Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Nov. 13, 2019

Rebecca Buddenberg v. Robert K. Weisdack et al., Case no. 2018-1209
U.S. District Court for the Northern District of Ohio

Michael Moore v. Mount Carmel Health System et al., Case no. 2018-1233
Tenth District Court of Appeals (Franklin County)

State of Ohio v. Andre D. Harper, Case no. 2018-1144
Tenth District Court of Appeals (Franklin County)

State of Ohio ex rel. Elliot G. Feltner v. Cuyahoga County, Ohio Board of Revision et al., Case no. 2018-1307
Writs of Prohibition and Mandamus

Disciplinary Counsel v. Carol B. Adelstein, Case no. 2019-0801
Cuyahoga County

Must Civil Lawsuit to Recover Damages from Criminal Act Require a Conviction?

Rebecca Buddenberg v. Robert K. Weisdack et al., Case no. 2018-1209
U.S. District Court for the Northern District of Ohio


  • Does the Ohio law allowing the filing of a civil lawsuit to recover damages for injuries based on a “criminal act” require a criminal conviction?
  • When a public servant files a civil lawsuit alleging a criminal violation of retaliation for discharge of duties, must the violator be convicted of a crime before the public employee can pursue civil damages?

This case has drawn statewide interest from groups representing crime victims to organizations representing local government officials and businesses, which have filed amicus curiae briefs.

The Ohio Attorney General’s Office has filed a brief, asking the Ohio Supreme Court to find that R.C. 2307.60 doesn’t require a criminal conviction in a lawsuit seeking damages for injuries stemming from a criminal act. The attorney general discloses that Ohio and dozens of local governments have made claims based on R.C. 2307.60 in pending lawsuits against the manufacturers and distributors of opioids. Most of the nation’s opioid lawsuits have been consolidated in the U.S. District Court for the Northern District of Ohio — the same court that has asked the Supreme Court to interpret R.C. 2307.60 in this unrelated lawsuit.

Rebecca Buddenberg was a fiscal officer for the Geauga County Board of Health, and in October 2016, she reported unequal pay practices and potential ethical violations by County Health Commissioner Robert Weisdack. After the report, Weisdack allegedly began to retaliate against Buddenberg, including changing her previously negotiated work hours, lodging false written disciplinary allegations against her, demoting her, and eliminating her position. Buddenberg resigned in May 2017, and in March 2018, she filed a federal lawsuit against Weisdack, members of the health board, the board’s hired attorney, and others.

Buddenberg’s lawsuit alleges the defendants engaged in unlawful retaliation under federal law and committed three state crimes: intimidation by maliciously using a false writing to influence a public servant; interfering with civil rights; and retaliation for discharging her duties as a public servant. Weisdack and the others asked the federal court to dismiss the case, stating that Buddenberg has invoked R.C. 2307.60 and R.C. 2921.03 to bring her civil lawsuit claims, and that those claims can only be made if the defendants are convicted of the alleged crimes. Weisdack argues none of the defendants have been charged with a crime, let alone convicted.

Judge Seeks Guidance from Supreme Court
The federal trial judge refused to dismiss the case at this time, writing that the Ohio General Assembly amended R.C. 2307.60 in 2007 to create a “presumption of civil liability” when a defendant has been convicted, but the laws didn’t make a criminal conviction a requirement. The federal court also noted that in its 2016 Jacobson v. Karforey decision, the Ohio Supreme Court clarified that R.C. 2307.60 allows for a civil lawsuit to be filed for injuries stemming from any “criminal act.” But the Supreme Court went no further in defining what constitutes a “criminal act” and what a plaintiff must prove to win a case based on R.C. 2307.60.

The federal court also noted that R.C. 2921.03 allows for a civil lawsuit to be filed based on the “commission of the offense” of retaliation for discharge of duties, but doesn’t mention whether a criminal conviction is required to pursue civil damages. The court noted the Ohio Supreme Court has not addressed the issue. The federal court certified the questions about both laws to the Supreme Court, and the Court agreed to review the questions.

Civil Lawsuit Claim Requires Conviction, Health Commissioner Argues
Weisdack explains that Ohio law allows for civil lawsuits to be filed based on several specific criminal acts and specifies which crimes carry both a criminal conviction and potential civil liability. Ohio also has specific laws that allow for civil lawsuits based on criminal conduct even if the crime isn’t prosecuted. Those laws include the right to recover damages for the unauthorized use of property, child stealing, corrupt activity, and wiretapping. When the Court ruled in Jacobson that R.C. 2307.60 allows civil lawsuits to be filed based on any criminal act, it made the law the nation’s broadest statute by allowing lawsuits based on unspecified criminal acts, the health commissioner maintains.

