Oral Argument Previews

2014 Archive | 2013 Archive | 2012 Archive | Calendar
Live Streaming Video Coverage

Tuesday, Feb. 16, 2010

State of Ohio/City of Oregon v. James R. Dounour, Case no. 2009-0886
6th District Court of Appeals (Lucas County)

NBC-USA Housing, Inc.-Five (d.b.a.) Love Zion Manor v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, and Board of Education of the Columbus City School District, Case no. 2009-0919
State Board of Appeals (Franklin County)

Amy Pratte v. Rodney Stewart, Case no. 2009-0953
2nd District Court of Appeals (Greene County)

Jack E. Riedel, Danny R. Six, Josephine Weldy v. Consolidated Rail Corporation et al., Case no. 2009-1070
8th District Court of Appeals (Cuyahoga County)

Disciplinary Counsel v. Timothy John Jarabek, Case no. 2008-1768
Cuyahoga County


Does Prior Objection by Defendant Shift Burden of Proving that Alternate’s Presence Affected Jury Verdict?

When Trial Court Allowed Alternate to Be in Jury Room During Deliberations

State of Ohio/City of Oregon v. James R. Dounour, Case no. 2009-0886
6th District Court of Appeals (Lucas County)

ISSUE: When the judge in a criminal trial allows an alternate juror to be present in the jury room during deliberations but instructs the alternate not to participate, the defendant enters an objection to the presence of the alternate before the jury retires, the jury subsequently returns a verdict adverse to the defendant, and the defendant moves for a new trial based on the presence of the alternate in the jury room, does the defendant bear the burden of proving that the alternate participated in deliberations or affected the jury’s verdict, or does the state bear the burden of  proving that the alternate’s presence did not affect the jury’s deliberations or verdict?

BACKGROUND:  James Downour of Lucas County was charged with a misdemeanor count of driving under the influence of alcohol (DUI).  His case was tried to a jury in the Oregon Municipal Court. In its instructions to the jury, the court stated that an alternate juror would accompany the seated jurors to the jury room, but instructed the alternate to avoid participating in any way in the other jurors’ deliberations.  Downour’s attorney entered an immediate objection to the presence of the alternate in the jury room, but that objection was overruled. With the alternate present in the jury room, the jury deliberated and returned a guilty verdict.  Downour moved for a new trial on the basis that the presence of the alternate juror during deliberations was contrary to law and the state’s rules of criminal procedure. The trial judge denied the motion for a new trial.

Downour appealed.  On review, the 6th District Court of Appeals found that although the trial court erred in allowing the alternate to be present during the jury’s deliberations, the denial of Downour’s motion for a new trial was not reversible error because Downour had not supported that motion with any evidence to support a finding that the presence of the alternate had affected the other jurors’ deliberations or their verdict.  Downour sought and was granted Supreme Court review of the 6th District’s ruling.

Attorneys for Downour point out that most prior Ohio court decisions analyzing the effect of an alternate’s presence during a jury’s deliberations  arose in cases where the defendants failed to enter an immediate objection, and therefore were required to prove “plain error,” i.e., to make an affirmative showing show that , if the alternate had not been present, the jury’s verdict would have been different.

Because Downour did object before the jury retired, they argue, the Court should follow its 2002 decision in State v. Gross, which held that when a defendant has entered a timely objection to the presence of an alternate, and subsequently seeks a new trial based on that error, the burden of proof shifts to state, which can defeat a motion for a new trial only by making an affirmative showing that the presence of the alternate in the jury room had no conscious or unconscious impact on the other jurors during their deliberations.  They also urge the Court to hold that in such cases the state may not meet its burden by compelling members of the jury to testify about what was said or done in the jury room, because such testimony would violate the confidentiality of the jury process.

Attorneys for the state argue that the Supreme Court’s holding in State v. Gross shifting the burden of proof to the state applies only where an alternate participated in the jury’s deliberations. Because there was no evidence in this case that the alternate had participated in the other jurors’ discussion of the case, they assert, the trial court and court of appeals correctly ruled that the mere presence of the alternate in the jury room was harmless error and not a sufficient basis for granting a new trial.

Contacts
Dan Nathan, 419.241.6168, for James Downour.

Tim A. Dugan, 567.249.6427, for the state and the City of Oregon.

Return to top

Church-Affiliated Housing Project Challenges Denial of Property Tax Exemption

Appeals Board Ruled Property Not Used ‘Exclusively for Charitable Purpose’

NBC-USA Housing, Inc.-Five (d.b.a.) Love Zion Manor v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, and Board of Education of the Columbus City School District, Case no. 2009-0919
State Board of Appeals (Franklin County)

ISSUE:  Did the state tax commissioner err in denying an exemption from property taxes to a church-affiliated nonprofit corporation for an apartment facility owned by the corporation that provides subsidized housing to low-income persons who are either elderly or disabled?

