Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, June 9, 2015

Romell Broom v. State of Ohio, Case no. 2012-0852
Eighth District Court of Appeals (Cuyahoga County)

City of Akron v. Ohio State Department of Insurance et al., Case no. 2014-0738
Tenth District Court of Appeals (Franklin County)

Village of Piketon, Ohio v. Boone Coleman Construction, Inc., Case no. 2014-0978
Fourth District Court of Appeals (Pike County)

Is It Cruel and Unusual Punishment to Proceed with Second Execution Attempt?

Romell Broom v. State of Ohio, Case no. 2012-0852
Eighth District Court of Appeals (Cuyahoga County)


  • Do the cruel and unusual punishment clauses of the U.S. and Ohio constitutions prevent a second attempt to execute a man sentenced to death?
  • Should the trial court have allowed discovery and a hearing in the post-conviction relief case? Did the appellate court err by adopting a “deliberate indifference” standard to review the man’s claims and then refuse to remand the case to the trial court for consideration?
  • Does a second attempt to execute the man punish him twice for the same crimes, a violation of the constitutional prohibitions against double jeopardy?

A jury convicted Romell Broom in 1985 for the aggravated murder, rape, and kidnapping of Tryna Middleton, 14, in Cleveland. Broom was also found guilty of attempted kidnapping. The trial court sentenced the 29-year-old man to death plus decades of prison time on some charges.

After losing multiple appeals, Broom was scheduled for execution on September 15, 2009. That afternoon, the execution team attempted to insert IV lines for the administration of lethal injection drugs based on the protocols in place at the time. After about 45 minutes of trying unsuccessfully, the team took a break. They then made further attempts without success. After two hours of efforts, they determined that placing an IV line wasn’t possible that day, and at the request of the head of the correction department, the governor granted a reprieve from the execution for seven days. In the interim, Broom filed a lawsuit in a federal court, which stayed his rescheduled execution.

In September 2010, Broom filed a petition for post-conviction relief, which presented claims of constitutional violations. The trial court denied the requested relief, and Broom appealed. The Eighth District Court of Appeals affirmed the trial court’s decision in February 2012. Broom asked the Ohio Supreme Court to review several issues, and the court agreed to consider three of his arguments.

Broom: Another Attempt Is Cruel and Unusual Punishment
Attorneys for Broom claim that the execution team didn’t follow the state protocol in effect in September 2009. Specifically, they assert that some required training wasn’t completed, one of the three physical exams of Broom’s veins before the execution time was skipped, and a doctor who wasn’t on the team was improperly brought into the execution to assist. These mistakes contributed to the cruel and unusual punishment of a failed execution, they argue.

In addition, the federal and state constitutional protections against cruel and unusual punishment shield Broom from another effort to execute him because the state didn’t follow its protocol or stop his unnecessary pain and suffering during the first execution attempt, they maintain.

They note that the appeals court ruled that Broom’s execution hadn’t begun because no drugs had been administered through the IV. They contend that this view defies common sense and the common understanding of “attempt” in criminal statutes. In this case, the execution began at the latest when the team started inserting the needles for the IV line, they argue.

“Once the [s]tate took a substantial step towards carrying out the execution, the attempt to execute Broom had begun,” they write in the brief to the court. “Where, as in this case, bodily intrusions for the purpose of causing death had been made, the execution process was clearly underway.”

They assert that Broom has a viable Eighth Amendment claim because he was subjected to an attempted execution that failed through no fault of his own, and because the state had a duty to ensure there was no failure. Citing the dissent in State of Louisiana ex rel. Francis v. Resweber, a 1947 U.S. Supreme Court ruling about whether a Louisiana man could be executed after the first attempt had failed, they describe another effort to execute Broom as “death by installments.” They also point to R.C. 2949.22(A), which requires the “lethal injection of sufficient dosage to quickly and painlessly cause death.”

The State: Executing Broom Isn’t Cruel and Unusual Punishment
Counsel from the Ohio Attorney General’s Office also discuss Resweber. They argue that court’s plurality held that the U.S. Constitution protects against cruel methods of punishment, not the suffering involved in a humane execution method. And the court stated that when an accident occurs that prevents an execution, a subsequent execution isn’t inherently cruel, they note.

