husband’s laundry. In March 2007, Mary was diagnosed with malignant mesothelioma, a lung disease linked to inhalation of asbestos fibers. She died of the disease four months later.
Clayton Adams and the administratrix of Mary’s estate, Cheryl Boley, filed a lawsuit against multiple defendants including Goodyear in the Cuyahoga County Court of Common Pleas, asserting among other claims that Goodyear had been negligent in exposing its workers’ family members to the risk of asbestos-related illness arising from asbestos dust the workers brought home on their persons and clothing.
Goodyear moved for summary judgment dismissing Boley and Adams’ claims against the company. They cited R.C. 2307.941(A)(1), a “tort reform” provision enacted by the General Assembly in 2005, which exempts property owners from liability “for any injury to any individual resulting from asbestos exposure unless that individual’s alleged exposure occurred while the individual was at the premises owner’s property.” The trial court granted summary judgment in favor of Goodyear, ruling that claims based on “second-hand” exposure of workers’ family members to asbestos the employee brought home from the workplace were explicitly barred by R.C. 2307.941(A)(1). On review, the 8th District Court of Appeals affirmed the trial court’s judgment. Clayton Adams and Boley sought and were granted Supreme Court review of the 8th District’s decision.
In today’s lead opinion, Justice O’Donnell wrote: “Clayton and Boley contend that R.C. 2307.941(A), which provides that subdivisions (A)(1), (2), and (3) are applicable only to tort actions for asbestos claims against a premises owner for ‘exposure to asbestos on the premises owner’s property’ (emphasis added), does not apply to their claims because Mary’s ‘exposure to asbestos’ occurred at her home rather than on Goodyear’s property. Therefore, they assert that R.C. 2307.941(A)(1) does not bar Goodyear’s liability, and they urge that a contrary interpretation would violate their rights to due process.”
“When the statute is read in its entirety, the legislative intent behind R.C. 2307.941(A) is apparent – R.C. 2307.941(A)(1) bars tort liability for asbestos claims stemming from exposure that does not occur at the premises owner’s property. ... Were we to apply the interpretation offered by Clayton and Boley, which is to read the phrase ‘exposure to asbestos’ in R.C. 2307.941(A) as modifying ‘on the premises owner’s property,’ we would be giving no meaning to subdivision (A)(1). Specifically, the event that would prohibit liability pursuant to subdivision (A)(1) – asbestos exposure away from the premises owner’s property – would also preclude R.C. 2307.941(A)(1) from barring such claims.”
“The better view is to read the statute to give effect to all of its parts. ... The only interpretation of R.C. 2307.941 that gives effect to the language employed by the General Assembly in subdivision (A)(1) is that which interprets the phrase ‘on the premises owner’s property’ to modify the word ‘asbestos.’ Moreover, when read together, R.C. 2307.941(A)(1), (2), and (3) further reveal the General Assembly’s intent to limit the liability of a premises owner to instances where the exposure occurred at its property. Specifically, subdivisions (A)(1), (2), and (3) each restrict the owner’s liability to exposure that occurred at the premises owner’s property. Subdivision (A)(1) provides a general exception from liability for a premises owner when the asbestos exposure does not occur at the owner’s property; subdivisions (2) and (3) further limit that liability by precluding liability in certain circumstances where exposure occurred at the owner’s property.”
“Thus, the General Assembly has manifested its intent to preclude liability for premises owners from claims for asbestos exposure that occurs away from the owner’s premises. ... Because Mary’s exposure did not occur at Goodyear’s property, R.C. 2307.941(A)(1) precludes Goodyear’s liability as to this claim.”
Justice O’Donnell’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice O’Connor also entered a separate opinion, joined by Justice Lanzinger, in which she responded to the appellants’ argument that the statute’s preclusion of employer liability for “take home” asbestos exposure of employees’ family members left them without legal recourse for Mary Adams’ asbestos-related illness and death.
