Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Nov. 17, 2015

State of Ohio v. Dean M. Klembus, Case no. 2014-1557
Eighth District Court of Appeals (Cuyahoga County)

Tyshawn Barker v. State of Ohio, Case no. 2014-1560
First District Court of Appeals (Hamilton County)

Leland Eisenbarth, et al. v. Dean Reusser, et al., Case no. 2014-1767
Seventh District Court Of Appeals (Monroe County)

Adam J. White v. David E. King, Case no. 2014-1796
Fifth District Court of Appeals (Delaware County)

Ohio Department of Natural Resources, Division of Parks & Recreation v. Richard Combs, Case no. 2014-1891
Tenth District Court of Appeals (Franklin County)

Is Ohio’s Repeat OVI Specification Constitutional?

State of Ohio v. Dean M. Klembus, Case no. 2014-1557
Eighth District Court of Appeals (Cuyahoga County)


  • Is the repeat OVI specification in R.C. 2941.1413(A) facially constitutional under the Equal protection clause of the U.S. and Ohio constitutions?
  • When a defendant’s conduct violates multiple criminal statutes, can the government prosecute under either, even when the two statutes prohibit the same conduct but provide for different penalties?

In 2012, Dean Klembus was charged with his sixth OVI offense in 20 years. He was charged with two counts of operating a motor vehicle under the influence of alcohol or drugs in violation of R.C. 4511.19. The indictment alleged fourth-degree felonies because each count carried a “furthermore” statement, which detailed Klembus’ prior convictions. In addition, each count included a specification for prior OVI offenses pursuant to R.C. 2941.1413(A).

Prior to trial, Klembus filed a motion to dismiss the specification, arguing that it violated the equal protection clauses of the U.S. and the Ohio constitutions. The trial court denied the motion finding that “the specification serves as an enhancement and is not cumulative punishment for the same conduct alleged in the underlying OVI offense.”

Judicial History
At trial, Klembus pled no contest to both charges and was sentenced to two years in prison.

On appeal, the Eighth District Court of Appeals found the OVI specification unconstitutional on its face. The court held, “The statutory scheme [R.C. 2941.1413(A)] violated Equal Protection because it provided prosecutors with unfettered discretion as to whether or not to pursue enhanced penalties via the specification, without being required to prove any additional facts beyond those already alleged in the furthermore clause to support the enhanced penalty.”

The state appealed, and the Ohio Supreme Court accepted the case for review.

State’s Position
Attorneys from the Cuyahgoa County Prosecutor’s Office argue the repeat OVI specification codified in R.C. 2941.1413(A) is facially constitutional under the equal protection clauses of the U.S. and Ohio constitutions. In the brief to the Court, they write, “When determining whether a statute is constitutional under the Equal Protection Clause, the rational basis test is applied where the statute in question does not impinge upon a fundamental right and the defendant is not part of a suspect class.” They maintain under the test, a statute will be upheld against equal protection attack if it bears a rational relationship to the state’s goal. They argue the interest in punishing repeat OVI offenders and protecting the public from the serious threat posed by habitual drunk drivers is undisputed, and it is only the means and ends that are in dispute.

They argue a plaintiff succeeds in this type of challenge only by establishing that there are no set of circumstances where the statute would validly apply. They argue Klembus can’t prove that R.C. 2941.1413(A) will be invalid in every case because there are some instances in which the statute requires different proof from the base OVI charge. “Klembus should not prevail on a facial challenge where there are situations where proof of the OVI offense is different from the OVI specification,” they contend.

They maintain the U.S. Supreme Court has long held that a prosecutor can use his or her discretion when determining whether or not to prosecute and what charge to file or bring before a grand jury. They write, “In order to dispel the presumption that a prosecutor has not violated the equal protection, a criminal defendant must present clear and convincing evidence to the contrary.”

They contend, to support Klembus’ argument that the statute is facially unconstitutional because it allows selective or discriminatory prosecution, a defendant would have to prove “that while others similarly situated have not been proceeded against..., he has been singled out for prosecution, and that the government’s selection of him has been... in bad faith.”

