Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Feb. 26, 2020

Jeffrey P. Sherman v. Ohio Public Employees Retirement System, Case no. 2019-0373
Tenth District Court of Appeals (Franklin County)

State of Ohio v. Hayward Jones, Case no. 2019-0395
Sixth District Court of Appeals (Sandusky County)

Crown Services Inc. et al. v. Miami Valley Paper Tube Company Inc., Case no. 2019-0665
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Alvin C. Dent Jr., Case no. 2019-0651 and State of Ohio v. Alvin C. Dent Jr., Case no. 2019-0654
Tenth District Court of Appeals (Franklin County)

Did State Retirement System Have Rational Reason to Withhold Health Insurance Subsidy from Some Retirees?

Jeffrey P. Sherman v. Ohio Public Employees Retirement System, Case no. 2019-0373
Tenth District Court of Appeals (Franklin County)

ISSUE: Does Ohio’s equal protection clause require that the Ohio Public Employees Retirement System treat publicly reemployed retirees the same as privately reemployed retirees?

In 2009, Jeffrey Sherman retired from the Ohio Department of Taxation. Sherman went back to work a year later as a part-time attorney for the Regional Income Tax Agency. Retirement benefits for both agencies are provided through the Ohio Public Employees Retirement System (OPERS).

After retiring from the tax department, Sherman started receiving his pension from OPERS. He also has access to a health insurance plan. OPERS offsets part of retirees’ premiums for the health coverage with a “healthcare allowance.” In 2016, the retirement system also began providing an extra subsidy of $74 per month, which dropped to $49 per month three years later. OPERS states the subsidy was implemented in part to help cover out-of-pocket prescription drug costs.

Retirees who return to work in positions covered by OPERS – such as Sherman – aren’t eligible for the monthly subsidy. Those who are reemployed in positions covered by other public retirement systems and those who don’t work receive the subsidy.

State Employee Sues Retirement Fund
Sherman filed a lawsuit against OPERS in 2017, alleging that the retirement system violates equal protection as guaranteed by the Ohio Constitution because retirees who are reemployed in OPERS-covered positions are excluded from receiving the subsidy.

The retirement system asked the Franklin County Common Pleas Court to dismiss the lawsuit, which the court did.

Sherman appealed to the Tenth District Court of Appeals, which reversed the trial court’s decision. The appeals court determined that the different groups of OPERS retirees were similarly situated and OPERS hadn’t provided a rational basis for giving some retirees the subsidy while preventing others from receiving it.

OPERS appealed to the Ohio Supreme Court, which accepted the case.

Retirement Fund Argues Distinctions Save Money and Prevent Administrative Burden
OPERS, which is represented by the Ohio Attorney General’s Office, explains that a government practice that treats individuals differently – and doesn’t involve a suspect class or a fundamental right – is allowed as long as the practice has a rational relationship to a legitimate government interest.

Noting that it provides pensions for more than a million state employees, the retirement system argues it has a legitimate public interest in responsibly managing its funds to ensure long-term financial health. OPERS maintains that it can rationally withhold the subsidy from reemployed retirees because they need the money less than others. When comparing retirees who are reemployed in OPERS-covered jobs to those reemployed in positions in the public sector not covered by OPERS or in the private sector, OPERS argues the retirees who take jobs that are covered by OPERS are the only retirees it knows have returned to work.

The retirees in OPERS-covered jobs also impose additional costs and burdens on the retirement system because they earn additional retirement funds in addition to their pension, the retirement system states. In addition, private employers aren’t required to notify OPERS if they hire a retiree, and public employers not covered by OPERS don’t have to inform OPERS they’ve hired a retiree, OPERS explains. Although the pension fund for non-OPERS public employees does have to tell OPERS when an OPERS retiree is hired, there’s no penalty if they don’t, the OPERS brief notes.

“It is perfectly rational for OPERS to withhold a subsidy from retirees who impose unique costs, and who it can most easily tell are not in need of the subsidy,” the brief states.

OPERS concludes that as long as it has some conceivable justification for providing subsidies to some retirees and not to others, courts aren’t to second-guess that decision and the policy isn’t unconstitutional based on equal protection rights.

