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Wednesday, Oct. 5, 2011

State of Ohio ex rel. O'Shea & Associates Co., L.P.A. v. Cuyahoga Metropolitan Housing Authority, Case no. 2010-1536
8th District Court of Appeals (Cuyahoga County)

State of Ohio v. Larue A. Monford, Case no. 2010-1949
10th District Court of Appeals (Franklin County)

In the Matter of: Kenneth D. Arnott et al. v. James Wayne Arnott et al., Case no. 2010-2180
4th District Court of Appeals (Highland County)

State of Ohio v. Eric Qualls, Case no. 2011-0202
4th District Court of Appeals (Meigs County)


Are Housing Agency Documents Identifying Child Lead Poisoning Victims 'Public Records' Under Ohio Law?

State of Ohio ex rel. O'Shea & Associates Co., L.P.A. v. Cuyahoga Metropolitan Housing Authority, Case no. 2010-1536
8th District Court of Appeals (Cuyahoga County)

ISSUE: Does the Ohio Public Records Act require disclosure of forms that are completed by residents of public housing facilities and maintained by the housing agency that: a) provide personal and family information about children who have been diagnosed with elevated levels of lead in their blood; and b) give parental permission for the housing agency to obtain copies of a child’s medical records?

BACKGROUND: In March 2009, a Cleveland-area law firm, O’Shea and Associates, filed a public records request with the Cuyahoga Metropolitan Housing Authority (CMHA) seeking: 1) copies of all liability insurance policies that provided coverage to the agency for premises liability issues during the preceding 20 years; 2) copies of the minutes of all CMHA meetings during the preceding 10 years at which liability insurance or coverage issues were discussed or decided; and 3) copies of all documents that documented instances of lead poisoning in any dwelling owned or operated by CMHA during the preceding 15 years. 

CMHA provided copies of its insurance policies but declined to provide the other requested materials, asserting several different reasons. O’Shea filed suit in the 8th District Court of Appeals seeking a writ of mandamus to compel production of the requested documents CMHA had not provided. The court of appeals ruled that CMHA was not required to search through its meeting minutes to identify occasions on which insurance topics had been discussed, but granted a writ ordering the agency to provide O’Shea with copies of two types of forms in the agency’s files; a release form through which parents allowed CMHA to obtain copies of the medical records of children who had been diagnosed with possible lead poisoning, and a questionnaire completed by parents providing CMHA with information about lead-affected children, including the child’s name, address, phone number and information about the child’s parents, play habits, day care providers and names and ages of siblings. 

CMHA has exercised its right to appeal the 8th District’s ruling to the Supreme Court.

Attorneys for CMHA argue that the 8th District’s decision is in conflict with the Supreme Court of Ohio’s 2000 holding in State ex rel. McCleary v. Roberts that documents which merely record the personal information of children and other private individuals who are clients of a government agency do not fall within the definition of “records” subject to disclosure under the Public Records Act because they do not document the “organization, functions, policies, decisions, procedures, operations or activities” of the agency itself.

They also assert that because CMHA receives significant funding through the U.S. Department of Housing and Urban Development (HUD), it must comply with HUD regulations that require personal information about residents of public housing facilities to be kept confidential. They say this requirement places the documents sought by O’Shea under an exemption in the Public Records Act for documents the disclosure of which “is prohibited by state or federal law.”

Attorneys for O’Shea point out that CMHA is required by state and federal law to maintain public housing facilities in a safe condition, and is specifically required  to receive reports of suspected lead poisoning of children housed in its facilities, obtain parental consent to confirm the medical evidence of such poisoning, and obtain information from affected children’s families to help identify and abate potential sources of lead exposure. They argue that the medical release and questionnaire forms in CMHA’s files document the agency’s performance of its governmental functions and procedures related to lead hazard identification and abatement, and ask the Court to affirm the 8th District’s finding that those documents are public records subject to mandatory disclosure.

They also urge the Court to reject  CMHA’s assertion that it is barred by federal law from disclosing the requested documents,  arguing that the confidentiality requirement in question is applicable only to federal housing agencies, and is not binding on state or local entities such as CMHA simply because they receive part of their funding through HUD.

NOTE:  The U.S. Department of Justice has filed amicus curiae (friend of the court) briefs supporting the position of CMHA.

Contacts
Shawn W. Maestle, 216.241.6602, for the Cuyahoga Metropolitan Housing Authority.

Michael J. O'Shea, 440.356.2700, for O'Shea & Associates LPA.

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Is Court's Failure to Address Defendant's Insanity Plea at Trial 'Structural Error' that Requires a New Trial?