They contend that the state never completed the preparation for Broom’s execution and that the execution hadn’t begun because he wasn’t injected with the lethal drugs. They assert that the subsequent delay in Broom’s execution after the process was stopped didn’t create an Eighth Amendment violation.

In Cooey (Biros) v. Strickland (2009), the Sixth U.S. Circuit Court of Appeals rejected claims similar to Broom’s, the state’s attorneys argue. Among other conclusions, the court ruled that severe pain from attempts to establish IV lines isn’t a basis for an Eighth Amendment violation and there is no constitutional mandate to limit the time it takes to access an inmate’s veins, they maintain.

They add that the court also held there is no right to a quick and painless death under state law. Instead, the court stated the statute creates a right only to have a sufficient dosage of drugs to cause a quick and painless death, they argue.

Quoting a 2012 Ohio Supreme Court case (In re C.P.), they assert that nothing in this case is “rare” or “shocking” enough to support a cruel and unusual punishment claim.

“Broom was lawfully sentenced to death, a sentence that was routinely upheld,” they write in the brief to the court. “His manner of execution was deemed constitutional. … The fact that his previously scheduled execution was unsuccessful does not diminish the constitutionality of his sentence.”

Does Deliberate Indifference Standard Apply?
Broom’s attorneys note that the Eighth District looked at whether the state actors “had the requisite intent to cause unnecessary pain” and concluded that Broom hadn’t alleged that the execution team knew the risks to him when not following the protocols or trying to insert the IV. Broom’s attorneys argue this “deliberate indifference” standard applies only to cases involving the duty to keep inmates safe, healthy, and alive during their confinement, not to cases in which state actors must end a life based on a death sentence. But given this “new standard,” they contend that the case should have been sent back to the trial court so evidence and arguments could have been presented.

On the other hand, the state’s attorneys believe the appeals court correctly adopted the standard, which considered the state actors’ intent. They maintain that the standard allowed the court to consider deprivations that weren’t part of the punishment but occurred when implementing the sentence. They add that the appeals court didn’t have to send the case back to the trial court because state law doesn’t mandate that Broom had a right to discovery or a hearing in his post-conviction review, and no factual disputes needed to be resolved.

Is Broom Being Punished Twice?
Broom’s attorneys maintain that Broom is being subjected to multiple punishments for the same crime, or double jeopardy. They contend that, based on precedent, once a sentence begins, and is reasonably expected to be completed, the sentence can’t be increased or augmented without violating double jeopardy protections. These claims are dependent on the facts of each case, they maintain, and Broom had a reasonable expectation that he was to be executed on September 15, 2009. No accident happened that prevented Broom’s execution; instead, the state’s missteps put it at fault, they argue.

The state’s attorneys counter that Resweber stated that setting a new execution following an equipment failure is no different than ordering a new trial. Broom hasn’t shown that the state “maliciously or intentionally chose to postpone or prolong his execution for the purpose of subjecting him to additional physical or psychological pain.” Given that, the state can move forward in administering Broom’s sentence, which has not yet been carried out, they maintain.

Friend-of-the-Court Brief
An amicus curiae brief supporting Romell Broom’s position has been submitted by the Office of the Ohio Public Defender.

- Kathleen Maloney

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

Representing Romell Broom: S. Adele Shank, 614.326.1217

Representing the State of Ohio from the Ohio Attorney General’s Office: Katherine Mullin, 216.787.5847

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Does State Insurance Department Have Jurisdiction Over Coordination of Benefits Between Health Plans for Akron Retirees?

City of Akron v. Ohio State Department of Insurance et al., Case no. 2014-0738
Tenth District Court of Appeals (Franklin County)


  • Are the group health plans offered to Akron’s retired police officers and firefighters uninsured agreements or group-type contracts that fall under the jurisdiction of the Ohio Department of Insurance?
  • Does the definition of “person” in R.C. 3901.04(A)(2), which includes “any other legal entity,” apply to all sections in Title 39, which governs insurance in the state?
  • Are the City of Akron, the Ohio Police and Fire Pension Fund, and Medical Mutual of Ohio third-party payers, as defined in R.C. 3901.38(F)?

