Tuesday, March 10, 2015
Adam Stewart v. Board of Education of Lockland Local School District, Case no. 2014-0164
First District Court of Appeals (Hamilton County)
Travis Blankenship v. State of Ohio, Case no. 2014-0363
Second District Court of Appeals (Clark County)
Joseph W. Testa, Tax Commissioner of Ohio v. Kent W. and Sue E. Cunningham, Case no. 2014-0532
Ohio Board of Tax Appeals
David M. Anderson v. State of Ohio, Case no. 2014-0674
Ninth District Court of Appeals (Summit County)
Does Non-Teaching School Employee Have Right to Public Pre-Disciplinary Hearing?
Adam Stewart v. Board of Education of Lockland Local School District, Case no. 2014-0164
First District Court of Appeals (Hamilton County)
ISSUES:
- Does R.C. 121.22(G)(1) give a non-teaching school employee the right to demand a public hearing?
- Is a pre-termination Loudermill hearing a public hearing “elsewhere provided by law”?
- Does the U.S. Supreme Court’s 1985 ruling in Cleveland Bd. of Education v. Loudermill overrule Ohio’s ruling in Matheny v. Frontier Local Bd. of Edn., which was made five years earlier?
BACKGROUND:
Adam Stewart, the former data coordinator for the Lockland School District in Hamilton County, was terminated following an investigation that was launched after the Ohio Department of Education, in July 2012, notified the school district that employees improperly reported false student attendance data in order to improve the schools’ State Report Card ranking for the 2010-2011 school year. The school board’s inquiry focused on Stewart and his mother, Donna Hubbard, the district’s superintendent.
Shortly after the board’s special meeting began on Aug. 23, 2012, the board made a motion to adjourn into executive session to “consider the appointment employment, dismissal, promotion or compensation of a public employee,” pursuant to R.C. 121.22(G)(1). According to Stewart’s merit brief, his counsel objected to the executive session and said that Stewart intended to exercise his right, pursuant to statute, to “have his continued employment discussed and deliberated in public.” The board, however, went into executive session.
Upon continuing in open session, Stewart and his counsel presented his side of the “data-scrubbing” issue. Following that, the board again made a motion to adjourn into executive session, to which Stewart’s counsel objected for a second time, again citing statute. The board ignored the objection and went into executive session. When it began in open session again, the board terminated Stewart’s employment.
Stewart appealed his termination on Aug. 28, 2012, to the Hamilton County Court of Common Pleas and also claimed a cause of action for a board violation of the Open Meetings Act under R.C. 121.22(G)(1). Both Stewart and the board moved for summary judgment related to the cause of action for the Open Meetings Act violation. A magistrate, on Jan. 30, 2013, granted the board’s motion and denied Stewart’s motion. Further, as stated in Stewart’s brief, the common pleas court “overruled Stewart’s objection to the magistrate’s decision on the grounds that Stewart did not have a statutory right to a public hearing,”
Stewart appealed to the First District Court of Appeals, arguing, “that his right to a pre-termination due process hearing, commonly referred to as a Loudermill hearing, entitled him to demand that deliberations be conducted in public rather than during executive session because this hearing was ‘elsewhere provided by law.’”
The appellate court affirmed the local court’s adoption of the magistrate’s ruling, stating, “an employee can only prohibit a public body from holding an executive session when the employee is statutorily entitled to a hearing [because] the Loudermill court certainly did not accord Stewart the right to require that [his] entire pretermination hearing be held publically.”
Stewart appealed the decision to the Ohio Supreme Court, which agreed to hear the case.
Claimed Legal Issues
Attorneys for Stewart claim that the U.S. Supreme Court’s 1985 opinion in Cleveland Bd. of Education v. Loudermill, which “determined that those individuals who could only be discharged for cause possessed a property right in their continued employment.” They also claim the Ohio Supreme Court interpreted Loudermill similarly when, in 1990, it ruled that “Ohio public employees had a property interest in their continued employment and could not be terminated absent a pre-termination hearing.”
Further, Stewart’s attorneys maintain, as a contract employee pursuant to R.C. 3319.081, Stewart possessed a property interest in his position, which gave him constitutional protections before being terminated. Those protections, they state, are notice of allegations against him and the opportunity for a hearing.
