State of Ohio v. CSX Transportation, Inc., Case no. 2020-0608
Third District Court of Appeals (Union County)

State of Ohio v. (P.J.F.), Case no. 2020-0700
Tenth District Court of Appeals (Franklin County)

Maternal Grandmother, as Administrator of the Estate of G.B., a deceased minor, and Maternal Grandmother, Individually v. Hamilton County Department of Job and Family Services, Hamilton County, Ohio, Denise Driehouse, Chris Montzel, Todd Portune, Shamara Stephens a.k.a. Shamara Hooks-Ware, Kassie Setty, and Lumadi Lavusa, and Father of G.B. and Mother of G.B., Case no. 2020-0705
First District Court of Appeals (Hamilton County)

State of Ohio v. Clarence Leyh, Case no. 2020-0819
Ninth District Court of Appeals (Summit County)

---

Can Federal Law Derail Ohio’s Train ‘Crossing Blocking’ Law?

State of Ohio v. CSX Transportation Inc., Case No. 2020-0608
Third District Court of Appeals (Union County)

ISSUE: Do the federal Interstate Commerce Commission Termination Act and the Federal Railroad Safety Act prevent the enforcement of Ohio’s railroad crossing blocking law?

BACKGROUND:
Between May and November 2018, the Union County Sheriff’s Office issued five citations against CSX Transportation, charging it with violating R.C. 5589.21(A). The state law prohibits a railroad company from obstructing a public road for longer than five minutes, except when a train is continuously moving or by circumstances wholly beyond the control of the train operator. The citations charge that CSX had stopped trains, blocking public railroad crossings for more than an hour with no mechanical issues causing the stoppage.

CSX pled not guilty to the charge in Marysville Municipal Court. A company representative told the court that on three of the occasions in which the company was cited, their trains were loading and unloading goods and supplies to the Honda of America Manufacturing plant west of Marysville. In two other instances, a CSX train was stuck on the crossing while making way for a passing train coming in the other direction, and a CSX train was stopped because a train traveling ahead of it stopped because of a mechanical failure.

CSX asked the trial court to dismiss the case, arguing R.C. 5589.21 is preempted by the Interstate Commerce Commission Termination Act (ICCTA) and the Federal Railroad Safety Act (FRSA). The trial court agreed and dismissed the case.

The Union County Prosecutor’s Office appealed the decision to the Third District Court of Appeals, which reversed the lower court’s decision and remanded the case for further proceedings.

CSX appealed the Third District’s decision to the Ohio Supreme Court, which agreed to hear the case. Because of social distancing guidelines during the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Federal Law Regulates Railroad Operations, Operator Argues
CSX states in its brief that the “overwhelming precedent” in state and federal courts is that state and local railroad crossing anti-blocking laws are impermissible and preempted by federal law. The company notes the ICCTA, enacted in 1995, removed the authority of states to regulate core railroad operations. The law established a Surface Transportation Board with exclusive jurisdiction over “transportation of rail carriers.” The company indicates the law includes an express preemption clause that grants the board exclusive regulatory authority over railroad operations and prohibits state laws that impact the “managing” or “governing” of rail transportation.

The company points to several challenges to anti-blocking state and local laws. While the federal government hasn’t explicitly issued a regulation regarding railroad crossing blockage, anti-blocking laws have been found to affect the managing and governing of rail transportation. Because the board has exclusive jurisdiction over those matters, state and local laws have been found to be impermissible, the company explains.

Additionally, the FRSA also preempts the anti-blocking law, CSX argues, noting Congress enacted the FRSA to “promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” Enacted in 1970, the FRSA required the Federal Railroad Administration (FRA) to provide railway safety laws that are “nationally uniform to the extent possible.” While the Federal Railroad Administration may not have issued a regulation addressing railroad crossings, CSX maintains that two other FRA rules regarding the movement of trains have been considered by courts to address stops at crossings. The rules regarding speeds at which trains may travel and mandatory testing of air brakes impact how fast trains can move and when they can resume moving after stopping, the train operator notes. Anti-blocking rules are preempted because they impact the federal government’s right to govern the movement and stoppage of trains, CSX concludes.