Akron’s retired police and firefighters, or their survivors, receive primary medical benefits through the Ohio Police and Fire Pension Fund and supplemental health coverage from the city. While employed by the city, police officers and firefighters contributed 10 percent of their salaries to the fund, and the city made additional contributions to the fund for each officer or firefighter. Akron also pays for the supplemental coverage it provides to retirees. Claims are first processed by the pension fund’s plan and then can be submitted to the city’s supplemental program.

After the pension fund significantly raised the medical premiums for retirees in 2003, retired firefighter Timothy Metcalfe and retired police officer William Biasella filed a class-action lawsuit in Summit County claiming their primary health coverage should be directly from the city rather than through the state pension fund. They lost that suit on appeal. The Fraternal Order of Police also filed related grievances based on the collective bargaining agreements entered into by the police and firefighters.

In November 2005, Biasella and Metcalfe sued again on behalf of retired officers and firefighters, alleging improper coordination of benefits between the pension fund and the city, and claiming civil conspiracy. The city and the pension fund filed motions asking the Summit County court to temporarily stop the proceedings. The court agreed to stay the case in order to refer it to the Ohio Department of Insurance to decide whether the department had jurisdiction to consider the issues and, if so, to rule on them.

The state insurance department determined that the city’s health plan was under its jurisdiction and that the city had committed an unfair and deceptive act because it had violated coordination of benefits provisions in state law. In July 2010, the agency ordered Akron, the pension fund, and Medical Mutual (which provides third-party administrative services to both plans) to stop breaking the law and to appropriately coordinate the retirees’ benefits based on the plan’s terms and the law.

The city, the pension fund, and Medical Mutual each appealed the insurance department’s decision to the Franklin County Common Pleas Court, which hears appeals from administrative agencies. The court ruled the insurance department had no jurisdiction over the city’s supplemental health-care plan. Metcalfe, Biasella, and the state insurance department appealed to the Tenth District Court of Appeals, but the appeals court agreed with the common pleas court.

Metcalfe and Biasella appealed to the Ohio Supreme Court, which decided to consider the issues. The department of insurance waived its opportunity to respond in the case.

Insurance Department’s Jurisdiction
Akron’s supplemental medical benefits package for retirees and the state pension fund’s health coverage are government self-funded plans. Attorneys for the retirees assert that the courts have improperly focused on whether the plans are “insurance.” However, they argue, Title 39 gives the superintendent of insurance power over several types of plans, including “uninsured arrangement[s] of group or group-type coverage” and “group-type contracts.” In addition, the rules don’t exclude government self-funded plans. When reading the rules and the statutes regarding coordination of benefits, they contend that it’s clear the plans come under the jurisdiction of the insurance department. The appeals court’s ruling leaves self-funded plans subject to no regulation, they maintain.

They note that the city and the pension fund both claimed in their motions to the Summit County court that Ohio law gives the superintendent of insurance authority over the allegations of insurance violations made in this case. Yet the city and pension fund now don’t think the insurance department has jurisdiction because it decided in favor of the retirees, they argue.

Attorneys for Akron counter that the city isn’t one of the entities regulated under the statutory definition of “insurance.” In their view, the administrative rules don’t include self-funded plans because there is no insurance provided to retirees or any insureds. They argue as well that the definition of “insurer” in state law specifically exempts an “instrumentality of a state or political subdivision of the state,” and Akron is a political subdivision.

They add that the insurance department has repeatedly sent out letters to retirees in these plans telling them the plans aren’t regulated by the agency.

Attorneys for the state pension fund, which provides the primary medical coverage for the retirees, note that its activities are governed by another chapter in state law – R.C. Chapter 742 – which created the fund. In addition, they assert that the retirees haven’t described how the fund has violated any insurance regulations and point out that the fund has paid all claims. They maintain that the case was transferred from Summit County to the insurance department because the lawsuit invoked insurance department regulations, so those claims had to be considered first by the state agency.

Are the City and the Pension Fund “Persons,” As Defined in State Insurance Law?
The retirees’ attorneys argue that the relevant definition of “person” in state law includes “any other legal entity” and this definition is referred to in R.C. 3901.04, which describes the insurance superintendent’s powers for purposes of the entire chapter governing insurance. As a result, the department’s conclusion that the city committed an unfair or deceptive act falls within the insurance laws because the city is a “legal entity.”