Since they believe that the Loudermill court protects Stewart’s right to a pre-termination hearing, he goes on to propose that the Loudermill ruling:
- Establishes a public employee’s pre-termination hearing to be a hearing “elsewhere provided by law”
- Since the hearing is “elsewhere provided by law,” the employee is entitled to demand that a public body conduct deliberations regarding his continued employment in public, rather than in executive session
- A public body’s failure to honor a public employee’s demand for public deliberations at his Loudermill hearing is a violation of the Open Meetings Act
Citing a 2011 Ohio Attorney General Opinion determining the Open Meetings Act laws are designed to ensure openness and accountability in government, as well as R.C. 121.22, which says the laws are to be “liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings,” Stewart’s attorneys argue the Ohio Supreme Court “must recognize the impact the U.S. Supreme Court’s decision in Loudermill had on Ohio’s Open Meetings Act ….”
They also go on to cite the Ohio Supreme Court’s 1980 ruling in Matheny v. Frontier Local Bd. of Edn., which they assert “determined that while the Open Meetings Act did not provide an independent basis for a public hearing, where one was elsewhere provided by law, an employee could insist on a public hearing and public deliberations.”
Ultimately, they claim that because “(He) had a constitutional right to a Loudermill due process hearing prior to the Board passing a resolution to terminate his contract,” Stewart can, under Matheny, “require the board of education to deliberate in public rather than during an executive session under the public meeting exception of the Open Meetings Act.”
Board Claims Stewart’s Legal Interpretation Is Flawed
From a legal basis, attorneys for the board of education maintain that an employee’s right to a public hearing according to R.C. 122.22(G)(1) does not originate “through the OMA, but instead must be provided independently through some other statute.” Further, they state, neither the statute governing Stewart’s employment contract, “nor his rights under Loudermill,” provided him with a “substantive right to demand a public hearing on the matter of his discharge.”
They claim Stewart’s arguments are flawed, stating in their merit brief, “The impact of Matheny proves fatal to Plaintiff-Appellant, Adam Stewart’s Open Meetings Act claim since R.C. 3319.081 provides no right for nonteaching employees to demand a public hearing prior to a board of education terminating their employment contracts.”
Further, they argue Loudermill does not require a governing body to deliberate an employee’s termination, but, rather, mandates only that a public employee be given “some kind” of notice of the accusations against him, as well as “at least a limited opportunity to ‘tell his side of the story,’” citing a written notice and an informal meeting with a supervisor as meeting these requirements. Consequently, they assert, Stewart cannot rely upon Loudermill to provide him the right to demand the board hold its discussions in open session.
Examining the state’s Open Meetings Act statute, they point out that the Ohio Sunshine Laws: An Open Government Resource Manual states that R.C. 121.22(G)(1) “does not grant a substantive right to a public hearing. Such a right [to a public hearing] must exist elsewhere in Ohio or federal law before a person can demand a public hearing under this exception.”
Amicus Briefs
An amicus curiae brief supporting Adam Stewart’s position was submitted by the Ohio Employment Lawyers Association. The Ohio School Boards Association filed an amicus brief supporting the Board of Education of Lockland Local School District.
- Carol Taylor
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Adam Stewart: Konrad Kircher, 513.229.7996
Representing the Board of Education of Lockland Local School District: David J. Lampe, 513.870.6700
Are Mandatory Sex-Offender Classifications Unconstitutional in Certain Cases?
Travis Blankenship v. State of Ohio, Case no. 2014-0363
Second District Court of Appeals (Clark County)
ISSUE: Do the mandatory sex-offender classifications in Ohio law constitute cruel and unusual punishment if the classification is grossly disproportionate to the nature of the offense and the character of the offender?
BACKGROUND:
Travis Blankenship, 21, and a 15-year-old girl first met through a web site for sharing user-created content. Blankenship told the girl his age, and she informed him she was 15. In 2011, they began a sexual relationship, and the teen later reported that the sex was consensual.
In May 2012, Blankenship pled guilty to unlawful sexual conduct with a minor, a fourth-degree felony.