State Authorized to Prevent Rail Crossing Blockages, Prosecutor Maintains
The Union County prosecutor notes that no federal law, nor any rule issued by federal regulatory agencies, expressly addresses the blocking of railroad crossings. Because trains stopped on crossings cut off vital safety service providers from the communities they serve, states are authorized under their traditional police powers to enact anti-blocking laws, the office asserts.

When state lawmakers enacted R.C. 5589.21 in 1999, the legislation included the statement that improper obstruction of crossings by trains “is a direct threat to the health, safety, and welfare” of citizens because it prevents the timely movement of ambulances, law enforcement officers, firefighters, and healthcare professionals, the prosecutor notes.

ICCTA addresses the economic aspects of the operations and management of railroads, and the federal law doesn’t preempt any state law regarding railways as long as the state law isn’t unduly burdensome on a railway operator, the office notes. The prosecutor maintains the state anti-blocking law is unrelated to operations, and is a safety measure applied to all train operators. The law doesn’t place an undue burden on CSX, the office asserts.

Pointing to the FRSA, the prosecutor notes the law authorizes the secretaries of Transportation and Homeland Security to adopt any rule necessary to address any aspect of railroad safety. Neither agency has produced any rule regarding blocked crossings, the office explains. In those instances, the FRSA permits state and local governments to issue safety laws as long as the law addresses a specific local safety concern and doesn’t unreasonable burden interstate commerce. The prosecutor argues the state law meets the requirements of the FRSA and is enforceable.

Friend-of-the-Court Briefs
Amicus curiae briefs supporting CSX’s position have been submitted by the Association of American Railroads and the Ohio Railroad Association. The Ohio Attorney General’s Office has presented an amicus brief supporting the Union County prosecutor.

Court Approves Divided Argument Time
The Court approved the request of the prosecutor and the attorney general to share the county’s oral argument time.

– Dan Trevas

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

Contacts
Representing the State of Ohio from the Union County Prosecutor’s Office: David Phillips, 937.645.4190

Representing CSX Transportation Inc.: Andrew Tauber, 202.263.3324

Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

Return to top

Must Parent Pay Child Support Before Record Can Be Sealed?

State of Ohio v. Peter J. Ferguson, Case No. 2020-0700
Tenth District Court of Appeals (Franklin County)

ISSUE: Is an applicant eligible to have the record in a felony child-support case sealed if paying the child-support arrearages is a condition of community control, the community control is terminated, and the applicable statutory waiting period for sealing a record has elapsed?

BACKGROUND:
Beginning in April 2002, Peter Ferguson was ordered to pay $216.85 per month for support of his minor child. In July 2010, Ferguson was indicted in Franklin County for failing to provide adequate support to his child from June 21, 2008, to June 21, 2010. The evidence presented showed that Ferguson made one $150 payment in February 2009 during that timeframe.

The trial court sentenced Ferguson in March 2012 to five years of community control for the felony. The court ordered the father to pay $8,857.80 in overdue child support to the Franklin County Child Support Enforcement Agency as a condition of his community-control sentence. The Tenth District Court of Appeals upheld the conviction in 2012.

Ferguson didn’t comply with the conditions of his community control, and the trial court terminated his community control as unsuccessful in July 2014.

Father Requests Sealing of Conviction
Four years later, Ferguson applied to have his conviction sealed. The Franklin County prosecutor opposed the application, stating that Ferguson hadn’t paid his “court-ordered restitution.”

At the March 2019 court hearing, Ferguson maintained he continued to have payment obligations even though he had gained custody of his daughter. He didn’t contest his failure to pay the back child support as ordered. He asserted that the payment of the arrearages was part of his community-control sentence, not part of a restitution order. Because the child support wasn’t restitution and his community control had ended in 2014, he was eligible to request that the record of his conviction be sealed, he argued. The trial court agreed and approved the sealing of Ferguson’s record.