Justice O’Connor observed that a different provision in the 2005 asbestos litigation reform bill, R.C. 2307.92(D)(2), provides a legal basis for asserting wrongful death claims against defendants other than the premises owner for take-home exposure of family members to occupational asbestos. She also noted that Clayton Adams and Boley had named more than 200 defendants other than Goodyear in their complaint, and that their attorneys had indicated during oral argument that they had proceeded to trial against at least one other defendant and had resolved and/or settled claims against others. While acknowledging the plaintiffs’ dissatisfaction with a statutory scheme that bars any recovery from Goodyear for Mary’s asbestos-related illness and death, Justice O’Connor wrote that the Ohio Constitution precludes courts and judges from usurping the power of the legislative branch to adopt or amend statutes that set the public policy of the state.
Justice Paul E. Pfeifer entered a dissent noting that the plain language of R.C. 2307.941 limits the application of that statute to claims brought against a premises owner “for exposure to asbestos on the premises owner’s property.” He wrote: “Boley does not claim that Adams was exposed to asbestos on Goodyear's property, and yet she is being told by this court that she can’t bring a claim for ‘exposure to asbestos on [Goodyear's] property.’ ... Boley has a completely different claim. She claims that Adams was exposed to asbestos in Adams’s own home, not on Goodyear’s property. She claims that the asbestos Adams was exposed to was brought to the home by Adams’s husband, who worked at Goodyear. Boley is not seeking relief pursuant to R.C 2307.941. She cannot because she never entered upon Goodyear's property. It seems mean-spirited to deny her claim while so obviously misconstruing it.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Thomas W. Bevan, 330.467.8571, for Clayton Adams and Cheryl Boley, Administratrix of Estate of Mary Adams.
Richard D. Schuster, 614.464.5475, for Goodyear Tire and Rubber Company.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Involuntary Commitment Process for Defendants Found Not Competent to Stand Trial Is Civil in Nature
Does Not Invoke Constitutional Rights Applicable to Criminal Prosecution
State v. Williams, Slip Opinion No. 2010-Ohio-2453.
Montgomery App. No. 22532, 179 Ohio App.3d 584, 2008-Ohio-6245. Judgment of the trial court reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2453.pdf
(June 8, 2010) The Supreme Court of Ohio ruled today that the involuntary commitment of a criminal defendant who is charged with a violent first or second-degree felony and who remains mentally incompetent to stand trial beyond the one-year statutory time frame for restoring competency does not violate that person’s constitutional rights to due process or equal protection. The Court held further that, because the commitment process set forth in R.C. 2945.39 is civil in nature, the state is not required to afford a person committed to a mental health facility under that statute the same constitutional rights afforded to a defendant in a criminal prosecution.
The Court’s 4-2 majority opinion, which reversed a decision of the 2nd District Court of Appeals, was authored by Justice Robert R. Cupp.
Under Ohio R.C. 2945.39, when a mentally ill person has been indicted for a violent felony but found incompetent to stand trial, and a common pleas court finds that after one year of treatment there is no substantial probability the defendant can be restored to competence in the foreseeable future, the trial court may retain jurisdiction and involuntarily commit the accused to a psychiatric hospital if the state establishes the criteria set forth in R.C. 2945.39(A)(2).
This case involved Thonex Williams of Dayton, who was charged with rape (a first-degree felony) and other offenses in December 2005. Williams entered a plea of not guilty by reason of insanity and underwent a mental-health evaluation. A judge of the Montgomery County Court of Common Pleas determined, consistent with the report of the mental-health examiner, that Williams was incompetent to stand trial and that there was a substantial probability that he could be restored to competency within the one-year time period prescribed by R.C. 2945.38. The trial court committed Williams to Twin Valley Behavioral Healthcare for restorative treatment.
