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Tuesday, December 10, 2013

Ronald Snyder et al. v. Ohio Department of Natural Resources et al., Case no. 2012-1723
Seventh District Court of Appeals (Jefferson County)

FirstMerit Bank v. Daniel E. Inks et al., Case nos. 2013-0091 and 2013-0203
Ninth District Court of Appeals (Summit County)

Ohio Neighborhood Finance, Inc. v. Rodney Scott, Case no. 2013-0103
Ninth District Court of Appeals (Lorain County)

City of Dayton Police Department and Major E. Mitchell Davis v. Anita Hauser, Case nos. 2013-0291 and 2013-0493
Second District Court of Appeals (Montgomery County)


May Owner of Mineral Rights in Brush Creek Wildlife Area Strip-Mine for Coal?

Ronald Snyder et al. v. Ohio Department of Natural Resources et al., Case no. 2012-1723
Seventh District Court of Appeals (Jefferson County)

ISSUES:

BACKGROUND:
In 1944, the state purchased 1,674 acres of land to create the Brush Creek Wildlife Area in southeastern Ohio. The wildlife area currently spans more than 4,000 acres and is managed by the Ohio Department of Natural Resources (ODNR). This case concerns the deed for a 651-acre parcel that the state acquired in 1944.

When the property was sold that year, the deed stated: “The Grantors reserve all the mineral rights, including rights of ingress and egress and reasonable surface right privileges.” As a result, the seller maintains the mineral rights on the land, and the state owns the surface interests. Ronald W. Snyder and Steven W. Neeley eventually obtained the mineral rights, and they now want to mine 65 acres of it for coal.

In 2009, they filed suit in the Jefferson County Court of Common Pleas seeking authorization to obtain coal from the property using a combination of surface and augur mining methods. The court granted summary judgment to ODNR, denying Snyder and Neeley’s request. Snyder and Neeley asked the Seventh District Court of Appeals to review the trial court’s decision, and the appellate court affirmed the lower court.

Snyder and Neeley then appealed to the Ohio Supreme Court, which agreed to hear the case.

Their attorneys first assert that any mining method requires the use of some part of the surface to extract minerals from the land. Given that, they argue that Ohio’s courts must then be guided by the intention of the parties as expressed in the deed. They base this position on rules applied in several cases, including two Ohio Supreme Court cases – Graham v. Drydock Coal Co. (1996) and Skivolocki v. East Ohio Gas Company (1974).

Because the deed gives Snyder and Neeley “reasonable surface right privileges,” their attorneys contend that their clients have the right to conduct surface mining on the property as long as it is “reasonable.” That is determined, they argue, “by the extent, if any, to which the proposed mining will unreasonably infringe upon the surface estate. This requires a consideration of the nature of the proposed mining, including how it will take place, when it will take place, and where it will take place.”

Their proposal is “reasonable,” the attorneys assert, because the mining would involve a small fraction – about 10 percent – of the 651 acres, the land would be rehabilitated in a reasonable amount of time once the mining is completed, and the extraction would not interfere with ODNR’s use of the overall property.

Snyder and Neeley’s attorneys claim that the Seventh District in its decision created a “categorical bar” prohibiting surface mining methods, unless a deed permits surface mining or strip mining by specifically using those words. Such a “blanket rule” is not what the Supreme Court adopted in Graham and Skivolocki, Snyder and Neeley’s attorneys assert. Instead, they argue that the court looked at the totality of the language in those deeds, other indications of the parties’ intentions, and the fact that in those cases, unlike here, the parties wanted to mine nearly the entire surface of the land.

“It was for all of these reasons – and not because the deeds failed to expressly mention surface mining – that this [c]ourt concluded in Graham and Skivolocki that the parties to those deeds did not intend that the owners of the mineral estate would have the right to engage in the extensive surface mining they had proposed,” they argue in their brief.

While they contend that this deed’s language plainly allows surface mining, they also argue that, at the least, the deed does not “unambiguously prohibit” surface mining. If the deed is considered to be ambiguous, then they assert that other extrinsic evidence needs to be considered to determine the deed’s meaning.

The appeals court ought to have considered such evidence, they maintain, including information that surface mining was prevalent in the county in 1944, this property had been surface-mined before its purchase, and the proposed mining will not cause “catastrophic disruption or destruction of the surface estate” and will have a temporary impact on the wildlife there. If this evidence does not clarify the deed’s intent, Snyder and Neeley’s attorneys argue that the court, as explained in Graham, must find that the ambiguities disfavor the state, as the drafter of the deed.

