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Tuesday, June 5, 2012

State of Ohio v. Derek Warner, Case no. 2011-1677
Eighth District Court of Appeals (Cuyahoga County)

James A. Lang [et al.] v. Director, Ohio Department of Job and Family Services, Case no. 2011-1740
Third District Court of Appeals (Seneca County)

In re: Application of Robin Leigh Burch, Case no. 2012-0430
Board of Commissioners on Character and Fitness


May 'Amenability' Hearing Be Waived In Bindover Of Juvenile Offender For Trial in Adult Court?

Where Defendant Was Previously Found Not Amenable to Juvenile Rehabilitation

State of Ohio v. Derek Warner, Case no. 2011-1677
Eighth District Court of Appeals (Cuyahoga County)

ISSUES: 

BACKGROUND: Derek Warner of Cleveland was arrested and charged with burglary and theft for his role in a home break-in and attempted theft of a television. Because Warner was 17 years old at the time, the charges against him were initially filed in the Cuyahoga County Juvenile Court.

The state, represented by the county prosecutor’s office, filed a motion asking the juvenile court to bind Warner over for trial as an adult.  Because of the nature of the charged offenses, the juvenile court had discretion under R.C. 2152.12 to either grant or deny the motion for bindover based on the judge’s determination of whether Warner was “amenable to rehabilitation” in the juvenile justice system or prosecution in adult court was necessary to protect the public.

At a hearing on the bindover motion, the court noted on the record that, in a previous case that was still pending at the time, Warner had been found not amenable to rehabilitation through the juvenile justice system on unrelated criminal charges, and had been bound over for trial as an adult on those charges.  Following an off-the-record sidebar discussion among the judge, prosecutor and defense attorney, the judge stated on the record that “because this court has already found this alleged delinquent to be not amenable to the juvenile justice system on a prior case ... we will transfer this case over to the adult court, as well, without having another amenability hearing.”  Warner’s attorney did not object to the bindover without a new amenability hearing.

Warner was subsequently indicted by a grand jury, tried, and found guilty of adult counts of burglary, theft, vandalism and criminal damaging.  He was sentenced to six years in prison. 

Warner appealed. Among multiple claims of error by the lower courts, Warner alleged that the juvenile court’s judgment binding him over for trial as an adult must be overturned as void because the court failed to conduct a new amenability hearing as required by law.  The Eighth District Court of Appeals rejected Warner’s claim, citing its own 1993 holding in State v. Soke that a juvenile can waive a bindover hearing and finding that in this case “Warner, through his counsel, waived the amenability hearing.”  Warner sought and was granted Supreme Court review of the Eighth District’s ruling.

Attorneys for Warner urge the court to reverse the Eighth District and hold that under R.C. 2152.12, in cases where charges brought against a juvenile are subject to discretionary (as opposed to mandatory)  bindover, a juvenile court may not bind the juvenile offender over for trial as an adult on those charges without first conducting a mandatory hearing at which the court considers the defendant’s amenability to rehabilitation in the juvenile system.  They point out that the juvenile court made no indication of a “waiver” by Warner, but rather held, incorrectly, that a new amenability hearing was unnecessary because Warner had been found not amenable to the juvenile system in a previous case.  In support of that argument they point to legislation adopted in 1995 that specifically changed the law to eliminate the requirement of a new amenability hearing only in cases where a juvenile has previously been bound over and convicted in adult court. 

If the court should find that a juvenile defendant can waive an amenability hearing, they argue that in order for any such waiver to be valid, it would have to be made explicitly and on the record, and have been preceded by a detailed discussion between the judge and the defendant explaining the consequences of a waiver and determining that it was being made voluntarily and intelligently. Because the juvenile court record in this case shows that none of those requirements was met, they argue that the Eight District’s finding of a valid waiver cannot be upheld.

Attorneys for the state respond that under Rule 3 of the Ohio Rules of Juvenile Procedure, a juvenile defendant can waive any right except the right to be represented by an attorney, which they say includes the procedural right to a new amenability hearing after having already been found not amenable to juvenile system in a prior case.

In this case, they assert, Warner’s defense attorney, the judge and the prosecutor were all well aware that the court had previously determined Warner was not amenable to rehabilitation in the juvenile system in another case because all three of them had participated in that case only 41 days earlier.  Rather than going through the empty formality of a new amenability hearing, they say, Warner’s attorney agreed on his behalf to waive such a hearing and allow the new charges to go forward in adult court, a fact they say is reinforced by the absence of a defense objection to the juvenile court’s bindover ruling or any effort to challenge the bindover in pretrial proceedings in the common pleas court.

Contacts
Nathaniel J. McDonald, 216.443.3672, for Derek Warner.

Greg Mussman, 216.443.7800, for the state and Cuyahoga County prosecutor's office.

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Must Court Follow Agency Guidance Letter In Ruling on Workers' Eligibility for Federal Wage Supplement Program?

Where Court Finds Non-Statutory Guideline Conflicts With Statutory Language

James A. Lang [et al.] v. Director, Ohio Department of Job and Family Services, Case no. 2011-1740
Third District Court of Appeals (Seneca County)

ISSUE: When the state government agency that administers a federal program in Ohio is sued in state court by an Ohio applicant who was denied benefits under that program, may the court decide the case by analyzing the applicable federal law under established rules of statutory interpretation, or must the court follow an informal guidance letter from the federal agency that administers the program nationally despite the court’s finding that the guidance letter conflicts with the plain language of the statute?

BACKGROUND: The Ohio Department of Job and Family Services (ODJFS) is the state agency designated to administer the federal Alternative Trade Adjustment Assistance (ATAA) program in Ohio. ATAA was enacted by Congress in 1974 and amended in 2002 as part of legislation to provide U.S. workers who lose their jobs as a result of international trade with retraining services and, in the case of older workers, a transitional wage supplement.

