Oral Argument Previews

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Wednesday, Dec. 17, 2008

State of Ohio v. James C. Bloomer, Case no. 2007-0693
Fulton County
State of Ohio v. Jeffrey Mosmeyer, Case no. 2007-1415
Hamilton County
State of Ohio v. Marcus D. Barnes, Case no. 2007-1439
Portage County

B.J. Alan Company, d.b.a. Phantom Fireworks, et al. v. Congress Township Board of Zoning Appeals et al., Case no. 2008-0306
9th District Court of Appeals (Wayne County)

Estate of Donald R. Stevic by Betty A. Stevic, Exec. v. Bio-Medical Application of Ohio, Inc., Case no. 2008-0392
5th District Court of Appeals (Richland County)

State of Ohio v. William Coburn, Todd Parkison, and Marvin Coburn, Case no. 2008-0536
6th District Court of Appeals (Erie County)

Disciplinary Counsel v. Michael McCord, Case no. 2008-1785
Franklin County

Does Legislation Mandating Post-Release Control With or Without Court Order Violate Constitution?

State of Ohio v. James C. Bloomer, Case no. 2007-0693
Fulton County
State of Ohio v. Jeffrey Mosmeyer, Case no. 2007-1415
Hamilton County
State of Ohio v. Marcus D. Barnes, Case no. 2007-1439
Portage County

NOTE: Because this argument involves three separate cases that have been consolidated for consideration by the Court, each side has been granted 30 minutes for oral argument

ISSUE:  Is the separation of powers doctrine or the ban against ex post facto laws in the Ohio Constitution violated by 2006 legislation that:

a) requires a trial court, without conducting a complete new sentencing hearing, to make a retroactive nunc pro tunc (“now for then”) journal entry that adds post-release control to an offender’s pre-2006 sentence in cases where the court mistakenly failed to include a mandatory term of post-release control in its original sentencing order and the offender has not yet completed his term of imprisonment;

b) authorizes the Adult Parole Authority to impose post-release control on an offender without a court order in post-2006 cases where the offender’s conviction required a term of post-release control but the trial court omitted that requirement from his original sentence and the offender was not resentenced prior to his release from prison.

BACKGROUND:  The Supreme Court has accepted and consolidated for argument three cases in which criminal offenders were convicted of felony offenses for which a term of post-release control following release from prison was mandatory, but in which the trial court failed to include post-release control in its sentencing order. In all three cases, once made aware of the defect in its sentencing order, the trial court conducted a resentencing hearing pursuant to Am. Sub. H.B. 137, legislation that took effect in July 2006, and added a term of post-release control to its original sentence.

Each of the defendants appealed the after-the-fact addition of post-release control to his sentence despite the state’s failure to appeal that sentencing defect within the statutory time limit for filing an appeal. Three different court of appeals districts reviewed and upheld the trial courts’ resentencing orders imposing post-release control. The defendants all appealed to the Supreme Court, raising a variety of alleged errors by the lower courts.  The Court accepted and consolidated the three cases, specifying that it would hear arguments on three specific legal questions raised by one or more of the defendants challenging the constitutionality of Am.Sub.H.B. 137.  Those questions are:

Contacts
(Fulton) Paul H. Kennedy, 419.337.9240; (Hamilton) Scott Heenan, 513.946.3227; (Portage) Pamela J. Holder, 330.297.3850, for the Fulton County, Hamilton County and Portage County prosecutors.

James Bloomer: Stephen P. Hardwick, 614.466.5394; Jeffrey Mosmeyer: Derek W. Gustafson, 613.241.7880; Marcus Barnes: Paul Mancino Jr., 216,621.1742, for the defendants.

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What Are Requirements for ‘Comprehensive Plan’ That Must Underlie Township Zoning Resolution?

B.J. Alan Company, d.b.a. Phantom Fireworks, et al. v. Congress Township Board of Zoning Appeals et al., Case no. 2008-0306
9th District Court of Appeals (Wayne County)

ISSUE:  Is a township’s zoning resolution created “in accordance with a comprehensive plan” as required by R.C. 519.02: a) when the township resolution relies on a countywide land use plan, and b) when the township resolution authorizes both agricultural and business land use, but the township zoning map does not designate any specific areas within its borders for business use?

BACKGROUND:  Congress Township is located in the northwest corner of Wayne County. Forty-one of the 43 square miles of land within the borders of the township are devoted to agriculture, including a large concentration of Amish farms. 