They also contend that the Seventh District mistakenly concluded that the reasonableness of the mining plan was a question of law when granting summary judgment to ODNR. Instead, they assert that the issue is a question of fact, and the court should have considered evidence as to whether surface mining was reasonable.

Attorneys for the state explain that the mining methods proposed first remove, or “strip,” the surface of the land over the area to be mined and also create a vertical cliff, which then allows miners to insert large drill bits horizontally under the surface to remove multiple, lateral columns of coal. They contend that the deed’s “reasonable surface right privileges” do not permit coal removal using strip mining, which will destroy the state’s surface property.

The land cannot be enjoyed if miners strip away its surface, the state argues. The Supreme Court has held in cases such as Burgner v. Humphries (1923) that when different entities or people separately own the surface and mineral rights to a piece of land, neither owner may “injure” the property.

They describe cases in which coal mining caused the surface to cave in or crack open, causing damage to houses and other structures – an injury to the surface owners’ property, they assert.

“[C]onstruing ‘reasonable surface right privileges’ to include strip mining … would entirely substitute the mineral owner’s interests for the surface owner’s interests, instead of allowing both to coexist,” they write in their brief. And the court in Graham and Skivolocki held the same, they contend.

They also argue that the Jefferson County Court of Common Pleas already decided the issues presented in this case 50 years ago when it reviewed the same deed for this property. The court determined that the mineral rights owner did not have the right to strip-mine the land because he did not have the right to destroy it.

“Snyder and Neeley own the coal beneath the State’s wildlife area, but because the deed does not expressly state otherwise, they are entitled to remove the coal only in ways compatible with surface ownership,” they contend. “Strip mining destroys the surface of the property. Snyder and Neeley have no right to remove the coal in this way.”

By arguing that mining only 10 percent of the land is reasonable, Snyder and Neeley’s attorneys put the court in the position of deciding what percentage is reasonable in future cases, the state’s attorneys assert. The attorneys also claim that rehabilitating the land does not completely restore it. For example, they assert that mature trees would be removed and it would take decades to grow new ones, and mining will disrupt the area’s complex ecosystem. In addition, Brush Creek may also lose federal funding for wildlife protection and recreation if the property is mined.

Denying Snyder and Neeley the ability to strip-mine this land does not mean the coal under the land is inaccessible to them, the state’s attorneys argue, because they can use a different mining method to access the coal, even if it is more costly.

Because the deed does not include express language waiving the state’s right to protect the surface land, the state’s attorneys maintain that this is a question of law, which can be decided by summary judgment.

However, even if the court finds that the deed is ambiguous, the state’s attorneys assert that the extrinsic evidence presented by the other side is inadmissible hearsay. If the court considers that evidence, though, they claim that it will not support Snyder and Neeley’s case.

Last, the state’s attorneys argue that a special rule governs the interpretation of deeds, which is contrary to typical contract law. They maintain that the deed rule states that ambiguous deeds should be construed in favor of the grantee, the state in this case, rather than the grantors, as the mineral rights’ owners assert.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Ronald W. Snyder and Steven W. Neeley: John Keller, 614.464.6389

Representing the State of Ohio: Michael Hendershot, 614.644.0576

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May the Terms of a Property Loan Be Changed by Oral Agreement?

FirstMerit Bank v. Daniel E. Inks et al., Case nos. 2013-0091 and 2013-0203
Ninth District Court of Appeals (Summit County)

ISSUES:

Editor’s note: The Supreme Court determined that a conflict exists between appellate districts on the first issue and agreed to hear that case (2013-0091). The court also accepted FirstMerit’s appeal (2013-0203) and consolidated the two cases for oral argument.

BACKGROUND:
FirstMerit loaned $3.5 million in 2005 to an entity called Ashland Lakes, which owned commercial real estate in Ashland County. Daniel and Deborah Inks and David and Jacqueline Slyman (collectively, the “Inkses”) guaranteed that Ashland Lakes would repay the loan. When Ashland Lakes defaulted on the loan in 2009, FirstMerit sued the Inkses to recover the outstanding balance.

They entered into a series of written forbearance agreements with FirstMerit to delay foreclosure on the property. When those agreements expired, FirstMerit foreclosed on the mortgage, and an auction of the property was scheduled for March 9, 2011.

Meanwhile, the parties attempted to negotiate another forbearance agreement. The discussion required the Inkses to pay more than $1 million in two payments. The bank contends that the agreement also required a $200,000 deposit and a $9,000 appraisal fee. The Inkses claim that those amounts appeared in subsequent documentation and were not part of their negotiation.

