Update: On August 20, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the argument here. 

On April 23, 2019, the Supreme Court of Ohio will hear oral argument in James Miracle v. Ohio Department of Veterans’ Services and Office of the Governor, 2018-0562. At issue in this case is whether R.C. 124.27(B) or R.C. 124.56 can support Greeley claims for wrongful discharge in violation of public policy.

Case Background

After being terminated from the Ohio Department of Rehabilitation and Correction following an inmate escape at the Mansfield prison, James Miracle was offered a job with the Ohio Department of Veterans Services (“ODVS”). Miracle began employment with ODVS as a probationary employee in February 2015. At the time he was hired, he told his supervisors what had happened in his past position, and was assured this would not be a problem.In early June of 2015, Miracle received his probationary review. He received  a “meets expectations” or “exceeds expectations” in all categories. On June 15, 2015,  ODVS terminated him. Miracle was told he was being fired because the ODVS was “moving in a different direction.” However Miracle later learned that ODVS fired him at the direction of Jai Chabria, a Senior Advisor to the Governor, because of the bad press surrounding Miracle’s hiring.

Miracle sued ODVS and the Office of the Governor alleging that he was wrongfully discharged in violation of public policy derived from R.C. 124.27(B) and R.C. 124.56. Miracle also alleged that he was wrongfully discharged in violation of R.C. 124.34 and the public policy derived from the Fourteenth Amendment of the U.S. Constitution. ODVS and the Office of the Governor filed a motion to dismiss Miracle’s case, which was granted by Judge Patrick M. McGrath of the Ohio Court of Claims.

The Appeal 

In a unanimous decision, the Tenth District Court of Appeals reversed the Court of Claims’ dismissal and remanded the case for further proceedings. Judge William A. Klatt authored the opinion which was joined by Judges Susan Brown and Jennifer Brunner. The Tenth District found that Miracle’s complaint sufficiently stated that R.C. 124.27(B), the Probation Statute, established a public policy against the discharge of public employees who provide satisfactory service during the probationary period, and thus dismissal was improper.

The Tenth District also found that the Court of Claims erred when finding that Miracle did not meet the jeopardy element of wrongful discharge in violation of public policy arising out of R.C. 124.56, the Investigation Statute. On this point, the Tenth District explained that the proper inquiry is whether the discharge of probationary civil service employees who provide satisfactory service would jeopardize the clear public policy against the abuse of the power to remove employees.   Finally, the appeals court found that Miracle had abandoned his claim for wrongful discharge based on R.C. 124.34 and the Fourteenth Amendment to the United States Constitution.

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices French, Fischer, DeWine,  and O’Donnell*

*Then-Justice O’Donnell would only accept on proposition of Law No.1

No: Justice Kennedy and DeGenaro

Key Statutes and Precedent

R.C. 124.27(B) (The Probation Statute) (Appointments in classified civil service shall be for a probationary period. If the probationary employee is unsatisfactory, the employee may be removed at any time during the probationary period. If duly removed, the probationary employee has no right to appeal.)

R.C. 124.56 (The Investigation Statute)(If an officer or person having power of appointment and removal abuses such power in violation of R.C. Chapter 124, then the state personnel board of review shall make an investigation. If the board finds that a violation of Chapter 124, or the intent and spirit of this chapter has occurred, it shall make a report to the governor.)

H. Perritt, The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev. 397

Greeley v Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990) (recognizing an exception to the employment-at-will doctrine by holding that at-will employee may maintain a cause of action in tort for wrongful discharge when the employee is terminated in violation of a clearly expressed public policy.)

Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 308 (1995) (In order to establish a claim for wrongful termination in violation of Ohio public policy, the employee must prove (1) a clear public policy exists and is manifested in a state or federal constitution, statute, or administrative regulation, or in the common law (the clarity element); (2) the employee’s dismissal would jeopardize that public policy (the jeopardy element); (3) the employee’s dismissal was motivated by conduct related to the public policy (the causation element); and (4) the employer lacked an overriding legitimate business justification for the dismissal (the overriding justification element).)

Dohme v. Eurand Am., Inc, 2011–Ohio–4609 (“To satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must articulate a clear public policy by citation of specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law.” (syllabus))

Sutton v. Tomco Machining, Inc., 2011-Ohio-2723 ( “In cases where the right and remedy are part of the same statute that is the sole source of the public policy opposing the discharge, the test for determining the jeopardy element is whether the remedy provisions adequately protect society’s interest by discouraging the wrongful conduct.”)

Ohio Department of Veterans’ Services and Office of the Governor’s Argument

ODVS and the Office of the Governor filed a joint brief. Collectively they will be referred to as “Appellants.”

The Court should reverse the Tenth District’s ruling because the decision permitted a tort action against the State in service of a public policy that is already protected by non-tort remedies. Mr. Miracle’s public policy claim can only be based on R.C. 124.27(B), the Probation Statute, and it fails because it does not satisfy the clarity or jeopardy elements of a Greeley claim. First, to satisfy the clarity element, the court must determine whether the statute establishes a clear public policy. The court makes this determination by interpreting the statute’s meaning and the General Assembly’s intent in its enactment. An analysis of the text, structure, and history of the Probation Statute reveals that the General Assembly did not intend to create a clear public policy restricting public employers’ discretion to dismiss probationary employees.  The statute does not contain any prohibitory language on the part of the employer; rather it empowers public employers to use discretion. Also, the statute does not give rise to any employee rights.

Even assuming the Probation Statute does give rise to a clear public policy, Mr. Miracle’s Greeley claim still fails the jeopardy element which considers whether there are other adequate remedies to avoid jeopardizing the identified public policy. In this case there are several other remedies that protect any possible public policy. For example, R.C. 124.56, the Investigation Statute, is an explicit remedy for violation of the Probation Statute; therefore the Court is precluded from crafting other remedies like the Greeley claim asserted by Mr. Miracle here. Another implicit remedy is mandamus, which has been used to compel compliance with civil service laws such as to reinstate public employees wrongfully terminated and to award back pay. Also, R.C. 124.27 does not allow probationary employees to appeal, which triggers the presumption that a writ of mandamus is the sole remedy to challenge removal.

Also, Mr. Miracle’s Greeley claim cannot be based on the Investigation Statute because this statute is simply a mechanism to enforce the Probation Statute and to regulate official abuse, not individual employee rights. The Greeley tort should not be expanded into the statutory regulation of public employment.

Finally, the Tenth District’s ruling should also be reversed because the decision erroneously allowed a wrongful discharge claim to survive against the Office of the Governor, which was not Mr. Miracle’s employer. Greeley claim liability is limited only to the employer and those capable of discharging an employee. Because the Office of the Governor was not Mr. Miracle’s employer, it should be dismissed.

Miracle’s Argument

The Tenth District’s decision should be affirmed because R.C. 124.27 establishes a clear public policy against the discharge of civil service employees who provide satisfactory service during the probationary period. This is evidenced and supported by Ohio’s civil service laws which establish a meritocracy.

Furthermore, R.C. 124.27 requires an employer to determine that an employee’s service is unsatisfactory before terminating that employee.  That is not what happened here. Mr. Miracle was terminated for political optics, which is an abuse of power prohibited by R.C. 124.56.

Greeley claims are appropriate where a statute prohibits behavior but provides no relief. Here, Mr. Miracle’s Greeley claim is appropriate because R.C. 124.56 only provides a penalty for the abuser of power, but no cause of action for the employee who was a victim of the abuse. Furthermore, Mr. Miracle does not have any other remedy, as the statute explicitly states he has no right to appeal his termination. Also, despite what ODVS and the Governor’s Office argue, mandamus is a remedy of last resort and would not have been an adequate remedy to Mr. Miracle because he sought an immunity determination under R.C. 9.86, which needs to be brought in the Court of Claims, and because he had an adequate remedy at law. Additionally, Mr. Miracle’s Greeley claim would not allow him greater remedies than those available to tenured employees because his rights in the Greeley claim would be limited to those defined by the statute for non-probationary employees.

Finally, the Governor’s Office and ODVS are so interrelated that their separate existences should be disregarded. For example, the Governor’s office appoints leaders of ODVS and controls its budget. Also, the Governor’s office was directly involved and exercised its power in the decision to terminate Mr. Miracle.

Appellants’ Proposed Proposition of Law No. 1

A Greeley tort is not available under R.C. 124.27 or 124.56 and, more generally, statutes about public employment ordinarily should not support Greeley claims.

Appellants’ Proposed Proposition of Law No. 2

Only the employer is subject to a Greeley claim.

Amici in Support of Miracle.

Ohio Association for Justice

The Ohio Association for Justice (OAJ) filed an amicus brief in support of Mr. Miracle. OAJ’s mission is to preserve constitutional rights and to protect meaningful access to the civil justice system for all residents of this state. OAJ argues that R.C. 124.27 satisfies the clarity element for Mr. Miracle’s Greeley claim, while R.C. 124.56 satisfies the jeopardy element, and that those are the only two narrow issues raised in this case. Appellants’ first proposed proposition of law is overly broad and essentially asks the court to issue a forbidden advisory opinion. Appellants only challenged the clarity element in relation to Mr. Miracle’s R.C. 124.27 claim and only challenged the jeopardy element in Mr. Miracle’s R.C. 124.56 claim. Therefore, Appellants cannot now challenge other elements of those claims. Finally, Appellants have waived most of the arguments in their brief, as they were never argued in the courts below. Ultimately OAJ urges the Court to dismiss this discretionary appeal as improvidently granted due to the many overly broad issues advanced by Appellants that were not raised in the courts below.

Ohio Employment Lawyers Association

The Ohio Employment Lawyers Association (OELA) also filed an amicus brief in support of Mr. Miracle. OELA is a professional membership organization comprised of lawyers who represent employees in labor, employment and civil rights disputes. OELA argues that R.C. 124.27 establishes a clear policy against improper removals, and Mr. Miracle was improperly removed for blatantly political reasons unrelated to his job performance.  OELA points out that if the General Assembly had wanted to allow probationary removals for non-performance related reasons, it could easily have done so by removing the reference to satisfactory service altogether. OELA also argues that R.C. 124.27 satisfies the jeopardy element due to its lack of a remedy for employees who are improperly removed in violation of the statute. Finally, OELA also argues that the Office of the Governor should not be dismissed from the case because even if the Court finds the Office of the Governor cannot be liable for wrongful discharge in violation of public policy, Mr. Miracle still has a valid claim against it for tortious interference.

Amicus OAJ’s Proposed Proposition of Law No. 1

R.C. 124.27 satisfies the clarity element for the common law tort of wrongful discharge in violation of public policy.

Amicus OAJ’s Proposed Proposition of Law No. 2

R.C. 124.56 satisfies the jeopardy element for the common law tort of wrongful discharge in violation of public policy.

Amicus OELA’s Proposed Proposition of Law No. 1

Probationary civil service employees cannot be terminated for political or patronage reasons unrelated to their satisfactory service.

Amicus OELA’s Proposed Proposition of Law No. 2

A party with the power to cause a wrongful discharge is, or should be treated as, the employer of the discharged employee.

Student Contributor: Ivy Charneski

Update: On April 22, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On March 27, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Cedric N. Jeffries, 2018-0338. At issue in the case is whether Ohio’s rape-shield statute prohibits evidence of prior sexual abuse suffered by the victim.

Case Background

D.S., a minor, lived in foster care until the age of six. When D.S. was six, she moved in with her grandmother. Cedric Jeffries was her grandmother’s adult son, and he lived in the house as well. D.S. viewed Jeffries as a father figure, and called him “Dad.”

D.S. testified that Jeffries began touching her inappropriately starting at age six, and that this inappropriate conduct continued for years, but she never told anyone for fear of not being believed and being sent back to foster care. D.S. finally ran away from home, and told her school principal about the abuse. Jeffries was arrested, and charged in a four-count indictment with two counts of rape and two counts of kidnapping.

Prior to trial, pursuant to State v. Boggs, the trial court held an in-camera hearing to determine whether to admit evidence of D.S. having been sexually abused by a foster brother when she was approximately four or five years old, which D.S. had promptly reported to a social worker at the time. The trial court determined the incident did involve sexual activity, was not false, and was protected by the rape shield statute. Therefore, defense counsel was not permitted to question D.S. about the prior sexual abuse or otherwise seek to admit evidence of the abuse.

The jury convicted Jeffries on all counts. Jeffries was sentenced to life in prison with parole eligibility after 15 years. Jeffries appealed.

The Appeal

In a unanimous opinion the Eighth District Court of Appeals affirmed the trial court’s exclusion of prior sexual abuse evidence under the rape-shield statute. Relying on State v. Boggs, the Court of Appeals held that evidence of both the victim’s prior nonconsensual and consensual sexual activity should be excluded under the statute, if not false, and that the trial court did not abuse its discretion in disallowing any questioning on the prior sex abuse incident.

Read the oral argument preview here.

Key Precedent

R.C. 2907.02(D) (Ohio’s Rape Shield Law)(“Evidence of specific instances of the victim’s sexual activity . . . shall not be admitted . . . .”)

R.C. 2907.01 Sex Offenses General Definitions

(A) Defines Sexual Conduct

(B) Defines Sexual Contact

State v. Gardner, 59 Ohio St.2d 14 (1979) (The goals of Ohio’s rape shield law are guarding the victim’s sexual privacy, encouraging the reporting of rapes, and excluding evidence that is unduly inflammatory and prejudicial.)

State v. Boggs, 63 Ohio St.3d 418 (1992) (“[T]he trial court must ascertain whether any sexual activity took place, i.e., an actual rape or consensual sex. If it is established that either type of activity took place, the rape shield statute prohibits any further inquiry into this area . . . .”)

State v. Stoffer, 2011-Ohio-5133 (7th Dist.) (The rape shield statute addresses only prior consensual sexual activity of the victim and not prior sexual abuse suffered by the victim.)

State v. Williams, 2012-Ohio-5695 (When considering prior bad acts evidence, trial courts should consider the relevance of such evidence, whether the evidence is presented to prove the defendant’s character, and whether the evidence’s probative value is substantially outweighed by prejudice to the defendant.)

Jeffries’ Proposition of Law Accepted for Review

Ohio’s rape shield law prohibition on the admission of “specific instances of the victim’s sexual activity” applies only to consensual sex or whether it also prohibits questions related to prior sexual abuse.*

*In his brief Jeffries apologized for this inartfully worded proposition of law, and restated it as follows:

R.C. 2907.02(D)’s prohibition on the admission of “specific instances of the victim’s sexual activity” applies only to consensual sex and does not prohibit evidence of prior sexual abuse perpetrated upon a victim.

At Oral Argument

Justice Kennedy was absent from the argument, but the Chief announced that Kennedy would watch the argument and participate in the decision.

Arguing Counsel

John T. Martin, Assistant Public Defender, Cuyahoga County, for Appellant Cedric Jeffries

Mary M. Frey, Assistant Prosecuting Attorney, Cuyahoga County, for Appellee State of Ohio

Jeffries’ Argument

Ohio’s rape shield statute does not apply to non-consensual sexual activity. This is demonstrated by the plain language and purpose of the statute, what the Court has done, rather than said, in the past with this issue, and because of Constitutional considerations.

The defense position is bolstered by the use of the term “victim’s” sexual activity in the statute. In ordinary parlance, we would never considered someone who has been raped to have engaged in “sexual activity.” “Sexual conduct” and “sexual contact” are both defined without any mention of consensual or nonconsensual activity. In order to accept Jeffries’  proposition of law, in terms of existing precedent, the Court need only clarify that Boggs only concerned the issue of whether there needs to be a pre-testimonial hearing on whether or not an allegation is true or false.  Boggs should be qualified by virtue of the facts and circumstances that had come up in that particular situation.

The primary purpose of the rape shield law is to keep the jury focused on what took place without passing judgment on the sexual mores of the alleged victim. No one is passing judgment on the sexual mores or the moral character of a 4 or 5 -year-old who was the victim of a rape.

The defense is not suggesting that every time there is a prior rape of an alleged victim that must come in to evidence. All the defense is saying is instead of using the bright line rule in the rape shield law that ties a judge’s hands, allow the other rules of evidence, like 401, 403, 404, and 611 to do their job. There are available remedies under the rules of evidence.

This case is about the purpose of the rape shield act.  It’s not about giving either side an advantage. It’s about getting to the truth.  It’s one thing to say we have a rape shield act that puts blinders on the jury to the extent that the jury shouldn’t be prejudiced by issues of sexual mores. But when the blinders turn into a blindfold, because of the judge having his or her hands tied, and not allowing the jury to see what they should, then things are turned on their head and there is an injustice. And we’re not getting to the truth.