As part of an investigation before Blankenship’s sentencing, he was evaluated by a psychologist. The psychologist concluded that while Blankenship had committed a sexually-oriented offense, he wasn’t a sex offender. The doctor cautioned the court about labeling Blankenship that way, and he recommended psychotherapy but not sex-offender therapy.
On September 28, 2012, the court sentenced Blankenship to five years of community control and six months in jail. Blankenship requested early release, which was granted by the court, and he served a total of 12 days. Based on state law, the court also classified him as a tier II sex offender.
With this classification, Blankenship must register in person with the county sheriff where he lives and where he attends school and/or works. He must verify his residential address and his place of employment and/or education every 180 days for 25 years.
Blankenship appealed the classification and registration requirements to the Second District Court of Appeals, which affirmed the trial court’s decision. He then filed an appeal with the Ohio Supreme Court, which agreed to hear the case.
Proportionality
The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment.
Attorneys for Blankenship note that a punishment must be proportionate to the crime. In challenges like this one alleging an Eighth Amendment violation, they maintain that the nature of the crime and the offender’s characteristics must be examined. In this case, the psychologist determined that Blankenship wasn’t a sex offender, was unlikely to commit another sex offense, and didn’t need sex-offender therapy, they assert. They contend that the punishment imposing a sex-offender classification and registration requirements was disproportionate to Blankenship’s offense and his nature.
In their briefs to the court, attorneys for Blankenship and for the state frequently cite to In re C.P., a 2012 Ohio Supreme Court decision that concluded it’s cruel and unusual punishment to impose automatic, lifelong sex-offender classification and notification requirements on juvenile sex offenders.
Attorneys from the Clark County Prosecutor’s Office argue the punishment in that case was found unconstitutionally disproportionate when applied to juveniles, not to adults such as Blankenship. They add that Blankenship also doesn’t identify a distinct group to which he belongs for the court to create a rule that those in that category can’t be subjected to sex-offender registration requirements.
U.S. Supreme Court’s Two-Part Test
Both sides also walk through a U.S. Supreme Court two-step analysis for reviewing Eighth Amendment cases – whether there is a national consensus against the sentencing practice at issue and whether, in its own independent judgment, the court concludes that a punishment violates the Constitution. A court’s independent judgment in these cases takes into account an offender’s culpability, the severity of the punishment, and penological justifications.
National Consensus Against Sex-Offender Classification?
Blankenship’s attorneys explain that Congress has passed several laws since the mid-1990s requiring states to implement sex-offender registries and community notification procedures with varying specificity and strictness. After Congress enacted the Adam Walsh Act in 2006, states had to pass similar laws or risk losing certain federal grant money. Ohio’s laws complying with the federal enactment were effective Jan. 1, 2008.
Blankenship’s attorneys point out that only 17 states have “substantially implemented” the federal law’s requirements. However, they admit that no national consensus against mandatory sex-offender classification exists.
Clark County’s attorneys point to a 2014 Gallup poll showing that 94 percent of Americans favor laws mandating registration for people convicted of child molestation. They conclude that there is substantial support across the country for sex-offender registries, and this support diminishes Blankenship’s Eighth Amendment claim.
Offender’s Culpability
Blankenship’s attorneys contend that Blankenship is part of a category of individuals who have committed sexually oriented offenses but aren’t sex offenders. While they state that those in this category are culpable for the sexually oriented offenses and should be punished for those crimes, they claim these individuals don’t deserve classification as sex offenders.
They argue the U.S. Supreme Court has relied on scientific studies in recent juvenile cases that found the brain is still developing into a person’s mid-20s. They assert that Blankenship has lesser culpability than older adults because he was 21, was less mature, and was involved in a consensual relationship.
Clark County’s attorneys view the category defined by Blankenship as a “slippery slope.” They counter that the legal meaning of “sex offender” is a person who is convicted of or pleads guilty to committing a sexually oriented offense, so Blankenship is a sex offender under Ohio law. They note that Blankenship improperly contacted the girl while his criminal case was pending and lied about it. Having sex with a young, impressionable girl and violating a court order to refrain from contact show a higher degree of culpability, they assert.