The prosecutor appealed, and the Tenth District reversed the trial court’s decision. Ferguson appealed to the Ohio Supreme Court, which accepted the case. Because of social distancing guidelines during the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

End of Community Control Was Final Discharge of Sentence, Father Contends
Under R.C. 2953.32(A), an eligible offender may apply to have a record of a conviction sealed “[a]t the expiration of three years after the offender’s final discharge if convicted of one felony.”

The Ohio Supreme Court ruled in State v. Aguirre (2014) that an offender doesn’t attain a final discharge and cannot have felony conviction records sealed until all court-ordered restitution has been paid. Ferguson argues, however, that payment of his past child-support obligation wasn’t restitution but rather part of his community-control sentence. He maintains that Aguirre doesn’t apply to his case and should be limited to cases involving restitution.

Ferguson notes that the trial court knew at the time of terminating the sentence that he hadn’t paid all of the owed child support. He argues that he received his final discharge when the court ended his community-control sentence in 2014 and was eligible to ask for sealing of his record three years later.

All Sentencing Mandates Must Be Completed Before Sentence Is Discharged, State Argues
The Franklin County Prosecutor’s Office points out that Aguirre stated trial courts aren’t permitted to seal an offender’s record until “the offender has completed all sentencing requirements, including any order to make restitution to third parties.” The office emphasizes the use of “all” in the statement.

The prosecutor argues that being discharged from community control isn’t the same as “final discharge” in the sealing statute. Citing decisions in which Ohio appellate courts determined that community service had to be completed before a sentence was final, the prosecutor contends that final discharge means release from all obligations imposed, not simply release from confinement or parole. The prosecutor’s brief states that the trial court’s termination of Ferguson’s community control “as unsuccessful” was a finding by the court that the defendant didn’t comply with some part of the community-control sanctions.

“There is no logical reason to allow an offender to ignore the obligations imposed by the sentencing court and yet still qualify for the privilege of sealing their record of conviction, simply because community control ended, albeit unsuccessfully,” the brief maintains.

– Kathleen Maloney

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

Contacts
Representing Peter J. Ferguson: Mark Miller, 614.227.0002

Representing the State of Ohio from the Franklin County Prosecutor’s Office: Michael Walton, 614.525.3555

Return to top

Can Grandmother of Murdered Child Pursue Negligence Claims Against County Caseworkers?

Maternal Grandmother v. Hamilton County Department of Job & Family Services et al., Case No. 2020-0705
First District Court of Appeals (Hamilton County)

ISSUES:

• To challenge the statutory immunity provided to county child-protection caseworkers, may a plaintiff rely on ordinary notice-pleading requirements to advance the case?
• When challenging the immunity provided to county child-protection caseworkers, must a plaintiff meet a heightened pleading standard, which requires specificity to prove wanton or reckless behavior?
• To allege a claim that child-protection caseworkers failed to adequately investigate child abuse, must a plaintiff plead the injuries the child suffered were the same forms of abuse that triggered the abuse investigation?

BACKGROUND:
Glenara Bates was born in January 2013. Because her mother, Andrea Bradley, abused the infant’s six older siblings, the Hamilton County Department of Job and Family Services immediately removed Glenara from her mother’s custody and placed her in foster care. When Glenara was 8 months old, three Family Services caseworkers urged the Hamilton County Juvenile Court to return Glenara to her mother’s custody, which the court did. The county officially ended its protective supervision of Glenara at the end of 2013.

In December 2014, Glenara’s mother brought the child to Cincinnati Children’s Hospital Medical Center because of her concerns about her daughter’s ability to walk. Doctors and hospital staff found Glenara was significantly underweight and malnourished. They attributed her conditions not to any underlying medical problems, but noted her “failure to thrive” was most likely a social problem, and potentially related to medical neglect by her parents.

Glenara spent 11 days at the hospital, and the hospital staff contacted Family Services, explaining their concerns the child was being abused. Glenara was discharged and her mother brought her back to the family home.