They argue the Eighth District’s reliance on the Ohio Supreme Court’s ruling in State v. Wilson (1979) does not support the holding that where two statutes overlap and yet impose different penalties, sentencing a person under the statute with the higher penalty violates the equal protection clause. “The decision of the Wilson court...was problematic because the...court did not thoroughly consider the appropriate legal standard for determining when two overlapping statutes violate the Equal Protection Clause,” they assert.

The prosecutors argue based on the U.S Supreme Court holding in U.S. v. Batchelder (1979), “[W]hen a criminal act violates multiple statutes, the government may prosecute under either statute provided that it does not discriminate against any class of defendant.”

Klembus’ Arguments
Attorneys for Klembus write in the brief to the Court, “The [s]pecification offends the Equal Protection and Due Process Clauses of the United States and the Ohio Constitution because the specification provides the prosecution with the ability to obtain greater punishment for the underlying offense without proof of any additional elements, fact or circumstance.”

Relying on this Court’s ruling in Wilson,they argue that “[e]qual protection is violated when a statutory scheme is such that two different applications of the criminal law can prescribe different penalties while requiring the state to prove identical elements.” They contend the specification must require proof of something more than simply five prior offenses to be considered constitutional.

They argue the specification violates due process because the statute arbitrarily and irrationally creates two different punishments schemes for the same conduct. “The... statute [allows] prosecutors to pick and choose between prosecuting or not prosecuting the Specification, without any guidance as to how to make this distinction on the basis of a rational criteria,” they assert.

“This is not a case about selective prosecution,” they maintain. They argue the only issue in this case is whether, on its face, the statute is unconstitutional.

They contend the state’s reliance on U.S. v. Batchelder is inappropriate. They argue Batchelder can be distinguished from this case because the difference in penalties did not force the judge to a higher sentencing range, there was only a partial overlap of elements, the court dealt with two statutes and not one, and Ohio’s equal protection clause provides greater protection than the U.S. constitution.

Additional Filings
Amicus curiae briefs supporting the State of Ohio’s position have been submitted by the Franklin County Prosecutor and the Ohio Prosecuting Attorney Association and the Ohio Attorney General.

- Maurice Wells

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

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Daniel Van, 216.443.7800

Representing Dean M. Klembus: John Martin, 216.443.3675

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Did Juvenile Waive Miranda Rights During Police Interrogation?

Tyshawn Barker v. State of Ohio, Case no. 2014-1560
First District Court of Appeals (Hamilton County)


  • Is the statutory presumption in R.C. 2933.81(B) that a statement made during a recorded custodial interrogation is voluntary a violation of due process when applied to a juvenile?
  • Does R.C. 2933.81(B)’s presumption of voluntariness affect a court’s review of whether a defendant has waived Miranda rights?

Lakeshia Prince was arrested when she tried to run over her boyfriend, Samuel Jefferies, with her car. Prince’s son, Dequantez Nixson, wanted to get back at his mom’s boyfriend for the arrest. On Oct. 14, 2011, Nixson and his younger brother, Tyshawn Barker, along with Brendan Washington and Carrielle Conn, went to Jefferies’ apartment in Cincinnati. Nixson and Barker hid, while Washington and Conn knocked on the door and shot the man who answered. The teens fled and quickly realized they had shot the wrong man, Jefferies’ friend, who later died from the injuries.

Conn told one of the adults that the group had been involved in the shooting. The other teens became concerned that Conn might talk with police. Nixson called her, and the group met on Oct. 16. As they walked along some railroad tracks, the boys shot Conn multiple times. She was found dead when police arrived.