As the one-year time limit for restoration of competency approached, a mental-health-examination report indicated that Williams remained incompetent to stand trial and opined that he could not be restored to competency within the statute of limitations for prosecuting the most serious charge in his indictment, rape. The state then orally moved at a hearing for the trial court to retain jurisdiction under R.C. 2945.39(A)(2). Williams moved to dismiss the indictment, arguing that the trial court’s exercise of continuing jurisdiction pursuant to R.C. 2945.39 would deprive him of his rights to due process and equal protection. The trial court denied the motion to dismiss and held that R.C. 2945.39 is constitutional. The trial court subsequently held a hearing under R.C. 2945.39(A)(2) to decide whether to retain jurisdiction. The trial court found by clear and convincing evidence the required statutory elements that (1) Williams committed the offense of rape with which he was charged, (2) he was a mentally ill person subject to hospitalization by court order, (3) he was not competent to stand trial, and (4) the statutory time limit for restoration treatment had expired. The court rejected Williams’ arguments that the matter belonged in probate court for a commitment under R.C. Chapter 5122. The trial court retained jurisdiction subject to R.C. 2945.401 and 2945.402 and ordered Williams to remain hospitalized at Twin Valley.
Williams appealed. In a 2-1 decision, the 2nd District Court of Appeals reversed the trial court and found the commitment process prescribed under R.C. 2945.39 to be unconstitutional on three different bases.
First, the majority held that an involuntary commitment under that statute is “criminal, not civil in nature” and that Williams’ constitutional rights were therefore violated because he had not received all the procedural safeguards in his R.C. 2945.39 commitment hearing that he should have received as a criminal defendant undergoing prosecution. Second, the appellate majority held that R.C. 2945.39 violated Williams’ right to equal protection because that statute’s procedures for committing persons under indictment for a serious felony offense do not also apply to persons who have been convicted of the same offense. Third, the appellate majority held that R.C. 2945.39 violated Williams’ right to due process because the common pleas court’s retention of jurisdiction pursuant to the criminal indictment, and the potential continuation of his commitment for the maximum term that he could have received for the most serious crime for which he was indicted, are not reasonably related to the purpose of commitment, which is to protect society from dangerous persons who are mentally ill.
The state sought and was granted Supreme Court review of the 2nd District’s decision. Writing for the majority in today’s decision, Justice Cupp examined and rejected each of constitutional infirmities found by the court of appeals.
With regard to the civil or criminal nature of Williams’ commitment proceedings, Justice Cupp wrote: “Our consideration of R.C. 2945.39 and related statutes leads us away from the view that the commitment of an incompetent defendant under R.C. 2945.39 is the functional equivalent of criminally confining the defendant. Nor do we see any indication of an overriding intent to punish or confine criminal defendants within the statutory framework. Rather, we view R.C. 2945.39 and related statutes as designed primarily for the purpose of protecting the public. In particular, we note that R.C. 2945.39(D)(1), which requires the trial court to order the least-restrictive commitment alternative available consistent with public safety and the defendant’s welfare ... explicitly states the court ‘shall give preference to protecting public safety.’ This statement gives voice to the predominant intent underlying R.C. 2945.39.
“ ... Moreover, R.C. 2945.39 ... does not require a finding of scienter (intentional wrongdoing), nor does it implicate retribution or deterrence, which are the primary objectives of criminal punishment and the two most telling factors that a particular statute is criminal in nature. ... R.C. 2945.39 does not implicate retribution, because it does not affix culpability for prior criminal conduct. ... We conclude that R.C. 2945.39 is a civil statute. Consequently, a person committed under the statute need not be afforded the constitutional rights afforded to a defendant in a criminal prosecution.”