The Williams case, which dealt with the defendant’s prior sexual activity, is illustrative. There, this Court examined the defendant’s prior nonconsensual sexual conduct, not under R.C. 2907.02, but solely under Evidence Rules 401, 403, and 404.

Finally, the rape shield statute is unconstitutional as applied here. The General Assembly is presumed to intend to write a constitutional statute. However, if there reaches a point where a defendant’s rights of cross examination and confrontation have been foreclosed by a bright line rule with regard to nonconsensual sexual activity, then that line has been crossed. In such cases, the legislature must be presumed not to have intended for the statute to be applied in such a way.

Jeffries’ interpretation of the rape shield law is consistent with the purpose of getting to the truth. It will cut both ways—some days it will help the defense, others the prosecution. But it will help the jury get to the truth, which is what we all want.

State’s Argument

There is only one issue before the Court, and it is not a constitutional issue. Jeffries’ proposition of law raising a constitutional question was not accepted for review. The issue before the Court is whether the term “victim’s sexual activity” as used in the rape shield laws applies to consensual and nonconsensual sexual activity. Since the rape shield law is unambiguous, it needs no interpretation.  The unequivocal answer is that the rape shield law covers both consensual and nonconsensual activity.

Prior sexual assault is encompassed in prior sexual activity based on the definition for sexual activity, which is sexual conduct or contact.  There’s no limiting language in any of those definitions for consensual or nonconsensual activity. It’s important for this Court to consider how the phrases “sexual contact,” “sexual conduct,” and “sexual activity” are used throughout Chapter 290. When the legislature wants to qualify those terms, it does so, with either nonconsensual language or consensual language. Here, under the rape shield law, there’s no limiting language. When a statute is unambiguous, words are not added or deleted in interpreting the statute.

The state’s interpretation of the rape shield law as providing heightened protection for evidence of nonconsensual sexual activity is not just to protect the victim’s sexual privacy, but also to encourage the reporting of sexual assaults. And if the focus is on what the victim has done or what has been done to the victim in the past, then the victim is being put on trial instead of the defendant. If nonconsensual sexual activity is not covered under the rape shield law, reporting could be chilled, especially for child victims and their parents.

In this particular case, the evidence of prior nonconsensual sexual activity of the victim was not only precluded under the rape shield law, but the trial judge also excluded the evidence on relevancy grounds—an issue Jeffries did not address at the court of appeals. Furthermore, the question of why the victim did not report any of this present abuse sooner did come up in this trial. The state raised the issue in direct examination, and the victim said she didn’t think she would be believed and that she didn’t want to go back to foster care. During cross, the defense had the opportunity to discuss this issue with the victim and to show the jury that there was a delay in reporting, and that the victim had an opportunity to talk to trustworthy individuals, like a doctor or a teacher, and she didn’t. And then the state had an opportunity to explain why, when the victim testified on redirect that it was just hard to do. As a result, the defense wasn’t really disadvantaged by the fact that they didn’t get to ask about this specific reporting incident.

The state also disagrees with the defense about what it brought to the trial court’s attention when the state asked at trial why the victim had not reported the incident sooner.  The defense never argued that the state had opened the door, that the defense did not know the victim was going to say she wasn’t believed, and that it should have been allowed to ask about this-an argument the defense did not make until  it was raised in Jeffries’ jurisdictional memorandum.

This Court should hold that the “victim’s sexual activity” as used in Ohio’s rape shield laws encompasses both consensual and nonconsensual sexual activity and therefore the statute prohibits the introduction of evidence of any sexual activity of the victim, absent a statutory exception.

What Was On Their Minds

The Rape Shield Law and Its Purpose

For the rape shield statute to mean what the state says it means, would the statute have to say, “the victim’s sexual activity or any sexual activity or contact with the victim,” asked Justice Stewart? Could part of the underlying reason for the rape shield statute be to protect the victim in these sexual assault cases, not only with equating past activity to mean present consent, but from the embarrassment and the stigma of having even nonconsensual or unwanted sexual activity? Here the trial court found the testimony regarding the prior assault would not be relevant, she noted. But is it prohibited by the rape shield statute?

The defense wants to compare one situation to an unrelated situation years earlier, and tell the jury that because the victim didn’t act in one way that should raise doubt in their minds about her credibility, right, asked Justice Donnelly? Was that argued at the trial court level? In that supposed Boggs hearing before the trial court judge? Is the purpose of the rape shield law to not allow the defense to raise the specter of promiscuity of the victim, usually in consent-contested  cases? What I am hearing from the defense is that in this particular trial they wanted this line of inquiry in order to compare the response time of the victim in one incident with an incident that took place years before, he noted. As I read the briefs, there was nothing in this trial that prevented the defense, through cross examination, without raising this specific incident, from raising the response time issue with this alleged victim, at trial, and asking, why didn’t you report it earlier?

Does the state agree with the defense position that a defendant’s past acts of sexual abuse could also not be raised, asked Justice French?

Definitions

Doesn’t the statutory definition of “sexual contact” seem to pretty clearly cover this, asked Justice DeWine? Doesn’t it speak of “any touching?”

Can we say that nonconsensual sexual activity can be categorized as the victim’s sexual activity, asked Justice Stewart?

Is prior sexual assault the same as prior sexual activity, asked Justice Fischer?

Boggs Decision

Doesn’t Boggs take care of the consensual versus nonconsensual issue, asked Justice Fischer? Must Boggs be overruled if the Court were to agree with the defense?

Evidence Rules Versus Rape Shield Law

Couldn’t the trial judge have made the decision about the disputed evidence just applying an E.R. 403 analysis, asked Justice Donnelly? Setting aside the rape shield issue and saying is the probative value of the evidence the defense wants to bring in outweighed by the prejudice to the state in this case?

What’s the state’s interest in not having what the defense wants to put forth as evidence, asked Justice Stewart? Aren’t there other protections with the evidence rules to guard against this that the trial court has at its disposal if it’s improper and inappropriate for the circumstance?

How It Looks From The Bleachers

To Professor Emerita Bettman

Like a win for the state.  While Mr. Martin always argues passionately for his clients, I just didn’t find this one very convincing, especially his answer to Justice Fischer’s question about why this case wasn’t controlled by Boggs. Perhaps the best Jeffries can hope for is for the Court to discuss the interplay between the rape shield statute and the evidence rules, especially 403(B) and 404. Justices Stewart and Donnelly seemed especially interested in that interplay.

To Student Contributor Carson Miller

I think that the Court’s doubt about Mr. Martin’s statutory interpretation will likely carry the day for the State. Most troubling for the Court was Mr. Martin’s assertion that R.C. 2907.02 did not intend to include nonconsensual sexual activity within the phrase “victim’s sexual activity.” Justices DeWine, Fischer, Stewart, and Donnelly all had varying questions on the validity of that interpretation given the other definitions of “sexual activity” within the Ohio Revised Code.

Noticeably, Justice Kennedy was absent and Chief Justice O’Connor did not question the litigants. If there is a way that Jeffries wins, it might be because of the argument that the inclusion of nonconsensual sexual activity in the rape shield statute could chill reporting of sexual assaults. However, based on the immediate reaction from the bench, I see the State winning this one.

 

Update: On September 24, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“So you are saying that any percentage that the city attempts to enact that favors its residents in any percentage over anybody else is unlawful?”

Justice Stewart, to the State Solicitor

“So could Cleveland require that 100% of contractors and employees live in the city?”

Justice DeWine, to Cleveland’s Law Department Chief Counsel

On March 6, 2019, the Supreme Court of Ohio heard oral argument in City of Cleveland v. State of Ohio, 2018-0097. At issue in this case is whether the State has the power under Article II, Section 34 of the Ohio Constitution to prohibit public authorities from requiring contractors who work on public improvement projects to hire a certain percentage of laborers who reside in defined geographic areas.  If the State does not have such power, then the question becomes whether such a prohibition violates home-rule authority.

Case Background

In 2003, the City of Cleveland (“Cleveland”) enacted Cleveland City Ordinances (C.C.O.) Chapter 188, also known as the Fannie Lewis Law. The Fannie Lewis Law mandates that all construction contracts over $100,000 with the city shall require at least 20% of the construction hours to be performed by Cleveland city residents. If a contractor fails to comply with this requirement, a penalty is imposed.  Other Ohio cities such as Cincinnati, Columbus, and Akron have similar laws. In 2014, the Ohio Contractor’s Association challenged the Akron law on equal protection grounds in federal court, but that court rejected the argument and upheld the law.

In 2016, following the federal court’s ruling, the State enacted what is now R.C. 9.75, known as the residency choice law, which prohibits public authorities from requiring contractors who work on public improvement projects to employ certain percentages of laborers who reside in defined geographic areas. R.C. 9.75 effectively proscribes the mandates of the Fannie Lewis Law. The legislature found this to be a matter of statewide concern, affecting the general welfare of all employees, and the right to live wherever one wishes.

After the enactment of R.C. 9.75, Cleveland filed a complaint challenging the constitutionality of the statute. Cleveland claimed the State improperly invoked Article II, Section 34 of the Ohio Constitution to enact R.C. 9.75 and that the law unconstitutionally infringes upon the city’s home-rule authority. The trial court agreed with Cleveland and enjoined the State from enforcing the law.

The Eighth District Court of Appeals unanimously affirmed the trial court’s ruling, holding that Article II, Section 34 of the Ohio Constitution did not give the General Assembly power to enact R.C. 9.75 and that the statute infringed upon the municipal home-rule authority granted in Article XVIII, Section 3. The Eighth District reasoned that R.C. 9.75 was not related to the general welfare of employees, so it was not covered by Article II, Section 34 and was thus subject to home-rule analysis. The Eighth District found that R.C. 9.75 did not pass the home-rule test because the Fannie Lewis Law was an exercise of local self- government, not an exercise of police power, and R.C. 9.75 was not a general law.

Read the oral argument preview here.

Key Precedent

Article II, Section 34 of the Ohio Constitution (Employee Welfare Amendment — “Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power.”)

Article XVIII, Section 3 of the Ohio Constitution (Home-Rule Amendment — “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”)

R.C. 9.481 (Barring residency requirements for political subdivision employees.)

R.C. 9.75 (B)(1) (Residency-Choice Law) (“No public authority shall require a contractor… for the construction of a specific public improvement…to employ as laborers a certain number or percentage of individuals who reside within the defined geographic area or service area of the public authority.”)

C.C.O. Chapter 188 (The Fannie Lewis Law) (“[E]very Construction Contract shall…Require that one (1) or more Residents perform twenty percent (20%) of the total Construction Worker Hours…performed under the Construction Contract.”)

Dies Elec. Co. v. City of Akron, 62 Ohio St.2d 322 (1980) (A City’s authority to contract arises as a power of local self-government under the Home Rule Amendment.)

 Rocky River v. State Emp. Relations Bd., 43 Ohio St. 3d 1 (1989) (Upheld a statute enacted pursuant to Article II Section 34 that mandated binding arbitration between a city and its safety forces in the event of a collective-bargaining impasse.)

 Canton v. State, 2002-Ohio-2005 (Home-Rule authority test: an Ohio statute overrides a local ordinance when (1) a conflict exists, (2) the ordinance is an exercise of police power, not local self-government, and (3) the statute is a general law. General law test: a general law must (1) be a part of a comprehensive enactment, (2) apply uniformly throughout Ohio, (3) do more than just grant or limit municipal power, and (4) prescribe a rule of conduct.)

Lima v. State, 2009-Ohio-2597 (Upheld an Ohio law barring residency requirements for city employees, finding that the law provided for the comfort and general welfare of employees because it allowed “employees more freedom of choice of residency”; no home-rule analysis was needed.)

Propositions of Law Accepted for Review

Proposition 1

R.C. 9.75 is a valid exercise of authority under Article II, Section 34, because it provides for the general welfare of employees by protecting them from local preferences. Thus, no home-rule analysis is needed.

Proposition 2

R.C. 9.75 satisfies home rule. Cleveland’s ordinance is an exercise of police power designed to serve general-welfare interests by shifting work to local residents. The challenged law is a general law that counteracts the significant extraterritorial effects residency quotas have on Ohioans living outside the relevant local jurisdiction.

At Oral Argument

Arguing Counsel

Benjamin M. Flowers, State Solicitor, Office of the Ohio Attorney General, for Appellant, State of Ohio

Gary S. Singletary, Chief Counsel Civil Division, Law Department, City of Cleveland, for Appellee City of Cleveland

State’s Argument

Lima resolves this case. In Lima, the Court upheld a state law that forbade cities from discriminating against nonresidents in hiring decisions. The Court held that any law that improves freedom of choice of residency is valid under Article II Section 34 of the Ohio Constitution. Lima established two propositions that everyone in this case agrees on. The first is that laws passed under Article II Section 34 are immune from home rule challenges.  The second is that Section 34 empowers the General Assembly to pass laws that improve employees’ freedom of choice of residency. Because R.C. 9.75 was enacted pursuant to Section 34, and does improve employees’ freedom of residency, Cleveland’s home rule challenge fails.

Construction workers cannot know where their next job is going to be.  Those jobs move all the time. For that reason, the legislature determined that it was important to protect these workers from discriminatory regulations like Cleveland’s Fannie Lewis law. That law requires contractors to fill 20% of labor hours with local residents. So construction workers who live outside the city cannot compete on equal terms with those who do. As to those 20% of the labor hours, the resident who doesn’t live in Cleveland is discriminated against with respect to the Cleveland resident. Residents and nonresidents must be allowed to compete on a level playing field.

Cleveland argues that Fannie Lewis is a quota, not a residency requirement. But the key question is not whether Fannie Lewis is a quota or a residency requirement or anything else. If that were a relevant distinction, Lima could be evaded simply by having a 90 or 99% quota. The relevant question under Section 34 is not what the local law is called. It’s whether the state law improves freedom of choice of residency. And here the state law does, because it ensures that a construction worker will not be put at any competitive disadvantage in seeking work on public improvements. It ensures that residents and nonresidents can compete for work on equal terms.  But laws with a quota like the Fannie Lewis law do not allow this, because a nonresident is at a disadvantage as to 20% of the labor hours.

The Eighth District’s decision that the residency choice law does not regulate an employee/employer relationship is incorrect. First, Section 34 does not limit the legislature to acting upon employee/employer relationships. More significantly for this case, the residency choice law does regulate the employee/employer relationship by giving contractors and their construction workers freedom to negotiate without regard to discriminatory regulations like the Fannie Lewis law. Ohio’s residency choice law provides employers and employees with the right of deciding who to work for and where to work without regard to where they live.

Cleveland’s Argument

The City of Cleveland is here to defend the Fannie Lewis law against the State’s attempt to preempt Cleveland from adopting a law that addresses the welfare of its residents. This wasn’t a law that was drafted or put into place on a whim. The Cleveland city council studied what was happening in Cleveland for well over a year, to determine why the city was not receiving benefits from the money it was spending.  Cleveland’s tax dollars were being spent for construction projects, but Cleveland residents were not getting the work.  With the Fannie Lewis law, Cleveland was just trying to do the same thing that Article II Section 34 accomplishes, which is the general welfare of individuals that live in Cleveland, where the history of employment has been against people living there. While Cleveland’s law wasn’t enacted under Article II Section 34, it certainly was enacted under the spirit of that provision.

The City doesn’t think R.C. 9.75 was genuinely enacted under the authority of Article II Section 34. This case gives this Court a chance to look at the parameters of this law in the context of home rule, among other provisions in the Ohio Constitution. The state wants to say Lima is the beginning and the end of this case. When the law at issue in Lima was enacted, all workers had to live in the city or they would not get their jobs. That is not the case here. Cleveland’s Fannie Lewis Law does not require any residency of any worker, nor does the city require a contractor to live in Cleveland as a basis for contracting with the city. The decision as to who works for the city’s public construction contracts is not the city’s—the contractor hires. And these are sophisticated contractors.  They know what they are bidding on. In this case there is no employer/employee relationship between Cleveland and these independent contractors that are coming into the city.

Cleveland has home rule. This Court has ruled in Dies and other cases that the ability to contract is a power of local self-government, and the state is trying to take this away here. What the General Assembly has done here is invade the province of local self-government under a circumstance where they try to argue that they are giving freedom of choice to live wherever one wants. The General Assembly has enacted a law that deprives Cleveland of its home rule authority to contract. The State tries to act like this is a police law Cleveland has enacted, when it is a contract law.