Police Interview Juvenile Suspects
The next night police brought the teens, including 15-year-old Barker, to a juvenile detention center for questioning. A detective read Barker a notification of rights and asked him to sign it, which Barker did. They then discussed the two shootings. Later, detectives returned to talk further with Barker. According to Barker’s attorneys’ review of the video recording of the questioning, detectives were about to read him his rights again when he stated that he had spoken with an attorney who told him to ask for one if the officers returned. They asked if he wanted an attorney or to talk to them, and he told the detectives to continue. They read him another rights form, which he signed.

Barker’s case was transferred out of the juvenile system to the common pleas court for criminal prosecution, and a Hamilton County grand jury indicted him on murder, robbery, and tampering-with-evidence charges, as well as other crimes.

Teen Asks Courts to Withhold Comments to Authorities
Barker asked the trial court to suppress statements he had made to police during the interrogation. The court denied the motion, and Barker pled no contest to some of the charges. He was found guilty and sentenced to 25 years to life in prison.

Barker appealed. The First District Court of Appeals rejected his arguments and agreed with the trial court that Barker’s statements to police were made after he had waived his rights under the U.S. Supreme Court’s decision in Miranda v. Arizona (1966). Miranda provides suspects with the right to remain silent and to have an attorney before or during questioning, and warns suspects that statements may be used against them.

Barker filed an appeal with the Ohio Supreme Court, which agreed to consider the case.

Statute: Comments Considered Voluntary if Interrogation Is Recorded
An Ohio law, R.C. 2933.81(B), provides that statements made during a custodial interrogation of a person accused of certain offenses “are presumed to be voluntary if the statements made … are electronically recorded.” In addition, “[t]he person making the statements during the electronic recording of the custodial interrogation has the burden of proving that the statements made during the custodial interrogation were not voluntary.” The law became effective on April 10, 2010.

Juvenile’s Assertions
Attorneys for Barker maintain that children are at a disadvantage during police interrogations. Children are inexperienced and immature, and they can be easily swayed by those in positions of authority and may not understand the dangers of self-incrimination, Barker’s attorneys argue. Citing the U.S. Supreme Court’s 2011 ruling in J.D.B., they contend that age is an element courts must consider when reviewing custody issues and Miranda rights.

“A child’s susceptibility to interrogation pressure and false confession is inextricably linked to the due process implications of presuming that a child’s statement is voluntary, simply because it is electronically recorded,” they write in the brief to the Court. “Revised Code 2933.81(B) falls short of the due process requirements recognized by this Court and the Supreme Court of the United States, in that it improperly shifts the burden on the child to prove voluntariness.”

It is difficult to prove that a child’s confession is a choice that was “free and unconstrained” and therefore a voluntary statement that meets due process requirements, they assert. “The statutory presumption of voluntariness in R.C. 2933.81(B) excuses law enforcement, the State, and reviewing courts, from complying with the special considerations constitutionally due to children during interrogation,” they maintain. They conclude that the law is unconstitutional when applied to children.

In addition, they point out that individuals may waive Miranda rights, but only if they do so knowingly, intelligently, and voluntarily. State laws don’t supersede these requirements, they note. Nor is there a constitutional justification, they add, for creating a different standard for waivers simply because the interrogation is recorded. Regardless of the statute, the state still must demonstrate that a suspect’s waiver was made knowingly, intelligently, and voluntarily, they contend.

Barker told the detectives he didn’t know what Miranda rights were and was unfamiliar with the form they presented, though he may have heard about the rights on television, they explain. They maintain that Barker didn’t convey an understanding of his rights or the possible consequences of moving forward with the questioning. Barker’s statements were inadmissible under Miranda and should have been suppressed, they conclude.

State’s Responses
Attorneys from the Hamilton County Prosecutor’s Office counter that the state law actually enhances the rights of citizens in protecting against self-incrimination. A recorded interview provides a full record of a suspect’s questioning that can be reviewed by the courts and the public, they maintain.

They argue that the prosecution presented evidence when the court was considering the motion to suppress that Barker had been informed of his rights, that he seemed to understand the rights, and that the entire interview had been recorded. They contend that the law must adapt beyond the world that existed when Miranda was decided, given subsequent advances in technology. A videotaped recording is an example of “a legislative alternative to Miranda [that is] equally as effective in preventing coerced confessions,” they assert, citing Dickerson v. U.S., a 2000 U.S. Supreme Court decision.