Two days before the auction, Mr. Inks stated that he called FirstMerit and told a representative that he could only raise $150,000 for a deposit, which the representative said was “doable.” When he received a written copy of the agreement, it still included the $200,000 deposit requirement, so he called the representative again. Mr. Inks said he was told that if he could deliver a $150,000 deposit and $9,000 for the appraisal by the next day, the bank would postpone the auction.

Mr. Inks said that the next morning the representative again confirmed that payment that day would delay the auction. When Mr. Inks called later in the day for deposit instructions, he said the representative did not return his calls. When the two finally connected later in the day, he said the representative told him that it was then too late to stop the auction.

FirstMerit denies ever reaching an oral, or written, agreement just before the auction. The bank’s representative claimed he did not agree to the lesser deposit amount and also told Mr. Inks on the morning of March 8 that no deal could be reached.

On March 9, the properties were sold.

In May, FirstMerit filed a lawsuit in the Summit County Court of Common Pleas to recover the defaulted amounts. The court found in favor of FirstMerit. The Inkses then filed a motion based on a court rule in civil cases, Civil Rule 60(B), seeking relief from the judgment based on the oral agreement. The court denied their motion, holding that the “statute of frauds,” in R.C. 1335.02 and 1335.05, prohibited a defense based on an oral agreement.

The Inkses appealed to the Ninth District Court of Appeals, which reversed the trial court’s ruling. The Ninth District pointed out that the statute of frauds bars a party from bringing an action related to a loan agreement unless the agreement is in writing. It held, however:

In this case, the Slymans and Inkses did not attempt to “bring an action” against FirstMerit, they merely raised the oral forbearance agreement as a defense to FirstMerit’s action against them.

Following its decision, the Ninth District notified the Supreme Court of a conflict between its decision and one from the Tenth District Court of Appeals. FirstMerit also appealed to the Supreme Court, arguing that the Ninth District’s certified question was too narrow.

The Supreme Court determined that a conflict exists between the appellate districts and agreed to hear the case. It also accepted FirstMerit’s appeal and consolidated the two cases for oral argument.

Attorneys for FirstMerit Bank argue that oral agreements are unenforceable under the statute of frauds, regardless of the method used by a party to try to enforce it in court. Oral agreements are not permitted under the statute, based on the language of R.C. 1335.05, which states: “No action shall be brought … upon a contract or sale of lands … or interest in or concerning them … unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing ….”

They contend that the Ohio Supreme Court held in a 2009 case that agreements that do not comply with the statute of frauds are not enforceable. It does not matter whether the party files suit, makes a counterclaim, asserts an affirmative defense, or files a Rule 60(B) motion, they argue. It only matters what type of agreement a party is trying to enforce, not how the party is trying to enforce it, they conclude.

The Ninth District, they assert, was incorrect when it determined that a Rule 60(B) motion was not an “action.”

“While R.C.1335.05 and 1335.02 do not define the term ‘action,’ the word has been defined elsewhere in Ohio law to encompass any proceeding in which rights are determined, not simply the filing of a civil suit,” they write in their brief. “By filing [the Rule 60(B) motion], appellees commenced a proceeding in the nature of an ‘action’ within the meaning of both 1335.02 and 1335.05. Indeed, Ohio courts regularly refer to Civ.R. 60(B) motions as ‘actions.’”

They claim that the analysis is the same if the court views the Rule 60(B) motion as a “defense,” rather than an action, because the motion is an assertion of facts and arguments that requires proof by a preponderance of the evidence. In this case, the Inkses cannot provide a written agreement as required by the statute.

FirstMerit’s attorneys ask the court to define “action” in the statute of frauds as encompassing civil motions so that oral agreements cannot be raised as a defense. “The more narrow construction ascribed by the Ninth District creates perverse incentives and encourages the very mischief the statute was enacted to avoid,” they argue.

Attorneys for the Inkses ask the court to instead find a “defense” is a response to an action, rather than an “action.” The legislature’s definition of “action” in Chapter 2307, when read together with the statute of frauds, illustrates that “action,” as used in the frauds statute, does not include any “defenses” raised, they contend. Specifically, they assert that a Rule 60(B) motion is not an action because it does not involve process, is not a pleading, and is not the prosecution of another for a legal wrong. They instead define a “motion” as “an application to the court for an order.”