While the law doesn’t define “criminal act,” the health commissioner argues the legislature intended for there to be a conviction for the underlying “criminal act” before the criminal act could be used as the basis for a civil lawsuit. For an act to be “criminal,” a crime must be committed and for a crime to be committed, there must be a conviction, Weisdack argues. Mere allegations of criminal conduct don’t rise to the level of “criminal act” under the statute, he maintains.

The health commissioner cites Black’s Law Dictionary’s definition of a “criminal act” as an “unlawful act that subjects the actor to prosecution under criminal law.” The “criminal act” contemplates an act that is unlawful and prosecuted, he maintains. While the Supreme Court didn’t define “criminal act” in Jacobson, Weisdack notes that in several lower courts considering claims under R.C. 2307.60, the courts required a conviction before allowing the plaintiffs to pursue civil damages.

Similarly to “criminal act,” the health commissioner notes that R.C. 2921.03 doesn’t define “commission of the offense.” He argues the only way to have a criminal violation and a committed offense is through a conviction. He notes that the terms “crime” and “offense” are used in conjunction with acts that are subject to criminal proceedings and not purely for civil cases. Like other state laws, R.C. 2921.03 attaches civil penalties to a criminal offense. It doesn’t create a new civil claim, but rather provides civil remedies in addition to criminal penalties for someone convicted under the statute, he concludes.

Conviction Not Required, Former Employee Contends
Buddenberg states the “plain language” of the law doesn’t require a conviction, and lawmakers could have easily indicated a conviction was required to seek civil damages. The term “criminal act” means the underlying unlawful conduct, and doesn’t require a conviction, she argues. She notes a person accused of a criminal act might escape prosecution for a number of reasons, including the prosecution’s failure to prove a crime beyond a reasonable doubt. She argues lawmakers amended the law in 2007 to make it easier for crime victims to pursue damages for their injuries through civil lawsuits, regardless of whether perpetrators were ever charged or convicted of the crimes.

Ohio has allowed civil lawsuits based on criminal convictions for centuries, Buddenberg explains, noting that Ohio lawmakers have updated the statute several times. Prior to 2007, a criminal conviction couldn’t be introduced as evidence in a civil lawsuit unless the defendant admitted to committing the crime in open court. Buddenberg notes the sponsor of the legislation updating the law said the law would allow a conviction to be used as evidence in a civil case to “ease the burden” on the victim seeking damages. Had lawmakers required a conviction in order to file a civil lawsuit, they wouldn’t have made the introduction of the conviction optional, Buddenberg concludes.

Buddenberg also disputes the health commissioner’s interpretation of the Black’s Law Dictionary definition of “criminal act,” which says it’s an “unlawful act that subjects the actor to prosecution....” “Subject to” prosecution is not the same as “has been prosecuted,” she argues, but rather means the person “could be” prosecuted for the unlawful act.  Buddenberg maintains the court cases cited by the health commissioner that required a conviction were decided before the Supreme Court clarified the meaning of the statute in Jacobson.

Similarly to R.C. 2307.60, R.C. 2921.03 doesn’t require a conviction to pursue a civil lawsuit and “commission of offense” isn’t synonymous with “conviction,” Buddenberg maintains.

Friend-of-the-Court Briefs
The Ohio attorney general’s amicus brief states that it supports the position that R.C. 2307.60 doesn’t require a conviction to file a civil lawsuit. The attorney general states the office doesn’t take a position on the interpretation of R.C. 2921.03 and doesn’t have a position regarding the merits of either Buddenberg’s or Weisdack’s arguments.

A joint brief was submitted by Ohio School Boards Association, Ohio Transit Risk Pool, and County Commissioners Association of Ohio in support of Weisdack. The Ohio Association of Civil Trial Attorneys also filed a brief in support of Weisdack.

The Ohio Crime Victim Justice Center, Ohio Alliance to End Sexual Violence, Cleveland Rape Crisis Center, and Ohio NOW Education and Legal Fund filed a joint brief in support of Buddenberg.

- Dan Trevas

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

Representing Robert K. Weisdack et al.: Frank Scialdone, 440.248.7906

Representing Rebecca Buddenberg: Subodh Chandra, 216.578.1700

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When Complaint Wasn’t Served on Doctor within One Year, Could Lawsuit Go Forward?

Michael Moore v. Mount Carmel Health System et al., Case no. 2018-1233
Tenth District Court of Appeals (Franklin County)


  • Does the Ohio savings statute, R.C. 2305.19(A), apply to an action in which a plaintiff attempts, but fails to “perfect,” service on the original complaint within one year pursuant to Rule 3(A) of the Ohio Rules of Civil Procedure?
  • If so, when a plaintiff files instructions for service after the Civ.R. 3(A) one-year period, does the request act as a dismissal and refiling of case that allows the action to continue?
  • Is a plaintiff’s failure to serve a defendant before the statute of limitations and the one-year commencement period expire a failure on the merits?