“The burden of proof can therefore shift to the defendant to show that his statement is not voluntary without violating due process” because a suspect’s challenge to the admission of any statements can still be heard in a meaningful way, they write in the brief to the Court.

They also contend that the trial court never applied R.C. 2933.81(B) in Barker’s case. When deciding whether a confession is voluntary, the courts must consider, as this trial court did, the “totality of the circumstances,” including a person’s age, the nature of the interrogation, and whether coercion was used, they assert. Nothing in the recording shows that Barker’s statements were involuntary, they argue. In their view, a video recording instead furthers an evaluation of whether care was used in obtaining the confession of a juvenile. And regardless of who had the burden of proof in this case, they maintain that Barker’s statements were made knowingly, intelligently, and voluntarily.

In addition, they conclude, “the presumption of voluntariness [in R.C. 2933.81(B)] does not violate due process when it is applied to juveniles.”

Friend-of-the-Court Brief
An amicus curiae brief supporting Tyshawn Barker’s position has been submitted collectively by the Children’s Law Center, Juvenile Law Center, National Juvenile Defender Center, and Northwestern University School of Law’s Center on Wrongful Conviction of Youth.

- Kathleen Maloney

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

Representing Tyshawn Barker from the Ohio Public Defender’s Office: Sheryl A. Trzaska, 614.466.5394

Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Rachel L. Curran, 513.946.3091

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Were Oil and Gas Rights Abandoned Based on 20-Year Clock in Dormant Mineral Act?

Leland Eisenbarth, et al. v. Dean Reusser, et al., Case no. 2014-1767
Seventh District Court Of Appeals (Monroe County)


  • Does the 1989 Dormant Mineral Act (DMA) deem separate mineral interests abandoned and vested back to the surface property owner if none of the statutory “saving events” occurred in the 20 years immediately preceding any date during which the 1989 DMA was in effect?
  • Is an oil and gas lease signed by someone other than the mineral rights holder a title transaction within the meaning of the act?

William H. and Ella N. Eisenbarth had two children, Paul Eisenbarth and Mildred Reusser. In 1954, William transferred two parcels – roughly 153 acres – of his Monroe County property to his son and his son’s wife, Ida. While William kept half of the mineral rights, the deed, which was recorded on Feb. 3, 1954, stated that the authority to lease the mineral rights belonged to Paul and Ida. A few months later, William transferred his half of the mineral rights to his daughter, Mildred. As a result, Paul and Mildred shared the rights to the mineral interests below the property.

In a document filed and recorded on Jan. 23, 1974, Paul and Ida leased the oil and gas rights to Stocker & Sitler Oil Company.

In 1989, Paul and Ida transferred the 27-acre tract to their son Keith Eisenbarth. After Paul died that year and Ida died in 1998, the remaining parcel went to their sons, Keith, Leland, and Michael Eisenbarth. Mildred Reusser’s estate was left to eight heirs after her death in 2002.

The Eisenbarths signed another oil and gas lease in 2008. On Jan. 1 the next year, they published a notice in a local newspaper claiming that the Reussers had abandoned their half of the mineral interests below the 153 acres. The deed transferring the minerals rights from William Eisenbarth to Mildred Reusser was recorded on Feb. 12, 2009, and the Reussers filed a “claim to preserve” the rights on Feb. 19.

In a new lease of the oil and gas rights signed in 2012, the Eisenbarths received a $766,250 signing bonus from Northwood Energy Corporation. Half of that amount has been set aside because the Reussers maintain they are entitled to 50 percent of the bonus.

Surface Property Owners Claim Mineral Interests Were Abandoned
The Eisenbarths sued in 2012, alleging that the 1954 deed didn’t give the Reussers half of any signing bonuses and that the Reussers had also abandoned the mineral interests under the 1989 DMA. But in June 2013, the court granted summary judgment in favor of the Reussers.