BACKGROUND:  NBA-USA Housing Inc.-Five is a nonprofit organization jointly owned by the National Baptist Convention and the Love Zion Baptist Church in Columbus for the purpose of operating a 25-unit residential housing facility called Love Zion Manor.  The facility’s apartments are rented exclusively to low-income persons who are either elderly or disabled. Residents pay a percentage of the monthly rent charge based on their income, and the remainder of their rent is subsidized by the U.S. Department of Housing and Urban Development (HUD). All rental fees and

subsidy payments received by the owner are used to maintain the facility, pay the residents’ utility bills and provide other resident services including on-site medical screenings and transportation services when needed.

In June 2004, the property owners filed an application with the office of the state tax commissioner seeking an exemption from current and future property taxes and remission of prior year taxes under R.C. 5709.12, which exempts property owned by an institution that is “used exclusively for charitable purposes.” The commissioner denied the requested exemption, ruling that use of the property to provide subsidized housing did not qualify as use exclusively for a charitable purpose.  The owners appealed the commissioner’s determination to the State Board of Tax Appeals (BTA), which affirmed the commissioner’s denial of exemption.  The owners have exercised their right to appeal the BTA’s ruling to the Supreme Court.

Among other arguments, the property owners argue that BTA erred by refusing to consider a definition of “exclusive charitable use” set forth in R.C. 5709.121 that would arguably support their qualification for exemption on the basis that the owners’ application  had stated a claim for exemption only under R.C. 5709.12, and the BTA could not consider claims asserted under a different section of law in reviewing the commissioner’s ruling.  They assert that R.C. 5709.121 does not set forth a different legal basis for exemption than R.C. 5709.12, but merely provides a definition of what constitutes “exclusive charitable use” of property as that term is used in R.C. 5709.12.  They point out that the incorporation documents for NBC-USA Housing Inc.– Five state that the purpose of the corporation is to provide affordable housing for low income elderly and disabled persons, and argue that under R.C. 5709.121(A)(2), a nonprofit owner using its property “in furtherance of ... its charitable purpose” is considered to be using that property “exclusively for a charitable purpose.”

Attorneys for the tax commissioner point to a line of prior court decisions holding that the provision of government-subsidized housing for low-income persons does not qualify as a “charitable” use of property regardless of whether the property owner is a for-profit company or a nonprofit corporation.

They point out that owners of HUD-subsidized housing developments receive significant tax advantages such as accelerated depreciation allowances, and are able to collect a combination of rent and subsidies that may exceed the market value of similar apartments in the same area by up to 20 percent.  They also argue that NBC-USA Housing is not entitled to exemption under R.C. 5709.121 because that statute applies only to a “charitable or educational institution” and as a corporation primarily engaged in the operation of a government-subsidized housing facility, NBC-USA does not qualify as such an institution.

Contacts
Karen H. Bauernschmidt, 216.566.8500, for NBC-USA Housing Inc.-Five.

Sophia Husain, 614.466.5967, for State Tax Commissioner Richard A. Levin.

Return to top

Is Time Limit for Filing Child Sex Abuse Suit Extended Where Victim’s Memory of Abuse Was Repressed?

Or Did 2006 Bill Extending Deadline to Age 30 Set Unconditional Limit

Amy Pratte v. Rodney Stewart, Case no. 2009-0953
2nd District Court of Appeals (Greene County)

ISSUE:  Did  2006 legislation establishing a 12-year statute of limitations (time limit) after reaching the age of majority for an alleged victim of child sexual abuse to file a civil suit against the abuser establish an unconditional deadline, or is the running of the statute tolled (suspended) until the date a victim recovers repressed memories of childhood abuse.

BACKGROUND:  In a 1994 decision, Ault v. Jasko, the Supreme Court of Ohio ruled that, in a case where a victim of child sexual abuse repressed the memory of that abuse but later recovered those memories,  the (then) one-year statute of limitations for filing a civil suit against the alleged abuser was  tolled (did not begin to run) until the date the victim recovered her memory or otherwise should reasonably have become aware of the past abuse.

In May 2006, the Court ruled in Doe v. Archdiocese of Cincinnati that the one-year statute of limitations for a victim of child sexual abuse to sue his or her alleged abuser required the victim to sue within one year after he or she reached the legal age of majority, which in Ohio is 18.  Accordingly, the Court dismissed as untimely a suit filed by an alleged victim of sexual abuse as a child because the complaint had not been filed until after the plaintiff’s 19th birthday. 