Family Services caseworkers indicated they visited the home on March 4, 2015, and reported that Glenara was happy and healthy. On March 29, Andrea Bradley brought Glenara back to Children’s Hospital where she was pronounced dead. Glenara weighed 13 pounds, four pounds less than when she was seen at the hospital three months earlier.

The Hamilton County coroner found Glenara was the victim of “battered child syndrome with acute and chronic intracranial hemorrhages and starvation.” Andrea Bradley and Glenara’s father, Glen Bates, were charged and convicted of murdering their daughter. Bradley is serving 15 years to life in prison. Bates received the death penalty, but the Ohio Supreme Court reversed his conviction in 2020, and Bates is awaiting a new trial. (See Racially Biased Juror Leads to New Trial for Hamilton County Man Sentenced to Death.)

Grandmother Sues County, Caseworkers
In 2015, Desena Bradley, Glenara’s maternal grandmother, filed a wrongful death lawsuit against the Hamilton County Board of Commissioners, Family Services, the three caseworkers assigned to Glenara’s case, and Glenara’s parents. The case was originally filed in federal court, which dismissed it, and was refiled in Hamilton County Common Pleas Court. The county and the caseworkers sought a judgment on the pleadings, asking the trial court to dismiss the case.

The trial court dismissed the county officials and departments on the grounds that Glenara wasn’t in Family Services’ custody at the time of her death and had been returned to her mother by the juvenile court’s order. The trial court dismissed the caseworkers, finding they were immune from liability under R.C. 2744.03(A)(6).

Bradley appealed the decision to the First District Court of Appeals, which affirmed the trial court’s decision.

Bradley appealed the portion of the First District’s decision related to the dismissal of the claims against the caseworkers to the Ohio Supreme Court, which agreed to hear the case. Because of social distancing guidelines during the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Case Should Proceed in Trial Court, Grandmother Argues
Glenara’s grandmother maintains the First District wrongfully imposed a heightened “fact” pleading standard and dismissed the case. The First District ruled that she didn’t allege specific facts concerning how the investigation was undertaken and why the caseworkers should have known Glenara was suffering from physical abuse based on the hospital’s report of medical neglect.

Bradley explains Ohio follows a “notice-pleading” process to initiate a civil lawsuit, which only requires a short and plain statement of the claim. She maintains she met the standard that a plaintiff must allege enough facts to raise a reasonable expectation that discovery will reveal evidence supporting her claim.

Bradley’s brief outlines key facts she alleged in the complaint:

• Andrea Bradley had a history of abusing her children, and Glenara was removed from her custody at birth.
• A year after being returned to her mother, doctors examining Glenara suspected she had been abused. The doctors documented signs of potential abuse and reported them to Family Services.
• Family Services did nothing to remove Glenara from her mother’s care based on the hospital’s report.
• Caseworkers allegedly visited Glenara’s home three months after her hospitalization and reported her to be healthy and happy.
• Three weeks after the visit she was dead. She weighed 13 pounds, was covered with more than 100 injuries, and the coroner reported she had been beaten, tortured, and starved. The coroner reported the battering and starvation had happened for months before she died.
• Moira Weir, the Family Services director at the time of the death, stated the caseworkers didn’t follow proper procedures.

Bradley argues her pleading provided ample facts to pursue the case, and that she must use discovery to uncover most of the details of the caseworkers’ activities because those records aren’t public. She maintains the lower courts are treating her case as if she were attempting to prove the merits of her allegations that the employees were negligent. At this point, the trial court is addressing only whether the caseworkers are entitled to immunity, she explains. Only when a trial court resolves the immunity issue, can Bradly proceed to argue the facts of her claims against the caseworkers, she notes.

Workers Not Entitled to Immunity, Grandmother Argues
Bradley explains that R.C. 2744.03(A)(6) provides immunity to local government bodies and its employees for injury, death, and property destruction, but there is an exception when an employee’s “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” The grandmother maintains her pleading was sufficient to demonstrate that it is reasonable to believe the caseworkers acted in a wanton and reckless manner for not responding under the proper procedures to the hospital’s concerns. Bradley questions whether the caseworkers actually made a visit to Glenara’s home in March 2015, and if they did, their failure to notice her conditions were wanton or reckless actions. Those facts should be sufficient for the case to proceed to the discovery phase, she maintains.