If the General Assembly is going to deprive Cleveland of its home rule authority, it needs to enact a general law. R.C. 9.75 is not a general law. It meets only one part of the 4-part Canton test, and if even one prong of that test is missed, then it’s not a general law.  It may be uniformly applied, but other than that it’s not a comprehensive law, it’s not a police law, and it doesn’t regulate conduct of citizens. So it’s not a general law.

The Fannie Lewis law says that 80% of the work force hired on public construction contracts can come from anywhere. Actually, 100% can come from anywhere, but if a contractor chooses to hire 100%, there’s a penalty of 2.5%, which contractors are well aware of at the time they bid on that contract. That’s a liquidated damages concept. It’s not a police law.  The city does not enforce residency requirements against any contracted employee.  It’s the contractors’ decision as to who they want to hire. The Fannie Lewis Law does not invade the comfort, health, safety or general welfare of any resident outside the city of Cleveland.

What Was On Their Minds

Article II Section 34

The state’s Section 34 argument relies on the provisions that says “no other provision of this Constitution shall limit this power,” commented Justice DeWine. What would happen if the state decided to pass legislation that said we have too many employees that are criticizing each other.  No employee on a work site in Ohio shall say anything bad about another or they will be punished by the state. Leaving aside the federal constitution, would that violate the freedom of expression provisions of the Ohio constitution? What’s the stopping point?  What if the state wanted to say no worker shall own a firearm? Does Article II Section 34 trump the free expressions or right to own a firearms provisions of the Ohio Constitution? And why does it apply to Home Rule? There’s nothing in the text or structure that talks about home rule. What if the General Assembly had phrased the law slightly differently—what if they had said that no contractor who has a public contract shall discriminate based on residency.  Under the Home Rule Amendment, that would clearly be a general law that would supersede the Cleveland law that requires that contractors discriminate based on residency. If it was phrased that way, wouldn’t everyone say it was o.k.? Why couldn’t the legislature say discrimination based on residency shall be illegal for people on public contracts in Ohio? Is there any reason the legislature couldn’t do that?  As a policy preference? Does the legislature just need to phrase this a little differently?

Instead of First or Second Amendment rights, let’s go to 1851 where the Ohio Constitution says we’re not going to have indentured servitude. That’s an employment issue. Would that trump this provision, asked Justice Fischer? Section II Article 34 says that laws may be passed providing for the health, comfort, safety and general welfare of all employees. How does this statute violate that? Isn’t the Fannie Lewis Law for a specific group of people? Those in Cleveland? And the Constitution requires these laws to apply to all employees, which the residency choice law seems to do. It applies throughout the state.

Cleveland has not conceded that Section 34 trumps home rule in this case, has it, asked Chief Justice O’Connor?

The powers of Article II Section 34 belong to the General Assembly, noted Justice French. If what Cleveland is doing is in the spirit of Article II Section 34, and if the General Assembly has those same interests in mind, why does that not trump what the city has done here? Is what the General Assembly said it was doing really a pretext? That what Cleveland was doing really had the employees and their safety in mind but what the General Assembly did, even though they said that’s what they had in mind, was simply a pretext? So we should look behind the provision to see what was the legislature’s intent?

The Fannie Lewis Law

Are the employees who are hired public employees, asked Chief Justice O’Connor? They get no benefits of being a public servant? Aren’t construction workers transient employees? Wouldn’t it be to their benefit to have the flexibly to work wherever they wanted in the state and not be confined to the Cleveland jurisdiction? This doesn’t apply to private employers pursing their private industry, does it? Isn’t the Fannie Lewis law just an economic motivator-a contractor can hire 100% of the workers from outside Cleveland residents; he just makes less money because he has a penalty to pay?

The construction workers don’t have to live in Cleveland, noted Justice Stewart. There is no mandate that contractors can only hire Cleveland residents. The ordinance requires 20% of the work to be by residents of the city, correct? Who is discriminated against here with that requirement? Is it the state’s position that any percentage that the city attempts to enact that favors its residents over anybody else is unlawful? She added that she was having a hard time understanding how Fannie Lewis doesn’t allow freedom of residency. If there were a 100% residency requirement, that everyone who worked on contracts over $100,000 had to live in the city of Cleveland, I could see the discrimination argument there, she said. I’m just having trouble seeing it when you can work on these projects regardless of whether you are a resident or not.  Later, she asked Cleveland’s lawyer whether the Court’s analysis should be affected by the merits of why this law went into effect?

The Lima Decision

Is the difference between the Lima decision and what we have here that prior to the decision, all employees had to be residents of the city? So how does the state view the fact that under Fannie Lewis the vast majority can be from any jurisdiction and only 20% need to be from the city in which the construction is taking place, asked Chief Justice O’Connor?

If Cleveland wanted to just completely avoid the Lima decision could it do so by privatizing all of city government, asked Justice DeWine? Could it say, we’re really concerned about all the people in our sanitation department not having to live in the city anymore, we’re going to contract that out and as a condition require that all those employees now live in the city? What’s the difference between Lima and what’s going on here? Other than its 20% rather than 100%?

Home Rule

I’m curious about the City’s argument that because it’s a contract, the city has carte blanche to move forward under home rule, commented Justice DeWine. Could Cleveland by contract require every worker on a city contract to live in the city,? If not 100%, then what’s the line? What if the city said, we’re really concerned about the number of people who aren’t immunized in the city.  We are going to require every contractor as a condition of doing business with the city to guarantee that every employer and their family is immunized? Could Cleveland do that? Just as a matter of home rule power? The city suggests that because this is a matter of contract, it’s a matter of local self-government. How far can cities go to accomplish police power aims through contracts? Isn’t that what the city is doing here? Trying to make sure that more residents get employed, so they are doing that through contracts? (Justice Stewart interrupted with, “contracts that contractors are free to enter into or not.” )

How it Looks From The Bleachers

To Professor Emerita Bettman

This case revives a long-running debate about how broad the grant of legislative authority is under Article II Section 34. Lima summarizes key cases in which the Court has upheld statutes enacted pursuant to that section, including a ban on residency requirements in Lima itself.  For those interested, the majority opinion by Justice Pfeifer and the dissenting opinion of Justice Lanzinger pretty much set forth the viewpoints being argued here.

My sympathies are with the city, because I think the regulation of residency as part of the general welfare clause of Section 34 is a stretch, but this looks like a win for the state, although this is far from an easy call.  It is clear that the Justices just do not all see this the same way, just as different justices didn’t in Lima. Justice Stewart was by far the most sympathetic to the Fannie Lewis Law as a proper exercise of local self-government, and seemed to bristle at the notion that it was in any way discriminatory. I believe the Chief is sympathetic to the city as well. (I disagree with Ivy on this point). Justice DeWine, who was a particularly active questioner, didn’t seem persuaded by the city’s argument that it was just enforcing a contract provision, not using its police power, and Justice French didn’t seem sympathetic to the city’s argument either.

Justices DeWine and Fischer seemed to enjoy pushing the state’s new young and obviously talented state solicitor about the limits of the supremacy clause in Article II Section 34, with some hypotheticals worthy of law school, but I think ultimately will side with him. That provision has always been construed as a broad grant of legislative authority. Justice Donnelly, one of several Clevelanders on the bench, was silent.  As an aside, I am impressed when the state solicitor comes to the Court to argue in person, which is relatively rare as far as blog-covered cases go.

To Student Contributor Ivy Charneski

There were tough questions on both sides and I’m really not sure which way this one will go. The Court appeared to be concerned about the slippery slope dangers of each side’s position. For example, on the State’s side, how far can the Article II, Section 34 power go, can it trump freedom of speech rights? Does it trump the section of the Constitution about indentured servitude, after all isn’t that an employment law? On Cleveland’s side, if the city can’t require 100% of the work be done by residents, then what is the stopping point for the quota? Could it require 50%?

Apart from these slippery slope concerns, the Court seemed to be split to me. I think the Chief Justice might be in favor of the State’s side. What made me think this were her early questions that seemed to be taking the words right out of the State’s mouth. Namely she noted that construction workers are generally transient, and wouldn’t they want a law that allows them to move around? The State Solicitor’s response was basically, yes, that is exactly the point. On the other hand, Justice Stewart really didn’t seem to be able to wrap her head around how the Fannie Lewis Law is discriminatory and who it’s discriminating against. Rather, she appeared very focused on the fact that 80% of the work on a construction project is still up for grabs for non-residents.

I thought Cleveland had a strong brief, but I don’t think it translated to the argument. I think this could go either way, but if I had to choose I’d bet on a win for the State. It will be interesting to see which way this one comes out.

 

 

Update: On October 31, 2019, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“Why does double jeopardy not apply to the situation?”

Justice Donnelly, to the prosecutor

“There’s really not a double jeopardy issue here, is there? This is really a case about the plea, right?”

Justice DeWine, to defense counsel

On March 6, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Travis Soto, 2018-0416. At issue in the case is whether a defendant can be prosecuted a second time when, after a negotiated plea, that defendant has served and completed a prison sentence, yet confesses the true nature of the offense after he is released.

Case Background

In January of 2006, Travis Soto’s two-year-old son was killed. Soto told law enforcement officials that his son was accidentally struck while Soto was driving his all-terrain vehicle (“ATV”) and died as a result. At first, Soto told investigators that he was riding the ATV alone and accidentally ran over the child as he came around the corner of a building on the property. But later, Soto told investigators the boy was riding with him on the ATV, and had fallen off and was hit by the ATV.  After an examination, and the history she was given, the coroner concluded that the child’s injuries were consistent with Soto’s explanation of an ATV accident. Soto was charged with child endangerment and involuntary manslaughter. Soto negotiated a plea in which he pled guilty to child endangerment and in exchange the involuntary manslaughter charge was dismissed. Soto served a five-year sentence.

In July of 2016, several years after the completion of his sentence, Soto voluntarily approached the Putnam County Sheriff’s Office and confessed that he had actually beaten his son to death and had staged the ATV accident scene in 2006. In August of 2016, Soto was indicted for aggravated murder, murder, felonious assault, kidnapping, and tampering with evidence. Soto filed a motion to dismiss on double jeopardy grounds. The trial court denied Soto’s motion, finding that because felonious assault, kidnapping, and tampering with evidence all require proof of an element not required by the original prosecution of child endangerment, Soto could not reasonably believe that his plea, based on a false narrative, would bar future prosecutions.

On appeal, the Third District, in a split decision, held that a subsequent prosecution was barred in these circumstances, both on double jeopardy grounds and because at the time of the plea, the state did not reserve the right to bring additional charges related to the boy’s death. The dissenting judge would find that the involuntary manslaughter charge was dismissed without prejudice before jeopardy had attached, and the state was free to pursue the murder charge based on new evidence.

Read the oral argument preview here.

Key Precedent

United States Constitution, Amendment V (“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . .”)

Ohio Constitution Article I, Section 10 (No person shall be twice put in jeopardy for the same offense.)

R.C. 2903.11 (Felonious Assault)(No person shall knowingly cause serious physical harm to another or another’s unborn; or cause or attempt to cause physical harm to another or another’s unborn by means of a deadly weapon or dangerous ordnance.)

 R.C. 2903.01 (Aggravated Murder)

(C) No person shall purposely cause the death of another who is under thirteen years of age at the time of the commission of the offense.)

R.C. 2903.02 (Murder)(No person shall purposely cause the death of another…)

R.C. 2903.04 (Involuntary Manslaughter)(No person shall cause the death of another… as a proximate result of the offender’s committing or attempting to commit a felony.)

Blockburger v. United States, 284 U.S. 299 (1932) (The Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes unless each statute requires proof of a fact which the other does not.)

Brown v. Ohio, 432 U.S. 161 (1977) (Once a defendant has been convicted of a lesser-included offense he or she may not be tried for a greater one arising from the same factual scenario under the Double Jeopardy Clause.)

State v. Thomas, 61 Ohio St.2d 254 (1980) (The state may be able to proceed with additional charges if, at the time of the first trial, additional facts to sustain a second charge had not occurred or were not discoverable despite the exercise of due diligence.)

Ohio v. Johnson, 467 U.S. 493 (1984)(The dismissal of one count in the indictment at the time of a defendant’s plea is not an “implied acquittal” on the dismissed offense.)

State v. Tolbert, 60 Ohio St.3d 89 (1991) (Lesser-included offenses are considered the same offense as the greater offense for purposes of the Double Jeopardy Clause and Blockburger test.)

State v. Carpenter, 68 Ohio st.3d 59 (1993) (When the state accepts a negotiated plea and expressly fails to reserve the right to bring additional charges upon the development of new information, the State is precluded from later indicting the defendant on a more serious charge.)

State v. Lynch, 2003-Ohio-2284 (Involuntary manslaughter is a lesser-included offense for murder and aggravated murder.)

State v. Dye, 2010-Ohio-5728 (“guilty plea itself creates the expectation that it will terminate criminal proceedings and that the defendant ‘[cannot] be called on to account further on any charges regarding th[e] incident.’”)

 State v. Resor, 2010-Ohio-397 (6th Dist.) (Double jeopardy hinges on the identical nature of the different causes of actions brought by the state, not on factual evidence submitted to the jury. Even slight variations in the causes of action will circumvent a double jeopardy claim.)

Propositions of Law Accepted for Review

Proposition 1 

Involuntary Manslaughter with a child endangering predicate in violation of ORC 2903.04(A) is not the same offense for double jeopardy purposes as Aggravated Murder in violation of ORC 2901.01(C) or Murder with a Felonious Assault predicate in violation of ORC 2903.02(B) under the Blockburger “same offense” test.

Proposition 2

Additional facts necessary to sustain a new charge that have not been discovered despite the exercise of due diligence acts as an exception to Blockburger to allow subsequent prosecution.

Proposition 3

A negotiated plea does not bar successive prosecutions where the defendant would not reasonably believe that his or her plea would bar further prosecutions for any greater offense related to the same factual scenario.

At Oral Argument

Arguing Counsel

Gary L. Lammers, Putnam County Prosecuting Attorney, for Appellant State of Ohio

Carly M. Edelstein, Assistant State Public Defender, Office of Ohio Public Defender, Columbus, for Appellee Travis Soto

State’s Argument

The court of appeals erred in finding that under the facts of this case, the state is now barred as the result of a negotiated plea and on the principles of double jeopardy from prosecuting Mr. Soto for aggravated murder and murder with a felonious assault predicate.

Under the facts as we now know them, Mr. Soto knew at the time he entered into the plea bargain that he had been deceptive, and had committed other crimes. The rule of law is that the defendant has to have a reasonable belief that the plea agreement will end all prosecution, both current and potential. Under these circumstances, Mr. Soto could not have had any reasonable belief in the finality of the plea agreement. He couldn’t reasonably believe that would be the end of it, if the real evidence came out.  And while there was no reservation of rights by the state here, the state had no evidence to suggest this was an intentional act.

It’s the state’s position that an individual can’t commit a crime and then hide behind it. Mr. Soto knew at the time that he had committed a crime that was not even contemplated by the state. Only he knew that. When he knows he is avoiding detection by actively and covertly giving misinformation, evidence that takes the state down a rabbit hole, there can be no reasonable expectation of finality. Although a defendant has the right to remain silent and need not assist in the investigation against him, when a defendant chooses to tamper with evidence and proactively engages in fraud upon the investigators and the court, he should not be able to hide behind that subterfuge and avoid prosecution for a greater offense that subsequently comes to light.

Soto’s Argument

The state is asking the Court to upset an understanding of contract law protections by creating an exception to Carpenter. Carpenter places the burden on the state to reserve the right to bring additional charges. If this Court wants to create an exception, this is not the case to do it.

Back in 2006, Mr. Soto told two different stories, and at this point we have three different stories about what happened to Mr. Soto’s child. That should have raised alarm bells for the state. In 2006, the state chose to charge based on what it had uncovered, and entered into a plea agreement on that basis. Because of that, the defense believes there was a reasonable expectation of finality in the proceedings. The case law stemming from Carpenter backs that up. Carpenter and the cases that follow tell us that if the charges arise out of the same incident and the defendant has a reasonable expectation of finality in the plea agreement, then the state has to have reserved the right to bring additional charges; otherwise no greater charges can arise from that incident.

In a plea bargain, the defendant and the state are negotiating. They both recognize they are both bargaining away risk. In every case there should be an expectation on both sides that there will be misrepresentations.  Carpenter recognizes that risk and has imposed the burden on the state to reserve the right to bring additional charges.