In also rejecting the 2nd District’s finding that the involuntary commitment scheme prescribed by R.C. 2945.39 violates defendants’ due process rights, Justice Cupp wrote: “The appellate court’s conclusions appear to be based on a belief that the statute’s primary goals are to punish the defendant and restore his competency to stand trial. However, as discussed in our analysis above, R.C. 2945.39 is a civil statute with a primary goal of protecting the public. It is of great significance to our due-process inquiry that R.C. 2945.39(D)(1) requires the court to order the least-restrictive commitment alternative available consistent with public safety and the defendant’s welfare, while also emphasizing that the court ‘shall give preference to protecting public safety.’ It is apparent that a person committed under R.C. 2945.39 is not committed ‘solely’ on account of his incapacity to proceed to trial … Rather, such a person is committed only after being found by clear and convincing evidence to be mentally ill and subject to hospitalization by court order under R.C. 5122.01(B) … and being found to be a danger to the public because he was determined to have committed the offense with which he was charged.”
“The state asserts that (the Supreme Court of Ohio’s decision in State v.) Sullivan does not support appellee’s argument that his due-process rights were violated here. The purpose of the commitment in Sullivan, which involved the former version of R.C. 2945.38, was to restore the defendant to competency in order to stand trial. Because there was no probability that competency could be restored within the time set by the former statute, the mandatory treatment period bore no rational relationship to the purpose of commitment, and, therefore, the defendant’s due-process rights were violated … Our limited decision in Sullivan, however, has no application to this case, which involves the distinctly different procedures of R.C. 2945.39. The overriding purpose of this statute is to protect the public from a person who is dangerously mentally ill, has perpetrated felonious conduct, and cannot presently be tried because of his mental incompetency.”
“Thus, we conclude that R.C. 2945.39 and 2945.401 do not violate a defendant’s due-process rights by allowing the indictment to remain intact, by allowing continued efforts to restore the defendant to competency, or by permitting a defendant to be committed for a term equal to the maximum term of imprisonment that he could receive for the most serious offense charged. … For the reasons expressed herein, we conclude that the nature and duration of the commitment that occurs under R.C. 2945.39 bear a reasonable relationship to the purpose for which the person is committed … We hold that an involuntary commitment under R.C. 2945.39 does not violate principles of due process.”
Justice Cupp’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Terrence O’Donnell.
Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, stating that in her view R.C. 2945.39 is a criminal rather than a civil statute. In support of that conclusion, Justice Lanzinger wrote: “First, the General Assembly enacted R.C. 2945.39 as part of Ohio’s criminal code. Ohio already has a civil commitment process pursuant to R.C. Chapter 5122 regarding those who are mentally ill and R.C. Chapter 5123 regarding those who are developmentally disabled. Second, tying the length of a criminal defendant’s commitment to the maximum possible prison term for the most serious offense also indicates that the commitment is criminal in nature … Finally, unlike a person committed under the civil process, a defendant who is committed under R.C. 2945.39 remains under a pending indictment. The proceeding occurs as part of the defendant’s criminal case and, therefore, the defendant should be afforded all the rights of a criminal defendant.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Carley J. Ingram, 937.225.5757, for the Montgomery County prosecutor’s office.
Anthony Comunale, 937.227.3310, for Thonex Williams.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
State v. Williams, Slip Opinion No. 2010-Ohio-2453.
Montgomery App. No. 22532, 179 Ohio App.3d 584, 2008-Ohio-6245. Judgment of the trial court reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2453.pdf
(June 8, 2010) The Supreme Court of Ohio ruled today that the involuntary commitment of a criminal defendant who is charged with a violent first or second-degree felony and who remains mentally incompetent to stand trial beyond the one-year statutory time frame for restoring competency does not violate that person’s constitutional rights to due process or equal protection. The Court held further that, because the commitment process set forth in R.C. 2945.39 is civil in nature, the state is not required to afford a person committed to a mental health facility under that statute the same constitutional rights afforded to a defendant in a criminal prosecution.
The Court’s 4-2 majority opinion, which reversed a decision of the 2nd District Court of Appeals, was authored by Justice Robert R. Cupp.
