Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, June 23, 2015

Ohio Bureau of Workers’ Compensation v. Heritage-WTI, Inc., et al., Case no. 2014-0795
Seventh District Court of Appeals (Columbiana County)

Patricia J. Shondrick-Nau, Executrix of the Estate of John R. Noon v. Jon D. Walker Jr., Case no. 2014-0803
Seventh District Court of Appeals (Noble County)

Disciplinary Counsel v. Thomas J. Simon, Case no. 2014-2155
Ashtabula County

State ex rel. Robert L. Walgate Jr., et al. v. John R. Kasich et al., Case no. 2013-0656
Tenth District Court of Appeals (Franklin County)

Did Personal Injury Settlement Exclude Reimbursement to Workers’ Compensation Bureau?

Ohio Bureau of Workers’ Compensation v. Heritage-WTI, Inc., et al., Case no. 2014-0795
Seventh District Court of Appeals (Columbiana County)

ISSUE: When a claimant who has received workers’ compensation settles a lawsuit with a third party for the same injury, are the claimant and the third party jointly and severally liable for reimbursing the Bureau of Workers’ Compensation’s for its payments?

While building scaffolding inside a boiler for his employer in July 2003 at an East Liverpool facility, Jeffrey McKinley was severely burned. The facility was owned by Heritage-WTI. The Bureau of Workers’ Compensation approved McKinley’s claim for compensation and medical benefits following his injuries.

McKinley also filed a lawsuit in August 2003 against Heritage-WTI. In late October 2004, McKinley’s lawyer informed the bureau about the lawsuit and that the parties were trying to negotiate a settlement. The bureau notified McKinley’s lawyer that, based on what it had paid and planned to pay to McKinley for his injuries, the bureau was owed $885,809. In additional correspondence, McKinley’s lawyer indicated that a possible settlement of $1.5 million would be reached, and the bureau agreed to lower the amount it was owed to $338,856. The lawyer suggested a lesser amount, which the bureau rejected. A hearing was scheduled before the bureau on Jan. 10, 2005.

McKinley and Heritage agreed to a settlement on Dec. 10, 2004. The settlement paid the worker a lump sum of $1.1 million plus monthly installments for 30 years, resulting in an additional $972,893.

The bureau attorneys, McKinley, and Heritage attended the hearing, and the bureau’s hearing officer determined that $338,856 was a reasonable payout to the bureau and should be paid.

McKinley filed suit in Washington County, where he lived, and challenged the constitutionality of the relevant statutes and the amount owed to the bureau. The trial court agreed, but the Fourth District Court of Appeals reversed the ruling. On appeal, the Ohio Supreme Court affirmed the appeals court’s decision.

In November 2008, the bureau then filed a lawsuit in Columbiana County, where the injury happened, to recover the money. After appeals through the legal system, the Ohio Supreme Court ruled that a six-year statute of limitations applied to the case, and it was sent back to the trial court, which then determined that the bureau couldn’t collect the money from Heritage. The Seventh District Court of Appeals agreed, given its reading of the relevant statute. The bureau appealed to the Supreme Court, which agreed to hear the case.

State Law
R.C. 4123.931(G) states that no settlement is final unless the claimant gives the “statutory subrogee” – in this case the bureau – prior notice and a reasonable opportunity to assert its right to be reimbursed for its payments. The statute also provides that if the notice isn’t given, “or if a settlement or compromise excludes any amount paid” by the bureau, then the third party and the claimant “shall be jointly and severally liable” to compensate the bureau.

Bureau’s Arguments
The Attorney General’s Office, representing the bureau, contends that the Dec. 10 settlement agreement was reached in secret without the bureau’s required involvement. The attorneys argue that the bureau in fact never saw the settlement until 2012. That 2004 “secret agreement” changed the $1.5 million settlement estimated in correspondence from McKinley’s lawyer to more than $2 million total over 30 years – a fact that wasn’t discussed at the January 2005 hearing, they maintain.

They add that the settlement also didn’t explicitly include the amount to be paid to the bureau. The settlement then effectively excluded reimbursement to the bureau, which violates the statute, they assert.