Following Mr. Soto’s third story, the coroner’s report was presented to a child abuse specialist on the basis that the third version is what occurred in this case. That specialist confirmed that the injuries were more consistent with child abuse than with an ATV accident that could have occurred in 2006. But what we have here is the same confirmation bias that occurred in 2006. So, again, dealing with the Carpenter exception, this Court and other courts around the state have firmly place the burden of reserving the right to bring additional charges on the state. This is only fair because the state has far more advantages in its investigation and in knowing what’s occurring, and it presents an opportunity for the defendants to know they are on notice. While the plea itself is not in the record, the state has conceded that this was a negotiated guilty plea, which is what is necessary to do the Carpenter analysis. The cards were on the table to the extent that these two very inconsistent stories should have raised red flags for the state. Carpenter doesn’t just involve assessing the severity of a victim’s injuries, and determining whether there might be a death following those charges. It has been applied in other contexts.

 As far as the contract concept of fraud in the inducement, the defense has not found any cases that would apply in this circumstance. There was a choice by the state to indict on the basis of two different stories, and then a negotiation began based on that indictment. There should be a cut-off at that point.

What Was On Their Minds

Is This Really About Double Jeopardy?

Why are we even talking about Blockburger and double jeopardy, asked Justice DeWine?  How was the defendant once put in jeopardy for the manslaughter charge that was dismissed? Jeopardy never attached to that charge, did it? Is there any case in Ohio that has ever found that jeopardy attaches simply because a charge is filed? Wouldn’t we have to make up brand new law to find that? There are cases directly on point that say jeopardy does not attach, he added.

He wasn’t charged with a murder or any variation of a murder, so he’s never been in jeopardy for murder or any variation of murder, asked Chief Justice O’Connor?  Or did he plead not guilty to involuntary manslaughter and then as a result of the plea the charge was dropped, followed Justice Donnelly?

Is it the defense position that because dismissing the homicide charge was part of the plea agreement, it is still double jeopardy in the fact that it was considered for purposes of his penalty, asked Justice Stewart?

The Various Versions of What Happened Plus Some Hypotheticals

When the case was initially investigated, Mr. Soto gave 2 different versions of what allegedly took place to cause the victim’s death, noted Justice Donnelly, who said he wanted to be sure he had the facts straight. So right there was reason to give investigators question about his credibility.  When the state goes ahead after the investigators have done their job, and presents to the grand jury, and issues charges for involuntary manslaughter and for child endangerment, and the defendant enters a plea of not guilty, doesn’t the judge who is assigned the job to resolve that dispute have the right to interpret that as “we are accusing you and we are prepared to prove the truth of these charges beyond a reasonable doubt?”  What if the third version of what the state now believes is the truth didn’t come from Soto himself? What if after he served his 5 year sentence, a neighbor no one knew about or could have found came forward and said, “I’ve been living with this for 5 years—I was there, I looked through the window, I saw the way this child died and I want to tell you the truth.” Would the state be able to prosecute him then? Later, he commented that in every negotiated plea bargain, the defendant is getting the benefit of finality for whatever actually really happened.

The Plea Bargain

In this case, instead of going forward at trial, there was a plea bargain, noted Justice Donnelly.  The benefit that Mr. Soto got was the dropping of the one charge in exchange for a plea, he did his 5 years, and then he has a crisis of conscience, he comes out after prison and gives a third version of the event.  Why does double jeopardy not apply to the situation? Is there a distinction between pleading to a charge and getting a negotiated benefit?

What if the defendant just categorically denied doing it, but was going to enter into this plea to resolve this matter—I don’t think anyone would say that the state could retry him, commented Justice DeWine, adding that he was struggling with the fact that criminal defendants tell stories all the time that aren’t true, and regardless of that they end up entering into pleas. But usually we don’t allow the state to unwind the plea and take another shot at it if they get better evidence, he said, adding that he was trying to figure out how to draw a line with this case and those cases. One of the challenges in this case is that there is really nothing in the record about the plea, he noted. Whose burden is it to present that information? It was the defendant’s motion to dismiss on double jeopardy grounds, so is it the defense burden to come forward with what happened at the plea?

Did the state ever say in this plea bargain, that we will never prosecute you again, asked Chief Justice O’Connor? While there was no reservation of the right to bring additional charges by the state, was there an affirmative statement, that if you do this, you’re home clean? From the time he murdered the child until the time he was released from prison, the defendant knew there was a potential that additional information, evidence would come about.

Fraud in the Inducement

In Ohio often you get out of a contract by proving fraud in the inducement, commented Justice Fischer.  Would that apply?

In order to believe there is fraud in the inducement, noted Justice Donnelly, you have to believe that the third version of what Mr. Soto told is the truth, right? Is it based solely on his confession allegedly from a crisis of conscience, or did he give details that were corroborated by his now third version of the events?

Expectation of Finality 

Should Mr. Soto have an expectation of finality with regard to everything regarding this case, asked Justice Stewart? Why wouldn’t he, in this situation? She chided the prosecutor a bit, saying that he seemed to suggest that every criminal defendant with whom the state enters into a plea bargain is absolutely forthcoming, is not deceptive in any way, and keeps no information from the state. The state’s argument lies with he can’t expect there to be finality when he tampers with evidence and commits a crime never contemplated by the state. Later, she asked defense counsel whether Mr. Soto could have a reasonable expectation of finality when he brings about facts that are clearly contrary to what he told law enforcement initially and that deviate from the whole basis of the plea agreement? It might be different if someone else comes forward, she said, but when the defendant himself comes forward with evidence or information that is so contrary to what his original plea bargain was based on, should there still be the expectation of finality?

Had he pled to involuntary manslaughter and then confessed six years down the road, he couldn’t have been prosecuted at that point, could he, asked Chief Justice O’Connor, commenting the defendant would have been better off had he done that.

Carpenter

Was there a reservation of rights by the state in this case, asked Justice Stewart? (answer:no) Does it matter, from a legal analysis standpoint?

In Carpenter, the cards were on the table, Chief Justice O’Connor commented. The victim was assaulted and in danger of death. That was not unexpected. We don’t have that here. So when, in Carpenter the state bargained away the right to preserve a prosecution, they had the information to enter into that contract. Here, the cards weren’t on the table for a contract, as the defense characterizes this. Also, in Carpenter there was an acknowledgement by the prosecution that it fell through the cracks, that they lacked diligence in how they prosecuted this case and how they entered into an agreement. Does the defense really want to use that case as a predicate here?

How It Looks From The Bleachers

To Professor Emerita Bettman

Like a win for the defense, although I don’t think all the justices are on the same page as to why. Some seemed to think double jeopardy is implicated here.  Justice DeWine clearly does not.  Justices Donnelly and Stewart in particular homed in on Soto’s expectation of finality in the negotiated plea. The fact that Soto told two different versions of what happened at the time, the fact that the state did not reserve the right to bring additional charges, the fact that the justices recognize that defendants may not necessarily be truthful during the plea bargaining process, and as Ms. Edelstein argued, the fact that Carpenter has been applied in other contexts than the facts of that case, should tip the balance to the defense, although I wouldn’t expect a dramatic new rule of law here.  But this is by no means a walk in the park for Soto, as the justices were clearly troubled by what happened, the Chief especially so. The case was very well argued by both counsel, and the bench was very hot.

To Student Contributor Paul Taske

This argument was certainly the most interesting, articulate, and compelling thing I have seen before the Court in a long time. This, of course, makes it interesting to watch but difficult to call.

The Court appeared to have a clear divide. Chief Justice O’Connor and Justice DeWine appeared more interested in whether Soto’s initial plea deal meant that jeopardy attached to the dropped charge. Whereas Justices Donnelley and Stewart were more concerned with whether Soto’s expectation of finality was “reasonable.” However, even Justice DeWine, who seemed most sympathetic to the State’s argument, appeared unsure of how to craft a rule in this case that would establish a meaningful distinction between this truly bizarre confluence of events and other questions of jeopardy and attachment.

It is the uncertainty in DeWine’s own approach that ultimately sways my prediction that Soto will win this case. I certainly think the opinion will be divided. However, I think the unease, given voice by Justice DeWine, is likely present in the other justices as well. This unease, I think, will shape the court’s opinion by fostering caution in its approach and that it will not seek to fashion a new rule around Double Jeopardy protection.

 

Update: On April 22, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the argument here.

On March 27, 2019, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Cedric N. Jeffries, 2018-0338. At issue in the case is whether Ohio’s rape-shield statute prohibits evidence of prior sexual abuse suffered by the victim.

Case Background

D.S., a minor, lived in foster care until the age of six. When D.S. was six, she moved in with her grandmother. Cedric Jeffries was her grandmother’s adult son, and he lived in the house as well. D.S. viewed Jeffries as a father figure, and called him “Dad.”

D.S. testified that Jeffries began touching her inappropriately starting at age six, and that this inappropriate conduct continued for years, but she never told anyone for fear of being sent back to foster care. D.S. finally ran away from home, and told her school principal about the abuse. Jeffries was arrested, and charged in a four-count indictment with two counts of rape and two counts of kidnapping.

Prior to trial, Cuyahoga County Common Pleas Court Judge Janet Burnside held an in-camera hearing to determine whether to admit evidence of D.S. having been sexually abused by a foster brother when she was approximately four or five years old, which D.S. had promptly reported to a social worker at the time. Judge Burnside determined the incident did involve sexual activity, was not false, and was protected by the rape shield statute. Therefore, defense counsel was not permitted to question D.S. about the prior sexual abuse or otherwise seek to admit evidence of the abuse.

The jury convicted Jeffries on all counts. Judge Burnside sentenced Jeffries to life in prison with parole eligibility after 15 years. Jeffries appealed.

The Appeal

In a unanimous opinion by Judge Kathleen Ann Keough, joined by Judges Anita Laster Mays and Larry Jones, Sr. the Eighth District Court of Appeals affirmed the trial court’s exclusion of prior sexual abuse evidence under the rape-shield statute. Relying on State v. Boggs, the Court of Appeals held that evidence of both the victim’s prior nonconsensual and consensual sexual activity should be excluded under the statute, if not false, and that the trial court did not abuse its discretion in disallowing any questioning on the prior sex abuse incident.

The Court of Appeals granted Jeffries’s motion to certify the following conflict: “Whether Ohio’s rape shield law prohibition on the admission of ‘specific instances of the victim’s sexual activity’ applies only to consensual sex or whether it also prohibits questions related to prior sexual abuse?” While the Supreme Court of Ohio overruled the certified conflict, it accepted a discretionary appeal on this issue.

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices Fischer, Kennedy, and Judge Lisa L. Sadler *

No: Justices DeWine, French, and O’Donnell.

*Tenth District Court of Appeals, assigned in lieu of former Justice DeGenaro.

Key Statutes and Precedent

R.C. 2907.02(D) (Ohio’s Rape Shield Law)(“Evidence of specific instances of the victim’s sexual activity . . . shall not be admitted . . . .”)

State v. Gardner, 59 Ohio St.2d 14 (1979) (“[B]y excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the truth-finding process.”)

State v. Boggs, 63 Ohio St.3d 418 (1992) (“[T]he trial court must ascertain whether any sexual activity took place, i.e., an actual rape or consensual sex. If it is established that either type of activity took place, the rape shield statute prohibits any further inquiry into this area . . . .”)

State v. Stoffer, 2011-Ohio-5133 (7th Dist.) (The rape shield statute addresses only prior consensual sexual activity of the victim and not prior sexual abuse suffered by the victim.)

State v. Williams, 2012-Ohio-5695 (When considering prior bad acts evidence, trial courts should consider the relevance of such evidence, whether the evidence is presented to prove the defendant’s character, and whether the evidence’s probative value is substantially outweighed by prejudice to the defendant.)

Jeffries’ Argument

Ohio’s rape-shield statute does not prohibit questioning a witness about prior sexual abuse. In this case, the fact that the alleged victim did report a prior incident of sex abuse would have contradicted the reasons she gave for her failure to report the alleged assaults in this case, and would have cast doubt on her credibility.

The statute’s legislative intent was to protect victim privacy and to encourage victims to report sexual abuse. Prohibiting evidence of a victim’s prior allegations is contrary to the legislative intent. The Court should hold that the statute only applies to prior consensual activity. The statute’s references to “specific instances of the victim’s sexual activity” implies consensual, not nonconsensual activity.

Additionally, the Court has not applied the rape-shield statute in past cases dealing with sexual abuse allegations. Instead, the Court has relied upon the Ohio Rules of Evidence to balance the evidence’s probative value with its prejudicial effect.

Further, holding that the rape-shield statute includes evidence of prior sexual abuse leads to absurd consequences. Jeffries uses a hypothetical of a victim being unable to explain at trial why she did not yell for help during an assault because, on a prior occasion, she had been assaulted for having done so.

Finally, the Eighth District’s refusal to allow Jeffries to question the victim violated Jeffries’ constitutional rights to a fair trial and due process. Even courts that apply rape-shield statutes to nonconsensual activity allow for an exception in cases where defendants articulate a specific need to use the evidence. This exception is based on the principle that a defendant’s right to trial and to confront witnesses under the Sixth Amendment and the defendant’s right to due process override statutory rape-shield provisions.

State’s Argument

The rape-shield statute’s plain text and the statutory definition of “sexual activity” show that evidence of any sexual activity, whether consensual or nonconsensual, is prohibited, absent an exception. The Ohio Revised Code defines “sexual activity” as sexual conduct or sexual contact, or both. The absence of any qualifier to this definition shows the legislature did not intend to distinguish between consensual and nonconsensual sexual activity in the rape-shield statute.

The general inadmissibility of opinion and reputation evidence of a victim’s sexual activity in the rape shield statute does not show that the legislature intended not to include nonconsensual sexual activity in statute. Opinion and reputation evidence is not limited to qualities over which a person has control. Therefore, the use of the phrase “sexual activity” in the statute cannot show legislative intent to exclude nonconsensual sexual activity from the rape-shield statute.

The statute’s purpose is to protect the victim from undue harassment, encourage the reporting of rape, and to exclude evidence that is unduly inflammatory and prejudicial. These interests are furthered by barring evidence of the victim’s prior sexual abuse. The potential harm victims could suffer for having to recount their past abuse will discourage some victims from reporting a subsequent sexual assault.

Although the Court has held that evidence of prior false allegations may be included as evidence, true allegations of both consensual and nonconsensual sexual activity are excluded. Trial courts must hold hearings to determine if the sexual activity at issue actually occurred. Only if it is determined that the prior accusations were false because no sexual activity took place would the rape shield law permit cross examination of the victim on this subject.  If evidence of prior nonconsensual sexual activity were not protected under the rape-shield statute, a hearing to determine whether prior allegations of nonconsensual sexual activity were true or false would not be necessary because the rape shield law would not apply to the admissibility of either type of evidence. Sexual activity applies to all activity, whether consensual or not.

Finally, all of Jeffries’s constitutional arguments should be struck because the Court declined jurisdiction over these issues.

Jeffries’ Proposed Proposition of Law

Ohio’s rape shield law prohibition on the admission of “specific instances of the victim’s sexual activity” applies only to consensual sex or whether it also prohibits questions related to prior sexual abuse.*

*In his brief Jeffries apologized for this inartfully worded proposition of law, and restated it as follows:

R.C. 2907.02(D)’s prohibition on the admission of “specific instances of the victim’s sexual activity” applies only to consensual sex and does not prohibit evidence of prior sexual abuse perpetrated upon a victim.

State’s Proposed Counter Proposition of Law

R.C. 2907.02(D) applies to any sexual activity, whether consensual or nonconsensual.

Student Contributor: Carson Miller

 

 

 

 

 

 

 

Update: On July 17, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On March 5, 2019, the Supreme Court of Ohio heard oral argument in the case of New Riegel Local School District Board of Education et al. v. The Buehrer Group Architecture & Engineering, Inc., et al., 2018-0213. At issue in this case is whether the statute of repose codified at R.C. 2305.131 applies to causes of action sounding both in tort and contract. Also at issue is whether stare decisis requires a court to apply precedent based on a statute later found to be unconstitutional and subsequently repealed and rewritten.

Case Background

In 2000, New Riegel Local School District (“New Riegel”) contracted to build a new K-12 school building, and entered into agreements with multiple contractors. The Buehrer Group Architecture & Engineering, Inc. (“Buehrer”) designed the building, Studer-Obringer, Inc. (“SOI”) served as the general contractor, and Charles Construction Services (“CCS”) was the roofing contractor. The contractors finished the project in 2002, and New Riegel took occupancy that December.