Michael Moore’s son Justin was undergoing kidney dialysis on Jan. 20, 2014, when Justin required an emergency transfer to a hospital. Justin, 27 at the time, was taken to Mount Carmel St. Ann’s Hospital in Westerville. He needed a tube placed down his windpipe to help him breathe. The critical care physician treating Justin consulted with Dr. Eric Humphreys, an anesthesiologist from Central Ohio Anesthesia (COA), who performed the intubation on Justin.

In a medical negligence lawsuit filed against the hospital, Humphreys, and COA, Moore – Justin’s conservator – alleged that the doctor didn’t perform the intubation correctly, which caused oxygen deficiency, cardiac and respiratory arrest, and permanent brain injury. The lawsuit states that Justin lost his ability to walk and care for himself, experienced impaired speech and communication, and suffered other debilitating injuries.

Father Files Lawsuit, Requests Service on Defendants
Following a 180-day extension, Moore, who was representing himself, filed the complaint in Franklin County Common Pleas Court on July 6, 2015, a day before the statute of limitations in this case expired. He requested delivery of the appropriate legal documents, called service of process, toall the defendants. Humphreys’ address was listed at Mount Carmel St. Ann’s Hospital, and COA’s address was listed at a Columbus location.

Humphreys wasn’t employed by Mount Carmel and didn’t have a business address at the hospital. Beginning in 1999, COA, which employed Humphreys, had a contract to provide anesthesia services to the hospital. The contract terminated at the end of 2014. Humphreys retired from COA in August 2014.

Moore maintained that someone signed for the documents sent by certified mail to Humphreys at Mount Carmel St. Ann’s Hospital, so the doctor was properly served. But Humphreys stated that he never received the summons or complaint during the one-year timeframe after the suit was filed, as required by court rules for civil cases.

On Sept. 1, 2015, a lawyer notified the court that he would be representing Moore. In March 2017, the lawyer requested personal service on Humphreys, who was successfully served with the documents at his residence on March 10.

Medical Groups and Doctor Argue Lawsuit Can’t Proceed
COA and Humphreys asked the court for summary judgment in their favor, arguing in part that Humphreys wasn’t timely served within one year after the lawsuit was filed. Mount Carmel also requested summary judgment, arguing it wasn’t liable because Humphreys wasn’t employed by the hospital and the doctor wasn’t served within the proper timeframe.

Moore countered that the March 2017 request for personal service on Humphreys activated Ohio’s savings statute, R.C. 2305.19(A), which allowed the case to proceed.

In September 2017, the trial court rejected Moore’s argument and granted summary judgment in favor of the medical organizations and the doctor. The court found that Humphreys wasn’t served in a timely manner, the statute of limitations had expired, and Mount Carmel couldn’t be held legally responsible because the deadline to file against Humphreys had expired.

Father Appeals Trial Court Decision
Moore appealed to the Tenth District Court of Appeals. A panel of three judges from the Second District Court of Appeals was assigned to hear the case. In July 2018, the appeals court reversed the trial court’s decision, concluding that the savings statute applied.

Mount Carmel, COA, and Humphreys informed the court that they believe the decision conflicts with rulings from other appellate courts in the state. The Tenth District agreed and certified the conflict. The Ohio Supreme Court accepted the conflict as well as appeals from Mount Carmel, COA, and Humphreys.

Ohio’s Savings Statute
R.C. 2305.19(A) states in part:
“In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff … may commence a new action within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. …”

Ohio’s Savings Statute
R.C. 2305.19(A) states in part:
“In any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff … may commence a new action within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. …”

Savings Statute Doesn’t Apply, Medical Groups and Doctor Contend
Rule 3(A) of the Ohio Rules of Civil Procedure states, “A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant, ….”

Humphreys and COA maintain that, based on Civ.R. 3(A), a civil lawsuit is commenced only when the complaint is filed with the court and the complaint is successfully served within one year on the defendant. Because Moore didn’t serve the doctor before the statute of limitations expired and within one year of filing his complaint, he failed to “commence an action” against Humphreys, they argue.

They also discuss R.C. 2305.19, which is known as Ohio’s savings statute, and point to its language “failure otherwise than upon the merits.” This means that when a plaintiff's failure in a case is for a reason other than losing on the case’s merits, the savings statute applies, they explain. But when a plaintiff doesn’t commence an action within the statute of limitations, that is a failure on the merits, they argue, citing Ohio Supreme Court cases from 1967 and 1977 as well as multiple appellate court decisions. Because Moore didn’t commence his lawsuit within the statute of limitations, it failed on the merits and the savings statute can’t revive the case, they maintain.  