The Eisenbarths appealed to the Seventh District Court of Appeals, which agreed with the trial court’s decision. The Eisenbarths filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

Eisenbarths’ Contentions
Attorneys for the Eisenbarths note that, according to the 1989 DMA, a “saving event” spelled out in R.C. 5301.56 must take place in the preceding 20 years to preserve the rights of the holders of the mineral interests. Pursuant to the 1989 DMA, they argue that the mineral interests in this case were automatically abandoned by the Reussers on Jan. 24, 1994, following 20 years of inactivity after the recording of the lease in 1974. The oil and gas rights then were restored to the Eisenbarths as the surface property owners.

While the appeals court held that the 20-year look-back period is calculated from the DMA’s effective date in March 1989, the Eisenbarths’ attorneys counter that the provision should be applied on a rolling or continuous basis, as several common pleas courts in the state have ruled. The law includes no language that ties the 20-year clock to the date of the DMA’s enactment, they maintain.

“Likewise, the Mineral Interest was not the subject of a title transaction within the 20 years immediately [preceding] any day between January 25, 1994 and June 29, 2006,” they write in the brief to the Court. June 29, 2006 is the day before the 2006 DMA went into effect. “Due to a dormancy period of more than 20 years (32-plus total years, from January 24, 1974 through June 29, 2006), the provisions of the 1989 DMA call for the conclusion that the Mineral Interest held by Appellees was ‘abandoned’ and became ‘vested’ in the Appellants, as owners of the surface.”

In addition, they assert that the Eisenbarths’ actions in exercising their authority to lease the oil and gas interests or administering their rights as the surface property owners and the owner of half the mineral interests don’t operate as saving events for the Reussers. The Reussers have taken no action since the 1954 deed was recorded, they argue.

“At no time prior to receiving a notice that their interest was abandoned did the Appellees do anything, or take any action whatsoever, to preserve the interest that they now claim,” they concluded. “It was only after the most recent oil and gas ‘boom’ in Ohio that Appellees asserted a right to this oil and gas interest by filing a Claim to Preserve, thereby slandering Appellants’ vested title to the Mineral Interest.”

Reussers’ Position
Attorneys for the Reussers argue, however, that the 1989 DMA was inadequate because it didn’t define the 20-year look-back timeframe and was unworkable due to the lack of clarity whether the abandonment of mineral interests and return of those rights to the surface property owner occurred automatically.

They explore three possible interpretations of how to determine the 20-year timeframe. In their view, calculating the look-back period from the date that a lawsuit is filed alleging a claim based on the 1989 DMA is the best option. They maintain that this view interprets the law in line with all the relevant statutes and adheres closely to the statute’s language. Using the 2012 filing date of this lawsuit, they point to five saving events between 2012 and 20 years earlier, 1992 – the 1998 transfer of one of the parcels to the Eisenbarth children, the related 1998 deed, the 2009 recording of the earlier deed transfer from William Eisenbarth to Mildred Reusser, the Reussers’ 2009 claim to preserve, and the 2012 recording of the oil and gas lease with Northwood.

A fixed timeframe based on the DMA’s effective date in 1989 is also reasonable, they contend. They note that the appeals court adopted this interpretation. But, they assert, the rolling look-back period suggested by the Eisenbarths is the least consistent with the statute’s language. They describe it instead as a “roll forward,” in which a saving event is identified and then one looks forward from that date to determine whether another saving event has taken place to maintain the mineral interests.

They add that only the Eisenbarths had the authority to lease the mineral rights to oil and gas companies. None of the Reussers were permitted to enter a lease. They argue therefore that all of the mineral interests, including the 50 percent owned by the Reussers, were subject to the 1974 lease and of the 2012 lease, and the rights couldn’t have been abandoned.