In 2006, Phantom Fireworks purchased a 6.8 acre parcel in the township at Interstate 71 and S.R. 539 with the intention of building a large fireworks store there. The township zoning inspector refused to issue a zoning certificate for business use of the property, noting that under a zoning resolution adopted by township voters in 1994 the land was zoned for agricultural use only. Phantom applied to the township Board of Zoning Appeals (BZA) for a variance to allow its proposed use of the land.  Following a hearing at which owners of nearby properties opposed the proposed commercial development, the BZA denied the variance.

Phantom appealed the BZA ruling to the Wayne County Court of Common Pleas, which upheld the BZA.  Phantom then appealed the trial court’s decision to the 9th District Court of Appeals. The 9th District reversed the BZA and trial court. In its decision, the court of appeals held that the township’s zoning resolution was invalid and unenforceable under a provision of state law, R.C. 519.02, that requires that all township zoning regulations must be based on “a comprehensive plan” that sets forth a political subdivision’s “goals, objectives and policies” for the current and desired future use of various areas within its borders. In support of its ruling, the 9th District noted that the 1994 Congress Township zoning resolution did not set forth any independent local land use plan but merely referred to a 1977 countywide plan that included general language about preserving the agricultural nature of the township.

The court also pointed out that while the Congress Township resolution authorized both agricultural and business uses, the township zoning map designated the entire land area as agricultural and failed to identify any specific locations or parcels within its borders as appropriate for business activities.

Congress Township sought and was granted Supreme Court review of the 9th District’s ruling. Attorneys for the township point out that R.C. 519.02 does not explain or define the term “comprehensive plan.” They argue that the court of appeals’ interpretation of that term in this case places too great a burden on small rural townships like theirs and others across the state that do not have the need or the resources to develop their own in-depth land-use plans and instead rely on countywide planning documents as the underlying support for their local zoning resolutions. They also contend that the court of appeals erred in holding that, just because the township’s zoning resolution was made flexible by authorizing possible future business use of land currently devoted to farming, the township was required to pre-designate specific locations on its zoning map as available for business use without regard to the size, type or infrastructure impacts of businesses seeking to locate there.

Attorneys for Phantom Fireworks contend that the 9th District’s decision was consistent with state law and prior court rulings that prohibit townships from engaging in arbitrary “spot zoning.” By refusing to identify specific parcels or areas that are appropriate for business development, and instead requiring each prospective business user to apply for a variance that may be granted or denied by local officials on an ad hoc basis, they say, township zoning resolutions like the one in this case enable piecemeal zoning based on improper financial inducements, cronyism and other criteria that are the opposite of carefully planned development.

NOTE: Amicus curiae (friend of the court) briefs supporting the position of Congress Township have been filed with the Court by the Ohio Township Association, Ohio Farm Bureau Federation and Ohio Prosecuting Attorneys Association.  Amicus briefs supporting the position of Phantom Fireworks have been submitted by the American Planning Association and Ohio Home Builders Association.          

Contacts
Timothy M. Burke, 513.721.5525, for the Congress Township Board of Zoning Appeals.

Stephen W. Funk, 330.376.2700, for B.J. Allen Co. d.b.a. Phantom Fireworks.

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Court Ruling Sought on Definition of ‘Medical Claims’ Covered by Tort Reform Legislation

Estate of Donald R. Stevic by Betty A. Stevic, Exec. v. Bio-Medical Application of Ohio, Inc., Case no. 2008-0392
5th District Court of Appeals (Richland County)

ISSUE:  In order to be subject to the one-year statute of limitations (time limit) for initiating a “medical claim” under recent Ohio tort reform legislation, must a plaintiff’s complaint be asserted against a defendant who falls within one of the specific categories of medical professionals and institutions enumerated in R.C. 2305.113(E)(3)?

BACKGROUND: In October 2003, Donald Stevic was injured in a fall at a Mansfield kidney dialysis center operated by FMC Dialysis Services. The fall occurred while Stevic was being transferred from his wheelchair to the dialysis machine by staff members using a “Hoyer lift” apparatus. Stevic died several months later from causes unrelated to the fall. In October 2005, nearly two years after the fall, his widow and executor, Betty Stevic, filed suit in the Richland County Court of Common Pleas against FMC Dialysis and unnamed employees alleging negligence and seeking damages for Stevic’s injuries on behalf of his estate and for her own loss of consortium.

FMC Dialysis filed an answer to the complaint and a motion asking the court to grant judgment in their favor on the pleadings. They asserted that because the Stevics’ claims against them arose in the course of medical treatment, their lawsuit qualified as a “medical claim” and was therefore subject to a one-year statute of limitations adopted by the General Assembly in April 2003 as part of a major tort reform bill, H.B. 281. The trial court agreed that the suit was a medical claim, and dismissed the Stevics’ suit because it had not been filed within one year after Mr. Stevic’s fall.