The city’s attorneys maintain that different definitions of “person” apply to various parts of Title 39. They contend that the definition used by the retirees doesn’t apply to the coordination of benefits provisions in R.C. Chapter 3902. Instead, the meaning of “person” in R.C. 1.59(C) applies for that issue, and that definition specifically excludes political subdivisions. The pension fund’s attorneys maintain that no definitions, including those for “person,” in the insurance chapter are relevant to the fund at all.

Are the City and the Pension Fund “Third-Party Payers”?
The retirees’ attorneys assert that under R.C. 3901.38 a “third-party payer” includes an employer, a labor organization, and a person “obligated pursuant to a benefits contract to reimburse for covered health care services rendered to beneficiaries under such contract.” The city qualifies as both an employer and a person obligated by a benefits contract, and must properly follow state law governing the coordination of benefits, they argue. The pension fund must obey state coordination of benefits law, too, because it is a labor organization and a person obligated by a benefits contract, they add. Medical Mutual is also required to adhere to the law as an insurance company and an obligated person as defined in the statute, they maintain.

The city’s attorneys counter that the insurance laws don’t mention self-funded programs sponsored by political subdivisions, so the insurance laws don’t pertain to this case. The fund agrees.

Medical Mutual’s Position
Attorneys for Medical Mutual state in a brief to the court that the insurance company joins the arguments made by the city of Akron. They also point to the insurance department’s own correspondence stating that it doesn’t have jurisdiction over self-funded plans. And they maintain that retirees aren’t left without a remedy – they can make claims based on the rules of contracts. They also note the company isn’t acting as an insurance company for these plans, but rather provides third-party administrative services for the plans.

Oral Argument Waived
The Department of Insurance didn’t submit a merit brief in the case and therefore has waived its participation in oral arguments.

Additional Brief
An amicus curiae brief supporting the retirees’ position has been submitted by the Fraternal Order of Police, Akron Lodge #7.

- Kathleen Maloney

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

Representing William Biasella and Timothy Metcalfe: Susannah Muskovitz, 216.621.2020

Representing the City of Akron: Paul Jackson, 330.376.2700

Representing Medical Mutual of Ohio: Michael Smith, 216.515.1660

Representing the Ohio Police and Fire Pension Fund from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

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Did Appellate Court Decision Essentially Rewrite Construction Contract’s Application of Liquidated-Damages Clause?

Village of Piketon, Ohio v. Boone Coleman Construction, Inc., Case no. 2014-0978
Fourth District Court of Appeals (Pike County)


  • Must a court analyze a liquidated-damages provision of a construction contract prospectively, based on the per-diem amount of the liquidated damages at the time the contract was executed? Or must the court analyze such a contract retrospectively, based on the total, actual liquidated damages that accrue?
  • Are liquidated damages a penalty because no proof of actual damages is required to enforce a contract’s liquidated-damages clause?

In 2007, the Village of Piketon solicited competitive bids for a road construction project. The Boone Coleman Construction Company was the low bidder at $683,300. On July 27, 2007, the village and the construction company entered into a standard industry-form contract for the project.

In both its bid and signed contract, Boone Coleman agreed to complete the project in 120 days and, for each unexcused project delay, the construction company agreed to a liquidated-damages base rate of $700 per day. According to attorneys for the village, this per-diem rate was both consistent with Ohio construction industry standards and $60 less than what the state of Ohio then required for each day of delay for Ohio Department of Transportation (ODOT) road construction projects of similar amounts. Further, R.C. 153.19 requires public construction contracts paid with state money – as this project was – to include such liquidated-damages clauses.

On May 22, 2008 – eight days before the project deadline of May 30, 2008 – the village notified Boone Coleman that if the work was not completed on schedule, it would, as per the agreement, begin to assess liquidated damages in the amount of $700 per day. On June 7, 2008, it further notified Boone Coleman that the village was indeed assessing the damages’ fee until the project was complete. The construction company completed its work 397 days after the deadline.

Per the village’s attorneys, Boone Coleman was fully responsible for the project delays. In addition, the company was contractually required to notify the village in writing of any claims for additional money or time for the project. In regard to its project delay, Boone Coleman made no written claim to the village for either.

Following its project completion on July 1, 2009, Boone Coleman, in January 2010, filed a complaint in the Pike County Common Pleas Court demanding full payment of its remaining contract balance without any deduction for liquidated damages for delay. It also requested additional payment for extra-work claims, even though it did not provide the village with contractual notice of the claims.