The section of federal law authorizing ATAA wage supplements for older workers, 19 U.S.C. 2318(a)(3)(B), sets six criteria that must be met in order for a displaced worker to receive such benefits. Two of those criteria are that the applicant be “at least 50 years of age,” and that he or she “obtains reemployment not more than 26 weeks after the date of separation from the adversely affected employment.”  The law specifies that ATAA will be administered nationally by the U.S. Department of Labor (USDL), which is charged with developing administrative rules and procedures for the program, and contracting for state-level administration of benefits with a designated agency in each of the 50 states.  ODJFS entered into a contract with USDL to serve as ATAA administrator in Ohio.

In 2007, three employees of a factory in Tiffin, James Lang, Teddy Sharp and Mark Laibe, were among workers who lost their jobs when their employer moved its production facility to Mexico. All three men were 49 years old at the time they became unemployed. Within 26 weeks after becoming unemployed, and before reaching their respective 50th birthdays, all three men started new jobs that paid less than they had earned in their previous positions.

Upon turning 50, Lang, Sharp and Laibe separately filed applications with ODJFS to receive ATAA supplemental wage benefits.  All three men’s applications were denied by ODJFS on the basis of a Training and Employment Guidance Letter, TEGL 2-03, that had been distributed to all participating states by USDL. The letter advised state-level administrators that in order to be eligible for supplemental wage benefits, an applicant must “be at least age 50 at the time of reemployment.”

Lange, Sharp and Laibe exercised their right to appeal ODJFS’s denial of benefits to the state Unemployment Compensation Review Commission (UCRC), arguing that the plain language of the applicable statute requires only that an applicant for ATAA benefits be 50 or older at the time he or she elects to apply for benefits, and therefore the USDL guidance letter was in conflict with the law and must be disregarded. 

The commission initially agreed with the employees’ argument and ordered ODJFS to disregard the guidance letter and grant their applications because they met all the requirements set forth in the statute. ODJFS requested and was granted a rehearing, at which it introduced into evidence the contract between itself and the USDL. Noting that the contract conditioned ODJFS’s authority to grant ATAA benefits to Ohio workers on the department’s compliance with policy guidelines set by USDL in guidance letters, the review commission rescinded its earlier ruling and held that Lang, Sharp and Laibe were not eligible for benefits pursuant to TEGL 2-03.

The employees appealed the commission’s ruling to the Seneca County Court of Common Pleas, which reversed the commission and held that the workers were entitled to benefits under the plain language of the ATAA statute notwithstanding the USDL’s informal guidance to the contrary.  ODJFS appealed that ruling to the Third District Court of Appeals, which affirmed the trial court’s decision.  ODJFS sought and was granted Supreme Court review of the Third District’s ruling.

Attorneys for ODJFS argue that when Congress enacted the federal laws creating and amending the ATAA program, it specifically delegated authority to develop and adopt binding rules and guidelines for the administration of the program to the USDL. They urge the court to reinstate the holding of the Unemployment Compensation Review Commission that ODJFS has legal authority to award ATAA benefits to Ohio workers only under the terms and conditions of its contract with the USDL, which specifies that state agencies administering the program will comply with policies set forth in guidance letters such as TEGL 2-03.

In response to the lower court holdings that the “age 50 at the time of reemployment” policy conflicts with the statute, they contend that Section 2318 does not specify at what point in time an applicant must meet the age 50 requirement, and USDL’s policy guideline is a reasonable interpretation of ambiguous statutory language that should be upheld in light of USDL’s clear authority to develop policy guidelines for the ATAA program.

Attorneys for Lang, Sharp and Laibe urge the court to affirm the rulings of the trial court and Third District, which held that the language of the ATAA statute is not ambiguous in authorizing benefits for workers who meet all the other program requirements and are 50 years of age or older on the date they apply for benefits. They point out that all three workers would have unquestionably qualified for benefits if they has simply waited to obtain reemployment until the 26th week after their layoffs (during which period they all would have turned 50), and argue that the USDL policy guideline cannot be a “reasonable” interpretation of the statute because it punishes displaced workers who promptly seek and obtain reemployment when Congress’ whole purpose in creating the program was to encourage rapid reemployment by making up part of the difference in wages if a worker’s new job pays less than the job he lost.

Contacts
Jason E. Dawicke, 614.477.7301, for James Lang, Teddy Sharp and Mark Laibe.

Alexandra T. Schimmer, 614.466.8980, for the Ohio Department of Job and Family Services.

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Application to Take Bar Examination

In re: Application of Robin Leigh Burch, Case no. 2012-0430
Board of Commissioners on Character and Fitness

The Board of Commissioners on Character and Fitness has recommended that the court disapprove the current application of Robin Leigh Burch of Cincinnati to take the state bar examination in 2012, but that Burch be permitted to reapply for the February 2013 examination pending a new review and approval of her character and fitness by the Cincinnati Bar Association (CBA) admissions committee.

Burch has filed objections to the board’s recommendation, pointing out that after an initial recommendation of disapproval by a CBA panel, the association’s review committee reconsidered  her application and forwarded it to the board with a recommendation of approval.

Burch asserts that fitness issues cited in the board’s report were largely based on her academic performance and actions as a student extern while attending law school at the University of Cincinnati, from which she graduated in 2010. She argues that the board did not give sufficient weight to  testimony attesting to her current character and fitness by several witnesses with whom she has been working over the past two years, and urges the court to give greater weight to that evidence and approve her application without further delay or an additional review by the CBA admissions committee.

Contacts
Michael R. Keefe, 513.621.2666, for Robin Burch.

Robert G. Hyland, 513.579.1500, for the Cincinnati Bar Association.

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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.