New Riegel eventually had issues with the facility, allegedly from condensation and moisture intrusion which the school attributed to construction and design errors. In April 2015, New Riegel filed separate complaints against Buehrer (as well as the Estate of Huber H. Buehrer, which is not a party to the appeal), SOI, and CCS, alleging breach of contract for failure to design and construct the project in a workmanlike manner. SOI subsequently filed a motion for judgment on the pleadings, claiming that New Riegel’s claims were time-barred by Ohio’s construction statute of repose, R.C. 2305.131.

Thereafter, New Riegel filed a second amended complaint to include Ohio Farmers Insurance Company (“OFIC”) as a defendant as the surety for SOI, but did not change any of its underlying claims against any of the parties. Buehrer, CCS, and OFIC then filed motions for judgment on the pleadings on the same statute of repose grounds as SOI’s motion—asserting claims against designers and builders in construction projects are barred after ten years from the project’s substantial completion. The trial court granted all motions in each case, and dismissed all claims against all parties as time-barred by R.C. 2305.131. New Riegel appealed.

The Appeal(s) 

In two (here and here) separate, but nearly identical, opinions by Judge Willamowski, joined by Judges Zimmerman and Shaw, the Third District Court of Appeals unanimously reversed the trial court’s dismissal of claims against all the parties. The Third District agreed with Buehrer, SOI, CCS, and OFIC that a clear reading of R.C. 2305.131 supports the proposition that the statute applies to all causes of action to recover damages arising from construction projects. However, the court felt bound by the Supreme Court of Ohio’s 1986 decision in Kocisko v. Charles Shutrump & Sons Co., which held that the statute does not apply to actions for breach of contract. Thus, since New Riegel pled breach of contract claims against Buehrer, SOI, CCS, and OFIC, those claims could not be subject to the statute’s ten-year limitations period.

The Third District upheld the trial court’s dismissal of claims against the Buehrer Estate on separate grounds: that the claims against the estate were subject to Ohio’s six-month statute of limitations for claims against a decedent, and were thus properly dismissed.

Appellants Buehrer, SOI, CCS, and OFIC brought separate appeals, which were then consolidated into one case.

Read the oral argument preview here.

Key Precedent

R.C. 2305.131  (Ten Year Statute of Repose) (“[N]o cause of action to recover damages for bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe condition of an improvement to real property . . . shall accrue . . . later than ten years from the date of substantial completion of such improvement.”)

2003 Am.Sub. S.B. No. 80 Sec. 3(B)(1) (“In enacting section 2305.131 of the Revised Code in this act, it is the intent of the General Assembly . . .  [t]o declare that the ten-year statute of repose prescribed by section 2305.131 of the Revised Code,  is a specific provision intended to promote a greater interest than the interest underlying the general four-year statute of  limitations prescribed by section 2305.09 of the Revised Code, the general two-year statute of limitations prescribed by section 2305.10 of the Revised Code, and other general statutes of limitation prescribed by the Revised Code.”)

R.C. 2305.06 (Statute of Limitations in Contract Actions. For parties who entered into written contracts before 2012, the statute of limitations is 15 years, after that, 8 years.)

Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St.3d 98 (1986) (R.C. 2305.131 only limits actions arising out of tort, and does not limit actions for breach of contract, which continue to be governed by the fifteen-year statute of limitations found in R.C. 2305.06. (syllabus)).

Midwest Specialties, Inc. v. Firestone Tire & Rubber Co., 42 Ohio App.3d 6 (9th Dist. 1988)( “[a] cause of action for breach of contract does not accrue until the complaining party suffers actual damages as a result of the alleged breach.”)

Brennaman v. R.M.I. Co., 70 Ohio St. 3d 460 (1994) (Held that the 1971 version of R.C. 2305.131 is unconstitutional.)

 Thomas v. Freeman, 79 Ohio St.3d 221 (1997) (A statute that specifies one exception to a general rule is assumed to exclude all other exceptions.)

Ormet Primary Aluminum Corp. v. Employers Ins. of Wausau, 88 Ohio St.3d 292 (2000) (The statute of repose bars all claims after ten years to avoid prejudice to defendants that arises due to the passage of time.)

 Corporex Dev. & Constr. Mgt., Inc. v. Shook, 2005-Ohio-5409 (Under the economic-loss rule, a plaintiff that suffers purely economic damages cannot recover in tort.)

 Groch v. Gen. Motors Corp., 2008-Ohio-546 (For stare decisis to apply, the legislation must be phrased in substantially the same way as legislation previously invalidated.)

McClure v. Alexander, 2008-Ohio-1313 (2nd Dist.) (The General Assembly made its purpose clear by enacting the current version of R.C. 2305.131, which included recognition of contractors’ lack of control over property after construction is complete.)

Antoon v. Cleveland Clinic Found., 2016-Ohio-7432 (“A true statute of repose . . . applies to vested and nonvested claims.”)

State v. Karl R. Rohrer Assocs., 2018-Ohio-65 (5th Dist.) (“It matters not whether the action is brought in tort or contract, if the resultant damages are injury to property of the type set forth in R.C. 2305.131, the statute applies.”)

Appellants’ Propositions of Law Accepted for Review

Each of the appellants submitted two propositions of law that use slightly different wording but are substantially similar.  The Buehrer Group’s Propositions are listed as illustrative of the entire group’s.

Proposition of Law No. 1 

Ohio’s statute of repose, R.C. 2305.131, applies in actions sounding both in contract and tort.

Proposition of Law No. 2 

A court is not required to apply stare decisis when the prior version of the statute being applied has been held unconstitutional by the Supreme Court of Ohio.

At Oral Argument

Arguing Counsel

Brian T. Winchester, McNeal Schick Archibald & Biro Co., L.P.A, Cleveland, for Appellant Buehrer Group Architecture & Engineering, Inc., and Buehrer Group Architecture & Engineering.

Matthew T. Davis, Ritter, Robinson, McCready & James, Ltd., Toledo for Appellant Studer Obringer, Inc.

Michael D. Meuti, Benesch, Friedlander, Copeland & Aronoff LLP,  Cleveland, for Appellant Ohio Farmers Insurance Company

Christopher L. McCloskey, Bricker & Eckler LLP, Columbus, for Appellee New Riegel Local School District Board of Education

Appellants’ Argument

The appellants divided their argument into three sections with Mr. Winchester addressing the propositions of law, Mr. Davis addressing statutory construction, and Mr. Meuti doing rebuttal.  For blog purposes the three arguments are consolidated.

The General Assembly intended R.C. 2305.131 to serve as a 10 year hard stop to all construction defect claims. By its very terms, this statute of repose for claims arising from improvements to real property applies to breach of contract claims, and not just to tort claims. Each section of the statute contains contract references and provisions.  For example, subsection (D) specifically relates to contract terms and provisions. Section (A)(1) references indemnity, another contract provision. Section (F) states that it shall be applied in any civil action “notwithstanding any prior rule of law of this state,” which specifically means the Kocisko decision. Subsection (G) uses “substantial completion”- another construction term of act.

In its opinion, the Third District recognized that the plain language of the statute does apply to breach of contract claims, but reversed the trial court based on a 30-year-old case that interpreted a prior and different version of the statute.

If the Court were to find the statute ambiguous, then legislative intent must be determined. In this case that is easy, because the legislature has given a statement of intent in its legislative notes, which was to eliminate the possibility of contractors being held responsible for the conduct of others and to operate outside other general statutes of limitations. Admittedly, there is nothing in that statement of intent regarding the use of the word “accrual” in the statute. The legislature probably used that word to get around the Court’s right to remedy jurisprudence.

The legislature also noted specifically that it wanted to find a reasonable amount of time for requiring construction contractors and service providers to maintain documentation related to potential claims, and that reasonable amount of time is ten years. If this statute does not apply to breach of contract claims, then the legislature’s statement of what is reasonable would be negated. Additionally, when this statute was passed, the General Assembly could simply have stated it was limiting it to tort actions, but it didn’t. The clear understanding of its intent is not to limit the statute to tort claims only and to include breach of contract claims.

New Riegel’s Argument

This case involves a 12 million dollar building that was delivered to the owners with considerable defects in both design and construction that resulted in a 5 million dollar plus repair bill. The New Riegel Local School District brought this action against the architects, the contractors, and their sureties to recover for those contractual damages.  The trial court dismissed that action based on the statute of repose. The Third District reversed, and that decision should be upheld.

At issue here is a statute of repose. It expressly says that it applies to causes of action for bodily injury, injury to real or personal property, and wrongful death. Noticeably absent from those three categories are anything related to contractual damages. The statute speaks only in terms of typical tort damages. This Court analyzed a similar, prior statute in the Kocisko case, in which the Court held that the statutory language chosen is uniformly used to describe tortious conduct.  Those same three categories of damages were at issue in Kocisko, which also did not include economic losses. Nothing in the legislative history of the current statute specifically indicates that Kocisko was overruled.

Tort law does not create a duty to protect individuals from their economic expectations, which arise solely by agreement of the parties. While the statute does reference contracts in various situations, those situations are contextual. Those references have no import on the types of claims that the statute speaks to. Every construction project that takes place must have a contract, especially if there is an architect involved. So, any references to contract language in the statute is just contextual. If the statute really intended to cover contracts, it would have included the types of damages usually recoverable from breach of contract cases, such as economic losses.

Nor does “accrual” language apply to contract breaches. If it does, as used in this statute, a cause of action for breach of contract accrues on substantial completion of the project. For this particular project, then, New Riegel’s cause of action had already accrued well within the statute of repose.

What Was On Their Minds

For a case loaded with pages and pages of briefs and loaded with amici, the oral argument was only 23 plus minutes long, with very few questions.  Justice DeWine really pressed the appellants about the use of the word “accrue” in the statute, while Justice French suggested a number of words and references in the statute suggest it applies to any civil action including contract actions. She also chided Mr. McCloskey a bit for an argument about accrual which went beyond the propositions of law accepted by the Court. And Justice Fischer asked about a court of appeals opinion that held that “a cause of action for breach of contract does not accrue until the complaining party suffers actual damages as a result of the alleged breach.” That’s about it.

How It Looks From The Bleachers

To Professor Emerita Bettman

Dividing argument is usually not a good idea, but in this case it worked well. I’m going to call this for the Appellants, not necessarily from the arguments, but because this has been a long-simmering issue, and I think the legislature intended for this version of the statute to be different from the one in Kocisko, and intended it to apply both to contract and tort actions, with a ten year hard stop for construction and design professionals. The Court could either overrule, or more likely distinguish, Kocisko. While none of the Appellants gave a fully satisfactory answer to Justice DeWine’s questions about the use of the word “accrue” in the statute, there just may not be one, other than an inartful attempt to avoid some of the past disputes on this issue. And there have been many.  If this subject fascinates you, you might want to read the duel that occurred in Sedar v. Knowlton Constr. Co.  49 Ohio St.3d 193 (1990) and Brennaman v. R.M.I. Co., 70 Ohio St. 3d 460 (1994).

To Student Contributor Ivy Charneski

Despite having four separate parties as appellants on the Contractors’ side, their argument came together seamlessly as a group. I was afraid the argument might be very repetitive like all the briefs, but I was pleasantly surprised at how simple and coherent their argument was as a group. Each lawyer for the contractors attacked a separate piece of the puzzle and the rebuttal lawyer at the end wrapped it all together with a clear, concise summary. The contractors’ argument, even though argued by three separate lawyers, was one of the clearest arguments I’ve watched so far.

New Riegel’s argument was also concise and for the most part clear, but just not very convincing to me. I especially found the explanation for the contract references in the statute (that they were simply “contextual”) unpersuasive. Also, I thought the lawyer seemed to dance around Justice French’s questions.

This was one of the quietest benches I’ve seen with only two or three questions the whole argument. With few questions, it makes it hard to tell which way the Court is leaning. Nonetheless, this looks like a win for the contractors to me as I think they just had the better argument. My only wonder thought is what the Court thinks of the pesky Kocisko case.

To Student Contributor Carson Miller

It is difficult to determine which side will win with any confidence with another quiet bench in this case, but I think the Court will find for the contractors and insurance company. The contractors’ argument—that the statute of repose, as amended, applies to all civil actions by its plain language—is straightforward and received little opposition from the bench. In contrast, New Riegel received some push-back from Justices Fischer and French, particularly concerning New Riegel’s argument that the statute’s accrual language signaled intent to allow contract claims more than ten years after completion of the project. Again, this case could go either way, but I would bet on the contractors’ more streamlined argument as the winner.

 

 

 

 

Update: On June 26, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On March 5, 2019, the Supreme Court of Ohio heard oral argument in Marcella King Piazza v. Cuyahoga County, et al., 2017-1649. At issue in the case is whether the immunity exception allowing civil claims against a political subdivision extends to actions brought after the employee has been terminated by the political subdivision. Second District Court of Appeals Judge Jeffrey Froelich sat for Justice Stewart, who participated in the appellate decision while on the Eighth District Court of Appeals.

Case Background

In 2003, Marcella King Piazza (“Piazza”) began working for the Cuyahoga County auditor’s office. Piazza was later transferred to the County Boards of Revision where she worked as office manager. Subsequently, in August 2010, Piazza was transferred to the Department of Justice Affairs where she worked as a victim advocate. Around the time Piazza was transferred to the Department of Justice Affairs, the Plain Dealer Publishing Company (“Plain Dealer”) began publishing a series of articles about the scandal at the Boards of Revision which cost taxpayers over $400 million, claiming that an investigation was underway into the work habits, favoritism, and mismanagement of the department.

In March 2011, Piazza was terminated from employment with the county. Within two hours of Piazza’s discharge, the Plain Dealer published an online article headlined, “Cuyahoga County Executive Ed FitzGerald fires three employees tied to the boards of revision scandal.” One of those fired employees was Piazza, who had in fact never been disciplined or cited for poor work habits and had no authority over any Board member. Further articles identified Piazza by name, included her photo, and again implied she was part of the Boards of Revision corruption scandal.

In 2015, Piazza filed a complaint against Cuyahoga County (“the County”) and the Plain Dealer alleging false light invasion of privacy. The allegation stemmed from quoted statements of County Executive FitzGerald which Piazza claimed were made with a reckless disregard for the truth or falsity of his statements. The County moved for summary judgment pursuant to R.C. 2744.02. The County also alleged that Piazza’s claim was time-barred. The trial court denied the County’s motion, finding the false light claim was not time-barred nor covered by immunity. The County appealed.

On appeal, the Eighth District, in an opinion authored by Judge Kathleen Keough and joined by Judge Mary Boyle, affirmed the denial of summary judgment. According to the majority, the County is not entitled to political subdivision immunity under R.C. 2744.02 because R.C. 2744.09 (B) precludes immunity when a civil suit involves matters related to the employment relationship, and Piazza’s claims arose out of her employment relationship with the County. The appeals court did not consider the statute of limitations ruling because it was not a final appealable order.

Then-Judge Melody Stewart concurred in part and dissented in part, with an opinion.  She agreed with the majority’s conclusion about the statute of limitations, but not about the false light claim. Judge Stewart interpreted the statutory use of the word “employee” as meaning a person currently employed by the relevant political subdivision. Therefore, the County should be able rightfully to claim immunity from Piazza’s suit because she was not an employee of the County when the county executive’s statements were made.

Read the oral argument preview here.

 Key Statutes and Precedent

R.C. 2744.02 (Political Subdivision Immunity)

R.C. 2744.09(B) (Exceptions to Immunity) (Political Subdivision Immunity shall not extend to civil actions by an employee against his or her political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.)

Fleming v. Ashtabula Area City Schools Board of Education, 2008-Ohio-1892 (11th Dist.) (A person need not be a current employee at the time claims were filed against a political subdivision to qualify for the political subdivision immunity exception.)

Sampson v. Cuyahoga Metropolitan Housing Authority, 2010-Ohio-3415 (Intentional tort claims can arise out of the employment relationship with respect to R.C. 2744.09(B). To succeed, a claim must show a causal connection between the tort and the employment relationship. Direct causation is not necessary; indirect causation is sufficient.)

George v. Newburgh Heights, 2012-Ohio-2065 (8th Dist.) (Totality of the circumstances review requires examining events that occurred while a person was employed by the political subdivision and after the employment relationship is terminated.)

Vacha v. City of North Ridgeville, 2013-Ohio-3020 (To determine whether a causal connection exists the court must examine the totality of the circumstances. If no connection exists, political subdivision immunity is appropriate.)

County’s Propositions of Law Accepted for Review

Proposition of Law 1

The language of Ohio Rev. Code §2744.09(B) is clear, concise, and unambiguous and in derogation of common law immunity and must be strictly constructed in keeping with the definition of employee and employment relationship as set forth in the Ohio Revised Code.