Retiree Maintains Distinctions Are Arbitrary and Irrational
Sherman responds that the retirees who received the subsidy were similarly situated in all relevant respects to him and the others who didn’t receive the subsidy – they were OPERS retirees, they returned to work, and they needed health insurance.

He asserts it’s arbitrary for OPERS to maintain that a retiree who takes an OPERS-covered position has less need for a subsidy than other OPERS retirees. The retirement system’s classification doesn’t consider a retiree’s actual income, and OPERS has made no effort to determine who needs the subsidy, he states. He points to the 1993 Ohio Supreme Court ruling in Roseman v. Fireman & Policemen’s Death Benefit Fund to argue that just because the state can save money by creating arbitrary distinctions, that savings doesn’t make the classification legitimate or rational.

As far as the additional retirement funds a retiree earns when taking an OPERS-covered position, Sherman contends there is no rational basis for assuming that amount is any different than what OPERS would provide to a non-retiree who took the job. He also notes that even though OPERS typically does receive notice when a retiree goes back to work for an employer covered by another public pension plan, OPERS doesn’t then withhold the subsidies for those reemployed retirees – and money would be saved if it did. For retirees who take a job in the private sector, Sherman states that OPERS could simply ask retirees to inform it when they take a job in the private sector.

In equal protection cases, courts consider the plausibility of the government’s justifications for differing classifications, Sherman maintains. He concludes there is no rational reason for the distinctions OPERS is making between withholding or paying the subsidy to different retirees.

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 Public Employees Retirement System from the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

Representing Jeffrey P. Sherman: Patrick Perotti, 440.352.3391

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Does Lack of Standby Lawyer’s Presence at Jury Selection Lead to Mistrial?

State of Ohio v. Hayward Jones, Case no. 2019-0395
Sixth District Court of Appeals (Sandusky County)

ISSUE: Does a trial court’s failure to make standby counsel available during jury selection constitute structural error because it deprives the defendant of a right to counsel at a critical stage of the trial?

In 2015, Hayward Jones was indicted on multiple counts related to trafficking cocaine, conspiracy, and engaging in a pattern of corrupt activity. An attorney was appointed to represent Jones. Prior to his trial , he asked the trial court to allow him to represent himself. The trial judge instructed him on the implications of self-representation, and Jones signed a form saying he understood that he was waiving his right to an attorney.

Before the trial started, Jones reported to the court that his attempts to hire a private attorney had failed and that he was requesting the court appoint two new attorneys to represent him because he faced more than 100 charges. The judge denied the request but agreed to appoint his fired attorney as standby counsel, who could assist Jones in his defense.

Jury Selection Becomes Contentious
The trial court informed Jones that standby counsel would be present after voir dire. The court asked Jones if he was prepared to participate in the jury selection, and Jones told the judge he wasn’t. The judge explained Jones’ rights to question and challenge the seating of jurors, and ordered the proceedings to continue. Jones’ attorney joined the case after jury selection was completed and opening statements were presented.

Jones was convicted of the majority of the charges and sentenced to 13 years in prison. He appealed to the Sixth District Court of Appeals. In a 2-1 decision, the Sixth District affirmed most of the trial court’s verdict, reducing Jones’ sentence to 11 years. The dissenting judge ruled that failing to have Jones’ standby counsel during voir dire was a structural error that made it impossible for Jones to receive a fair trial, and that a mistrial should have been declared.

Jones appealed the Sixth District’s decision to the Supreme Court on several grounds. The Court agreed to consider only his argument that the lack of an attorney present to assist him with jury selection was an error that should lead to Jones receiving a new trial.

Jury Selection Without Lawyer Unfair, Defendant Argues
Citing the U.S. Supreme Court’s 1984 United States v. Cronic decision, Jones maintains that a trial is unfair if the accused is denied an attorney at a “critical stage of his trial.” Jones notes that courts have ruled that jury selection is a critical stage, and because he openly told the trial court he wasn’t prepared to move forward with jury selection without the assistance of a lawyer, he was denied a fair trial. Jones maintains this type of error by the trial court is deemed a “structural error,” which is a violation of his constitutional rights to a fair trial. Because of the error, a mistrial should have been declared, and the Court should order a new trial, he argues.