Severity of Punishment
Blankenship’s attorneys state that In re C.P. noted that registration and notification requirements involve stigmatization. They contend that this stigma will create 25 years of difficulties for Blankenship every time he seeks education, housing, and employment. Blankenship’s punishment is disproportionate to his crime, they argue.
The state’s attorneys stress that Blankenship faced a maximum prison sentence of 18 months, but served only 12 days in jail. They argue that his sentence, including sex-offender registration, isn’t so severe that it infringes on his Eighth Amendment rights.
Penological Justifications
The Ohio sex-offender classification and registration law’s purpose is to protect the public. Blankenship’s attorneys assert that the public doesn’t need protection from Blankenship, who isn’t a threat to society. They also cite research indicating that these registration and notification laws do little to protect the public generally. They argue his punishment can’t be justified as retribution or rehabilitation, and incapacitation doesn’t apply.
Clark County’s attorneys believe Blankenship’s sentence reflects an appropriate punishment in terms of the societal purposes of retribution and deterrence in sentencing.
Ohio Constitution
Again citing In re C.P., Blankenship’s attorneys contend that a punishment that “shock[s] the sense of justice of the community” is considered cruel and unusual punishment. It’s shocking to a reasonable person, they argue, to ask individuals who’ve committed sexually oriented crimes but who’ve been determined by a psychologist not to be sex offenders to classify them as sex offenders and require registration for decades. They maintain that Blankenship’s risk of reoffending was low, he had no prior felony record, and he didn’t pose a threat to the community – all of which demonstrate the disproportionality of his sentence to his crime.
The state’s attorneys don’t find Blankenship’s punishment shocking. Such classifications and notification requirements provide consolation and comfort to families and victims of sexual offenses, and this punishment wouldn’t be seen by reasonable Ohioans as shocking, they argue. Blankenship’s sentence doesn’t constitute cruel and unusual punishment, they conclude.
Friend-of-the-Court Briefs
Amicus curiae briefs supporting the State of Ohio’s position have been submitted by the Franklin County Prosecutor’s Office and the Ohio Prosecuting Attorneys Association.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Travis Blankenship: Katherine Ross-Kinzie, 614.466.5394
Representing the State of Ohio from the Clark County Prosecutor’s Office: Ryan Saunders, 937.521.1770
What Is the Meaning of “Domicile” When Determining Ohio Residency for Income Taxes?
Joseph W. Testa, Tax Commissioner of Ohio v. Kent W. and Sue E. Cunningham, Case no. 2014-0532
Ohio Board of Tax Appeals
ISSUES:
- Is a person’s “domicile” the place where the person has a true, fixed, and permanent home that continues until the person abandons it and intends to abandon it?
- Is this common law understanding of “domicile” incorporated into R.C. 5747.24, which determines whether a taxpayer has residency in Ohio?
BACKGROUND:
In 1992, Kent and Sue Cunningham bought a six-bedroom, 4,000 square-foot home in the Cincinnati area. On their federal income tax form for tax year 2008, the retired doctor and teacher listed their primary residence at this address. A second house they built in Tennessee in 1993 was listed as a vacation home.
In March 2009, Dr. Cunningham filed an affidavit declaring that his domicile for 2008 was in Tennessee. Mrs. Cunningham didn’t submit such a statement, and the couple didn’t file an Ohio income tax return in 2008.
Ohio’s tax commissioner assessed a penalty against the Cunninghams. He concluded that their permanent home was in Ohio, that Dr. Cunningham’s affidavit was false, and that they had to pay Ohio income taxes.
The Cunninghams appealed to the Board of Tax Appeals (BTA). The BTA determined that Dr. Cunningham met the requirements, including filing an affidavit, in one provision of R.C. 5747.24 and that he was entitled to a presumption that he wasn’t domiciled in Ohio for 2008. Mrs. Cunningham, however, wasn’t entitled to the presumption because she didn’t provide an affidavit.
The tax commissioner filed an appeal of the BTA’s decision regarding Dr. Cunningham’s tax status to the Ohio Supreme Court.
Tax Commissioner’s Conclusions
The tax commissioner is represented by the Ohio Attorney General’s Office in this case. The attorneys argue that no one can have more than one domicile at the same time and that an original domicile continues until a person actually resides in another domicile with the intention of abandoning the first residence.