They point out that an indemnification clause in the settlement released Heritage from “any and all medical or other liens or claims, or subrogation claims or liens,” leaving McKinley solely responsible for paying the bureau. While the lower courts ruled that the settlement said nothing that excluded the payment to the bureau or the agency’s right to collect the money, the bureau’s attorneys argue that the settlement’s release of Heritage from liability if the bureau’s lien wasn’t paid broke the law. The bureau has a right to sue Heritage, as well as McKinley for reimbursement, they conclude.

Heritage’s Position
Attorneys for Heritage argue that the settlement was $1.5 million – paying $1.1 million in a lump sum and placing $400,000 into a 30-year annuity (generating additional payments totaling $972,893). Despite the claims of a “secret agreement,” they note that two bureau attorneys attended the January 2005 meeting, which approved a $338,856 payment to the bureau and ordered McKinley to pay the state agency from the settlement within 30 days. They contend that the bureau’s lawyers never requested during that meeting that the bureau be paid directly by Heritage.

They assert that Heritage can’t be held liable because no evidence shows that the bureau was excluded from being paid by the settlement’s terms. They maintain that the bureau has a right to recover the money, but the bureau is pursuing the wrong party because the settlement instructed McKinley to pay all liens. State law doesn’t require the settlement to specifically list the bureau and the amount it is owed, they argue. Rather, the statute only prohibits the agreement from specifically “excluding” that reimbursement in the settlement’s terms, they contend.

They also argue in the brief to the court that the bureau in its November 2004 correspondence with McKinley’s lawyers “unilaterally restricted the scope of its participation by merely asking for a check and a signed copy of the release.” As required by the law, the bureau had a reasonable opportunity to assert its interest for reimbursement and wasn’t excluded from the settlement process, they conclude.

Worker’s Amicus Brief
Attorneys for McKinley filed an amicus curiae brief supporting Heritage in the case. They contend that the statute is poorly written and contains “several glaring flaws.” They argue that the law should explicitly state that the bureau is entitled to recover from a claimant the part of a settlement that creates a double recovery of benefits. In their view, McKinley didn’t recover twice for his injuries because he wasn’t made whole by the settlement with Heritage. They assert that the bureau has no rights under the statute because the settlement didn’t violate the law.

Additional Filing
Also supporting Heritage’s position in a friend-of-the-court brief is the Ohio Association of Civil Trial Attorneys.

- Kathleen Maloney

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

Representing the Ohio Bureau of Workers’ Compensation from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

Representing Heritage-WTI, Inc.: Donald Kasson, 614.228.1311

Representing Jeffrey McKinley: Thomas Beausay, 614.224.8166

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Did Former Ohio Law Allow Surface Owners to Claim Mineral Rights Without Notifying Inactive Mineral Rights Owners?

Patricia J. Shondrick-Nau, Executrix of the Estate of John R. Noon v. Jon D. Walker Jr., Case no. 2014-0803
Seventh District Court of Appeals (Noble County)


  • Was the 1989 Dormant Mineral Act (DMA) a self-executing law that required mineral owners to take an action before March 1992 to preserve their rights or face automatically losing them to the surface owners?
  • Did the 2006 version of the DMA clarify that the 1989 act never meant to be a “use it or lose it” law, and required surface rights owners to serve notice to dormant mineral rights owners before attempting to acquire rights?
  • Can surface rights owners who did not file to acquire the mineral rights until after 2006 claim the 1989 version of the DMA applies to their circumstances, or does only the 2006 version of the law apply?

The heart of the dispute between Jon D. Walker Jr. and the estate of John R. Noon is what version of Ohio’s DMA applies to the 42 acres of land in Noble County that Noon owned.

Noon first acquired the property in 1964. In 1965, he sold the surface rights to the property and expressly reserved the oil and gas mineral rights under the surface. Twice in 1970, and again in 1977, the surface property was transferred among owners. With each transfer, the recorded conveyances specifically referenced by volume and page number that Noon had reserved the oil and gas rights.