Jones explains that under the U.S. and Ohio constitutions, he has a right to have an attorney represent him during a criminal trial. He also notes that he has the right to waive his right to be represented and to represent himself, which he did. But when he told the trial court he wanted to revoke his waiver of his right to an attorney, the court should have appointed an attorney, he argues. Jones acknowledges that he doesn’t have a constitutional right to standby counsel once he chooses to represent himself, but if the court appoints standby counsel, then the attorney must be able assist the defendant at every critical stage of the trial. By forcing Jones to proceed with jury selection before receiving the assistance of an attorney, he was denied the right to counsel and that was a structural error, he concludes.

Jones notes there is little to no guidance in Ohio case law regarding the role of standby counsel. He argues that the Supreme Court should adopt the position that once a trial judge appoints standby counsel, the attorney must assist the self-represented defendant at every critical stage of the trial, including jury selection.

Accused Not Entitled to Lawyer at Jury Selection, Attorney General Asserts
The Ohio Attorney General’s Office explains that Jones did have a right to an attorney, but once he waived that right and invoked his right to represent himself, he waived his rights to the constitutional protections associated with having an attorney. The office maintains there is no constitutional right to have standby counsel appointed when one chooses to represent oneself. Because there is no constitutional right to have standby counsel, there can be no constitutional violation when standby counsel isn’t present at jury selection, the attorney general argued. Because there is no constitutional violation, no structural error occurred that would require Jones receive a new trial.

The attorney general maintains that requiring standby counsel to participate in all phases of a criminal trial may be good public policy, but it would be a decision to be made by the legislature or by amending court rules. The requirements for standby counsel shouldn’t be made by the Supreme Court’s consideration of Jones’ conviction, the attorney general asserts.

The office argues that prior Ohio court rulings have assured that defendants understand what is at stake when representing themselves and that standby counsel may be appointed because of the court’s concerns with the fairness of a trial. The trial court is under no obligation to appoint or even address the appointment of standby counsel when defendants choose to represent themselves, the office argues. And because there isn’t right to have standby counsel, there can be no argument that Jones was denied the right to effective counsel when the standby counsel wasn’t directed to assist with jury selection, the attorney general concludes.

Criminal Defense Lawyers Seek Clarification
An amicus curiae brief supporting Jones’ position has been submitted by the Ohio Association of Criminal Defense Lawyers. The association notes the case presents the Supreme Court with the opportunity to clarify for lower courts the roles and responsibilities of standby attorneys and defendants when defendants seek to represent themselves in criminal trials.

Dan Trevas

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

Representing Hayward Jones: Patrick Milligan, 216.299.8415

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

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Can Company Appeal Trial Court’s Decision to Have Kentucky Court Hear Lawsuit?

Crown Services Inc. et al. v. Miami Valley Paper Tube Company Inc., Case no. 2019-0665
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Can a party to a lawsuit appeal a trial court’s decision to dismiss a case based on a belief that another court is better suited to hear the case?

Miami Valley Paper Tube Company is an Ohio corporation with its primary manufacturing facility in Crittenden, Kentucky, about 25 miles from Cincinnati. Miami Valley contracted with Crown Services Inc., a temporary staffing agency, with headquarters in Columbus, to supply employees to its facility. Under Kentucky law, Crown was responsible for obtaining workers’ compensation for its employees and secured coverage from Wisconsin-based Zurich American Insurance.

Crown employed Kristian Collins to work for Miami Valley. In 2017, Collins was injured in a workplace accident and filed for workers’ compensation. She was awarded $1.9 million in benefits, of which Crown paid $500,000 and Zurich $1.4 million. Crown and Zurich sued Miami Valley, claiming Collins’ injuries were the result of a breach of contract by the manufacturer. Crown and Zurich filed the lawsuit in Cuyahoga County Common Pleas Court, seeking to recover from Miami Valley what they paid in benefits to Collins.

