Oral Argument Previews

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Tuesday, Aug. 10, 2010

State of Ohio v. Jason B. Dean, Case no. 2006-1126
Clark County Court of Common Pleas

Dialysis Clinic, Incorporated v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2009-2310
State Board of Tax Appeals

Disciplinary Counsel v. Stanley Jackson, Jr., Case no. 2010-0118
Cuyahoga County

Disciplinary Counsel v. Norbert Mark Doellman, Case no. 2010-0805
Butler County

Cincinnati Bar Association v. Robert K. Larson, Case no. 2009-1267

Ohio State Bar Association v. Andrea L. West, Case no. 2010-0840


Death Penalty

State of Ohio v. Jason B. Dean, Case no. 2006-1126
Clark County Court of Common Pleas

Jason Dean of Springfield has appealed his conviction and death sentence for the 2005 aggravated murder of Titus Arnold during an attempted robbery in which Dean and a co-defendant, Josh Wade, confronted Arnold at gunpoint and Wade shot Arnold when he attempted to run away. 

Wade, who was 16 years old at the time, was tried separately and convicted on an adult count of aggravated murder. Because state law precludes capital punishment for crimes committed by a minor, Wade was not charged with a death penalty specification and received a sentence of life imprisonment.

Dean’s attorneys have raised 23 allegations of legal or procedural error during his trial in the Clark County Court of Common Pleas as grounds for the Supreme Court to vacate his murder conviction and/or reduce his death sentence to a term of life imprisonment. 

A number of the assignments of error allege incorrect or improper actions by the trial judge. They include claims that:

Dean’s attorneys also argue that, among multiple other mistakes, the trial court erred by denying a defense motion for a mistrial after one of the state’s key witnesses responded to a question under cross-examination by impermissibly stating before the jury that she had taken three lie detector tests that established the truthfulness of her testimony.

The state, represented by the Clark County Prosecutor’s Office, responds that the trial judge acted properly and within his discretion when he declined  to recuse himself based on his participation in the pretrial witness certification hearing, questioned the ethics of defense counsel’s tactic in seeking the judge’s recusal based on his invited participation in a hearing that was instigated by the defense, denied Dean’s request to dismiss his lawyers and defend himself  based on Dean’s indication that his waiver of counsel was not voluntary, and denied various defense requests for continuances based on the court’s determination that the requested delays were not justified and would have unnecessarily prolonged the trial proceedings.

With regard to Dean’s motion to appear at trial without shackles, the state notes that in his ruling the trial judge identified two valid grounds for its denial: namely that Dean had a prior conviction for a violent offense and also had previously attempted to escape from the Clark County jail while awaiting trial. They also point out that only Dean’s legs, which were not visible to the jury during trial proceedings, were shackled while his arms and upper torso, visible to the jury, were not.

Regarding Dean’s claims that his fair trial rights were violated by improper testimony about polygraph test results, the state argues that the trial record shows that the judge gave careful consideration to the motion for a mistrial, and acted within the court’s discretion when he ultimately determined that any prejudice arising from the witness’ improper statement could be remedied through a corrective instruction, which he then gave to the jury.

Contacts
Stephen A. Schumaker, 937.521.1770, for the state and Clark County Prosecutor’s Office.

Joseph E. Wilhelm, 216.522.4856, for Jason Dean.

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Nonprofit Dialysis Clinic Disputes Denial of Property Tax Exemption as ‘Charitable Institution’

Dialysis Clinic, Incorporated v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2009-2310
State Board of Tax Appeals

ISSUE:  Did the Board of Tax Appeals (BTA) act unreasonably or contrary to law when it denied a  “charitable use” property tax exemption sought by a kidney dialysis clinic based on the board’s findings that the clinic’s legal status as a nonprofit corporation, acceptance of Medicare and Medicaid reimbursements and write-offs of the unpaid bills of patients who fail to pay for their treatment does not qualify the clinic as a “charitable institution” under Ohio’s tax statutes?