In November 2011, Walker, who had purchased the land, sent a notice of abandonment of the mineral rights to Noon citing the 2006 version of the Ohio DMA, and he recorded an affidavit in the Noble County Recorder’s Office of the abandonment. Following the act’s requirements, Noon responded to the claim by announcing he was preserving his right to the minerals and not abandoning them. Walker then filed a lawsuit in April 2012 seeking declaratory judgment to divest Noon of the mineral rights, citing the 1989 version of the act. Relying on the 1989 version, Walker claimed that Noon had already abandoned his rights and that Walker acquired both the surface and mineral rights when he bought the property in 2009. He then argued to the court that he was not required to follow the 2006 law since he already owned the rights, and the court should quiet the title, the process of having a court establish the ownership of the property, and have it reflect he owns the mineral rights.

In March 2013, the Noble County Common Pleas Court ruled in Walker’s favor, and Noon appealed to the Seventh District Court of Appeals. During the appeals process, Noon died, but the appeal remained as his daughter, Patricia J. Shondrick-Nau, pressed forward as executrix of his estate. The Seventh District affirmed the Noble County court’s ruling holding that: first, the transfers of the surface rights referencing Noon as the holder of the mineral rights did not count as acts that dormant mineral owners could rely on to retain their rights under the 1989 version of the law. They could not rely on the transfers as “savings events” because mineral rights were not “the subject of” those title transactions. Second, the court found Noon’s mineral rights ownership was controlled by the 1989 version of the act, and when he did not take proper steps to preserve them under that version of the law, they were lost to the surface owner.

Shondrick-Nau Argues Only 2006 Version of Act Applies
In briefs filed with the Supreme Court, attorneys for Shondrick-Nau argue that only the 2006 version of the statute applies, and that Noon rightfully retained his dormant mineral rights by following the requirements in the current version of the DMA, which is R.C. 5301.56.  But if the high court agrees with the lower courts that the 1989 law applied to his situation, they argue the lower courts misinterpreted the law and Noon still was in compliance with the 1989 law as well.

Shondrick-Nau’s attorneys point to the testimony of sponsors of the 2006 legislation and the modifications they made. The multi-step process a surface owner must follow includes notice to the mineral rights holder, and those are “fundamental due process protections” that were unclear or missing in the 1989 version, they state.

They attack Walker’s claim that the 1989 version applies because Walker first attempted to use the process in the 2006 version to quiet the title and claim the mineral rights. Only when that failed did he assert that the 1989 version applied. The attorneys conclude that is proof that the 1989 DMA is ambiguous, and the reliance on the old version of the law to divest a property owner of mineral rights would be against public policy.

The dispute between the two versions in this case, as well as several other cases regarding dormant mineral rights, is whether the 1989 law is “self-executing” or “automatic.” Shondrick-Nau’s attorneys note that nowhere in the 1989 version do the words “self-executing” or “automatic” appear. Further, the law stated that mineral rights should be “deemed abandoned and vested in the surface owner” if any of several scenarios did not take place “within the preceding twenty years.” If the law is self-executing, it is ambiguous because several courts have varied in their interpretation of when the “preceding twenty years” starts, or even if it is some rolling time period, the argue.

In this case, the lower courts interpreted the law to mean that the mineral rights owners had to engage in one of the statute’s scenarios, described as “savings events,” within the 20 years preceding the effective dates of the law to preserve their mineral rights. The law added an additional three years after its passage to give mineral rights owners a chance to become aware of it and to claim a savings event. Walker and the courts asserted that the last date for someone who owned mineral rights and had not actively exercised them since 1969 was March 1992. In arguing he owned the mineral rights, Walker claimed that the last time Noon took any action regarding his mineral rights was 1965 when he severed them, and sold the surface rights.

Shondrick-Nau’s attorneys contend the only fair way to interpret the 1989 law is that the 20-year clock does not start on a fixed date, but rather adjusts with time as mineral rights owners employ savings events. If that is the case, they argue the law should start the clock only when a surface rights owner takes an action to quiet title and notify the mineral rights owner. If the law is interpreted that way, then Noon complied when Walker sent him notice and Noon replied.