Proposition of Law 2

A former employee of a political subdivision who brings an intentional tort claim that accrues after he or she is no longer an employee of the governmental entity is not an “employee” covered under Ohio Rev. Code §2744.09(B).

Proposition of Law 3

Construing Ohio Rev. Code §2744.09 as it is written is in keeping with this Court’s decision in Sampson v. Cuyahoga Metro Hous. Auth., 131 Ohio St.3d 418 (2012) and Vacha v. City of N. Ridgeville, 136 Ohio St.3d 199 (2013) in that the intentional tort at issue in Sampson and Vacha accrued while plaintiffs were employed by the political subdivision and arose out of the employment.

At Oral Argument

Arguing Counsel

Awatef Assad, Assistant Director of Law, Cuyahoga County Department of Law, for Appellant Cuyahoga County.

Nancy C. Schuster, Schuster & Simmons Co., L.P.A., Cleveland, for Appellee Marcella King Piazza

County’s Argument

In order to meet the requirement of the plain language of R.C. 2744.09(B), an employee must be employed at the time the alleged actions accrued in order to bring a claim against a political subdivision. Otherwise, former employees will be able to file actions against political subdivisions in perpetuity, rendering immunity meaningless. Under a strict reading of 2744.09(B), and pursuant to Vacha and Sampson, if the claim doesn’t arise out of the employment relationship, then the political subdivision cannot be sued.

The actions complained about here do not arise out of employment. They arise out of an article that was written by an independent third-party actor, the Cleveland Plain Dealer, over which the County had no control whatever. What Ms. Piazza is complaining about is the perceived implication of the statements and how the article was written, not the statements per se. Ms. Piazza  acknowledges that the County never called her a corrupt employee and she accepts the reasons for her termination, which was based on a reduction in the work force. There is no cause of action here. Ms. Piazza argues for the creation of a non-existent duty on the County to correct the perceived implication created in the Plain Dealer article.

In this case, there is simply no cause of action; there is no claim that arises out of the employment relationship.

Piazza’s Argument

R.C. 2744.09 could not be clearer. Immunity does not apply to civil actions by an employee of the political subdivision against the political subdivision relative to wages, hours, and terms and conditions of employment. There’s no question that Ms. Piazza was in fact an employee. We don’t know exactly when the press release was prepared or exactly when it was sent to the Plain Dealer, although we do know that Ms. Piazza was still at her desk in the Justice Affairs Department of the County. We do know that after she was notified of her termination, she went back to her desk, and while she was sitting at her desk in the Department of Justice Affairs, she was phoned by a Plain Dealer reporter seeking comments, which she refused to give. While the paper could not reach the other two employees who had been terminated, they were able to reach Ms. Piazza because she was still in her office at the Department of Justice Affairs when they called.

Why did the County put out a press release when this victim advocate at the Department of Justice Affairs was terminated? To show the public it was taking action over its own corruption scandal. In addition to the press release, the new county executive, Ed Fitzgerald, made a statement in which he said that the previous administration had simply transferred these “bad people” but that his administration had gotten rid of them. The intent of that statement was to show that under its new leadership, the County was now acting against the corruption scandal.  Later that day, after two of the articles had been published, the Plain Dealer emailed the county asking for photographs, and about twenty minutes later the County sent Ms. Piazza’s picture from her personnel file to the paper for use in later articles.  To be absolutely clear, the County has been sued because of the County’s own activities, not because of the Plain Dealer’s activities that followed on.

As for the County’s argument about limitless liability here, statutes of limitations still apply, so public employers do not face limitless liability by virtue of R.C. 2944.09. And defining an employee as only a current employee adds a word to the statute that’s not there.

In this case there is certainly a causal connection between the claims and the employment relationship. In fact, as the 8th district said, there was no relationship between Piazza and the County except her employment relationship, as required by Sampson. This case would not be here but for Ms. Piazza’s employment relationship.

What Was On Their Minds

Employee At Time of Accrual or At Time Claim Filed?

Justice DeWine got into a relentless exchange with Ms. Assad about this. Must the employee be employed when the cause of action accrued, he asked? What about when they file the lawsuit? Is there a factual question here whether or not Ms. Piazza was still an employee at the time the statements were made? How do we know what time the statements were made to the Plain Dealer? We know what time the story was published, but we don’t know what time the County made the statements to the paper, do we? Do we know whether those statements were made before or after she was terminated? Is that clear from this record? We are not here on whether or not these statements were defamatory, he commented. We are here on whether or not within the meaning of the statute, they arise out of her employment. So my question is, can we tell from this record if these statements were made before or after she was terminated? If you don’t know just say you don’t know, he said to Ms. Assad. (ouch!) I wasn’t asking about when the article was published, he said. I was asking if the statements were made before or after her termination. That’s all. (final answer from Ms. Assad: “I don’t believe they were made before her termination, but I don’t know for sure.”)

In this case, theoretically, if Cleveland.com had printed the alleged statements one hour before termination, that would have allowed a remedy, but if they occurred one hour after termination, they wouldn’t have a remedy, asked Justice Donnelly? Might there be a factual scenario where someone left the County, and went into the private sector, and then the County in some type of forum was commenting on something that may be totally defamatory about their work life when they were employed. Under the County’s interpretation, that person would not have any remedy because they were no longer an employee?

If the statement came a year later that “we fired this person because she was a thief,” does that alleged defamation arise out of the employment relationship asked Judge Froelich? If a private employer were to make that statement a year later, could she sue for defamation in that case? Later, he said to Ms. Schuster that she was suggesting that the defamatory statement may have been made while Ms. Piazza was still employed because she was at her desk, but was that relevant to her legal argument and the proposition the Court accepted? The County is arguing both that the action must be filed and it must accrue while the person is still a current employee.  Do you disagree with both of those? (Ms. Schuster disagreed with both). So the factual issue of when it actually occurred is not relevant for your legal argument?

Sampson and Vacha

Neither Sampson nor Vacha was employed at the time they filed their lawsuits, were they, asked Judge Froelich?

How It Looks From The Bleachers

To Professor Emerita Bettman

Like an outright win for Piazza, whether or not she was still employed at the time the allegedly false statements were made by the County.  Either way, her claim arose from her employment relationship with the County and the causal connection was clearly there, too. Ms. Assad, who stated that this was her first argument before the high court, was like a deer in the headlights, constantly having to stop and regain her composure.  And Justice DeWine pounded on her mercilessly about whether the County was arguing that the statements attributable to the County were made before or after Piazza was fired. She did stick to her position tenaciously that an employee must be employed at the time the alleged actions accrued. But I don’t think she’s going to find much, if any, support for that position. She may not even get a single vote. And she seemed palpably relieved to sit down after the first part of her argument was done.

The very smooth Ms. Schuster got only one question during her entire argument.  Normally, weaving as much factual detail as she did isn’t effective in appellate arguments, but in this case it was, and was very helpful.

As a torts professor I was intrigued by the tort of false light invasion of privacy, and always looking for some good examples of the tort, which were hard to find. While still dealing only with allegations, this really looks like it is right on the money.

To Student Contributor Paul Taske

This is perhaps one of the most lopsided arguments I have ever seen in terms of engagement from the bench. This case seems like a clear win for Piazza. I would be unsurprised if the decision unanimously affirms the lower court.

It was evident during the County’s argument that the justices were uncomfortable adopting the County’s reading of the statute, particularly the County’s argument that for a successful claim to be brought against a political subdivision a person must still be employed at the time a claim accrues and at the time of filing. The justices, particularly Justice DeWine, also found issue with the County’s timeline of events and the timeline’s application to the legal argument.

What was particularly stunning was the fact that Piazza’s lawyer got through half of the argument without getting a single question.  Ms. Schuster presented her entire legal argument and then presented the factual basis behind the case. When she was interrupted it was simply for a request to tie the facts back to the legal argument. There was no fundamental questioning of Ms. Schuster’s presentation. While these factors are not always determinative of the outcome, when viewed in context of the whole argument, tone of the justices’ questions, and other factors it seems clear that Piazza came out on top here.

 

 

 

 

Update: On May 5, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“So what aspect at the time of the plea—not sentencing—was there substantial compliance?”

Justice Stewart, to the prosecutor

“What are the words the trial court has to say to be ok?”

Justice DeWine to defense counsel

On February 20, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Brad J. Dangler, 2017-1703. At issue is whether a trial court must inform a defendant of all penalties associated with a sex offender classification to comply with Crim.R. 11’s requirement that a defendant enter a plea knowingly and voluntarily. The case was accepted on conflict certification.

Case Background

As part of a negotiated plea, Brad Dangler pled no contest to a sexual battery charge.  At the plea hearing, the trial court told Dangler that he would have to register as a Tier III sex offender for life. Dangler acknowledged that he understood the explanation. At the sentencing hearing, the judge informed Dangler that this registration required specific reporting obligations, and that these obligations would be provided to him in writing at a later time. But at no time did the judge inform Dangler of the community notification requirements and the residential restrictions. Dangler was sentenced to three years in prison and five years of post-release control.

Dangler appealed to the Sixth District Court of Appeals on the grounds that his plea was not voluntarily and knowingly made because the trial court failed to comply with Crim.R. 11 by not informing him of the punitive consequences of his plea—specifically, that the trial court never informed him of the community notification requirements, residence restrictions, and in-person verification requirements of Tier III registered sex offenders.

In a unanimous decision written by Judge Mark L. Pietrykowski, joined by Judges Thomas Osowik and Christine Mayle, the Sixth District reversed the trial court. The Appeals Court held that the trial court failed to substantially comply with Crim. R. 11’s requirement that Dangler be informed of the punitive consequences of his plea.

The Supreme Court then accepted the case on conflict certification.

Certified Question

“During a plea proceeding, does the failure of the sentencing court to inform a defendant of all the penalties associated with a sex offender classification imposed by R.C. Chapter 2950 constitute a complete failure to comply with Crim.R. 11 and render the plea void without the need to show prejudice resulted?”

Certified Conflict Cases

 State v. Creed, 2012-Ohio-2627 (8th Dist.) (The trial court substantially complied with Crim.R. 11 despite failing to notify the defendant that by pleading guilty he could not live within 1,000 feet of a school.)

State v. Young, 2014-Ohio-2213 (2nd Dist.) (The trial court’s reference to the correct sex-offender tier level and the need for registration constituted partial compliance, and because no prejudice was shown, the plea was valid.)

Read the oral argument preview here.

Key Statutes and Precedent

R.C. 2950 (Ohio’s sex offender classifications and registration requirements, including duty to register, residency restrictions, and geographic notifications.)

Crim.R. 11 (A court shall not accept a guilty or no contest plea without addressing the defendant personally and determining that the plea is knowingly, intelligently, and voluntarily made.)

State v. Nero, 56 Ohio St.3d 106 (1990) (“Literal compliance with Crim. R. 11 is certainly the preferred practice, but the fact that the trial judge did not do so does not require vacation of the defendant’s guilty plea if the reviewing court determines that there was substantial compliance.”)

State v. Veney, 2008-Ohio-5200 (“Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.”)

State v. Clark, 2008-Ohio-3748 (“for a plea to be knowingly, intelligently, and voluntarily made, the trial judge must substantially comply with Crim.R. 11 by informing the defendant about the applicability of postrelease control and parole to his or her sentence.”)

State v. Williams, 2011-Ohio-3374 (The registration requirements of R.C. 2950 are punitive, rather than remedial, measures.)

State v. Barker, 2011-Ohio-4130 (An alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to other portions of the record, including the written plea. Syllabus paragraph 2.)

State v. Young, 2014-Ohio-2213 (2nd Dist.) (“. . . a trial court need not elaborate on every specific registration requirement before accepting a plea.”)

State v. Clark, 2008-Ohio-3748 (Due process requires that a defendant’s plea be made knowingly, intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.)

State v. Sarkozy, 2008-Ohio-509 (Before accepting a guilty plea, failure of the trial court to inform a defendant of the mandatory term of postrelease control, which was part of the maximum penalty, does not meet the requirements of Crim.R. 11(C)(2)(a) and prejudice need not be shown.)

State v. Bishop, Slip Opinion No. 2018-Ohio-5132.  (Crim.R. 11 requires trial courts to advise defendants with prior felonies, during plea hearings in new felony cases, of the trial court’s ability to impose consecutive prison sentences for violations of post-release control.)

At Oral Argument

Arguing Counsel

David T. Harold, Williams County Special Prosecutor, Wood County Prosecutor’s Office, for Appellant State of Ohio

Karin L. Coble, Law Office of Karin L. Coble, Toledo, for Appellee Brad J. Dangler

State’s Argument

There are two issues in this case-what constitutes a complete failure to comply with Crim.R. 11 and whether or not prejudice must be shown at the time of a plea. In this case there was substantial compliance with the Rule and Mr. Dangler failed to show prejudice. The failure to mention one facet of sex offender classification does not equate to a complete failure at the time of plea. The Sixth District has taken the standard of whether or not things must be mentioned at sentencing and moved it to whether or not it has to be mentioned at the time of the plea.

Mr. Dangler was not surprised at the time of his plea or at the time of his sentencing that he was going to be a sexual offender, because he was apprised in his very first appearance that he was going to be classified as a Tier III sexual offender if found guilty. This was reaffirmed at various times in the proceedings, including at plea. And again, at the sentencing hearing, Mr. Dangler was read verbatim from the form that more fully informs the offender of the requirements of his classification, and he did not object or protest that he had not been properly informed. And while the state concedes that Mr. Dangler was not informed of the community notification requirements at the time of plea, that does not constitute a complete failure to comply with the Rule. What is required at the time of plea is to inform the offender of the Tier the offender will be in, and how long the registration will be.  In this case, that would be a Tier III offender, with lifetime registration. At that point the rule is substantially complied with, and it was in this case. Additionally, Mr. Dangler was at all times represented by counsel, who must share some of the responsibility for informing the offender of the particulars involved in sexual offender classification.

The Sixth District is requiring what is in effect a strict compliance standard for a substantial compliance issue. That court is saying that one small mistake when something is not mentioned at plea creates a complete failure. At a minimum, what needs to be said at the time of plea is you are a Tier III sexual offender which will include registration for life. The state asks this Court to harmonize the Sixth District with the other districts within the state that require a showing of prejudice when one or two factors are not mentioned at the time of plea in order to find that substantial compliance has not occurred.

Dangler’s Argument

This Court has explicitly held that Chapter 2950 is punitive. The rule from the Sixth District logically follows from all of this Court’s precedents starting with Williams, and most recently, with Bishop. But unlike Bishop, trial judges in this situation do not have to track down additional information from a separate case. Here, because the consequences are automatic upon acceptance of a plea, the trial judge will already have all of that information at hand.

The Sixth District has articulated a very clear test for trial courts that encapsulates the core punishments that derive from a tier classification. The core punishments are address verification, community notification, and the residential restrictions. And by articulating all of that information at the time of the plea, everybody in court can be on the same page. The Sixth District has created a form, which may be somewhat complicated, but no more so than what is required for judges at a DUI sentencing.

This case presents this Court with an opportunity to give appellate courts very clear guidance about what constitutes substantial compliance by trial courts in this context. Following the Sixth District’s rule, at the time of plea, the trial judge must tell the defendant, and ask if he understands, that upon acceptance of the plea, he will automatically be classified as a Tier III sex offender, subject to registration for life, which includes address verification every 90 days for life, and which includes community notification and residential restrictions, and that failure to abide by these restrictions will result in additional penalties. This is both necessary and sufficient to constitute substantial compliance.

Once there is substantial compliance, it must be determined whether there is partial compliance or a complete failure to comply with the rule. As reaffirmed in Bishop, partial compliance means that a punishment is mentioned, but not explained.  If there is partial compliance, then the burden is on the defendant to show he was prejudiced by that lack of an explanation, but at least it was mentioned to him.

According to this court’s precedents, what constitutes compliance is mentioning the requirements. Not having to go into detail, but simply mentioning that the requirement exists and that there will be additional penalties if not met puts the defendant on notice so he can then inquire either of the court or of counsel.  These  requirements could also be put in a form that would be available to trial judges at the time of the plea rather than at the time of the sentencing.

What Was On Their Minds

What Suffices for Substantial Compliance

Is the state really just saying there was substantial compliance here and the defendant didn’t show prejudice, asked Justice Stewart? (answer: yes.)