In addition, the Inkses’ attorneys point to a 2002 Ohio Supreme Court opinion (Kostelnik v. Helper), which stated that “oral settlement agreements” may be enforceable if there is “‘sufficient particularity to form a binding contract.’” In this case, they contend, the agreement was not an oral forbearance agreement, but rather a settlement agreement concerning the pending litigation between the parties. Therefore, the oral agreement is enforceable, they conclude.

An amicus curiae (friend of the court) brief supporting FirstMerit’s position has been submitted by the Ohio Bankers League.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2013-0091 and 2013-0203).

Contacts
Representing FirstMerit Bank: Thomas Warren, 216.621.0200

Representing Daniel and Deborah Inks and David and Jacqueline Slyman: Scott Kahn, 216.579.4114

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Does Ohio’s Short-Term Loan Act Prohibit All Single-Installment Payday Loans?

Ohio Neighborhood Finance, Inc. v. Rodney Scott, Case no. 2013-0103
Ninth District Court of Appeals (Lorain County)

ISSUES:

BACKGROUND:
Ohio Neighborhood Finance operates loan businesses called Cashland. In December 2008, Rodney Scott took out a $500 loan from Cashland. The loan was due in full two weeks later at a 25 percent annual interest rate, with a $10 credit investigation fee and a $30 loan origination fee. Scott did not repay the loan by the due date and did not contact Cashland. Some months later, he made two payments totaling $35 on the loan, but he has made no other payments.

Cashland filed a lawsuit in May 2009 against Scott in the Elyria Municipal Court to recover the outstanding balance on the loan, plus interest. Scott never responded to the lawsuit.

Ohio Neighborhood Finance is registered as a lender under the Ohio Mortgage Loan Act (MLA). The case magistrate determined that Scott’s loan was not allowed under the MLA, finding the loan instead was governed by the Short-Term Loan Act (STLA), which prohibits the fees and interest Scott had agreed to. The magistrate recommended that Cashland be paid a lower amount than they sought – $465 plus 8 percent interest.

The municipal court agreed with the magistrate’s recommendation, and Cashland appealed the decision to the Ninth District Court of Appeals. The Ninth District affirmed the trial court decision, and Cashland appealed to the Ohio Supreme Court, which agreed to hear the case.

Attorneys for Cashland describe the MLA as a “fundamental lending law for non-bank lenders” and note that the law was expanded in 1981 to allow for general unsecured loans as well as mortgage loans. They assert that MLA lenders, which are registered through the Ohio Department of Commerce, include auto finance companies, rent-to-own companies, and pawnshops.

They contend that the MLA “plainly permits” lenders licensed under it to make interest-bearing loans even if the loans are to be paid back in a single installment. The Ninth District in its decision has barred single-installment loans under the MLA, Cashland asserts, because the court misinterpreted the language of the statute. Nothing in the statute requires multiple payments over time, they argue.

The Check-Cashing Lender Act, adopted in 1995, allowed for payday loans – single installment loans with higher fees and interest than are permitted by the MLA and other statutes. In 2008, the Ohio General Assembly repealed the Check-Cashing Lender Act and enacted the Short-Term Loan Act.

Cashland’s attorneys claim that the appellate court incorrectly concluded that the legislature intended the STLA to prohibit all payday loans and, therefore, the loan made to Scott under the MLA had to allow multiple payments. Cashland’s attorneys disagree and contend that the language in the MLA law allows both single- and multiple-installment interest-bearing loans.

They assert that the commerce department, which regulates and enforces the MLA and its licensees, has permitted single-installment loans of this type for more than 30 years. In addition, they state that seven other Ohio appellate districts have upheld these loans offered by Cashland.

They argue that the Short-Term Loan Act does not limit loans made under the MLA. “If a MLA-registered lender makes a loan under the MLA, the STLA simply does not apply,” they write in their brief.

When the legislature enacted the STLA, they argue the lawmakers accomplished the goal of ending high-fee, high-interest payday loans and making lenders comply with the new law or other lending statutes, such as the MLA, instead. The Ninth District “improperly legislated from the bench,” they claim, when it re-interpreted the mortgage loan statutes based on its view that the General Assembly intended to prohibit all short-term, payday loans when it repealed the Check-Cashing Act and enacted the STLA.

Rodney Scott has not filed a brief in this case. A group of organizations has submitted an amicus curiae (friend of the court) brief with the Supreme Court in support of Scott. The group is made up of legal aid organizations in Cleveland, Columbus, Southwest Ohio, Southeastern Ohio, and Western Ohio, along with Community Legal Aid Services, Advocates for Basic Legal Equality, the Ohio Poverty Law Center, Pro Seniors, the Coalition on Homelessness and Housing in Ohio, and the Catholic Conference of Ohio.