Under Ohio R.C. 2945.39, when a mentally ill person has been indicted for a violent felony but found incompetent to stand trial, and a common pleas court finds that after one year of treatment there is no substantial probability the defendant can be restored to competence in the foreseeable future, the trial court may retain jurisdiction and involuntarily commit the accused to a psychiatric hospital if the state establishes the criteria set forth in R.C. 2945.39(A)(2).
This case involved Thonex Williams of Dayton, who was charged with rape (a first-degree felony) and other offenses in December 2005. Williams entered a plea of not guilty by reason of insanity and underwent a mental-health evaluation. A judge of the Montgomery County Court of Common Pleas determined, consistent with the report of the mental-health examiner, that Williams was incompetent to stand trial and that there was a substantial probability that he could be restored to competency within the one-year time period prescribed by R.C. 2945.38. The trial court committed Williams to Twin Valley Behavioral Healthcare for restorative treatment.
As the one-year time limit for restoration of competency approached, a mental-health-examination report indicated that Williams remained incompetent to stand trial and opined that he could not be restored to competency within the statute of limitations for prosecuting the most serious charge in his indictment, rape. The state then orally moved at a hearing for the trial court to retain jurisdiction under R.C. 2945.39(A)(2). Williams moved to dismiss the indictment, arguing that the trial court’s exercise of continuing jurisdiction pursuant to R.C. 2945.39 would deprive him of his rights to due process and equal protection. The trial court denied the motion to dismiss and held that R.C. 2945.39 is constitutional. The trial court subsequently held a hearing under R.C. 2945.39(A)(2) to decide whether to retain jurisdiction. The trial court found by clear and convincing evidence the required statutory elements that (1) Williams committed the offense of rape with which he was charged, (2) he was a mentally ill person subject to hospitalization by court order, (3) he was not competent to stand trial, and (4) the statutory time limit for restoration treatment had expired. The court rejected Williams’ arguments that the matter belonged in probate court for a commitment under R.C. Chapter 5122. The trial court retained jurisdiction subject to R.C. 2945.401 and 2945.402 and ordered Williams to remain hospitalized at Twin Valley.
Williams appealed. In a 2-1 decision, the 2nd District Court of Appeals reversed the trial court and found the commitment process prescribed under R.C. 2945.39 to be unconstitutional on three different bases.
First, the majority held that an involuntary commitment under that statute is “criminal, not civil in nature” and that Williams’ constitutional rights were therefore violated because he had not received all the procedural safeguards in his R.C. 2945.39 commitment hearing that he should have received as a criminal defendant undergoing prosecution. Second, the appellate majority held that R.C. 2945.39 violated Williams’ right to equal protection because that statute’s procedures for committing persons under indictment for a serious felony offense do not also apply to persons who have been convicted of the same offense. Third, the appellate majority held that R.C. 2945.39 violated Williams’ right to due process because the common pleas court’s retention of jurisdiction pursuant to the criminal indictment, and the potential continuation of his commitment for the maximum term that he could have received for the most serious crime for which he was indicted, are not reasonably related to the purpose of commitment, which is to protect society from dangerous persons who are mentally ill.
The state sought and was granted Supreme Court review of the 2nd District’s decision. Writing for the majority in today’s decision, Justice Cupp examined and rejected each of constitutional infirmities found by the court of appeals.
With regard to the civil or criminal nature of Williams’ commitment proceedings, Justice Cupp wrote: “Our consideration of R.C. 2945.39 and related statutes leads us away from the view that the commitment of an incompetent defendant under R.C. 2945.39 is the functional equivalent of criminally confining the defendant. Nor do we see any indication of an overriding intent to punish or confine criminal defendants within the statutory framework. Rather, we view R.C. 2945.39 and related statutes as designed primarily for the purpose of protecting the public. In particular, we note that R.C. 2945.39(D)(1), which requires the trial court to order the least-restrictive commitment alternative available consistent with public safety and the defendant’s welfare ... explicitly states the court ‘shall give preference to protecting public safety.’ This statement gives voice to the predominant intent underlying R.C. 2945.39.