Claim Based on Speculation, Properly Dismissed, Caseworkers Assert
The caseworkers note the Supreme Court has ruled that political subdivision immunity should be decided at the earliest stages possible to protect taxpayer resources as well as needless expenditure of private resources to pursue a case in which immunity exists. By simply claiming the caseworkers acted with recklessness and wantonness doesn’t allow a case to move forward because Bradley is only speculating that their actions led to Glenara’s death, they argue. The caseworkers note the First District found that Glenara died because her parents murdered her by physical abuse. Nothing in the allegations against the caseworkers indicates that reports of medical abuse or neglect would indicate to them that the child was a potential victim of fatal physical abuse, the workers note.

The caseworkers argue that the First District didn’t hold Bradley to a heightened pleading standard, but rather ruled the claims she made failed to explain how the caseworkers actions were reckless and why they weren’t entitled to immunity.

The workers note that R.C. Chapter 2151 governs the manner in which child protection agencies handle allegations of abuse and neglect, and requires them to balance the laws’ requirements to respect the rights of parents to retain custody of their children with allowing for the removal of children when children are in immediate danger. They note the juvenile court, not the agency, returned Glenara to the custody of her parents, and it is now with “20/20 hindsight” that Bradley alleges the caseworkers were aware of the child’s abuse and failed to intervene. The complaint isn’t sufficient, and the trial court properly dismissed the case, the caseworkers conclude.

Friend-of-the Court Briefs Submitted
An amicus curiae brief supporting Bradley’s position has been submitted by A Better Childhood.

The Justice For Children Clinic, located at Ohio State University Moritz College of Law, also submitted an amicus brief supporting Bradley. The clinic notes the Ohio Administrative Code clearly requires a mandated process for child-protection workers to follow when receiving a “failure to thrive” diagnosis from a medical provider. The hospital’s report should have required the caseworkers to make contact with Glenara within 72 hours of receiving the report, and to conduct an extensive investigation. Without conducting discovery, Bradley is unable to know what actions Family Services took and if they followed the rules, the clinic notes.

– Dan Trevas

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

Contacts
Representing Desena Bradley, the maternal grandmother: Rachel Bloomekatz, 614.259.7611

Representing Lumadi Lavusa: Pamela Sears, 513.946.3229

Representing Kassie Setty: Stephen Wenke, 513.651.2126

Representing Samara Stephens: Paul Laughman, 513.621.4556

Return to top

Did Attorney’s Failure to Provide Record to Appellate Court Require Reopening Appeal?

State of Ohio v. Clarence Leyh, Case No. 2020-0819
Ninth District Court of Appeals (Summit County)

ISSUE: To ensure that a person convicted of a felony offense has a meaningful right to an appeal, must a court of appeals reopen the appeal when one or more “colorable” issues are identified and the prior appellate counsel failed to ensure that a complete record, including all relevant transcripts, was made available to the appeals court for review?

BACKGROUND:
Clarence Leyh was indicted in March 2018 on four counts of gross sexual imposition under two subsections of R.C. 2907.05(A) and two counts of sexual imposition. Leyh pled guilty to all of the charges. The Summit County Common Pleas Court imposed one-year consecutive sentences for each gross sexual imposition offense, and the sentences for the sexual imposition offenses were ordered to run concurrently to the others, for a four-year prison term.

Leyh’s attorney in the common pleas court also represented him in his appeal to the Ninth District Court of Appeals. The attorney argued that the gross sexual imposition offenses should have been merged because they were allied offenses. The attorney attached his client’s presentence investigation report to the merit brief. The court struck the report from the brief because the report is confidential and not a public record. The attorney didn’t include a transcript of the sentencing hearing for the Ninth District and didn’t provide the report separately under seal to the court.