Upon the village’s motion for summary judgment, the common pleas court on Dec. 4, 2012, entered judgment for the village for a total of $130,423 (equaling the liquidated damages award, less the remaining contract balance, plus post-judgment interest at the statutory rate).

The company appealed the decision to the Fourth District Court of Appeals in January 2013. In May 2014, the appellate court affirmed the trial court’s decision denying Boone Coleman’s claims for additional time and money. (The Piketon attorneys point out that the construction company did not appeal either court’s decision denying its claim for additional payment.)

The Fourth District’s decision, however, went on to address the liquidated-damages total and reversed part of the trial court’s ruling, concluding that “the liquidated damages clause here constituted an unenforceable penalty.”

On June 11, 2014, Piketon filed a notice of appeal with the Supreme Court, as well as a motion to stay the district appellate court’s decision, which the Supreme Court denied. The Supreme Court accepted Piketon’s appeal in October 2014.

Samson Sales Test
In applying the Ohio Supreme Court’s three-prong Samson Sales test from 1984 (Samson Sales, Inc. v. Honeywell, Inc.) regarding contracts, the village’s attorneys stated the appellate court correctly interpreted two of Samson’s three points. They maintain, however, that the Fourth District deviated from the Samson Sales test on the second point; the appellate court wrote, “…When we view the contract as a whole in its application, we conclude the amount of damages is so manifestly unreasonable and disproportionate that it is plainly unrealistic and inequitable.”

The Piketon attorneys argue that by adding the words, “in its application,” the district court changed the interpretation of the decision. Specifically, the village’s attorneys state: “The Fourth District’s erroneous addition changed the forward-looking analysis of liquidated damages clauses established by Samson Sales (analyzing the reasonableness of the damages rate fixed in the clause at the time of contracting and compared to the whole contract) into a retrospective analysis that determines ‘reasonableness’ only after multiplying the stipulated per diem by the length of the contractors’ inexcusable delay to see what award the clause ‘produced.’”

Piketon asks the Supreme Court to correct the Fourth District’s “error” and affirm “that under Ohio law when analyzing a per-diem liquidated damage clause in a construction contract, Ohio courts must assess the reasonability and proportionality of the daily rate as of the time of contracting.”

In addition, the village argues that the Fourth District’s modification of the second prong of Samson “impermissibly rewrote” the construction contract “to achieve what it perceived to be a more equitable result,” and in doing so, the district court “nullified the liquidated damages clause by considering a variable (the number of days Boone Coleman delayed the project) unknown to either party at the time of contracting.”

The village maintains that liquidated damages are not a penalty, because no proof of actual damages is required to enforce liquidated damages spelled out in a contract. This is in conflict with the Fourth District’s decision, which stated that since there was no history of accidents at the construction intersection or loss of a traffic signal, then no actual damage occurred due to Boone Coleman’s project delay. The village, however, contends this point is irrelevant because a central part of the project was to install a new traffic signal. Thus, no historical evidence was available for something new.

Construction Company Argues “Whole” Contract Must Be Considered
In response to the village’s arguments, Boone Coleman’s attorneys state, “When making a determination as to whether a stipulated damages provision in a contract is fair compensation for the aggrieved party or an unlawful penalty, the court must look at both the circumstances existing at the time the contract was entered into, as well as look at the contract as a whole, including the application of the liquidated damages clause to the facts and circumstances of the contract’s performance.”

The construction company argues that adopting a “blanket rule” in every case challenging liquidated damages would create a “myopic perspective” at the time a contract is entered into and require a determination at that time whether a damages clause was intended to “provide an aggrieved party to the contract fair compensation or whether it is designed to be a penalty for nonperformance.”

Additional Brief
A brief of amicus curiae was filed in support of Piketon by the County Commissioners Association of Ohio, the Ohio Municipal League, the Ohio School Boards Association, and the Ohio Township Association. Additionally, the Supreme Court granted a motion by these four groups to share the 15 minutes of oral argument time allotted to the village.

- Carol Taylor

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

Representing the Village of Piketon: Eric B. Travers, 614.462.5400

Representing Boone Coleman Construction, Inc.: Stephen C. Rodeheffer, 740.354.1300

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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.