They note that the Cunninghams have spent their lives in Ohio, voted in Ohio for the last 20 years, had drivers’ licenses issued in the state for decades, registered their vehicles in the state, paid income taxes in Ohio every year prior to 2008, and listed the Cincinnati house as their primary address on their 2008 tax return. They also have taken property tax deductions that are available only to people who reside in the state.
The tax commissioner’s attorneys assert that the Cunninghams haven’t established a domicile anywhere other than Ohio. They add that the Cunninghams have shown no evidence that they abandoned the Cincinnati residence and have replaced it with another one outside Ohio. And, the tax commissioner’s attorneys note, the Cunninghams didn’t file or pay state income taxes in Tennessee either.
To receive the presumption under R.C. 5747.24(B) that one wasn’t domiciled in Ohio, a person must provide a statement verifying that he or she wasn’t domiciled in the state for the full tax year and had at least one “abode,” or place where the person lived, outside of Ohio. The tax commissioner’s attorneys contend that the BTA wrongly believes this provision only requires spending more than half the year outside Ohio and having a place out of state. This interpretation, they argue, overlooks the common law meaning of “domicile” – a true, fixed, permanent home to which the person intends to return whenever the person is absent.
Taxpayers’ Contentions
Attorneys for the Cunninghams first agree that the couple was domiciled in Ohio based on the common law rules. However, they contend that Dr. Cunningham also met the requirements for non-residency status under R.C. 5747.24(B) for Ohio income tax purposes. This status applies only when filing state income taxes, they maintain.
The statute’s applicable division requires that the taxpayer have no more than 182 Ohio “contact periods” during the tax year, have at least one abode outside Ohio for the entire year, file a specific form claiming non-resident tax status, and not make a false statement on the form.
The Cunninghams’ attorneys argue that Dr. Cunningham had 167 contact periods – less than six months – in Ohio in 2008; owned the Tennessee house for the full year; and properly filed an affidavit of non-Ohio residency.
They also maintain that Dr. Cunningham didn’t make a false statement in his affidavit. They concede that if he made a false statement, he isn’t “irrebuttably presumed” to be a non-Ohio resident for his 2008 income taxes and would be taxable as an Ohio resident.
They note that R.C. 5747.24(B) states that the taxpayer filing the statement can’t be “domiciled in this state under the division.” They stress that the meaning of “domiciled” here relates to the number of “contact periods” in the state and having an out-of-state residence, but it doesn’t have the same meaning as under common law. Meeting the elements of common-law domicile isn’t required by this provision, they maintain. They conclude that Dr. Cunningham believed he was filling out the form correctly based on the division’s meaning of “domiciled” rather than the common law meaning.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Joseph W. Testa from the Ohio Attorney General’s Office: Daniel Fausey, 614.466.5967
Representing Kent and Sue Cunningham: James Mottley, 614.221.2838
Can Trial Judge Impose “No Contact” Order When Sending Offender to Prison?
David M. Anderson v. State of Ohio, Case no. 2014-0674
Ninth District Court of Appeals (Summit County)
ISSUES:
- Once a judge sentences a defendant to prison, does the judge retain the authority to order the inmate not to have contact with the victim, or does that authority rest solely with the Ohio Department of Rehabilitation and Correction or other correction authorities?
- If state law is silent on the nature of a “non contact” order does a judge have the discretion to add it to a prison sentence?
BACKGROUND:
David M. Anderson was sentenced to 17 years in prison for the rape and kidnapping of a woman he offered a ride to as she was on her way to volunteer at a local church. The woman did not appear in court at the sentencing, but her boyfriend read a letter she wrote saying she was scared, suicidal, and had lost trust in people. While the letter did not specifically request Anderson not contact her, the trial court ordered Anderson not to contact the victim as part of his sentence.
Anderson appealed his sentence to the Ninth District Court of Appeals on several grounds. While the prison sentence was upheld unanimously, the appeals court split 2-1 on the issue of the trial court’s authority to impose the no contact order. At the heart of the difference is whether a no contact order fits in the category of community control and if so, can it be imposed when a mandatory prison sentence is required by law.