BACKGROUND:  Dialysis Clinic Inc. (DCI) is a Tennessee-based company that operates 195 outpatient kidney dialysis clinics in 26 states, including five in the Greater Cincinnati area.  DCI is exempt from federal income tax as a “nonprofit corporation” under Section 501(c)(3) of the Internal Revenue Code. 

DCI applied to the state tax commissioner for a property tax exemption for one of its Cincinnati-area clinics, located in West Chester.  In its application, DCI claimed entitlement to a tax exemption under R.C. 5709.121, which exempts property owned by a “charitable institution” and used primarily in support of the institution’s charitable purpose, and also under R.C. 5709.12(B), which exempts property whether or not it is owned by a charitable institution if the property is used “exclusively for a charitable purpose.”

The commissioner denied the requested exemption. In his determination, the commissioner found that 1) DCI was not a “charitable institution” as that term is defined  in Ohio’s tax statutes and case law interpreting those statutes; and 2) because the West Chester clinic provides dialysis on a fee-for-service basis and had provided no free or reduced-fee services to patients not covered by some form of insurance during the tax year for which exemption was sought, the clinic property was not “used exclusively for a charitable purpose” and therefore was not eligible for exemption.

On review the State Board of Tax Appeals (BTA) affirmed the commissioners’ determination that the West Chester clinic did not qualify for a property tax exemption under either of the statutes cited by DCI. The clinic’s owners have exercised their right to appeal the BTA’s ruling directly to the Supreme Court.

Attorneys for DCI argue that the company meets the statutory requirements of a charitable institution because it is recognized by the federal government as a tax-exempt entity operating on a not-for-profit basis, accepts Medicare and Medicaid reimbursements for dialysis treatments even though the amounts paid by those government insurance plans do not cover the costs of providing that treatment, and “writes off” the amounts of its patients’ unpaid bills that are never paid as losses that reduce the company’s net annual revenues. 

They also point out that, even if DCI does not qualify as a charitable institution, the West Chester clinic still qualifies for exemption for the tax year at issue because it is a not-for-profit entity that is used exclusively to provide dialysis services to patients, accepts government insurance payments that do not cover its costs, and recorded operating loss of approximately $250,000 during that year yet remained open for business in order to serve the medical needs of patients in an underserved area.

Attorneys for the tax commissioner respond that a number of prior Supreme Court of Ohio decisions, including Clark v. Southview Hospital (1994), Bethesda Health Professionals Inc. v. Wilkins (2004), and Community Health Professionals Inc. v. Levin (2007) have held that  medical service companies  organized as “nonprofit corporations” do not qualify as charitable organizations for property tax purposes unless they provide a significant amount of services on a free or  reduced-fee basis to patients who are unable to pay for them.

In this case, they assert, DCI’s own expert testified before the BTA that the West Chester clinic did not provide any free or reduced fee services to patients with no insurance coverage during the tax year at issue, and also testified that the clinic’s operating losses were nota result of providing unpaid services to indigent patients but rather of failing to attract a sufficient number of patients to cover its overhead costs.  They argue that there is no difference between the corporate policies of DCI and a for-profit dialysis clinic in accepting Medicare and Medicaid reimbursements from patients qualified for those government insurance programs and writing off their losses from clients who fail to pay their bills as “bad debt.”  They also assert that the arguments advanced by DCI and in a supporting amicus curiae (friend of the court) brief submitted by the Ohio Hospital Association are aimed at overturning the Court’s precedents and granting blanket “charitable use” property tax exemptions to all non-profit hospitals and health care corporations in the state whether or not they provide any significant amount of free or reduced-cost services to uninsured and indigent patients.

Contacts
Sean P. Callan, 513.977.8298, for Dialysis Clinic Inc.

Ryan P. O’Rourke, 614.466.5967, for State Tax Commissioner.

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Attorney Discipline

Disciplinary Counsel v. Stanley Jackson, Jr., Case no. 2010-0118
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Cleveland attorney Stanley Jackson Jr. be suspended for two years for violations of state attorney discipline rules in his dealings with two different clients.