Are the residency restrictions and the community notification requirements collateral, asked Chief Justice O’Connor? Aren’t they essential parts of a Tier III classification? Is there any variation where some Tier III sexual offenders do not have to register and do not have to have community notification? Must the advisement include the consequences of failure to comply? What exactly should the test be? Aren’t the specifics necessary at the time of the plea? Including the fact that failure to comply with this will result in criminal charges?

Why isn’t the analysis here that Mr. Dangler was told he was a Tier III sex offender, and now he has to show prejudice, asked Justice DeWine in a long exchange with Ms. Coble. What exactly must the trial judge say to substantially comply? Must the judge discuss the restrictions near a school? Or a child care facility? And what exactly should be said about the residency requirements? Just that there are some or must the judge list the places they can’t live in? List everything in the statute? If it is the punishments that must be explained, would the judge need to read the defendant the entire statute? Whether there is partial compliance or a complete failure, isn’t that the question of whether there is substantial compliance? Either you substantially comply or you completely fail to comply? It seems to me that saying “Tier III sex offender,” mentions the so-called punishment, and that is the compliance required. After that, the defense is just debating the level of detail it wants the court to explain.  I’m just trying to get everything that needs to be in there because there is a big list of things, DeWine said.  Isn’t the reason the form’s at sentencing because that’s when the legislature said it should be done?

Justice Fischer asked a series of hypotheticals in another lengthy exchange with Ms. Coble.  Assume two statements by the trial judge, he said. One is that you will be found to be a Tier III and you will have residency requirements. The other is you’ll be a Tier III, you’ll have residency requirements, and can’t live within 1000 feet of a school or child care center—go further in depth.  Is either substantial compliance? No, said Ms. Coble, for failure to advise the defendant that if he failed to comply he can be charged with a new felony. What about the judge telling the defendant that he will be found to be a Tier III and if he violate any of those provisions, there are punishment consequences, including possibly jail and fines. Is that sufficient? (still no, said Ms. Coble.)

What Was Defendant Told by the Court

Did the defendant know what a Tier III offender was, asked Chief Justice O’Connor? How?

Was there a point at which the court specifically advised the defendant of the residency restrictions and the community notification, asked Justice French? Are they on a form somewhere? A booklet? How would he be advised of those specific requirements? (The prosecutor conceded Dangler was not informed of the community notification requirements).

Getting back to the plea, the Criminal Rule 11 requirements are inherent upon the judge, noted Justice Stewart. Counsel has some responsibility, but the Criminal Rule 11 requirements are a must so that the judge knows the plea is being made knowingly, intelligently and voluntarily made.  So what aspect at the time of the plea—not sentencing—was there substantial compliance? Doesn’t Rule 11 require that all the penalties inherent in taking a plea be told to the defendant? How does someone knowingly decide to enter into a plea when told he has to register as a Tier III sexual offender? Aren’t the defendants required to know what all of that entails? Living restrictions, registration restrictions, the timeliness of them, what can happen if you don’t register—just by saying Tier III, is the defendant supposed to know all that?

Setting aside the idea of whether the court in this particular case substantially complied, would the state agree that it would be advisable for this Court to guide the trial courts of this state that it would be the best practice at every plea colloquy to have the form signed rather than at sentencing, and that way defense counsel can go over every single detail about the sexual registration requirement, have the defendant sign it, have counsel sign it,  and that should be done at the plea hearing, rather than at sentencing, asked Justice Donnelly? Later, he asked if the Court wasn’t entitled to presume that Mr. Dangler had competent counsel who went over everything in detail before Mr. Dangler entered his plea.

How It Looks From The Bleachers

To Professor Emerita Bettman

First off, compliments to both counsel for an extremely well-argued case.  I’d place Ms. Coble in particular in the top tier of oralists the blog has previewed. And Mr. Harold had a very nice, sincere manner, particularly when he admitted the trial court had failed to inform Dangler about the community notification requirement.

I’m with Ms. Coble here. I think at the plea hearing, telling a defendant he is a Tier III offender doesn’t mean the defendant understands what that means, as the Chief suggested, nor should the trial judge have to inform the defendant of every provision in the statute, as Justice DeWine seemed to be suggesting if the Sixth District is affirmed. I think Ms. Coble’s answer is just fine—the defendant needs to be informed by the trial judge of the punitive consequences of a Tier III classification, namely address verification, community notification, and the residential restrictions, and that there will be additional punishment if these requirements are not met. So what if this puts more of a burden on the trial court?  That’s part of being a judge, and cannot be replaced by defense counsel’s duties to a client.  As the Chief suggested in one of her questions, just informing a defendant that he is a Tier III offender doesn’t mean the defendant understands what that means. And the punitive consequences that are attached to that classification are so draconian, what’s the harm in spending a little more time spelling out exactly what that means, at the plea hearing, to make sure that plea is knowingly made? It would seem that is the time it most matters.

Whether Dangler has a majority for his position is hard to say, because this one may be close, but I think the Chief and Justices Stewart, Donnelly, and French will go with Dangler’s position. Justices DeWine and Fischer seemed convinced there was substantial compliance and no prejudice here.

To Student Contributor Carson Miller

This is a close call. Chief Justice O’Connor latched onto Ms. Coble’s argument that the main issue in this case is defendants’ knowledge of the potential penal consequences of violating their sex offender requirements, rather than exact specificity of what the sex-offender registration requirements actually are. Both Justices Stewart and French questioned the state on similar grounds. I think Dangler has these three votes.

On the other side, Justices Fischer and DeWine emphasized the burden placed on trial courts to determine how they might substantially comply with Crim.R. 11; Justice DeWine asked if judges would be required to read R.C. 2950 to defendants before they enter a plea.

To what degree should trial courts rely on counsel to explain to their clients the consequences of accepting sex-offender status? Justice Donnelly asked both sides about the role of defense counsel in putting defendants on notice, and whether courts should ensure that defense counsel have done this. I think that Justice Donnelly’s vote will decide the case.

I think Dangler will win, with Chief Justice O’Connor, Justice French, Justice Stewart, and Justice Donnelly forming the majority. I think that Justice Donnelly will be swayed by the opportunity to provide trial courts with clearer guidance as to what exactly courts need to ensure defendants are aware of when making a plea. However, if Justice Donnelly determines that this burden better falls on defense counsel, the state could very well win this case.

Update: On September 24, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On March 6, 2019, the Supreme Court of Ohio will hear oral argument in City of Cleveland v. State of Ohio, 2018-0097. At issue in this case is whether the State has the power under Article II, Section 34 of the Ohio Constitution to prohibit public authorities from requiring contractors who work on public improvement projects to employ a certain percentage of laborers who reside in defined geographic areas.  If the State does not have such power, then the question becomes whether such a prohibition violates home-rule authority.

Case Background

In 2003, the City of Cleveland (“Cleveland”) enacted Cleveland City Ordinances (C.C.O.) Chapter 188, also known as the Fannie Lewis Law. The Fannie Lewis Law mandates that all construction contracts over $100,000 with the city shall require at least 20% of the construction hours to be performed by Cleveland city residents. If a contractor fails to comply with this requirement, a penalty is imposed.  Other Ohio cities such as Cincinnati, Columbus, and Akron have similar laws. In 2014, the Ohio Contractor’s Association  challenged the Akron law on equal protection grounds in federal court, but that court rejected the argument and upheld the law.

In 2016, following the federal court’s ruling, the State enacted what is now R.C. 9.75, which prohibits public authorities from requiring contractors who work on public improvement projects to employ certain percentages of laborers who reside in defined geographic areas. R.C. 9.75 effectively proscribes the mandates of the Fannie Lewis Law. The legislature found this to be a matter of statewide concern, affecting the general welfare of all employees, and the right to live wherever one wishes.

After R.C. 9.75’s enactment, Cleveland filed a complaint challenging the constitutionality of the statute. Cleveland claimed the State improperly invoked Article II, Section 34 of the Ohio Constitution to enact R.C. 9.75 and that the law unconstitutionally infringes upon the city’s home-rule authority. Cuyahoga County Court of Common Pleas Judge Michael J. Russo agreed with the Cleveland and enjoined the State from enforcing the law.

The Appeal

In unanimous decision authored by Judge Sean C. Gallagher, joined by Judges Kathleen Ann Keough and Frank Celebrezze, Jr.,the Eighth District Court of Appeals affirmed the trial court’s ruling. The Eighth District held that Article II, Section 34 of the Ohio Constitution did not give the General Assembly power to enact R.C. 9.75 and that the statute infringed upon the municipal home-rule authority granted in Article XVIII, Section 3. The Eighth District reasoned that R.C. 9.75 was not related to the general welfare of employees, so it was not covered by Article II, Section 34 and was thus subject to home-rule analysis. The Eight District found that R.C. 9.75 did not pass the home-rule test because the Fannie Lewis Law was an exercise of local self- government, not an exercise of police power, and R.C. 9.75 was not a general law.

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices Kennedy, French, Fischer, DeWine, O’Donnell, and DeGenaro.

Key Statutes and Precedent

Article II, Section 34 of the Ohio Constitution (Employee Welfare Amendment — “Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power.)

Article XVIII, Section 3 of the Ohio Constitution (Home-Rule Amendment — “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.)

R.C. 9.75 (B)(1) (Residency-Choice Law) (“No public authority shall require a contractor… for the construction of a specific public improvement…to employ as laborers a certain number or percentage of individuals who reside within the defined geographic area or service area of the public authority.”)

C.C.O. Chapter 188 (The Fannie Lewis Law) (“[E]very Construction Contract shall…Require that one (1) or more Residents perform twenty percent (20%) of the total Construction Worker Hours…performed under the Construction Contract.”)

Dies Elec. Co. v. City of Akron, 62 Ohio St.2d 322 (1980) (A City’s authority to contract arises as a power of local self-government under the Home Rule Amendment.)

Rocky River v. State Emp. Relations Bd., 43 Ohio St. 3d 1 (1989) (Upheld a statute that mandated binding arbitration between a city and its safety forces in the event of a collective-bargaining impasse.)

Canton v. State, 2002-Ohio-2005 (Home-Rule authority test: an Ohio statute overrides a local ordinance when (1) a conflict exists, (2) the ordinance is an exercise of police power, not local self-government, and (3) the statute is a general law. General law test: a general law must (1) be a part of a comprehensive enactment, (2) apply uniformly throughout Ohio, (3) do more than just grant or limit municipal power, and (4) prescribe a rule of conduct.)

Lima v. State, 2009-Ohio-2597 (Upheld an Ohio law barring residency requirements for city employees, finding that the law provided for the comfort and general welfare of employees because it allowed “employees more freedom of choice of residency”; no home-rule analysis was needed.)

State’s Argument

Article II, Section 34 of the Ohio Constitution gives the State broad power to regulate employment and to make laws concerning the comfort, safety, and general welfare of its employees. This broad power cannot be limited by any other provision in the Ohio Constitution. Thus, if a statute provides for the general welfare of its employees, it trumps any conflicting local ordinance, and no home rule analysis is needed. The Eighth District’s decision should be reversed because R.C. 9.75 relates to employee welfare and was thus properly enacted pursuant to the State’s Article II, Section 34 powers.

R.C. 9.75 is a residency-choice law similar to the law upheld in Lima. R.C. 9.75 provides for the general welfare of employees because an employee’s comfort and welfare necessarily includes the choice of where to live as held in Lima. Moreover, the statute provides for the general welfare of employees because it gives construction workers the chance to compete for available work hours and helps promote safe working conditions by allowing contractors to hire the most qualified employees.  Because the statute was properly enacted pursuant to Article II, Section 34, which has long been interpreted as being a broad grant of legislative authority to pass employment-related laws, the statute is not subject to home-rule analysis and automatically prevails over the Fannie Lewis Law.

Even if the Court finds that R.C. 9.75 does not relate to the general welfare of employees and is subject to a home-rule analysis, it passes this test. R.C. 9.75 does not infringe on Cleveland’s home-rule authority granted to it by Article XIII, Section 3 of the Ohio Constitution. That amendment grants local authorities the freedom to enact ordinances concerning local self-government and police, sanitary, or other similar regulations. Under Canton’s home rule test, R.C. 9.75 should prevail over the Fannie Lewis Law because the two laws are in conflict, the Fannie Lewis Law is an exercise of police power, and R.C. 9.75 is a general law.

The Fannie Lewis law is an exercise of police power because it goes beyond Cleveland’s internal administrative affairs and not only attempts to improve the economic welfare of Cleveland residents, but also has significant extraterritorial effects and imposes penalties on contractors for noncompliance. Finally, R.C. 9.75 meets the requirements for a general law because it is part of a comprehensive scheme covering public construction and contracting, it serves Ohio’s overriding state interests in protecting construction workers from the disadvantages of residency quotas, and it regulates citizen conduct by permitting employees to freely choose where to live. Therefore, R.C. 9.75 also passes the home-rule authority test and should prevail over the Fannie Lewis Law.

Cleveland’s Argument

The Eighth District’s decision should be affirmed because R.C. 9.75 does not provide for the comfort, health, safety, or general welfare of employees. Therefore, it was not properly enacted pursuant to Article II, Section 34. Additionally, R.C. 9.75 infringes on the home-rule authority granted to local municipalities by Article XVIII, Section 3.

R.C. 9.75 does not provide for the general welfare of employees because it does not concern a direct employer-employee relationship. Instead, R.C. 9.75 concerns “the arms-length relationship between municipalities and contractors in negotiating public contracts.” The State’s emphasis on Lima is misplaced because Lima involved a direct employer-employee relationship and city residency was a direct condition of employment with the city. Furthermore, R.C. 9.75 does not protect employees’ residency freedom because such freedom already exists. The Fannie Lewis Law does not regulate the residence of any construction workers in Ohio, who can live wherever they want. Nor does the city have any control over who contractors hire. As R.C. 9.75 does not provide for the general welfare of employees, it is subject to home-rule analysis.

R.C. 9.75 fails the home-rule test because the Fannie Lewis Law is not an exercise of police power and R.C. 9.75 is not a general law. The Fannie Lewis Law is not an exercise of police power, but rather a proper exercise of local self-government power because it involves the city’s power to contract. Under Dies, a city’s authority to contract arises as a power of local self-government under the Home Rule Amendment. Also, R.C. 9.75 is not a general law because it is not part of statewide approach governing public construction and contracting. Additionally, R.C. 9.75 does not set forth police, sanitary or similar regulations. Lastly, the statute is not a general law because it regulates the city’s authority to contract, not the conduct of citizens generally.

State’s Proposed Proposition of Law No. 1

R.C. 9.75 is a valid exercise of authority under Article II, Section 34, because it provides for the general welfare of employees by protecting them from local preferences. Thus, no home-rule analysis is needed.

State’s Proposed Proposition of Law No. 2

R.C. 9.75 satisfies home rule. Cleveland’s ordinance is an exercise of police power designed to serve general-welfare interests by shifting work to local residents. The challenged law is a general law that counteracts the significant extraterritorial effects residency quotas have on Ohioans living outside the relevant local jurisdiction.

Amici in Support of the State

AIA Ohio (American Institute of Architects Ohio) is a membership organization for professional registered architects that seeks to produce positive legislative and governmental agency rule changes for the architectural profession. AIA Ohio argues the Eighth District erred by narrowly interpreting the Fannie Lewis Law as a job creation tool. Furthermore, the Fannie Lewis Law’s stated purpose of employing local residents is undermined by the law’s exception for out-of-state contractors. If this law were to spread to the design profession, then no architectural firm could design public works except in the arbitrary location where an architect might happen to live.

Ohio Contractor’s Association (OCA), Associated General Contractors of Ohio (AGC), the National Federation of Independent Business (NFIB), and Ohio Chamber of Commerce filed a joint brief in support of the state. The OCA and the AGC are made up of contractors who engage in heavy construction and public improvement projects throughout the state. The freedom of residency is of great importance to the workers employed by OCA and AGC members,  The Ohio Chamber of Commerce works to promote and protect the interests of its numerous business members while building a more favorable Ohio business climate. The NFIB serves the interest of small and independent business owners and is concerned for its members’ ability to bid and work on any public improvement projects and not be excluded because where their employees reside. These amici argue that the Fannie Lewis law is an exercise of police power because it seeks to alleviate the City’s unemployment and poverty problems. They further argue that R.C. 9.75 meets the requirements of a general law.

International Union of Operating Engineers, Local 18 (Local 18) is a labor organization for operating engineers. Local 18 is concerned that if R.C. 9.75 is not upheld, then it will have to consider residency as an element of its referral practices. Local 18 believes this will penalize its members who would otherwise be qualified for work under the hiring hall’s existing policy. Local 18 argues that R.C. 9.75 provides for the general welfare of employees because it permits thousands of operating engineers represented by Local 18 to receive work on public improvement projects based on skill and seniority, not where they live.