The Ninth District’s September 2019 ruling noted that the trial court’s sentencing entry stated it analyzed the allied offenses issue and found the offenses weren’t allied and didn’t merge for sentencing. The Ninth District concluded that it couldn’t evaluate Leyh’s arguments because he didn’t provide a complete record for the court to review. Based on other Ninth District decisions in such cases, the court upheld the trial court’s judgment.

Man Requests Reopening of Appeal with New Lawyer
With a new attorney, Leyh asked the Ninth District to reopen the appeal, asserting he had received ineffective assistance of counsel in his appeal. The court denied his request. The appellate court also rejected Leyh’s motion for reconsideration and en banc review.

Leyh appealed to the Ohio Supreme Court, which accepted the case. The Supreme Court will hear arguments by videoconference because of COVID-19 guidelines. The arguments will be livestreamed.

Man Argues He Didn’t Receive Review Required on Appeal
Leyh’s brief explains that a criminal defendant has a right to counsel for a first appeal and the right requires effective assistance by the attorney. Issues raised in an appeal must be supported by the record, the brief adds.

Leyh maintains that his lawyer for his initial appeal was ineffective because the lawyer didn’t order any transcripts for the appeal, preventing the Ninth District from being able to analyze his arguments. As a result, his appeal was essentially forfeited and he was deprived of any meaningful review of his convictions, he contends.

To show ineffective assistance of counsel, the lawyer must have performed deficiently and the deficient performance must have prejudiced the defendant. Leyh’s brief maintains that the rules for Ohio appellate courts – specifically Rule 26(B), which explains the procedure for reopening appeals – require that he first present a “colorable claim” of ineffective assistance. Leyh’s brief states his claim is demonstrated by the record, even though it’s “scant.” The record indicates Leyh’s six charges involved a single victim and two occasions, yet the offenses didn’t merge for sentencing, according to his brief.

Leyh does not have to prove that the outcome of his initial appeal would have been different at the time he is asking to reopen his appeal, the brief argues. Forcing him to obtain and pay for transcripts for his application to reopen the appeal isn’t required by the rule, the brief contends, adding that Leyh would prove the prejudice when the appeal is reopened.

It is undisputed, Leyh states, that his initial attorney for the appeal failed in his duties to complete the record, as required by the appellate rules. That failure is sufficiently prejudicial to justify reopening the appeal based on ineffective assistance of counsel, he maintains.

State Counters Man Had to Show Likelihood of Success if Record Were Complete
The Summit County Prosecutor’s Office notes that the Ninth District stated Leyh had the burden of proof to show his attorney was deficient by not raising the issues now presented and there was a reasonable probability of success had the record been complete. The Ninth District determined that Leyh’s attorney was deficient but that Leyh didn’t meet his burden on the second part.

Although Leyh’s new lawyer submitted a sworn statement, as required by App.R. 26(B), the Ninth District concluded the new lawyer couldn’t make a statement arguing that the outcome of Leyh’s sentencing would have been different because the new lawyer wasn’t aware of the substance of the sentencing hearing and was only speculating.

The prosecutor also argues Leyh offered no evidence on appeal to contradict the trial court’s sentencing entry, which stated that the offenses were allied and should be merged. Leyh hasn’t presented a colorable claim of ineffective assistance of counsel to authorize reopening the appeal, the state maintains.

Leyh’s statements regarding the offenses and the number of victims aren’t in the record, and the trial court’s written entry doesn’t provide the factual details of any of the counts, the prosecutor notes. The office contends that for the appellate court to consider those assertions in a reopening application, Leyh had to include information from the record. In addition, the office concludes, Leyh hasn’t shown that had the record been complete it was likely he would have succeeded in his appeal.

– Kathleen Maloney

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

Contacts
Representing Clarence Leyh: Addison Spriggs, 614.466.3373

Representing the State of Ohio from the Summit County Prosecutor’s Office: Heaven DiMartino Guest, 330.643.4118

Return to top