“Multiple leases were signed and recorded, and each provided the relevant lessee with the ability to develop the Reserved 1/2 Mineral Interest,” they write in the brief to the Court. “The fact that those lessees failed to drill any wells (until recently) under those leases does not matter for purposes of the DMA. All that matters is that the executed oil and gas leases (including the 1974 Lease and 2012 Lease) are recorded title transactions affecting the mineral rights, which have now resulted in the actual development of those rights.”

Additional Filings
Amicus curiae briefs supporting the Eisenbarths’ position have been submitted by following:

  • Virgil Clayton Farnsworth, et al.
  • Jeffco Resources, et al.
  • Murray Energy Corporation
  • Charles J. Schucht, Wilma L. Schucht, Theresa E. Schucht, and the Schucht Family Trust
  • State of Ohio

- Kathleen Maloney

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

Representing Leland Eisenbarth, et al.: Richard A. Yoss, 740.472.0707

Representing Dean Reusser, et al.: Matthew W. Warnock, 614.227.2300

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Does Email Correspondence Among Majority of School Board Members Constitute Public Meeting?

Adam J. White v. David E. King, Case no.2014-1796
Fifth District Court of Appeals (Delaware County)


  • Does soliciting the opinions and input from four of five school board members via email constitute pre-arranging a meeting to discuss public business, subjecting it to the Ohio Open Meetings Act?
  • Does a school board’s vote to ratify the contents of a newspaper letter to the editor developed through an exchange of emails make the letter public business subject to the Open Meetings Act?

In 2012, Olentangy Local School District Board of Education member Adam White contacted school employees directly during his own independent investigation of concerns of financial wrongdoing. As a result, the board of education in September 2012 voted to affirm an existing board policy that required all board members to go through the school superintendent or treasurer to make contact with any school employees. White questioned the policy at a board meeting. The Columbus Dispatch reported on the meeting, and in early October wrote an editorial challenging the board’s policy and quoting White’s statement opposing it.

On the day the editorial appeared, School Board President David King contacted the other three school board members besides White by email suggesting they meet to develop a letter to the editor in response to the Dispatch editorial.

The next day, an email dialogue between the four members as well as the superintendent and other school staff members commenced and resulted in a response that was published in late October 2012. White complained that he was never consulted about the response before it was published or given the right to vote on it, while other members we asked to approve it before submission. The original submission of the letter arrived as being authored by the four members, but the Dispatch informed them a letter could only come from one person, and it was signed by King.

In response, White in April 2013 filed a civil case against the school district and the four other board members for violating the Ohio Open Meetings Act for developing the letter without meeting in public to discuss it. The night he filed the lawsuit, the four other members of the board voted to ratify the contents of the letter, contending it was part of the legal strategy to defend themselves against White’s lawsuit.

A Delaware County Common Pleas Court in January 2014 rejected White’s arguments and granted judgment to the school district. In September 2014, the Fifth District Court of Appeals affirmed the trial court’s decision and White appealed to the Supreme Court, which agreed to hear the case.

White’s Attorneys Argue Email Exchange Replicated Board Meeting
Ohio’s open meetings statute, R.C. 121.22, requires public bodies to conduct all business at open public meetings with a few exceptions outlined in the law. Attorneys for White note the law has three elements that constitute a meeting subject to the open meetings law:

  • a pre-arranged discussion
  • a discussion of public business of the public body
  • the presence of the majority of the members of the public body

They argue that the exchange of emails and deliberations of the board members met all the elements of the law and violate the open meetings law because none of the business took place at a public meeting.

They contend when King sent the email to the other three board members advising them of his proposal to meet the next day that constituted notice of a prearranged discussion. “Mr. King specifically used the word ‘meeting’ in his email to communicate that he had a specific action plan in mind and was seeking majority support for that rule or resolution from the board,” according to the brief filed by White’s attorneys.