On review, the 5th District Court of Appeals reversed the trial court and remanded the case for further proceedings. The court of appeals decision cited specific language in the tort reform statute, R.C. 2305.113(E)(3), defining a “medical claim” as one “asserted in any civil action against a physician, podiatrist, hospital, home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home or residential facility, or against a licensed practical nurse, registered nurse, advance practice nurse, physical therapist, physician assistant, or emergency medical technician ... and that arises out of the medical diagnosis care or treatment of any person.” 

Finding that it was not clear from the parties’ pleadings whether the FMC dialysis center qualified as one of the types of facilities enumerated in R.C. 2305.113(E)(3), or whether the unnamed employees operating the Hoyer lift when Mr. Stevic was injured fell within any of the categories of medical professionals enumerated in the statute, the trial court had erred by finding that the Stevic’s suit unambiguously qualified as a “medical claim” and therefore was subject to a one-year statute of limitations.

FMC sought and was granted Supreme Court review of the 5th District’s ruling. Attorneys for FMC argue that the court of appeals should have read the cited language from R.C. 2305.113(E)(3) in pari materia (together with) following language in the same statute stating that “medical claims” include “... Claims that arise out of the medical diagnosis, care or treatment of any person (when) ... the claim results from acts or omissions in providing medical care.” When these provisions are read together, they assert, it is clear that the legislature intended the one-year statute of limitations for “medical claims” to apply to any and all claims asserted by a plaintiff that arise from the acts or omissions of medical personnel in the course of providing medical care or treatment. Since it is undisputed that Mr. Stevic’s 2003 injuries were incurred while he was in a medical facility and  receiving medical treatment from facility employees, they say, the trial court properly held that the Stevic’s October 2005 claim was “medical” in nature and therefore barred by the one-year time limit.

Attorneys for the Stevics urge the Court to affirm the 5th District’s reading of the statute, which is that it  requires a two-stage analysis of a plaintiff’s claim to determine 1) whether it is asserted against a person or facility that falls within one of the categories enumerated in R.C. 2305.113(E)(3); and 2) if the claim does fall within one of the protected categories, does it seek recovery for injury or loss arising from acts or omissions in the course of medical diagnosis or treatment (as opposed to other acts or omissions not directly related to a medical procedure).

They argue that if the legislature intended to classify any damage claim asserted against any worker in any medical facility as a “medical claim” subject to the one-year statute of limitations, there was no reason for lawmakers to enumerate the long list of specific covered medical professionals and facilities set forth in R.C. 2305.113(E)(3). In this case, they contend, the trial court improperly jumped to the conclusions that FMC’s facility and workers fell under one of the protected categories, and that the negligent acts that caused Stevic’s injuries were treatment-related, when there was not sufficient evidence in the parties’ pleadings to support those conclusions.

Contacts
Jane F. Warner, 216.592.5000, for Bio-Medical Applications of Ohio d.b.a. FMC Dialysis Services.

Jeffrey S. Ream, 419.347.4900, for Betty A. Stevic and Estate of Donald Stevic.

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Must State Wildlife Officer Have ‘Good Cause’ To Enter Private Land to Check Hunting Licenses?

State of Ohio v. William Coburn, Todd Parkison, and Marvin Coburn, Case no. 2008-0536
6 th District Court of Appeals (Erie County)

ISSUE: Under the Ohio statutes that regulate the hunting of game, does a state wildlife officer have legal authority to enter a privately owned field to check the hunting licenses and bag limit compliance of persons he observes hunting on that property regardless of whether the officer has “good cause” to suspect that the hunters are violating any law?

BACKGROUND:  On Sept. 1, 2006, William Coburn invited his father, Marvin Coburn, and a friend, Todd Parkison, to join him in hunting for mourning doves in a rural field owned by William Coburn. Erie County wildlife officer Jared Abele, who lived on rented property adjacent to Coburn’s land, observed the three hunters and saw them fire their weapons. He entered Coburn’s field for the purpose of checking the hunting licenses of Marvin Coburn and Parkinson. After entering the property, Abele observed several piles of wheat seed on the ground and an additional amount of wheat seed scattered on the ground in the area where the men were hunting.