On October 22, 2013, the Supreme Court ruled that the 15 minutes allotted to Scott will be argued by lawyers representing this amicus group.

The group’s attorneys assert that the lower courts both correctly determined that Cashland’s loan to Scott was a payday loan, which is governed by the STLA and must comply with that law.

“As both the trial and appellate courts found, allowing lenders such as Cashland to make payday loans under the Ohio Mortgage Loan Act not only defies the will of the Ohio legislature and voters, but has the impermissible consequence of rendering the Short-Term Loan Act meaningless,” they write in their brief.

The bill enacting the STLA was bipartisan and specifically designed to target and restrict payday loans in Ohio, they argue. These loans, they assert, trapped thousands of borrowers in a cycle of debt with triple-digit interest rates that was nearly impossible to escape. They state that the 2008 legislation slashed annual loan interest rates from a typical average of 391 percent to 28 percent, set a minimum term of 31 days to repay loans, prohibited loans to pay off other short-term loans, and more. Ballot Issue 5 in 2008 was an attempt by the payday loan industry to overturn this law directly through the voters, they contend. However, Ohioans voted to keep the new STLA law.

The amici contend that Cashland did not become licensed under the new law and did not adjust its loans to comply with the law. Instead, Cashland “evaded” the law by registering under the MLA, which the lawyers supporting Scott assert was never meant to regulate payday lenders and loans.

They maintain that Cashland must be licensed under the STLA and comply with its terms if it wants to issue payday loans in Ohio. The mortgage loan law and the short-term loan law are not in conflict, they argue, because they govern different types of loans.

In addition, they assert that if the commerce department is not enforcing the STLA, that lack of enforcement is inconsistent with the purpose of the law, and the Supreme Court should not legitimize the department’s actions, if true, but instead uphold the intent of the General Assembly to regulate payday loans.

They also note that the Supreme Court did not certify a conflict among Ohio’s appellate districts in this case. They argue that the appellate cases cited by Cashland did not address the issue in this case – the legality of Cashland’s issuance of payday loans under the MLA.

They ask the court to rule that the STLA requires payday lenders to comply with its provisions and that the law is the only law that grants licensing authority to lenders issuing payday loans.

The Center for Responsible Lending and the National Consumer Law Center also filed a combined amicus brief supporting Scott.

Amicus briefs supporting Ohio Neighborhood Finance/Cashland have been submitted by:

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Ohio Neighborhood Finance, dba Cashland: John Zeiger, 614.365.4101

Representing the Legal Aid Society of Cleveland, et al.: Julie Robie, 216.687.1900

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Is a Police Department Manager or Supervisor Liable for Discrimination Under Ohio’s Discrimination Statute or Immune from Liability as a Public Employee?

City of Dayton Police Department and Major E. Mitchell Davis v. Anita Hauser, Case nos. 2013-0291 and 2013-0493
Second District Court of Appeals (Montgomery County)

ISSUE: Is liability “expressly imposed” on managers or supervisors employed by political subdivisions by Ohio’s discrimination law so that their immunity as political subdivision employees is removed?

Editor’s Note: The Supreme Court determined that a conflict exists between two appellate districts on this issue and agreed to hear the case (2013-0091). The court also accepted an appeal from E. Mitchell Davis and the City of Dayton (2013-0493) and consolidated the two cases for oral argument.

BACKGROUND:
Anita Hauser became a detective in the Dayton Police Department in 1996. Major E. Mitchell Davis oversaw the division in which Hauser worked. From March through June of 2007, Hauser attended training in Virginia for a position as a K-9 officer in the department’s drug interdiction unit. Before leaving for the training, Hauser signed a travel voucher, which included a $50 per diem amount for meals and tips for the length of the training. After signing that paperwork, she received an email stating that the city manager was planning to change the policy to require receipts for all meals and that she would be the first test case for the policy.

When she returned from Virginia, she was asked to provide receipts for all of her meal expenses during the training. She provided receipts for about $1,500 of the $4,550 that she was advanced for meals; however, she was not able to produce receipts for the remaining $3,000 in expenses. Hauser alleges that around the same time other officers were not required to provide meal receipts, and the proposed change in policy had not been put into effect at the time of her training.