The trial court and appeals court ruled the response to the editorial was not public business because in their view there wasn’t a pending rule or resolution before the board. The attorneys submit that the lower courts cited no case law or statutes indicating public business had to be a pending rule or resolution. They submit that ratification six months retroactively converted the letter into public business. They cite Black’s Law Dictionary to define “ratification” as relating back to the time the action took place and argue the ratification certifies the email exchanges were deliberations on official business, which meets the second element of the statute.

The attorneys equate the actions taken by the Olentangy school board members to be equivalent to the Cincinnati City Council, which was sued by the Cincinnati Post after the city manager conducted a series of face-to-face meetings back-to-back with small groups of council members. In the Ohio Supreme Court’s 2004 Cincinnati Post v. Cincinnati decision, the Court ruled the majority of the council did not have to meet in person in private to violate the open meetings act, but rather the incremental meetings of a majority in a series of meetings on the same subject was sufficient to find that a majority of council members deliberated in violation of the law. They insist a series of discreet email communications among members is no different than a series of face-to-face meetings.

They warn if the lower court rulings stand then all public bodies throughout Ohio would be allowed to conduct public business by private email or other electronic means so long as they ratify their decisions at public meetings. “That outrageous conclusion of law would eviscerate the clear, unequivocal and definite language of the open meetings statute and should not stand,” they write.

King’s Attorneys Argue Letter Is Not Public Business
Attorneys for King counter that public business covered by the Open Meetings Act is in regard to pending actions and that writing a letter in support of an act taken by the board weeks before isn’t public business covered by the law. They reject White’s contention that the board members were exchanging emails on a pending rule or resolution before the board that was under active consideration. “The response to the letter to the editor was nothing more than an expression of opinion and disagreement with the opinions of the editorial staff of The Columbus Dispatch,” the brief filed by King’s attorneys states.

King’s attorneys note almost all public bodies communicate by email and it has replaced telephone calls, handwritten notes, letters, and personal conversations because of its efficiency and flexibility. However, nowhere in the open meetings statute does it mention email or electronic communications, they contend. “It is equally significant that this statute has been amended several times by the legislature since its enactment in 1954, and at least 10 times in the past 20 years, with the obvious knowledge that public bodies were using computers and emails,” they write. Further, they point to the First District Court of Appeals 2005 Haverkos v. Northwest Local School Dist. Bd. Of Edn. decision where the court specifically found that the open meetings law was revised in 2002 without including language about electronic communications. The court held the statute doesn’t cover email.

Contrary to the alarm raised by White’s attorneys, King’s attorneys argue that since the Haverkos decision there hasn’t been a widespread attempt by public officials to sidestep the law by using emails to deliberate and only vote in public meetings.

Coalition Supports White
An amicus curiae brief supporting White’s position has been submitted jointly by the Ohio Coalition for Open Government, Common Cause Ohio, and the League of Women Voters of Ohio. The coalition notes that it offers an alternate ground for reversing the lower court. The groups argue that even if the actions of the board do not constitute a “meeting” as defined by the open meetings law, the board members lack the legal authority to “engage in a concerted, purposeful email campaign to shape and implement board policy.” By collaborating via email, the actions are outside the scope of their authority and invalid.

“Ohio provides only one way for public bodies to decide questions of public policy: an open meeting that complies with Ohio’s Sunshine Law,” the brief states. The groups argue the lower courts opened a loophole for public bodies to deliberate without citing any authority that allows a school board to conduct public business in any way other than through a public meeting.

- Dan Trevas

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

Representing Adam J. White: Philip Harmon, 614.433.9502

Representing David E. King: John Albert, 614.229.4528

Representing the amici coalition: David Marburger, 216.861.7956

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Are Landowners Immune From All Liability to Recreational Users?

Ohio Department of Natural Resources, Division of Parks & Recreation v. Richard Combs, Case no. 2014-1891
Tenth District Court of Appeals (Franklin County)

ISSUE: Does R.C. 1533.181 (A) immunize landowners from liability for injuries to recreational users arising from the condition and maintenance of the land?