Humphreys and COA reject the Tenth District’s conclusion that Moore’s attempt to serve the doctor initially after the July 2015 filing of the complaint was an “attempt to commence” under R.C. 2305.19(A) and that the savings statute allowed him to refile the case. Moore could refile his case only if it was voluntarily or involuntarily dismissed by a court within the one-year timeframe, they argue.

When the statute of limitations and the one-year commencement period both expire without a defendant successfully being served, the claims fail on the merits because the lawsuit is time barred, Humphreys and COA conclude.

They maintain that the Tenth District’s decision conflicts with rulings from the appellate courts in the Sixth, Eighth, Ninth, and Eleventh Districts.

In its separate brief, Mount Carmel believes Civ.R. 3(A), which explains when a lawsuit commences, trumps the savings statute. Because Moore didn’t serve Humphreys within one year after the complaint was filed, and because he didn’t ask for a dismissal of the case and refile it, Moore didn’t commence his lawsuit against the doctor within the one-year timeframe, and nothing extended the life of the case, Mount Carmel argues.

Law Extends Time when Party Isn’t Served, Father Asserts
Moore focuses on the language “attempted to be commenced” in the savings statute, R.C. 2305.19. By filing his complaint within the statute of limitations and requesting that the defendants be served, he attempted to commence his lawsuit, Moore states.

Moore’s brief maintains that applying Civ.R. 3(A) is “misguided” because the savings statute encompasses not only actions that the plaintiff commences, but also those the plaintiff attempts to commence. 

Moore notes that the purpose of the savings statute is to ensure that cases are decided on the merits rather than procedural issues wherever possible. When service isn’t completed, that’s a failure for a procedural reason, not on the substance of the case, he maintains. He argues that when he was unable to serve the doctor within one year of the July 2015 filing of his complaint, his case failed for reasons other than the merits of his claims and the savings statute kicked in, giving him another year to serve Humphreys. The doctor was successfully served in March 2017, within one year after July 2016, when his case failed for reasons other than its merits, Moore asserts.

Also noting that Civ.R. 3 uses the words “filing upon a named defendant,” he contends that as long as at least one defendant is served, the action has commenced under the rule. He notes that after July 2016 but before Humphreys was served in March 2017, all appellants, including the doctor, were participating in the case through depositions and discovery.

As far as the state’s other appeals courts, Moore argues that the Tenth District’s ruling in this case is in line with decisions from the Second, Fourth, Fifth, Seventh, and Eighth Districts. He maintains the courts that haven’t applied the savings statute to these kinds of procedural problems ignore the “attempted to be commenced” language in the law.

- Kathleen Maloney

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

Representing Central Ohio Anesthesia Inc. and Eric Humphreys, M.D.: Joel Sechler, 614.365.4132

Representing Mount Carmel Health System: Grier Schaffer, 614.485.1800

Representing Michael Moore, conservator of the person and estate of Justin T. Moore: David Shroyer, 614.228.6453

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Does 2017 Supreme Court Ruling about Postrelease Control Sentencing Apply to Earlier Cases?

State of Ohio v. Andre D. Harper, Case no. 2018-1144
Tenth District Court of Appeals (Franklin County)


  • Does the Ohio Supreme Court’s 2017 decision in State v. Grimes apply retroactively to convictions that were final before Grimes was decided?
  • Does the absence of consequences language in a sentencing entry, as required by Grimes, void the sentence?

Andre Harper pled guilty in February 2013 to robbery, and the trial court sentenced him to 36 months in prison. The court’s sentencing entry stated, “The Court also notified the Defendant of the applicable period of 3 years mandatory post-release control pursuant to R.C. 2929.19(B)(3)(c), (d) and (e).” Harper didn’t appeal.

In July 2017, Harper filed a request to vacate his postrelease control (PRC) sanction, citing the Ohio Supreme Court’s May decision that year in State v. Grimes. Harper’s motion argued that, based on Grimes, his sentencing entry didn’t include the required “statement to the effect that the Adult Parole Authority (‘APA’) will administer the post-release control pursuant to R.C. 2967.28 and that any violation by the offender of the conditions of post-release control will subject the offender to the consequences set forth in that statute.” Because he had completed his original prison term, Harper maintained that the appropriate remedy was to set aside the PRC part of his sentence and order his release from a later prison term imposed for a PRC violation.