If the Supreme Court sides with the lower courts, and agrees with the fixed date, Shondrick-Nau’s attorneys contend the transfers of the surface title in which the mineral rights are noted, count as savings events and qualify being “the subject of” a title transaction. They argue that “subject of” is not limited to the primary subject of a transfer, as the lower courts appear to rule, but can count as a savings event because they are still a subject noted in the transfers. Since those happened within the 20-year period, Noon’s estate should still be considered the owner of the mineral rights.

Walker Says 1986 Version Applies
The brief filed by Walker’s attorneys contend that Noon did not have a role in the 1970 and 1977 transfers of the surface rights that just noted his reservation of the mineral rights. They argue that since no further action was taken on the mineral rights by Noon since 1965, the surface right transfers do not constitute savings events. Because no savings event took place, Noon’s mineral rights merged with the surface rights on or before March 1992, they claim. By the time Walker purchased the property in 2009, the surface and mineral rights had already merged, they argue. And while Walker originally followed the 2006 law’s notice provisions, he was not required to, and the trial and appeals court agreed with his position, the attorneys note.

Walker’s attorneys argue the 1989 law requires dormant mineral rights owners to seek the minerals, store gas on the land, or claim one of the other savings events to demonstrate they intend to exercise their rights. The law required no action by the surface rights owner, and if no action was taken by the mineral rights owner, those rights were automatically vested in the surface rights owner, they argue.

“The 1989 DMA does not operate as a forfeiture statute; rather, it is by its terms an abandonment law,” Walker’s brief states. “The abandonment of dormant interests, and vesting of same with the surface owner, promotes the state policy of advancing development of oil and gas resources by freeing them for development.”

The attorneys cite the U.S. Supreme Court’s 1982 Short v. Texaco ruling, which found Indiana’s DMA with a 20-year period to act to be constitutional, and argue that the law is similar to Ohio’s and other states. The Belmont County Common Pleas Court cited Short in its 2013 Taylor v. Crosby ruling where it found the DMA to be self-executing describing the act as a “use it or lose it statute.”

Walker’s attorneys further argue that even if the 2006 law replaces the 1989 version, it could not be interpreted as allowing the dormant mineral rights owners that had rights since 1969 to take no action for 37 years except to respond to a notice from a surface rights owner to document their interest in preserving the right. They argue that Shondrick-Nau has no right to “ride the coattails” of surface transactions that did not even involve the family and to count them as savings events.

State Sides with Walker
An amicus curiae brief supporting Walker’s position was filed by the State of Ohio. Attorneys for the state note the interest is two-fold – one is the interest of remedying uncertainties in titles in order to facilitate gas exploration, and two, as a property owner it has claimed ownership in mineral rights through the DMA. Attorneys for Walker and the state agreed to share their time during oral arguments to make their case.

Chesapeake Exploration and Eclipse Resources Corp. collectively filed an amici brief in support of Shondrick-Nau noting they assembled more than 227,000 leasehold acres in Ohio including 99,000 acres in the five counties that are part of the Utica Shale drilling. Noble County is in that area.

Recent Decision Impactful
Both sides note that the Supreme Court’s decision in Dodd v. Croskey, another oil and gas rights case involving the DMA, could influence the outcome of this case. After the close of oral arguments in Dodd, the court asked each side to brief the issue of whether noting the existence of a mineral right reservation qualifies under the DMA as an action that is “the subject of” a title transaction. The court ruled in Dodd on June 18.

- Dan Trevas

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

Representing Patricia Shondrick-Nau: Matthew Warnock, 614.227.4291

Representing Jon D. Walker Jr.: Kenneth J. Cardinal, 330.938.2161

Representing the State of Ohio from the Attorney General’s Office: Eric Murphy, 614.466.8980

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Attorney Discipline

Disciplinary Counsel v. Thomas J. Simon, Case no. 2014-2155
Ashtabula County

The Board of Commissioners on Grievances and Discipline recommended to the Supreme Court in a December 2014 report that Thomas J. Simon of Ashtabula be suspended for two years, with 18 months stayed. The board determined that Simon neglected two cases because he didn’t keep the clients reasonably informed about their cases, including that courts had dismissed them. (The disciplinary board is now known as the Board of Professional Conduct.)