In July 2011, Richard Combs entered Indian Lake State Park to go fishing. After an unsuccessful night of fishing, he decided to try to another location in the park called Pew Island.

As Combs made his way to the island, an Ohio Department of Natural Resources employee was moving weeds and overgrown brush from the edge of the lake surrounding the island to improve access to the lake. The employee was mowing near the edge of the lake when his mower hit an arrangement of rocks near the water that prevents erosion. Combs was struck in the eye by a rock hit by the mower.

Combs brought suit against the department, claiming the department’s employee had been negligent in operating the mower. The trial court entered summary judgment in favor of the department on the grounds that it owed no duty to Combs under Ohio’s recreational-user statute, R.C. 1533.181.

Combs appealed and the Tenth District reversed. The Tenth District found that the recreational user statute did not apply to the state and Combs could file suit against the state because his claim was based on employee negligence, not premises liability.

The department filed a notice of appeal, and the Ohio Supreme Court granted further review.

Department’s Arguments
In the brief to the Court, attorneys for the department from the Ohio Attorney General’s Office argue the Tenth District opinion “defies the plain text of the statute, the General Assembly’s intent in passing the statute, and more than thirty years of Ohio case law.” They contend the recreational statute grants broad immunity from suits to all Ohio landowners to encourage them to open their lands for free public recreational use.

The department is immune because the statute provides that “no owner, lessee, or occupant of the premises owes any duty to keep the premises safe for entry or use by recreational users,” they assert. They maintain analysis of the law should focus on the character of the property and the type of activities for which the property is held open to the public. They write, “This Court has noted that the manner in which the plaintiff is injured is of no significance to the analysis, because the focus is whether the essential character of the land on which plaintiff was injured is that of premises held open to plaintiff, without fee, for recreational purposes.”

The department’s attorneys contend the recreational-user statute can’t be avoided by claiming that the suit is based on employee negligence, rather than premises liability because the statute has always extended immunity to both active and passive negligence, and a contrary result would conflict with the General Assembly’s purpose in creating the statute. They argue premises liability is a subcategory of negligence that requires the same elements to state a claim, including proof of a duty. “Thus, by expressly absolving landowners of any duty owed to recreational users, R.C. 1533.181 effectively immunizes landowners against all negligence claims relating to the premises...,” they assert.

They add that Combs’ reliance on the Ohio Supreme Court’s ruling in Ryll v. Columbus Fireworks Display Co. Inc (2002) does not support his position that a landowner who causes an injury while maintaining property open to the public is liable. They argue Ryll represents a unique exception to the general rule that the focus of the R.C. 1533.181 immunity inquiry is whether the plaintiff was a “recreational user” at the time of his injury. “Under the Ryll exception, if the plaintiff’s injury is caused by a foreign object, such as a firework shell, and not by a part of the premises, then the recreational user immunity statute does not apply,” they contend.

Combs’ Response
Combs’ attorneys argue the department is not protected by the recreational-user immunity set forth in R.C. 1533.181(A) based on Ryll. They write in the brief to the Court, “The plain meaning of R.C. 1533.181(A) is that the tortfeasor is immunized only when the victim is injured by the premises itself.” They argue a recreational user is owed no duty; instead, the statute immunizes an owner only from a duty to keep the premises safe for entry or use.

They contend no defect in the premises caused this injury. They argue it was the mower operator’s negligence that caused the injury, and immunity does not extend to active negligence that causes injury to a recreational user of the land.

They write that “the flying rock that injured Combs is akin to the flying shrapnel that injured the decedent in Ryll. Neither the rock nor the shrapnel constituted a defect in the premises.”

Combs’ attorneys conclude the department is liable for injuries and damages caused by the negligent operation of any motor vehicle by its employees engaged within the scope of their employment.

Additional Filings
An amicus curiae brief supporting Combs’ position has been submitted by The Ohio Association for Justice.

- Maurice Wells

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

Representing the Ohio Department of Natural Resources from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

Representing Richard Combs: Arthur Graves, 614.442.7903

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