The trial court denied the motion, stating Harper received all the PRC notifications that were mandated in 2013 and no court had concluded Grimes was retroactive.

Defendant Appeals Trial Court Refusal to Set Aside His PRC Sanction
Harper appealed to the Tenth District Court of Appeals. The Tenth District noted the Supreme Court ruled in State v. Fischer (2010) that failing to properly impose PRC makes that part of the sentence void and open to legal challenge at any time, regardless of legal principles about the finality of court decisions. Harper’s sentencing entry was defective under Grimes because it didn’t mention the consequences for violating PRC, the appeals court stated in a split decision issued in June 2018. However, the Tenth District agreed with the trial court’s ruling denying Harper’s request to vacate his PRC sanction, concluding that Harper’s PRC sentence was valid, even though it “may not have been perfectly imposed.” The court reasoned that the correct remedy was to return the case to the trial court for a nunc pro tunc entry to correct the deficiency in the entry. Releasing Harper from confinement wasn’t necessary, the Tenth District ruled.

The Franklin County Prosecutor’s Office appealed to the Ohio Supreme Court, which accepted the case.

Grimes Can’t Be Applied Retroactively to Earlier PRC Sentences, Prosecutor Argues
Pointing to the Ohio Supreme Court’s decision in Ali v. State (2004), the prosecutor maintains that a new judicial ruling can’t be applied retroactively to a final conviction. A conviction is final when the accused exhausts all appellate remedies. Before Grimes, the prosecutor argues, no Supreme Court precedent compelled a trial court to include consequences language in a sentencing entry, including at the time Harper’s conviction became final. Nor, in the prosecutor’s view, did any statute require a court’s sentencing entry to include the consequences of a PRC violation. Given these two factors, Grimes is a new judicial ruling that applies only to cases that weren’t yet final at the time Grimes was decided and doesn’t apply to Harper’s case, the prosecutor asserts.

The office’s brief notes that the Court has ruled a sentence is void when it doesn’t comply with relevant statutes and that such sentences are “facially illegal.” For example, when a trial court omits PRC from a sentencing entry, the PRC sanction is void, the office states. Void sentences aren’t subject to legal rules about the finality of court decisions (res judicata) and can be challenged at any time, the prosecutor contends.

However, the prosecutor argues, the manner in which a trial court imposes a sentence or its selection of a sentence within the range provided by statute doesn’t result in an illegal sentence, so it’s not void. When there are irregularities in how the court imposes PRC, that PRC sanction is subject to res judicata and can be challenged only through a direct appeal, the prosecutor maintains.

The office contends that the Tenth District wrongly concluded that omissions in Harper’s sentencing entry voided his PRC sanction. Even though the Tenth District returned the case to the trial court to correct the sentencing entry, the prosecutor argues that step doesn’t minimize the effect of the court’s ruling that Harper’s PRC sanction was void. In contrast, the prosecutor concludes the trial court followed all applicable statutes and case law in effect in 2013 so Harper’s sentence wasn’t void.

The prosecutor also views Harper’s case as an opportunity for the Court to overrule its “void-sentence doctrine” as it relates to PRC and instead hold that any errors made when imposing PRC don’t void the sentence but rather can be challenged only through a direct appeal.

Appeals Court Didn’t Void His PRC Sanction, Harper States
Contrary to statements from the prosecutor, Harper maintains that the Tenth District actually upheld the trial court’s ruling, and he remained on PRC after the appeals court’s decision. Harper’s brief notes that his PRC sanction expired in October 2018, a few months after the Tenth District ruled in his case. Because he has completed his sentence, Harper states his case now is moot because the outcome at the Supreme Court won’t affect him.

Although the Court can proceed with the case if the legal question is of public or great general interest, Harper maintains that this case doesn’t involve such a question. In particular, he argues, the Tenth District ruled his sentence was valid and didn’t vacate his PRC sanction. His brief adds that the trial court fully advised Harper at the sentencing hearing of the consequences if he violated his PRC, and the Tenth District could have ordered the correction to his sentencing entry even without referring to the Court’s Grimes ruling.

Harper argues that the Tenth District simply used Grimes as guidance for determining what the trial court should include in the nunc pro tunc entry. Because the Tenth District didn’t apply Grimes retroactively to Harper, he contends that a Supreme Court ruling on whether Grimes can be applied retroactively to void a PRC sanction would be advisory only because that’s not what happened in his case. He believes the Court should dismiss this case as improvidently accepted.

Harper also contends that Grimes wasn’t a new judicial ruling, which can’t be applied retroactively, as the prosecutor states. Earlier Supreme Court decisions made clear that state law requires courts to incorporate certain PRC notifications into sentencing entries. Instead, the Court in Grimes clarified to what extent information about PRC sanctions must be included in a sentencing entry, Harper argues. He maintains that the Court merely interpreted the statutes as they existed since their enactment.