Abele subsequently cited all three hunters for violating a state law that prohibits the hunting of game birds “by the aid of baiting or on or over a baited field.” The defendants filed a motion asking the Erie County Common Pleas Court to dismiss the charges against them. They asserted that Abele’s entry into Coburn’s field was illegal because Abele’s report did not set forth any “good cause” to believe a law was being violated prior to his entry onto a private property, and that the evidence obtained as a result of that illegal entry was therefore inadmissible. The trial judge held that under R.C. 1531.13 Abele was required to demonstrate “good cause” to believe a law was being violated before entering Coburn’s field, and because he had not made a showing of good cause that the charges arising from that entry must be dismissed.

The state appealed. On review, the 6th District Court of Appeals reversed the trial court’s ruling and reinstated the charges against the hunters. The court of appeals held that the trial court failed to consider a different section of law, R.C. 1431.14, that gives wildlife officers authority to “enter and be upon private property” while they are engaged in the normal and lawful “enforcement of laws or division rules relating to game or fish ... ” Because Abele’s normal enforcement duties include interacting with hunters he observes in order to check on their compliance with licensing and bag limit regulations, the 6th District held that his observance of the hunters in Coburn’s field was a legally sufficient basis for him to enter the property, where he observed the baited field that resulted in the charges against the defendants.

Attorneys for the defendants sought and were granted Supreme Court review of the 6th District’s decision.

They argue that the court of appeals’ ruling was contrary to prior state and federal court rulings in search and seizure cases holding that a law enforcement officer may not make a warrantless entry into private property unless the officer has an articulable reason to believe that a law has been violated. Because Abele’s mere observation of the three men hunting in Coburn’s field did not give him good reason to suspect any violation of law, they say, his entry onto Coburn’s property was contrary to law, and the trial court properly held that any evidence obtained as a result of his improper entry and observation of the field was not admissible against the defendants. They assert that, if affirmed, the 6th District’s ruling would give wildlife officers “unfettered access” to intrude into any and all private property in the state where hunting or fishing might take place, without demonstrating any cause to suspect illegal activity.

Attorneys for the state respond that the 6th District did not approve “unfettered access” by wildlife officers to any and all private property. They point out that the appellate opinion specifically stated that Abele was authorized to enter Coburn’s field under R.C. 1431.14 because he had observed the defendants hunting on that land.  

They argue that the search and seizure decisions cited by the defendants apply only to police entry into a vehicle or private home and the area immediately surrounding it. Because a property owner has no ownership rights to fish or game occupying his land, and because hunting and fishing are highly regulated activities conducted in open outdoor areas, they assert, neither state nor federal courts have recognized an “expectation of privacy” that requires a showing of good cause before a wildlife officer may enter a private field where hunting can be observed to check for license and bag limit compliance.

Contacts
John R. Climaco, 216.621.8484, for William and Marvin Coburn and Todd Parkison.

Kevin J. Baxter, 419.627.7697, for the state and Erie County prosecutor.

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Attorney Discipline

Disciplinary Counsel v. Michael McCord, Case no. 2008-1785
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that Columbus attorney Michael McCord be suspended from practice for two years, with the second year stayed on conditions, for multiple violations of state attorney discipline rules including improper use of his client trust account and manipulation of his law office financial records to prevent garnishment of his income to cover child support arrearages.

The disciplinary board also found that McCord engaged in conduct involving deceit and misrepresentation by falsely asserting that he and a deceased attorney with whom he once shared office space had been members of a nonexistent law firm, and by claiming that an independent contractor to whom he referred legal business while his license was suspended was an employee of that same fictitious firm.

Attorneys for McCord have filed objections to the board’s findings and recommended sanction. Among various claims, they assert that while McCord and his former office-mate never formed a legal partnership and did not share all of their revenues, they did advertise jointly using the names of both attorneys and  procured malpractice insurance coverage jointly, and contend that McCord did not continue the use of their joint practice nomenclature after the other attorney’s death with any intent to mislead the public.  They also assert that McCord did not understand that he was barred from continued use of his law office

IOLTA trust account during the term of a previous license suspension. They point out that McCord has already been deprived of his law license for almost three years while he pursued appeals of a contested increase in his child support obligations, and urge the Court to stay the full term of any suspension it may impose for his other violations.

The Office of Disciplinary Counsel has also filed objections to the board’s report and recommended sanction.  They argue that a hearing panel that reviewed the evidence against McCord erred in dismissing several additional misconduct charges that were brought against him, and urge the Court to impose an indefinite license suspension as the appropriate sanction for his rule violations. 

Contacts
Jonathan Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

Alvin E. Mathews Jr., 614.227.2312, for Michael McCord.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.