Amici in Support of Cleveland

Campaign to Defend Local Solutions, Legal Scholars, and the International Municipal Lawyer’s Association filed a joint brief in support of Cleveland. The Campaign to Defend Local Solutions is a nonpartisan organization dedicated to raising awareness of the spread of state preemption of local laws. The Legal Scholars consist of several law professors who are familiar with the historical background and development of home rule. The International Municipal Lawyer’s Association (IMLA) is a non-profit, nonpartisan professional organization whose mission is to advance the responsible development of municipal law. These Amici largely echo the City’s arguments that R.C. 9.75 does not concern the general welfare of employees and is thus subject to a home-rule analysis which it fails for the same reasons described in the City’s brief. They argue that the Fannie Lewis Law is not a regulation that imposes residency requirements, but rather a modest set of contract requirements over certain city funding. Additionally, these Amici emphasize the importance of home rule, noting that the authority that Charter Cities in Ohio retain over their own contracting is a central aspect of local self-government. The Amici highlight the increasing problem of home-rule erosion across the country.

The City of Akron filed an Amicus Brief which argues many of the same points from Cleveland’s brief. Here, Akron explains that R.C. 9.75 does not concern the relationship between an employer and an employee, but rather “regulates the relationship between a customer and a service provider.” Because R.C. 9.75 does not regulate general working conditions of employees, it was not properly enacted under Article II, Section 34. Furthermore, because R.C. 9.75 interferes with the Cleveland’s power to contract, it unconstitutionally infringes on Cleveland’s home-rule authority.

Columbus City Attorney, Zach Klein filed an Amicus Brief stating that the City of Columbus “concurs with the well-reasoned arguments of Appellee, City of Cleveland” and that the City of Columbus, “fully adopts Appellee’s arguments…as set out in Appellee’s Merit Brief.” Amicus warns that “[l]egislation that peripherally or remotely affects employees cannot be said to pertain to the ‘general welfare of all employees’ as such a ‘plausible’ argument could be made tying most any enactment to a potential impact on employees.” Klein argues that the passage of this bill was to protect the contractors’ lobby, not to provide for the general welfare of employees.

Ohio Municipal League (OML) is a state-wide association that serves the interests of Ohio municipal government. OML represents Ohio cities and villages before the Ohio General Assembly and the state elected and administrative offices. OML argues that R.C. 9.75 does not establish a residency requirement and does not provide for the general welfare of employees, but instead protects independent contractors who contract with municipalities. OML also argues that R.C. 9.75 clearly violates the home-rule amendment because it infringes on the city’s right to contract, which is a well-established power of local self-government.

Student Contributor: Ivy Charneski

Update: On October 31, 2019, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument here. 

On March 6, 2019, the Supreme Court of Ohio will hear oral argument in the case State of Ohio v. Travis Soto, 2018-0416. At issue in the case is whether the Double Jeopardy Clause of the Fifth Amendment bars successive prosecution when a defendant has served and completed a prison sentence yet confesses the true nature of the offense after he or she is released.

Case Background

In January of 2006, Travis Soto’s two-year-old son was killed. Soto told law enforcement officials that his son was accidentally struck while Soto was driving his all-terrain vehicle (“ATV”) and died as a result. After an examination, the coroner concluded that the child’s injuries were consistent with Soto’s explanation. Soto was charged with child endangerment and involuntary manslaughter. Soto negotiated a plea in which he pled guilty to child endangerment and in exchange the involuntary manslaughter charge was dismissed. Soto served a five-year sentence.

In July of 2016, several years after the completion of his sentence, Soto voluntarily approached the Putnam County Sheriff’s Office and confessed that he had actually beaten his son to death and had staged the ATV accident scene in 2006. In August of 2016, Soto was indicted for aggravated murder, murder, felonious assault, kidnapping, and tampering with evidence. Soto filed a motion to dismiss on double jeopardy grounds. Judge Keith Schierloh of the Putnam County Court of Common Pleas denied Soto’s motion. Judge Schierloh found that because felonious assault, kidnapping, and tampering with evidence all require proof of an element not required by the original prosecution of child endangerment, Soto could not reasonably believe that his plea, based on a false narrative, would bar future prosecutions.

On appeal, the Third District, in 2-1 opinion authored by Judge Shaw and joined by Judge Willamowski, reversed the decision of the trial court. The Third District found that the primary inquiry for double jeopardy issues is whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars additional punishment and successive prosecutions. Both the United States Supreme Court and the Supreme Court of Ohio have held that the government is barred from bringing an additional prosecution for a greater offense when a defendant has already been convicted of a lesser included offense. While Soto was not convicted of involuntary manslaughter, he was in jeopardy of being tried and convicted for involuntary manslaughter but for the plea agreement he negotiated. Involuntary manslaughter is, as the Supreme Court of Ohio recognizes, a lesser included offense of aggravated murder and murder.  In addition, at the time of the plea, the state did not reserve the right to bring additional charges related to the boy’s death. Therefore, subsequent prosecution is barred in these circumstances.

Judge Zimmerman dissented. He contends that the involuntary manslaughter charge was dismissed before jeopardy had attached.. When the state nolled the involuntary manslaughter charge, it did so without prejudice, and may therefore re-indict Soto if new evidence is presented. Here, Soto was only punished for endangering his son, not for murdering him. Without the attachment of jeopardy, the state is free to pursue Soto’s conviction for murder. Therefore, the decision of the trial court should be affirmed.

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices DeWine, Fischer, French, and O’Donnell

No: Justices DeGenaro and Kennedy

Key Statutes and Precedent

United States Constitution, Amendment V (“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . .”)

Ohio Constitution Article I, Section 10 (No person shall be twice put in jeopardy for the same offense.)

R.C. 2903.11 (Felonious Assault)(No person shall knowingly cause serious physical harm to another or another’s unborn; or cause or attempt to cause physical harm to another or another’s unborn by means of a deadly weapon or dangerous ordnance.)

R.C. 2903.01 (Aggravated Murder)

(C) No person shall purposely cause the death of another who is under thirteen years of age at the time of the commission of the offense.)

R.C. 2903.02 (Murder)(No person shall purposely cause the death of another…)

R.C. 2903.04 (Involuntary Manslaughter)(No person shall cause the death of another… as a proximate result of the offender’s committing or attempting to commit a felony.)

Blockburger v. United States, 284 U.S. 299 (1932) (The Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes unless each statute requires proof of a fact which the other does not.)

Jeffers v. United States, 432 U.S. 137 (1977) (When a defendant requests separate trials for a greater and lesser-included offense the Double Jeopardy Clause is not implicated.)

Brown v. Ohio, 432 U.S. 161 (1977) (Once a defendant has been convicted of a lesser-included offense he or she may not be tried for a greater one arising from the same factual scenario under the Double Jeopardy Clause.)

State v. Thomas, 61 Ohio St.2d 254 (1980) (The state may be able to proceed with additional charges if, at the time of the first trial, additional facts to sustain a second charge had not occurred or were not discoverable despite the exercise of due diligence.)

Ohio v. Johnson, 467 U.S. 493 (1984)(The dismissal of one count in the indictment at the time of a defendant’s plea is not an “implied acquittal” on the dismissed offense.)

State v. Tolbert, 60 Ohio St.3d 89 (1991) (Lesser-included offenses are considered the same offense as the greater offense for purposes of the Double Jeopardy Clause and Blockburger test.)

State v. Carpenter, 68 Ohio st.3d 59 (1993) (When the state accepts a negotiated plea and expressly fails to reserve the right to bring additional charges upon the development of new information, the State is precluded from later indicting the defendant on a more serious charge.)

State v. Lynch, 2003-Ohio-2284 (Involuntary manslaughter is a lesser-included offense for murder and aggravated murder

State v. Resor, 2010-Ohio-397 (6th Dist.) (Double jeopardy hinges on the identical nature of the different causes of actions brought by the state, not on factual evidence submitted to the jury. Even slight variations in the causes of action will circumvent a double jeopardy claim.)

State’s Argument

The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, after conviction, and against multiple punishments for the same offense. In Soto’s case, the only protection at issue is the second, and the issue is whether Soto may rightfully be prosecuted for aggravated murder and murder after he was convicted of child endangerment. To determine whether a defendant is being successively prosecuted for the same offense, a court conducts the “same elements” test. This test prohibits successive prosecutions unless each statute requires proof of a fact which the other does not. This is because the Double Jeopardy Clause does not prohibit successive prosecutions; rather, the Double Jeopardy Clause prohibits successive prosecution for the same offense.

Soto was convicted, sentenced, and placed on post-release control for the plea-bargained for offense of child endangerment. As part of the plea bargain, the involuntary manslaughter charge was dismissed. Several years after the completion of his sentence, Soto voluntarily confessed that he intentionally punched and killed his son. Soto was then indicted for aggravated murder, murder, and other crimes in light of this new confession.

Under Blockburger, the elements of child endangerment under R.C. 2919.22(A) and (E)(1)(c) must be compared with aggravated murder under R.C. 2903.01(C). This section of aggravated murder requires the victim to be under the age of thirteen and a “purposefully” mens rea. Child endangerment requires that the offender be a parent, or equivalent, and has to violate a duty of care, protection or support. Therefore, under Blockburger, the Double Jeopardy Clause does not prohibit a successive prosecution for aggravated murder in this case.

The Third District’s insistence that the Blockburger analysis must include the dismissed charge of involuntary manslaughter is erroneous. As the United States Supreme Court recognized, jeopardy does not attach to charges dismissed prior to the empaneling of a jury. To treat a nolled charge as the functional equivalent of an acquittal is similarly improper. Nevertheless, even if involuntary manslaughter is considered under Blockburger, the successive prosecution for aggravated murder is permissible, because each offense contains an element not contained in the other. As a result, it is clear that the Third District erred in deciding that the new charges of aggravated murder and murder were barred by double jeopardy.

There is, however, a due diligence exception to the Blockburger test. Courts recognize that where a fact necessary to the commission of one offense occurs after the defendant has been convicted of another offense and could not have been discovered earlier even after due diligence, multiple prosecutions are not barred by the Double Jeopardy Clause. In this case, the facts necessary to support the 2016 Grand Jury indictment could not have been discovered despite the exercise of due diligence until Soto appeared and confessed to the actual details of his son’s death. In 2006, the State relied on Soto’s original version of what happened when conducting its investigation. The state performed its due diligence at the time, which is verifiable and vouched for in the 2016 medical report. The false narrative provided by Soto led to a false medical diagnosis. As such, the facts necessary to support this subsequent prosecution were not discoverable until July 2016 despite the exercise of due diligence.

Finally, Ohio courts recognize negotiated pleas as a bar to successive prosecution if the defendant would reasonably believe that his or her plea would bar further prosecution for a greater or lesser offense related to the same factual scenario. Soto cannot be said to have a reasonable belief that his plea would bar further prosecution because he entered the plea agreement in bad faith and purposefully deceived the State to receive a more lenient bargain. Soto intentionally concealed information, staged the scene to look like an ATV accident, and fabricated a false narrative. In light of these facts, Soto could have no reasonable belief that his 2006 plea would bar further prosecution when the true nature of the incident transforms it from one of accidental death to purposeful homicide. Accordingly, the State requests that the decision of the Third District be reversed.

Soto’s Argument

Negotiated plea agreements are governed by contract law and focus on the reasonable expectations of the defendant. A negotiated plea bars successive prosecutions where the defendant reasonably believes that the plea would preclude further prosecutions for any offense arising from the same factual scenario. The Supreme Court of Ohio recognizes that entering into a plea agreement is what creates the reasonable expectation that criminal proceedings related to the incident will cease.  Ohio courts have detailed some exceptions to this general rule. These exceptions provide a roadmap for determining whether a reasonable expectation exists: (1) the defendant’s charges have to arise out of the same incident, and the defendant’s actions must have occurred in the same jurisdiction; (2) additional charges cannot already be pending against the defendant at the time of the plea agreement; (3) the court and the State must have had jurisdiction over all of the charges; and (4) the negotiated plea agreement must have resolved all of the indicted charges, and the State must have failed to reserve the right to bring additional charges arising out of the incident. In Soto’s case, all these requirements are satisfied. All actions related to this case occurred at the same time and jurisdiction, there were no additional charges pending against Soto, the court and the State had jurisdiction over all charges, and the plea agreement resolved all charge for which Soto was indicted. Therefore, successive prosecution is prohibited.

The arguments posed by Amicus are without merit. Amicus argues that successive prosecutions are not barred if the defendant’s own actions brought about the successive prosecution. This misreads Jeffers v. United States, in which the U.S. Supreme Court simply stated that the Double Jeopardy Clause is not implicated when a defendant urges a court to try two aspects of a case arising from the same factual scenario separately. Second, Amicus’ contention that affirming the decision of the Third District would undermine the prosecution’s future willingness to enter into plea agreements for anything less than the indicted charges is misplaced.  Even if Soto pleaded to both indicted charges the same problem would have arisen, because of the state’s failure to exercise due diligence in its investigation of Soto’s initial account of what happened. Finding that subsequent prosecutions are prohibited in this case would not have any adverse effect on the prosecution’s willingness to enter into meaningful plea negotiations.

The State waived its right to argue the jeopardy-attachment issue. The Third District presumed that jeopardy had attached because the issue was not raised before it. The State failed to raise the attachment issue in the appeals court or in its memorandum in support of jurisdiction. Therefore, the only issue properly before this court is whether, under the Blockburger test, involuntary manslaughter is the “same offense” as murder and aggravated murder under the Double Jeopardy Clause. Under Blockburger, courts must determine whether each offense contains an element not contained in the other; if not, the Double Jeopardy Clause bars additional prosecution and punishment. This Court has clearly stated that involuntary manslaughter is a lesser included offense of felony murder and aggravated murder. Involuntary manslaughter is subsumed by the greater offenses and, therefore, is considered the “same offense” for double jeopardy purposes.

While there is an exception to the Double Jeopardy Clause, known as the due diligence exception, that exception does not apply in this case. The due diligence exception permits the state to bring a successive prosecution if it can be shown that a fact was not readily available to the prosecution after the State conducted due diligence. In Soto’s case all relevant facts were readily available to the State in 2006 when Soto committed his crime. The only reason the State failed to obtain all relevant facts during its first prosecution was because it failed to conduct a thorough investigation. Soto’s subsequent confession is not sufficient to qualify as a fact not available at the time of trial. Further, the State simply relied on Soto’s statements despite their inconsistencies. The State could have easily investigated those inconsistencies by interviewing Soto’s child’s mother, Soto’s neighbors, performing a forensic examination of the interior or exterior of the ATV. If the State were permitted to bring a successive prosecution despite these failures of due diligence, it would unjustly reward the State for shoddy investigative work. Therefore, the decision of the Third District should be affirmed.

State’s Proposed Propositions of Law

Proposition 1: Involuntary Manslaughter with a child endangering predicate in violation of ORC 2903.04(A) is not the same offense for double jeopardy purposes as Aggravated Murder in violation of ORC 2901.01(C) or Murder with a Felonious Assault predicate in violation of ORC 2903.02(B) under the Blockburger “same offense” test.

Proposition 2: Additional facts necessary to sustain a new charge that have not been discovered despite the exercise of due diligence acts as an exception to Blockburger to allow subsequent prosecution.

Proposition 3: A negotiated plea does not bar successive prosecutions where the defendant would not reasonably believe that his or her plea would bar further prosecutions for any greater offense related to the same factual scenario.

Amicus in Support of the State

The Cuyahoga County Prosecutor’s Office filed a brief in support of the State. Its legal arguments closely mirror those offered by the State. Amicus contends that the dismissal of the involuntary manslaughter charge in 2006 was a procedural dismissal and, therefore, not an acquittal for double jeopardy purposes. Further, jeopardy does not attach to a charge which is dismissed prior to the empaneling of a jury. Because the involuntary manslaughter charge was not dismissed with prejudice by the State, the State is free to seek a conviction on that charge at a later date. Finally, Soto had no reasonable expectation that his 2006 plea would end future litigation. Soto’s plea was based on falsehoods which were revealed after Soto made a subsequent confession. This independent action on Soto’s part, which constitutes a fraud on the court, clearly eliminated any reasonable expectation of finality by Soto. This, combined with the State’s exercise of due diligence, permits the State to seek a successive prosecution.

Student Contributor: Paul Taske