When Defendant Presented No Evidence or Argument in Support of Plea

State of Ohio v. Larue A. Monford, Case no. 2010-1949
10th District Court of Appeals (Franklin County)

ISSUES:

BACKGROUND: Larue Monford was indicted for murder, attempted murder and other offenses arising from the shootings of two persons at a Columbus bar. Monford’s first attorney, Myron Schwartz, entered a plea of not guilty on his behalf and then later, as permitted under Ohio rules of criminal procedure, entered an additional plea of not guilty by reason of insanity (NGRI). The court appointed Dr. Kristen Haskins to conduct a psychiatric evaluation of Monford. Court records show that the evaluation was completed and a report was prepared, but the report was not entered into evidence.

Prior to Monford’s trial date, attorney Tracy Younkin, who had been appointed to serve as co-counsel with Schwartz, informed the court that Schwartz was unable to continue representing Monford for health reasons.  Schwartz later died, and Younkin acted as Monford’s lone defense attorney during his trial.

At trial, the state presented multiple witnesses who identified Monford as the shooter. The defense alleged that the state’s witnesses had misidentified Monford, and presented an identification expert who testified regarding the various factors that may undermine the reliability of an eyewitness identification. The defense presented no evidence or testimony alleging that Monford had suffered from any mental disease or defect at the time of the shootings. Neither the state nor the defense made any reference to the NGRI plea during the trial, and the court’s instructions to the jury did not address an NGRI defense. The jury found Monford guilty on all counts. Addressing the court at his sentencing hearing, Monford repeated his assertion he was not the person who shot the victims and that he had been misidentified.  The court sentenced him to an aggregate term of from 28 years to life in prison.  

Monford appealed.  Among other assignments of error, he asserted that the trial court erred by failing to address his NGRI plea during the trial, including failing to instruct the jury on that defense, and argued that because the NGRI plea had been duly entered and never withdrawn, the court’s failure to address it amounted to “structural error” that invalidated his convictions and required a new trial.  Monford also argued that, even if the court’s failure to address his insanity plea was not found to be structural error, he was still entitled to a new trial because his attorney’s failure to introduce evidence or request a jury instruction on the NGRI defense constituted ineffective assistance of counsel. The 10th District Court of Appeals rejected all of Monford’s assignments of error and affirmed the judgment of the trial court.

Monford sought and was granted Supreme Court review of the 10th District’s rulings on the issues of structural error and ineffective assistance of counsel.

Attorneys for Monford argue that the 10th District’s rulings are in conflict with a 2008 decision, State v. Cihonski,  in which the 3rd District Court of Appeals held that failure of a trial court to address a defendant’s NGRI plea that was never withdrawn was structural error requiring a new trial.  They also note that the Cihonski court held that defense counsel’s failure to request a jury instruction on an insanity plea that had been entered and never withdrawn constituted ineffective assistance of counsel. 

Attorneys for the state respond that the 10th District reviewed  the 3rd District’s Cihonski decision and found that the facts of that case, including the defendant’s testimony that he had recently been released from a psychiatric hospital and that he fled police because of a panic attack, might have supported a jury finding of insanity; whereas Monford had presented no evidence that would support an insanity plea but rather based his entire defense on a theory of misrepresentation. They urge the Court to affirm the 10th District’s holding that even though Monford never formally withdrew the NGRI plea entered by his first attorney, he effectively abandoned that plea by failing to introduce any evidence in support of it at trial, and therefore the trial court did not commit structural error by failing to give a jury instruction on that plea.

Contacts
Seth L. Gilbert, 614.525.3555, for the state and Franklin County prosecutor's office.

Allen V. Adair, 614.525.2061, for Larue Monford.

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May Appeals Court Apply 'De Novo' Standard In Reviewing Parts Of Declaratory Judgment Action?

If Appeal Challenges Rulings Other Than Whether Declaratory Relief Available

In the Matter of: Kenneth D. Arnott et al. v. James Wayne Arnott et al., Case no. 2010-2180
4th District Court of Appeals (Highland County)

ISSUE: In reviewing a trial court’s decision in a declaratory judgment action, must a court of appeals apply an “abuse of discretion” standard in considering all issues ruled on by the trial court, or may the appellate court conduct a non-deferential “de novo” review of purely legal issues decided by the trial court after it determined that the complaint presented a question that was justiciable under the Declaratory Judgment Act?

BACKGROUND:  In a case that hinges on the interpretation of language in a trust document, the Court is asked to clarify whether its 2007 holding in Mid-American Fire & Casualty Insurance Co. v. Heasley requires appellate courts to apply a deferential “abuse of discretion” standard in reviewing the rulings of a trial court on all legal and factual issues involved in a declaratory judgment action, or if Mid-American only requires an abuse of discretion standard in reviewing the trial court’s determination that the dispute presents a question subject to declaratory judgment, but allows appellate courts to review the trial court’s other rulings and interpretations of law under a non-deferential “de novo” standard.