Effective August 3, 2006, the General Assembly enacted R.C. 2305.111(C), legislation extending the statute of limitations for a child sexual abuse victim to file a civil suit against his or her alleged abuser from one year after the victim reached the age of majority to 12 years after reaching the age of majority – in effect, to the victim’s 30th birthday. The bill indicated that its provisions applied not only to claims based on abuse occurring after the effective date of the new law, but also to claims based on past abuse if the former 19th-birthday filing deadline had not expired prior to the effective date of the new law.

In April 2008, Amy Pratte, who was then 33 years old, filed a civil suit in the Greene County Court of Common Pleas seeking damages from Rodney Stewart for alleged sexual abuse she suffered as a child. In her complaint, Platte alleged that she had unconsciously repressed the memories of Stewart’s abusive conduct throughout her childhood and as a young adult until a news story she saw in April 2007 caused her to recover those memories.  Stewart filed a motion asking the trial court to dismiss Pratte’s complaint on the basis that it had not been filed within the 30th -birthday time limit set forth in R.C. 2305.111  The trial court granted the motion to dismiss.

Pratte appealed, arguing that R.C. 2305.111 did not apply to cases involving repressed memories, and under the Supreme Court’s decision in Ault, her April 2008 complaint was timely because it had been filed within one year after the date she “discovered” her abuse in 2007 by recovering her memories of it.  The 2nd District Court of Appeals affirmed the trial court’s ruling dismissing Pratte’s complaint.  The court’s lead opinion held that uncodified language in the bill enacting R.C. 2305.111 indicated the legislature’s intention to apply the new 30th birthday statute of limitations to all future civil suits claiming child sexual abuse other than those involving fraudulent concealment, an issue not present in this case. Pratte sought and was granted Supreme Court review of the 2nd District’s decision.

Attorneys for Pratte argue that nothing in the language of R.C. 2305.111 or the rest of the bill in which it was adopted states the legislature’s intention to overrule the Supreme Court’s holding in Ault that the statute of limitations for filing a sexual abuse case is tolled for as long as the victim remains unaware of the abuse because of repressed memories. They assert that the clear thrust of the 2006 legislation in question was to extend the time period for victims of  child sex abuse to assert claims against their abusers,  and argue that the trial and appellate court rulings in this case are contrary to that intent because they effectively bar defendants like Pratte from ever being able to sue if they are unlucky enough not to recover their memories of sexual abuse until after they turn 30.

Attorneys for Stewart point out that two separate dissents and a concurring opinion in the Supreme Court’s Ault decision: 1) expressed discomfort with having the Court judicially create a “repressed memories”  exception to the statute of limitations for child sexual abuse cases; and 2) called on the legislature to debate the competing public policy interests involved in such cases and enact legislation establishing a balanced statutory solution. They argue that is exactly what the legislature did by enacting R.C. 2305.111, which they say extended by 11 years the time limit within which a victim may file suit against an alleged abuser, but also imposed an unconditional time limit of age 30 for the bringing of such actions, in place of the virtually unlimited time period for doing so under Ault.  They say the legislature’s intent to replace the repressed memory exception set forth in Ault is apparent in uncodified language in the 2006 bill stating  that the new 12-year statute of limitations applies to all child sex abuse cases commenced on or after April 7, 2005 “regardless of when the cause of action occurred and notwithstanding any other section of the Revised Code or prior rule of law of this state.”

Contacts
Konrad Kircher, 513.229.7996, for Amy Pratte.

Scott E. Wright, 614.228.2678, for Rodney Stewart.

Return to top

Does ‘Asbestos Law’ Dismissal Requirement Apply to Non-Asbestos Claims Asserted in Same Lawsuit?

When Multiple-Claim Action Brought Under Federal Employers’ Liability Act

Jack E. Riedel, Danny R. Six, Josephine Weldy v. Consolidated Rail Corporation et al., Case no. 2009-1070
8th District Court of Appeals (Cuyahoga County)

ISSUE:  When a civil suit claiming both asbestos-related and non-asbestos related injuries is brought by current or former railroad workers under the Federal Employers’ Liability Act (FELA), and the trial court finds that the plaintiffs have not made a prima facie showing of current asbestos-related disease, does the provision of Ohio’s “asbestos law’ requiring administrative dismissal of the asbestos-related claim also require dismissal of the plaintiffs’ other claims, or may the asbestos-related claim be severed and the plaintiffs’ remaining claims proceed to trial?

BACKGROUND: Since the enactment of H.B. 292, which became effective in September 2004, all plaintiffs bringing asbestos-related lawsuits in Ohio trial courts are required to produce a preliminary medical report making a prima facie (apparently sufficient, subject to later rebuttal) showing that the claimant  suffers from a current medical impairment that is attributable to asbestos exposure. In cases where the plaintiff does not make such a showing, the court is required to administratively dismiss his case “without prejudice,” meaning that the plaintiff's claim is not extinguished and may be refiled at a later date if and when the plaintiff makes a showing of actual asbestos-related medical impairment.