Lucas County Prosecutor and Attorney General File Friend-of-the-Court Briefs
The Ohio Attorney General’s Office and the Lucas County Prosecutor’s Office have filed separate amicus curiae briefs supporting the Franklin County prosecutor.

The attorney general maintains that the statute at issue in Grimes doesn’t mention that consequences of PRC violations must be included in a court’s sentencing entry. In addition, the attorney general argues that even when a sentencing entry fails to include the information described in Grimes, that part of the sentence shouldn’t be void. Instead, the attorney general states, it should be subject to legal principles about the finality of court decisions and only allowed to be challenged in a direct appeal. The office views these types of mistakes in sentencing as harmless technical issues.

In response, Harper’s brief asks the Court to reject the attorney general’s recommendation to overrule its precedent regarding void sentences. Harper asserts that the office isn’t permitted to raise this issue for the first time now and in an amicus brief.

The Lucas County prosecutor describes the “ever-increasing” requirements for courts to validly impose PRC. The office notes practical impacts, such the growing number of motions to revisit PRC sentences that necessitate analysis of hearing transcripts, sometimes unavailable, and sentencing entries as well as the burdens on the courts, prosecutors, and public defenders to conduct or participate in more hearings. These effects will escalate if the Court finds that Grimes applies retroactively, the prosecutor concludes.

Attorney General’s Office to Argue before Court
The Franklin County prosecutor and the attorney general jointly submitted a request to share the 15 minutes allotted to the prosecutor for oral argument. The Supreme Court granted the request.

- Kathleen Maloney

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 Franklin County Prosecutor’s Office: Seth Gilbert, 614.525.3555

Representing Andre D. Harper from the Franklin County Public Defender’s Office: George Schumann, 614.525.3194

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

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Is Granting Power to County Boards of Revision to Foreclose on Property Constitutional?

State of Ohio ex rel. Elliot G. Feltner v. Cuyahoga County, Ohio Board of Revision et al., Case no. 2018-1307
Writs of Prohibition and Mandamus


  • Because the Ohio Constitution vests all judicial power in Ohio Courts, does R.C. 323.65. through R.C. 323.78 impermissibly grant county boards of revisions judicial power?
  • Are foreclosures by county boards of revisions using an alternative redemption period that transfers real property to a land bank void because the boards lacked the jurisdiction to make the transfers?

Faced with a crisis of delinquent property taxes from abandoned lands, the Ohio General Assembly enacted a series of laws beginning in 2006 that expedited foreclosures and sales of abandoned properties with delinquent taxes. In 2009, state laws authorized the establishment of county “land banks” to accept abandoned and unoccupied properties that had been foreclosed upon by county governments for unpaid taxes. While delinquent tax foreclosures traditionally occurred in county common pleas courts, the new laws allowed county boards revisions to conduct the foreclosures and use a newly created “alternative redemption period” method, instead of a sale of the property at auction, to transfer the foreclosed properties to the land bank. The land bank could transfer the properties to new owners once back taxes were paid.

Elliot G. Feltner had been delinquent in property taxes he owned for a parcel of real estate in Cleveland since 2009. In 2015, the Cuyahoga County treasurer sought to foreclose on the property, which was valued at $145,000. Feltner claimed he was never served with notice that the county was seeking to foreclose and learned of the case when he attempted to sell the property.

In 2017, a Cuyahoga County Board of Revision hearing panel heard the case. The county treasurer’s office, charged with foreclosing on delinquent tax properties, indicated the office intended to transfer the property to the county land bank unless the owner paid the unpaid taxes. At the time, the delinquency increased to more than $65,000. Feltner didn’t appear for the final hearing, and the deed was issued to the land bank. Feltner didn’t appeal the decision, and in August 2017, the property was transferred by the land bank to an automotive repair facility.

Feltner sought to vacate the judgment of the board of revision for lack of service of process and the board has taken no action on Feltner’s motion.

In 2018, Feltner filed writs of prohibition and mandamus with the Ohio Supreme Court, asking the Court to declare the laws enabling the board of revision to conduct the foreclosure proceedings unconstitutional and to order the board to return the ownership of the property to him. The Court agreed to hear the case.