In the first case, the disciplinary board found that Jackson collected a clearly excessive fee of $25,000 for representing at arraignment and arranging the release on bond of a traveling rap music artist who was arrested by Cleveland Hopkins airport security for allegedly having a handgun in his carry-on baggage. The board also found that Jackson violated the professional conduct rule that requires an attorney to promptly return unearned legal fees when he refused to refund any of the $25,000 advance he had received from the client despite being replaced by another attorney 11 days after the client’s arraignment and prior to any subsequent proceedings in the client’s case.

In the second case, the disciplinary board found that Jackson violated professional conduct rules by agreeing to share fees in a client’s case with two other attorneys without notifying the client or obtaining his consent to the retention of co-counsel. The board also found additional violations arising from Jackson’s filing and subsequent settlement of a civil rights suit on behalf of the same client without the client’s knowledge or consent, and Jackson’s negotiation of the settlement check and disbursement of the $2,500 proceeds without notifying or obtaining the approval of the client.

The board also found that Jackson committed further misconduct by making conflicting and misleading statements to disciplinary authorities during the investigation of the complaint against him.

Jackson has filed objections to the board’s findings and recommended sanction. He points out that the three-member panel that heard all the testimony and evaluated the evidence in his case recommended a two-year suspension with the second year stayed on conditions as the appropriate sanction for his rule violations. He urges the Court to adopt that penalty, rather than the two-year suspension recommended by the full board, as more proportional to his conduct and consistent with prior disciplinary cases involving similar violations.

Contacts
Jonathan E. Coughlan, 614.461.2056, for the Office of Disciplinary Counsel.

Alvin E. Mathews Jr., 614.227.2312, for Stanley Jackson Jr.

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Attorney Discipline

Disciplinary Counsel v. Norbert Mark Doellman, Case no. 2010-0805
Butler County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Hamilton attorney Norbert M. Doellman be suspended one year, with the full term of suspension stayed on conditions, for continuing to receive and deposit in his law office account checks he received from the debtors of a bank after his representation as the bank’s collections agent had been terminated.

The board also found that Doellman violated state attorney discipline rules by failing to deposit checks he received from the bank’s debtors in a dedicated client trust account separate from his law office operating account, and by failing to make an accounting to the bank of those funds or to promptly forward to the bank funds he received from its debtors after he ceased to be the bank’s attorney.

The Office of Disciplinary Counsel, which prosecuted the complaint against Doellman, has filed objections to the commissioners’ recommended sanction of a fully stayed suspension. They argue that, in addition to the violations found by the board, Doellman also engaged in conduct involving dishonesty, deceit, fraud or misrepresentation by continuing to accept and deposit in his own account checks he received from the bank’s debtors after he ceased to be the bank’s collection agent. They urge the Court to overrule the disciplinary board’s dismissal of the latter charge, and to impose the more severe sanction of a two-year license suspension with one year conditionally stayed.

Contacts
Jonathan E. Coughlan, 614.461.2056, for the Office of Disciplinary Counsel.

George Jonson, 513.241.4722, for Norbert M. Doellman.

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Additional Matters

In addition to the oral arguments outlined above, the Court has ordered an attorney currently under suspension for disciplinary rule violations and a non-attorney currently under investigation for alleged unauthorized practice of law to appear before the Justices on August 10.

In Cincinnati Bar Association v. Larson, Case No. 2009-1267, attorney Robert Larson has been ordered to appear and show cause why he should not be held in contempt of a Dec. 30, 2009 order of the Court suspending his license for two years with the second year stayed on conditions. According to a motion filed by the Cincinnati Bar Association, Larson has failed to comply with requirements included in his suspension order that he: 1) notify clients of his suspension; 2) return papers and property in his possession to his former clients; 3) refund any unearned fees and expenses paid in advance by his former clients; and 4) account for any funds or property held in trust for clients that remains in his control.

In Ohio State Bar Association v. West, Case No. 2010-0840, the Court has ordered non-attorney Andrea L. West to appear and show cause why she should not be held in contempt for failing to respond to a subpoena issued by the Board on the Unauthorized Practice of Law in connection with a current investigation of West’s alleged involvement in activities that constitute the unauthorized practice of law.

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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.