“ ... Moreover, R.C. 2945.39 ... does not require a finding of scienter (intentional wrongdoing), nor does it implicate retribution or deterrence, which are the primary objectives of criminal punishment and the two most telling factors that a particular statute is criminal in nature. ... R.C. 2945.39 does not implicate retribution, because it does not affix culpability for prior criminal conduct. ... We conclude that R.C. 2945.39 is a civil statute. Consequently, a person committed under the statute need not be afforded the constitutional rights afforded to a defendant in a criminal prosecution.”
In also rejecting the 2nd District’s finding that the involuntary commitment scheme prescribed by R.C. 2945.39 violates defendants’ due process rights, Justice Cupp wrote: “The appellate court’s conclusions appear to be based on a belief that the statute’s primary goals are to punish the defendant and restore his competency to stand trial. However, as discussed in our analysis above, R.C. 2945.39 is a civil statute with a primary goal of protecting the public. It is of great significance to our due-process inquiry that R.C. 2945.39(D)(1) requires the court to order the least-restrictive commitment alternative available consistent with public safety and the defendant’s welfare, while also emphasizing that the court ‘shall give preference to protecting public safety.’ It is apparent that a person committed under R.C. 2945.39 is not committed ‘solely’ on account of his incapacity to proceed to trial … Rather, such a person is committed only after being found by clear and convincing evidence to be mentally ill and subject to hospitalization by court order under R.C. 5122.01(B) … and being found to be a danger to the public because he was determined to have committed the offense with which he was charged.”
“The state asserts that (the Supreme Court of Ohio’s decision in State v.) Sullivan does not support appellee’s argument that his due-process rights were violated here. The purpose of the commitment in Sullivan, which involved the former version of R.C. 2945.38, was to restore the defendant to competency in order to stand trial. Because there was no probability that competency could be restored within the time set by the former statute, the mandatory treatment period bore no rational relationship to the purpose of commitment, and, therefore, the defendant’s due-process rights were violated … Our limited decision in Sullivan, however, has no application to this case, which involves the distinctly different procedures of R.C. 2945.39. The overriding purpose of this statute is to protect the public from a person who is dangerously mentally ill, has perpetrated felonious conduct, and cannot presently be tried because of his mental incompetency.”
“Thus, we conclude that R.C. 2945.39 and 2945.401 do not violate a defendant’s due-process rights by allowing the indictment to remain intact, by allowing continued efforts to restore the defendant to competency, or by permitting a defendant to be committed for a term equal to the maximum term of imprisonment that he could receive for the most serious offense charged. … For the reasons expressed herein, we conclude that the nature and duration of the commitment that occurs under R.C. 2945.39 bear a reasonable relationship to the purpose for which the person is committed … We hold that an involuntary commitment under R.C. 2945.39 does not violate principles of due process.”
Justice Cupp’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Terrence O’Donnell.
Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, stating that in her view R.C. 2945.39 is a criminal rather than a civil statute. In support of that conclusion, Justice Lanzinger wrote: “First, the General Assembly enacted R.C. 2945.39 as part of Ohio’s criminal code. Ohio already has a civil commitment process pursuant to R.C. Chapter 5122 regarding those who are mentally ill and R.C. Chapter 5123 regarding those who are developmentally disabled. Second, tying the length of a criminal defendant’s commitment to the maximum possible prison term for the most serious offense also indicates that the commitment is criminal in nature … Finally, unlike a person committed under the civil process, a defendant who is committed under R.C. 2945.39 remains under a pending indictment. The proceeding occurs as part of the defendant’s criminal case and, therefore, the defendant should be afforded all the rights of a criminal defendant.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Carley J. Ingram, 937.225.5757, for the Montgomery County prosecutor’s office.
Anthony Comunale, 937.227.3310, for Thonex Williams.
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. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
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