In October 2007, the Supreme Court of Ohio ruled in Norfolk Southern Railway Inc. v. Bogle that theadministrative dismissal provision in Ohio’s asbestos law does not  impair a substantive right but merely establishes a new procedural framework for litigating asbestos claims. Accordingly, the Court held that application of the state law to administratively dismiss asbestos-related claims filed under the FELA does not violate the Supremacy Clause of the U.S. Constitution.

In this case, two former railroad workers and the widow of a third, Jack Riedel, Danny Six and Josephine Weldy, filed suit under the FELA in the Cuyahoga County Court of Common Pleas seeking damages for multiple  illnesses and injuries they allegedly developed as a result of exposure to asbestos and other toxic substances in the course of their employment. Because thousands of asbestos-related cases have been filed in Cuyahoga County, a special docket staffed by three fulltime judges has been established to deal exclusively with asbestos-related cases, including FELA cases involving claims for asbestosis. Pursuant to the Ohio asbestos law, the court required the plaintiffs in this case to support their asbestos related claims by submitting  prima facie evidence of current illness. The trial court ruled that the evidence presented was not sufficient to establish a prima facie showing, and administratively dismissed those claims. 

The trial court ruled further, however, that the plaintiffs’ remaining claims arising from exposure to substances other than asbestos were not subject to administrative dismissal, and ordered that a trial date be set for immediate proceedings on those claims. The railroad defendants appealed, arguing that the plaintiffs’ asbestos-related and non-asbestos related claims were brought in the same complaint and based on the same alleged injuries, and therefore all of their claims were subject to administrative dismissal under the 2004 asbestos law.  The 8th District Court of Appeals affirmed the decision of the trial court, ruling that non-asbestos claims brought under the FELA are not subject to administrative dismissal, and those claims should proceed to trial.

The defendants sought and were granted Supreme Court review of the 8th District’s decision.

Attorneys for the defendant railroads argue that the clear public purpose underlying the enactment of H.B. 292 was to give priority on state court dockets to those cases in which a plaintiff could show that he or she was already suffering from medical impairment related to asbestos exposure, while setting aside for future consideration cases in which there was no evidence of current impairment.  In this case, they assert, the plaintiffs failed to show current impairment but are nevertheless attempting to avoid administrative dismissal of their cases by “tacking on” additional claims based on alleged exposure to substances other than asbestos.

They contend that the trial court and court of appeals erred by failing to recognize that the plaintiffs’ non-asbestos claims are based on the same alleged respiratory issues underlying their asbestos-related claims, and that their failure to make a prima facie showing of current impairment under the H.B. 292 criteria requires that their entire lawsuit be dismissed without prejudice. If the lower court rulings in this case are affirmed, they argue, the legislative intent to give priority on court dockets to those with current asbestos-related disease will be frustrated by non-qualifying plaintiffs who avoid administrative dismissal by simply inserting in their complaints additional claims alleging other, non-asbestos related causes of their respiratory conditions.

Attorneys for Riedel, Six and Weldy argue that the medical evidence they presented to the trial court indicated not only that they suffered from asbestosis (the presence of asbestos fibers in their lungs), but that each of them also suffered from other conditions including Chronic Obstructive Pulmonary Disease (COPD), a non-asbestos related constriction of their airways that they say resulted from long-term exposure to diesel engine exhaust gases and other toxic substances during their years of employment with the railroads.

They point out that they did not seek or request assignment of their cases to the Cuyahoga County “asbestos docket”  but wound up there because of a case management order requiring that all FELA cases that include asbestos-related claims must be assigned to that docket. They contend that, while the 2007 Norfolk Southern decision held that asbestos-related claims brought under FELA were subject to Ohio’s administrative dismissal provision, nothing in the state asbestos statute  and no case law supports the defendants’ claims that non-asbestos FELA claims, arising from other workplace substances and supported by independent medical evidence, are subject to administrative suspension.

Contacts
David A. Damico, 412.995.3000, for Consolidated Rail Corporation et al.

Christopher M. Murphy, 716.884.2000, for Jack Riedel, Danny Six and Josephine Weldy.

Return to top

Attorney Discipline

Disciplinary Counsel v. Timothy John Jarabek, Case no. 2008-1768
Cuyahoga County

Attorney Timothy J. Jarabek of North Olmsted has been summoned to appear before the Court and show cause why he should not be ordered to serve the previously stayed second year of a two-year license suspension imposed against him  in February 2009.  

The show cause order was issued in response to a motion by the Office of Disciplinary Counsel informing the Court that Jarabek has not complied with all of the requirements  set forth in its February 2009 suspension order as conditions for staying the second year of suspension.

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

Timothy J. Jarabek, pro se, no current phone contact information available.

Return to top

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.