Clients Complain
Danny Hubbard lost his job as a truck driver for the Village of Jefferson in 2009 and hired Simon to represent him in a wrongful termination case. Hubbard claims he never received three letters about his case – two spelling out the cost of the attorney’s retainer, and one about the status of the case. Simon also missed a hearing. After reviewing Hubbard’s sometimes conflicting testimony, the disciplinary board panel that reviewed the matter concluded that Simon didn’t inform Hubbard about the need for a retainer, didn’t tell him about information needed for discovery or the city’s request for summary judgment from the court, and didn’t ask for the client’s consent before dismissing the case. Simon also neglected to inform Hubbard that he had no professional liability insurance.

In the second case, Louis Grippi hired Simon in April 2010 for a wrongful termination claim involving the City of Ashtabula and a union. Simon didn’t respond to motions made by the city and the union, and the case was dismissed with prejudice. Grippi stated that he found out his case was dismissed while reading the newspaper. The board’s panel determined that the attorney didn’t keep Grippi informed about the case status and failed to notify the client about the pending dismissal of his case.

Attorney’s Objections
Simon, who served as Ashtabula’s city solicitor for more than two decades, objects to the board’s conclusions and recommended sanction. He argues that the panel failed to consider all the evidence provided. Given each client’s conflicting testimony before the board’s panel, Simon contends that the disciplinary counsel didn’t meet its burden of proof with clear and convincing evidence. He notes that no harm came to either client and he cooperated in the disciplinary process. He adds that the Ashtabula County Bar Association dismissed Hubbard’s grievance against him. In Grippi’s case, Simon contends that he also learned about the case dismissal from the newspaper.

He concludes that he has violated only one professional conduct rule, and he asks the court to either fully stay any suspension or issue a public reprimand.

Disciplinary Counsel’s Perspective
The Office of Disciplinary Counsel, which investigated the complaints, counters that it met the burden by presenting clear and convincing evidence of the professional conduct violations at the hearing. The disciplinary counsel notes that the panel is in the best position to evaluate the evidence and the credibility of witnesses to draw its conclusions, which were that Simon didn’t keep his clients reasonably informed about their cases. Counsel supports the two-year suspension with 18 months stayed.

- Kathleen Maloney

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

Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256

Representing Thomas J. Simon: Richard Alkire, 216.573.0801

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Do Appellants Have Right to File Lawsuit Opposing Video Lottery Terminals and Casinos?

State ex rel. Robert L. Walgate Jr., et al. v. John R. Kasich et al., Case no. 2013-0656
Tenth District Court of Appeals (Franklin County)


  • Do parties who are adversely affected by unconstitutional gambling have standing to file suit alleging violations of the lottery and casino provisions in the Ohio Constitution?
  • Do parents of public school students and companies paying taxes that fund schools have standing to pursue a claim that lottery and casino tax proceeds have been unconstitutionally diverted from education funds?
  • When a case is dismissed, must the court allow an opportunity to amend the complaint?

Ohio Constitution, Article XV, Section 6 (in part)
Except as otherwise provided in this section, lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this State.

(A) The General Assembly may authorize an agency of the state to conduct lotteries, to sell rights to participate therein, and to award prizes by chance to participants, provided that the entire net proceeds of any such lottery are paid into a fund of the state treasury that shall consist solely of such proceeds and shall be used solely for the support of elementary, secondary, vocational, and special education programs as determined in appropriations made by the General Assembly.

In January 2012, a group of 11 individuals, an Akron company, and the American Policy Roundtable (also known as the Ohio Roundtable) filed a lawsuit challenging legislation passed in 2009 and 2011 related to casinos and video lottery terminal games (VLTs). In 2009, the General Assembly passed laws authorizing the Ohio Lottery Commission to operate VLTs, and legislation was enacted in 2011 to regulate casino gaming. Casinos are now located in Cincinnati, Cleveland, Columbus, and Toledo, and VLT facilities are found in the three Cs as well as Dayton, Lebanon, Northfield, and Youngstown.