The disputed language appeared in a trust document through which Joseph Arnott of Highland County conveyed to two of his heirs options to purchase specified tracts of farm land owned by Joseph after his death.  The options specified that the designated heirs, James Arnott and Dale Arnott, could each purchase specified tracts from Joseph’s trust estate “at a price equal to the appraised value as affixed for federal and/or state estate tax purposes.” After James and Dale Arnott had either exercised or waived their options to purchase the land, Joseph Arnott’s remaining heirs were to share in the proceeds of the trust. James Arnott, who was designated as successor trustee, hired appraiser John Rittenhouse who estimated the current market value of the four tracts of land, which totaled approximately 642 acres, at $3.22 million. Because the formulas used to value property for Ohio estate tax purposes and for federal estate tax purposes are significantly different, however, Rittenhouse’s market appraisal did not state a dollar figure that represented  a value for each parcel  “equal to the appraised value ... for federal and/or state estate tax purposes.” 

Acting in his capacity as sole trustee of the trust, James Arnott determined that the value to be assigned to each of the four tracts of property was its valuation as calculated under the state estate tax formula, identified as the Ohio Qualified Farm Property Value (OQFPV). Based on that determination, James transferred from the trust to himself title to all three of the tracts of land over which he held options.  While those properties had been appraised by Rittenhouse at an aggregate market value of $1.82 million, James paid the trust the OQFPV valuation of the properties, which was $1.375 million.  When Kenneth Arnott attempted to purchase the single tract of land over which the trust granted him a purchase option, he proffered payment at the Rittenhouse appraisal value of $210,000. As trustee, James refused to accept the proffered amount and instead executed a deed transferring ownership of the land from the trust to Kenneth at the OQFPV valuation of approximately $156,000.

Kenneth and other heirs of Joseph Arnott filed a declaratory judgment action in the Highland County Probate Court. Their complaint disputed James’ use of the OQFPV in setting  the amounts owed to the trust by the purchasers of the four option properties, and asked the court to issue a judgment declaring the correct interpretation of the trust document language setting the option purchase price at “the appraised value as affixed for federal and/or estate tax purposes.” 

After protracted pretrial proceedings, the probate court conducted a trial and determined that: 1) interpretation of the disputed language of the trust was a matter subject to resolution through a declaratory judgment action; and 2) the trust language required James and Kenneth Arnott, in exercising their options to purchase specified tracts of land from the trust estate, to compensate the trust for the full market valuation of each property as established by the Rittenhouse appraisal.  

James Arnott appealed the probate court’s rulings to the 4th District Court of Appeals.  In its decision, the 4th District held that it must apply two different standards of review: i.e., that it must review the probate court’s holding that the case was subject to resolution via a  declaratory judgment under  a highly deferential abuse-of-discretion standard; but must review the lower court’s interpretation of the language of the trust under a non-deferential “de novo” standard that required the court of appeals to conduct its own independent analysis of the trust language.  Applying that two-standard approach, the 4th District affirmed the probate court’s judgment that the dispute was subject to declaratory judgment, but rejected the probate court’s interpretation of the trust language and held instead that the trust required James and Kenneth Arnott to compensate the trust for the properties over which they exercised purchase options at the lower, OQFPV valuations of those properties. 

The 4th District subsequently certified that its  application of a de novo standard in reviewing the probate court’s interpretation of the trust language was in conflict with Maxwell v. Fry, a 2009 decision of the 12th District Court of Appeals. The Supreme Court agreed to hear arguments in the case to resolve the dispute between appellate districts.

Attorneys for Kenneth Arnott and other heirs of Joseph Arnott’s trust estate argue that in conducting its own independent analysis of the trust language, the 4th District violated the Supreme Court of Ohio’s specific holding in Mid-American v. Heasley that “declaratory judgment actions are to be reviewed under an abuse of discretion standard.”  They assert that in this case, as in every other declaratory judgment action, a trial court’s judgment hinges on the application of statutes and case law precedents to a specific set of facts or words in a document, and Mid-American clearly bars appellate courts reviewing such cases from substituting their own judgment for that of the trial court.

Attorneys for James Arnott respond that the issue under review by the Supreme Court in Mid-American was whether or notthe trial court had erred by finding that the dispute between the parties in that case was subject to resolution through a declaratory judgment action. They assert that the Court’s statement regarding an abuse of discretion standard of review applied only to that threshold issue, and argue that broadening the holding of Mid-American to require an abuse of discretion standard of review for all issues decided in declaratory judgment cases would require courts of appeals to allow clear and obvious legal errors by lower courts to go uncorrected unless those errors were so egregious that the lower court’s action could only be characterized as “irrational.”  They argue that nothing in the nature of declaratory judgment actions supports abandoning the general rule observed in other types of cases that appellate courts should review a lower court’s rulings on questions of fact under an abuse of discretion standard, but should review interpretations of the law de novo.