The appeals court ruling that the order was proper is in conflict with several other Ohio appellate courts that have considered a no contact order to be part of community control. The Ohio Supreme Court agreed to consider the conflict.
Prison or Community Control
Attorneys for Anderson argue that state law specifically directs judges to follow two different procedures at sentencing, one when sending an offender to prison and another when ordering community control sentences. They insist the courts are not allowed to impose “hybrid sanctions” allowing for both imprisonment, and additional sanctions considered to be community control. Citing the 2014 State v. Taylor Ohio Supreme Court decision, they claim judges do not have the discretion to modify sentences when the law dictates the sanctions.
“Judges have no inherent power to create sentences. Rather judges are duty-bound to apply sentencing laws as they are written. The only sentence which a trial judge may impose is that provided for by statute,” they write in the brief to the court, noting the State v. Taylor ruling.
Anderson’s rape conviction carries a 10-year mandatory sentence as proscribed in R.C. Chapter 2913. The statute indicates that if a court imposes a mandatory prison term for the offense, it may not impose community control sanction. R.C. Chapter 2917 provides for community control and includes an incomplete list of the type of sanctions allowed such as house arrest, intensive probation supervision, electronic monitoring, and drug treatment programs. No contact orders are not listed.
Anderson’s attorneys also argue that the no contact order violates the Ohio Constitution’s separation of powers doctrine indicating it is the role of the executive branch to carry out the punishment of the sentence. Once an offender is committed to the prison system, the Ohio Department of Rehabilitation and Correction (DRC) has legal custody over the inmate, their brief states. DRC has several rules governing inmate behavior including the prohibition of inmates using the phone or mail to harass, intimidate, or annoy another person. They also suggest there is no penalty for violating a judge’s no contact order other than to send the person to prison. If the judge were to cite an inmate for criminal contempt of the order, it would open the possibility for the inmate to seek discovery and subpoena witnesses to challenge the order, as well as requiring the inmate to be transported out of prison and back to the sentencing court for proceedings. Instead of a judicial imposition, they argue prison authorities can impose a no contact order at the request of the victim.
Not a Community Control
Attorneys from the Lorain County Prosecutor’s Office advocate the position taken by the Ninth District majority that a no contact order is not a community control. The appellate court indicated its absence from the list of community control sanctions in the statute meant the other appellate courts made their own determinations that no contact orders cannot be used in combination with a mandatory sentence. In contrast to Anderson’s argument, they propose that a no contact order is akin to an order of restitution, which trial courts are within their power to order when sentencing an offender to prison.
“Not unlike restitution which, pursuant to R.C. 2929.18, may be ordered whether or not the defendant has been sentenced to prison, a no contact order provides a means to attempt to restore the victim, even where that restoration manifests as peace of mind,” they note in the state’s brief, citing the appeals court decision.
While DRC can restrict prisoner movements, offenders can contact the outside world and their victims through mail and phone calls, and the victim should not have to wait until being contacted before the DRC takes measures to prevent it again, they argue. The law allows judges to issue any sanction they deem appropriate, and that the trial court could infer from the victim’s letter that she wanted no further contact with Anderson, they offer.
“Sentencing courts must consider the victim’s physical or mental injury as a result of the offense when determining the appropriate sentence for an offender,” they conclude.
As to the separation of power, they argue that court is not proscribing the punishment if the order is violated, but rather the order puts the DRC on notice that contact is not allowed. If the inmate violates the order, then the prison can use its rules and authority to issue and further punishment, they suggest.
Friend-of-the-Court Briefs
The Office of the Ohio Public Defender filed amicus curiae brief in support of Anderson’s position. The Office notes that it represents criminal defendants post-trial and that no contact orders placed on offenders means the attorneys representing them also cannot have contact with the victims. Preventing contact could have unintended consequences that could prevent access to additional evidence needed in appeal, or could stall any attempts of reconciliation between the victim and offender, the office argues.
- 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 Lorain County Prosecutor’s Office: Natasha R. Guerrieri, 440.329.5389
Representing David M. Anderson: Neil P. Agarwal, 330.554.7700
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