The suit was filed against the lottery commission and several of its officials, the Ohio Casino Control Commission and some of its leadership, Gov. John Kasich, and Tax Commissioner Joseph Testa. Seven companies that operate casinos or VLTs in the state were permitted by the trial court to intervene in the case.

The parties who initiated the lawsuit have contended that the 2009 and 2011 laws are constitutionally prohibited for several reasons. In their view, the VLTs aren’t a lottery, all the net proceeds from the machines haven’t be directed to education, and the state doesn’t solely run the VLT operations – all violations of specific provisions in the constitution, they argue. And the exemption of casino operators from the commercial activities tax, and bending the investment requirements for casino operators and the number of facilities allowed, defy the casino provisions in the constitution, they assert. They add that the casinos are owned by only a few companies and require an excessive $250 million license fee, which both infringe on equal protection rights in the U.S. Constitution.

The two commissions, the governor, and the tax commissioner asked the Franklin County Common Pleas Court to dismiss the case. The parties who brought the suit submitted affidavits from a health counselor, who discussed gambling addiction, and from David P. Zanotti, the head of the Ohio Roundtable. The court ruled that the appellants didn’t have standing – the right to file the suit – and dismissed the action.

The ruling was appealed to the Tenth District Court of Appeals, which agreed that the appellants lacked standing. They filed an appeal with the Ohio Supreme Court, which agreed to consider three of the four issues raised. The court declined to hear an argument that the appellants had standing on behalf of the public, given the court’s June 2014 decision in, Inc. v. JobsOhio.

Standing Has Been Shown, Case Should Continue
Attorneys for Ohio Roundtable, Agnew Sign & Lighting, and the 11 individuals explain that standing doesn’t depend on whether the parties could win on the lawsuit’s merits. (The 11 individuals are Zanotti, Robert L. Walgate Jr., Sandra L. Walgate, Linda Agnew, Paula Bolyard, Jeffrey Malek, Michelle Watkin-Malek, Thomas W. Adams, Donna J. Adams, Joe Abraham, and Frederick Kinsey.) They also assert that as long as one of the appellants has standing, the case can move forward because the court doesn’t need to determine the standing of the other parties.

They argue the appellants have an interest in enforcing the constitutional provisions limiting gambling and protecting citizens from the negative effects of the activity, which demonstrates a beneficial interest. A party with a beneficial interest has standing for a mandamus action under state law. (A mandamus action asks a court to compel someone to perform a legal duty.) They contend that the parties in this case also meet the common law criteria to have standing – 1) the parties have suffered an injury, 2) the injury was caused by the challenged laws, and 3) the relief requested from the court will fix the injury.

They point to Ohio Roundtable v. Taft (2002), in which the common pleas court ruled the claim that expanding the lottery was beyond the scope of the constitution and would negatively affect gambling addicts and their families showed sufficient injuries to establish standing for the suit to go forward. In this case, some of the parties, their membership, or their communities are adversely affected by the alleged unconstitutional gambling so the group has the right to sue, they assert.

They argue that the affidavits provided by the health counselor and Zanotti describe specific, concrete facts about the personal and social downsides of gambling and support the parties’ standing in this case. They compare the uncontested affidavits here to those presented to the U.S. Supreme Court in Massachusetts v. EPA (2007), which held that certain parties could challenge the U.S. Environmental Protection Agency’s decision to not regulate carbon dioxide emissions from vehicles. The affidavits in that case detailed a connection between carbon dioxide emissions and global warming and were sufficient to allow the case to continue, they note. They maintain in the brief to the court that a case can be dismissed only if the “appellants can prove no set of facts supporting standing.”

They also contend that the negative effects of the alleged violations can be remedied by a court ruling in their favor – the third prong needed to establish standing. Some of the appellants in this case have struggled with gambling addiction, and unauthorized, unconstitutional gambling in the state only adds to the danger for these addicts, they argue. In Massachusetts, they note the court ruled that the parties challenging the EPA decision only had to show the relief or outcome could slow down or reduce global warming. The parties didn’t have to show that the relief would reverse global warming. Here, stopping unconstitutional gambling could provide relief by reducing the risk of harm to the appellants, they maintain.