Contacts
Robert J. Judkins, 937.981.4403, for Kenneth D. Arnott and other appellant heirs.

Shannon M. Treynor, 740.845.1889, for James W. Arnott et al.

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Can Omission of Postrelease Control from Court's Journal be Remedied by Later 'Nunc pro Tunc' Entry?

When Defendant Was Orally Notified of Requirement at Sentencing Hearing

State of Ohio v. Eric Qualls, Case no. 2011-0202
4th District Court of Appeals (Meigs County)

ISSUE:  When a criminal defendant is orally notified at his sentencing hearing that he will be subject to postrelease control following completion of a prison term, but that information is omitted from the court’s written journal entry recording his sentence, may the court later correct that error without a hearing by means of a “nunc pro tunc” journal entry, or must the court conduct a new sentencing hearing?

BACKGROUND: In 2002 Eric Qualls of Meigs County was convicted of aggravated murder and kidnapping, and of firearm specifications for both crimes, for the shotgun slaying of Rebecca Ackerman, who was his former girlfriend and the mother of his child. 

At his sentencing hearing, Qualls received an aggregate term of from 33 years to life in prison.  He was also advised that, if he should be released from prison, he would be subject to an additional five years of postrelease control by the state. Qualls did not appeal the judgment of the trial court.  In subsequent years, however, he filed a succession of unsuccessful petitions for postconviction relief based on various claims of violations of his due process and fair trial rights.

In 2010, Qualls filed a petition in the Meigs County Court of Common Pleas asserting that he was entitled to a new sentencing hearing because the trial court had improperly sentenced him to a term of postrelease control for the crime of aggravated murder that was not authorized by law.  In responding to that petition, the state discovered that the written sentencing entry in the trial court’s journal had omitted the term of postrelease control that had been pronounced by the judge at the time Qualls was sentenced.  The state filed a motion asking the court to correct that omission by making a nunc pro tunc (in Latin, “now for then”) entry in its journal.  Qualls opposed the state’s motion.  The trial court rejected Qualls’ petition based on a finding that the term of post release control had been imposed for his kidnapping conviction rather than his murder conviction. It also granted the state’s motion to correct the trial record by making the requested nunc pro tunc entry in its journal.

Qualls appealed to the 4th District Court of Appeals, which affirmed the actions of the trial court.  In response to a motion by Qualls, the 4th District certified that its ruling with regard to the sufficiency of a nunc pro tunc journal entry was in conflict with a 2010 decision, State v. Lee, in which the 6th District held that a defendant who was not properly sentenced to postrelease control prior to a 2006 change in the law was entitled to a new sentencing hearing.  The Supreme Court agreed to hear the case to resolve the conflict between appellate districts.

Attorneys for Qualls argue that under R.C. 2929.191, which took effect July 11, 2006, and Supreme Court decisions interpreting that statute, a trial court resentencing a defendant to correct a sentence that was imposed prior to July 2006 and omitted a required term of  postrelease control is required to conduct a full new sentencing hearing.  They note that this Court’s December 2010 decision in State v. Fischer now allows sentences from which postrelease control has been omitted to be corrected by a court of appeals without a remand for rehearing by the trial court, but argue that because Qualls’ motion for a new sentencing hearing was adjudicated in March 2010,  before Fischer was decided, the trial court in this case erred by ignoring the requirements of R.C. 2929.191 and making a nunc pro tunc correction in its journal without first conducting a hearing at which Qualls was present and represented by counsel.

Attorneys for the state respond that, in all of the prior court decisions cited by Qualls, the trial courts failed to orally advise a defendant at the time sentence was pronounced that he would be subject to a term of postrelease control, and a full new hearing was required in order to meet the due process requirement that a defendant must be present when his actual sentence is pronounced or amended.  Unlike those cases, they argue, the transcript of Qualls’ sentencing hearing shows that he was properly advised that five years of postrelease control would be imposed if he was released from prison, and the omission of postrelease control from the court’s written journal entry is nothing but a clerical error that may be remedied without a hearing by means of a corrective journal entry, because the correction did not change Qualls’ sentence but merely amended the record to accurately reflect the actual sentence pronounced by the trial court.

Contacts
Colleen S. Williams, 740.992.6371, for the state and Meigs County prosecutor's office.

Katherine A. Szudy, 614.466.5394, for Eric Qualls.

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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.