Board’s Action Violates Constitution, Property Owner Argues
Feltner cites Article IV, Section 1 of the Ohio Constitution, stating that judicial powers in the state are vested in Ohio courts. When the General Assembly enacted R.C. 323.65 and the subsequent provisions giving county board of revisions, which are part of the executive branch of government, the right to conduct foreclosures of tax delinquent properties, Feltner argues it violated the separation of powers doctrine of the Ohio Constitution. Feltner argues the actions of the boards unconstitutionally usurp the power of the courts to foreclose on properties. He also asserts that the alternative redemption process conducted by the board deprived him of the right to reclaim his property by paying the back taxes, or receive the difference between the taxes owed, $65,000, and the property’s value, $145,000, once the land bank took possession.

Feltner explains the Ohio Constitution grants executive branch agencies “quasi-judicial powers” so that the agencies can resolve administrative disputes between the agencies and those governed by them. He notes the Bureau of Workers’ Compensation can resolve disputes regarding compensation benefits, and the Public Utilities Commission of Ohio can regulate and resolve disputes regarding public utilities. Boards of revisions have quasi-judicial power to resolve disputes regarding challenges to property valuations for property tax purposes, but foreclosures are an exercise of judicial power that only belongs to courts, he maintains.

Feltner argues the foreclosures are judicial because they involve “adversarial” proceedings brought by the county against property owners who appear before the boards against their will. In a quasi-judicial case, such as a property-valuation dispute or a challenge to compensation benefits, the individual voluntarily seeks to have the administrative agency resolve the dispute by reviewing the agency’s actions and determining if their initial assessment was correct. An action that adjudicates the rights of a property owner to reclaim his or her property or lose ownership is purely a judicial matter and only an Ohio court has jurisdiction to consider the case, he asserts.

Revision Board Has Conflict of Interest, Owner States
Feltner also argues the structure of the boards of revision and county land banks make the foreclosure process rife with personal and “institutional” conflicts of interests. The conflicts are even greater in Cuyahoga County because it has adopted a county charter form of government that concentrates the power in a county executive. The county executive controls two of the three votes on the board of revision by appointing members, which includes the county treasurer, who is appointed to the post by the county executive. And the county executive and treasurer are both on the board of directors of the county land bank. The treasurer in foreclosure cases is both the plaintiff seeking to foreclose and a member of the board that has to approve the action.

Feltner argues the structure of the boards makes the process inherently unfair to property owners, and because the law violates the separation of powers doctrine, actions under the law are void. He maintains that he wasn’t obligated to appeal the foreclosure of his property and has the right to challenge the constitutionality of the law itself, and to have the judgment to against him overturned.

Boards Have Jurisdiction, County Argues
Cuyahoga County argues that lawmakers legally granted boards of revisions the right to conduct expedited delinquent tax forecloses on abandoned and vacant properties. The county maintains that judicial power hasn’t been delegated to an administrative board because property owners have the right to opt out of the board-of-revision foreclosure process and have their cases transferred to common pleas courts. The decisions of the boards of revision are also appealable to the common pleas court, making the process quasi-judicial, and not an intrusion into the powers of the courts to decide the matter, the county asserts.

The county notes that Feltner never challenged the foreclosure, and because he had that option, he isn’t entitled to ask the Supreme Court to reverse the board’s actions.

The county disputes the argument that because process is adversarial, it is automatically a judicial process. It argues in many cases administrative actions are adversarial. The county notes as an example that when a professional licensing board seeks to revoke a practitioner’s license, the practitioner isn’t before the board simply for an independent review of the agency’s action, but to argue that they are wrong and the practitioner is entitled to keep the license.

The county also maintains the board-of-revision foreclosure process isn’t adversarial. The board is authorized to determine if the county has established that delinquent taxes were owed on the abandoned land. Nothing about that determination is inherently “judicial” and nothing in Ohio law states that determination can only be made by an Ohio court, the county argues.

The county maintains there is no conflict of interest by appointed members of the board carrying out their legal duties to transfer delinquent properties to the land bank or sell the properties to collect delinquent taxes.

Oral Argument Participation
The Court permitted the Cuyahoga County Land Reutilization Corporation and Ohio Land Bank Association to participate in oral argument and share the allotted time given to Cuyahoga County.

Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting the Cuyahoga County position has been submitted by the Ohio Attorney General’s Office. Briefs in support of the county were also filed by the Ohio Prosecuting Attorneys Association, County Auditors’ Association of Ohio, County Treasurers Association of Ohio, and jointly by the Cuyahoga County Land Bank Reutilization Corporation and Ohio Land Bank Association.

- Dan Trevas

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

Representing Elliott G. Feltner: Marc Dann, 216.373.0539

Representing Cuyahoga County Ohio Board of Revision et al. from the Cuyahoga County Prosecuting Attorneys Office: Charles Hannan, 216.443.7758

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Cleveland Attorney Asks for Stayed Suspension

Disciplinary Counsel v. Carol B. Adelstein, Case no. 2019-0801
Cuyahoga County

Cleveland attorney Carol B. Adelstein is facing discipline for violating multiple rules governing attorney conduct related to maintaining and reconciling her client trust accounts (IOLTAs).