State Counters Standing Not Established
Representing the two commissions, the governor, and the tax commissioner, lawyers from the Ohio Attorney General’s Office contend that each claim made must be brought by a plaintiff with standing to bring that claim. They argue that the parties who filed this lawsuit don’t agree on what they want from this action – some want to reduce gambling in the state, some are concerned about making sure the money made from gambling ventures goes to education, and one wants to increase the opportunities for others to open casinos.

They assert that the parties who filed suit didn’t raise the arguments that certain statutes give them standing in the lower courts so they’ve waived those arguments. The attorneys then examine the parties’ other claims of standing.

They contend that the appellants don’t establish how any unconstitutional gambling is more harmful than constitutional gambling allowed by the state. They argue that no concrete injury has been shown nor has a causal connection between the laws and the injury been demonstrated. For example, claims that Cuyahoga County will be harmed by the increase in gambling options there are speculative rather than concrete, they maintain. They also assert that the parties haven’t pointed out, as required to show standing, a concrete injury that is distinct from any harm caused to the public generally.

They assert that the common pleas court in Ohio Roundtable v. Taft only looked at the injury prong of the test for standing, and neglected to address the causation and relief criteria. In Massachusetts, they argue the parties suing provided affidavits that detailed injury, causation, and possible relief, while here the submitted affidavits from Zanotti and the health counselor only discuss the harm but not causation or relief. They also claim that conclusions, rather than facts, were presented in these affidavits, and unsupported conclusions don’t establish standing.

Has Education Funding Been Diverted Unconstitutionally?
Attorneys for the two groups and 11 individuals who filed this lawsuit maintain that the Ohio Supreme Court, in DeRolph v. State (1992) and other cases, permitted standing for parents of public school children claiming violations of school funding provisions in the constitution. In this case, the parents argue the net proceeds of the lotteries are going to the gambling companies rather than solely to education programs, as required by the constitution. And Agnew Sign & Lighting maintains it has standing because it must pay commercial activity taxes, which are directed to fund school districts, while some of the income generated by casinos and VLT operators is exempt from the tax.

Attorneys for the two commissions, the governor, and the tax commissioner counter again that these particular parents haven’t shown actual harm to them or their children that is different from any injury suffered by the public generally. And the harm to Agnew is hypothetical, not concrete, they assert. They maintain the parties haven’t claimed, for example, any decline in school funding stemming from the casino and VLT laws. They add that DeRolph and the other cited cases “lack[ed] a rigorous discussion of standing” because the court didn’t have to consider that issue in the cases.

Amending the Complaint
The appellants’ attorneys contend that courts must allow a party to amend a complaint if it is found to be defective with regard to a jurisdictional claim. However, in this case, they maintain that the trial court improperly dismissed the case without giving the parties a chance to update the complaint.

On the other hand, the state responds that the suing parties never requested an opportunity to file an amended complaint from the trial court. They were aware that the defendants had asked to dismiss the case and should have asked to file an amended complaint at that time, the state asserts.

Casino and VLT Brief
Attorneys for a group of VLT and casino operators write in a joint brief to the court that the companies join and adopt arguments made in the state’s brief. They ask the court to affirm the Tenth District’s decision and dismiss the case.

Additional Filing
An amicus curiae brief supporting the position of Gov. Kasich, Tax Commissioner Testa, the Ohio Lottery Commission, and the Ohio Casino Control Commission has been submitted collectively by the Dayton Chamber of Commerce, Youngstown/Warren Regional Chamber, Seafarers and Allied Trades Union, Affiliated Construction Trades Ohio Foundation, Fraternal Order of Police of Ohio Inc., and Lebanon City School District.

- Kathleen Maloney

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

Representing Ohio Roundtable, Agnew Sign & Lighting Inc., and 11 individuals: Thomas Connors, 330.456.8341

Representing Governor John Kasich, Tax Commissioner Joseph Testa, the Ohio Lottery Commission, and the Ohio Casino Control Commission from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

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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.