In August 2007, she was ordered to reimburse the city the roughly $3,000 for which she did not have receipts. When she did not pay the amount, she requested a hearing. Following that hearing, she was found to be insubordinate for not complying with the order to pay the outstanding meal expenses, according to a memo Hauser’s attorneys say Davis wrote. Hauser’s attorneys contend that another hearing was scheduled in May 2008, which was cancelled, and then the money owed was improperly deducted from Hauser’s paychecks.

In his role at the department, Davis also reviewed training requests. Hauser’s attorneys assert that Davis denied Hauser’s request for “Sky Narc” training, while he had earlier approved the training for a male officer.

In June 2009, Hauser filed a lawsuit alleging intentional infliction of emotional distress, age discrimination, sex discrimination, and violations of due process by Davis and the police department for these actions and others. In December 2011, the trial court granted partial summary judgment. The court dismissed Hauser’s emotional distress, age discrimination, and due process claims. However, it determined that Hauser’s sex discrimination claims could proceed to trial. The court also denied Davis’s defense that he was immune from the suit because he was not Hauser’s manager or supervisor and that Hauser had not presented sufficient evidence against him even if he were not immune.

Attorneys for Davis appealed the decision denying him immunity to the Second District Court of Appeals. The court affirmed the decision of the trial court, finding that Davis was not immune from liability for discrimination in this case.

Davis’s attorneys appealed to the Supreme Court, which agreed to hear the case.

Political subdivisions and their employees are generally immune from liability in civil actions under Ohio Revised Code Chapter 2744. Some exceptions to this liability are listed in R.C. 2744.03(A)(6), including one that states that an employee is liable if civil liability is “expressly imposed” on the employee by another section of the Revised Code.

R.C. 4112.02 states that it is an unlawful discriminatory practice for any employer to discriminate against a person in employment. “Employer” is defined in that chapter as “the state, any political subdivision of the state, any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer.”

In their briefs to the court, each side discusses the Ohio Supreme Court’s decision in Genaro v. Cent. Transport Inc. (1999). In that case, the court held that supervisors and managers are persons acting directly or indirectly in the interest of an employer, so they may be personally liable for unlawful discriminatory acts that they commit in violation of R.C. Chapter 4112.

Attorneys for Davis point to the dissent written by the late Chief Justice Thomas Moyer in the Genaro decision. Chief Justice Moyer, they say, held that the phrase “any person acting directly or indirectly in the interest of an employer” was included in the definition of “employer” to hold employers responsible for the discriminatory acts of their employees, not to include employees among those who are liable. They assert that this interpretation is consistent with Title VII of the 1964 federal Civil Rights Act, which they claim does not impose liability on individual employees.

Davis’s attorneys also argue that unlawful discrimination prohibited in R.C. 4112.02 does not trigger the exception in R.C. 2744.03(A)(6) because while the discrimination statute does “expressly impose” liability on political subdivisions, it does not expressly impose liability on political subdivision employees.

In addition, they assert that Genaro involved the liability of managers and supervisors employed at a private company, rather than a political subdivision. If the Supreme Court were to adopt Hauser’s reasoning in this case, it would subject thousands of political subdivision employees to personal liability for discrimination under Chapter 4112, which would have “devastating” financial consequences for the state, they conclude.

Attorneys for Hauser first note that R.C. 4112.01 defines “person” to include “any … agent, employee, … and the state and all political subdivisions, authorities, agencies, boards, and commissions of the state.”

They assert that in the 14 years since Genaro, Ohio appellate courts and federal district courts have consistently held that the definition of “person” “is sufficiently clear to expressly impose liability for intentional acts of discrimination by supervisors working with the political subdivisions of the state. Even more significant is the fact that the legislature has resisted any change to the statutes that could be interpreted as limiting the scope of the Genaro case to shield municipal employees who discriminate.”

Hauser’s attorneys argue that “expressly impose” is not a phrase that requires “magic words,” and they cite a discussion of such liability in a 2001 Ohio Supreme Court decision (Campbell v. Burton), which they contend shows that the definitions in R.C. 4112.01 satisfy the court’s criterion for express imposition of liability on public subdivision employees.

An amicus curiae (friend of the court) brief supporting Anita Hauser has been submitted by the Ohio Association for Justice and one also has been collectively submitted by the Ohio Employment Lawyers Association, Ohio NOW Education and Legal Defense Fund, and Ohio Poverty Law Center.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2013-0291 and 2013-0493).

Contacts
Representing E. Mitchell Davis: Thomas Green, 937.224.3333

Representing Anita Hauser: John Scaccia, 937.258.0410

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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.