Adelstein and the Office of Disciplinary Counsel, which investigated the matter, agreed to a fully stayed one-year suspension with conditions. The Board of Professional Conduct determined, however, that the lawyer’s misconduct warrants only a six-month stay of the one-year suspension, and recommends that sanction to the Ohio Supreme Court.

Lawyer Mishandles Finances during Five-Year Period
In November 2018, the disciplinary counsel filed a complaint against Adelstein, alleging that she had overdrawn her IOLTAs 17 times, failed to keep a client ledger, didn’t reconcile her accounts, and used her IOLTAs for personal expenses and law firm operating costs. A few months later, the disciplinary counsel added two more IOLTA overdrafts to the complaint, totaling 19 overdrafts between April 2014 and December 2018, and a charge that she failed to keep a portion of a client’s retainer in her account while it was being disputed.

Adelstein, who has been a solo practitioner since 1999, paid personal expenses from her client trust accounts to PetSmart and to VW Credit for a lease on her personal vehicle. Adelstein also deposited personal funds and personal loans from friends and family into her IOLTAs.

The disciplinary counsel and Adelstein stipulated to the facts and agreed that she violated several professional conduct rules related to IOLTAs, including those requiring lawyers to separate their money from clients’ money and to keep appropriate financial records. The parties also agreed that her conduct reflected adversely on her fitness to practice law.

Board Eliminates One Mitigating Factor
The panel of the professional conduct board that heard the case accepted Adelstein’s prior administrative discipline for twice failing to register and her multiple offenses for the IOLTA matters as aggravating factors that could increase her disciplinary sanction. 

The disciplinary counsel and Adelstein noted that she has multiple sclerosis, and that the medication she takes for it caused her to have lapses in judgment regarding managing her financial matters, but that the lapses didn’t affect her legal practice.

In reviewing mitigating circumstances, which could lessen her disciplinary sanction, the panel rejected the parties’ conclusion that Adelstein lacked a dishonest or selfish motive. Although Adelstein stated that her medication caused some of her financial mismanagement, the panel found that her personal financial hardship led to her decision to pay her personal expenses from her IOLTAs. The panel did accept as mitigating that she fully cooperated with the disciplinary process and that no client or other person was harmed by her misconduct.

The panel recommended a one-year suspension from practicing law with six months stayed if she takes six hours of IOLTA management and record-keeping education before she is reinstated, commits no further misconduct, and serves two years of monitored probation after reinstatement. The board adopted the findings and the recommended sanction.

Lawyer Raises Other Issues, Argues for Full Stay of Suspension
Adelstein objects only to the six-month actual timeout that the board recommends. She argues that the board didn’t consider all the relevant mitigating factors. She states that the board gave no weight to her sometimes debilitating multiple sclerosis. She adds that she also suffers from, and takes medications for, chronic depression and anxiety, which she didn’t disclose to the board out of embarrassment and shame.

She believes that the board’s conclusion that she had a dishonest or selfish motive didn’t account for her lifelong physical and mental health conditions, and the board instead determined that her misconduct stemmed only from her financial difficulties. In addition, actual suspensions are typically imposed for IOLTA violations that involve dishonesty and harm, which didn’t occur in her case, she contends.

Adelstein states that she is willing to enter into a contract with the Ohio Lawyers Assistance Program for assistance with her depression and anxiety. A six-month actual suspension serves only to punish her without protecting the public, she concludes, asking the Supreme Court for a fully stayed suspension with conditions.

Disciplinary Counsel States Board Has Evidence for Adjusted Sanction
The disciplinary counsel responds that its recommended one-year suspension, fully stayed, is adequate to protect the public in this case. Yet the board’s recommended sanction also is supported by the evidence, the office states.

Noting that Adelstein is raising other health conditions for the first time in her objections to the Supreme Court, the disciplinary counsel maintains that it’s inappropriate for the Court to consider those conditions when they weren’t brought forward earlier. As for the health conditions Adelstein did discuss with the panel, the disciplinary counsel argues that she denied that her medications affected her legal practice and she also didn’t meet the criteria for establishing a physical or mental health disorder as a mitigating factor.

Noting that the board isn’t bound by agreements between the disciplinary counsel and a lawyer, the office maintains that the board’s conclusion that Adelstein intentionally violated professional conduct rules and, thus, had a selfish or dishonest motive is based on evidence.

- 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: Joseph Caligiuri, 614.461.0256

Carol B. Adelstein, pro se: 216.417.1865

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