Miami Valley asked the trial court to dismiss the case on two grounds, including the doctrine of “forum non conveniens,” which is the principle that a matter is best suited for another court to hear. It argued the only reason the companies chose Cuyahoga County was because their lawyers’ firm were located there. The trial court suggested the case would be best suited for Grant County, Kentucky, where the Crittenden plant is located. The case was dismissed without prejudice, and Crown and Zurich appealed the trial court’s dismissal to the Eighth District Court of Appeals. The Eighth District dismissed the appeal, stating that the trial court’s order wasn’t a final, appealable order, and the appeals court didn’t have jurisdiction to hear the appeal. The Eighth District noted that because the case was dismissed without prejudice, the companies could refile their case, which led it to determine the trial court didn’t issue a final order.

Crown and Zurich appealed to the Ohio Supreme Court, which agreed to hear the case.

Appeals Court Should Consider the Case, Companies Argue
Crown and Zurich note that R.C. 2505.02 defines when an appeals court has jurisdiction to consider an appeal from a trial court’s ruling.  Citing the Ohio Supreme Court’s 2007 Natl. City Comm. Cap. Corp. v. AAAA At Your Serv., Inc. decision, the companies note that when a case is dismissed for a reason other than its merits, and the trial court declines to retain jurisdiction, the dismissal is a final, appealable order. When the trial court ruled it was dismissing the case because a Kentucky trial court would be better suited to hear it, it both dismissed the case and relinquished jurisdiction, the companies argue. That means the order is final, and the companies could appeal to the Eighth District, Crown and Zurich assert.

Crown argues the trial court’s decision deprives it — as an Ohio company — of a meaningful opportunity to resolve a legal matter against another Ohio company in the state of Ohio. Because the trial court’s ruling doesn’t provide it a meaningful remedy of appeal in Ohio after the resolution of the case in a Kentucky trial court, it ought to be allowed to appeal the Cuyahoga County trial court’s decision as it seeks to keep the case in Ohio, Crown concludes.

Crown and Zurich also maintain that the Eighth District ignored the Ohio Supreme Court’s 1988 Chambers v. Merrill-Dow Pharmaceuticals, Inc. decision, which found dismissing a case on forum non conveniens grounds is a final order, and an appeals court can overrule the decision if it finds a clear abuse of discretion by the trial court. The companies argue the Supreme Court wouldn’t have set a standard for reversing the trial court’s decision if the trial court’s decisions couldn’t be appealed.

Case Better Suited for Kentucky, Manufacturer Asserts
Miami Valley notes that Crown operated out of Florence, Kentucky; hired Collins to work in Kentucky; her injury occurred in Kentucky; and her claim was administered by Kentucky’s workers’ compensation system. The manufacturer also notes that Crown claims it is based in Columbus, and argues there is no justification for filing the lawsuit in Cuyahoga County, which is nearly 300 miles from Crittenden.

Miami Valley argues that Cuyahoga County might be a “proper” venue to consider the case because the court has jurisdiction to hear it, but the court isn’t the “appropriate” venue because of all the important interests weigh in favor of considering the case in Kentucky. The Cuyahoga County court stated it considers several factors when a party seeks to transfer a case based on forum non conveniens, including the access to sources of proof, the ability of witnesses to travel to the court hearing the case, and the burden it puts on the citizens of a county to consider a matter of a far-removed community. The trial court correctly dismissed the case without prejudice after ensuring that  Miami Valley wouldn’t object to litigating the case in Grant County, the company explains. The trial court’s decision gave Crown and Zurich the opportunity to pursue their claim by filing in a more appropriate court, and the court’s order wasn’t a final, appealable order, Miami Valley asserts.

Miami Valley also argues the Eighth District correctly noted the AAAA and Chambers decisions didn’t apply to this matter. AAAA found that when a court rules it doesn’t have jurisdiction to hear a case and transfers it to another court, the order can be appealed. Miami Valley argues it isn’t disputing Cuyahoga County’s right to hear the case, but rather the fairness of hearing the matter in Cleveland. The company argues the trial court was within its right to find it was more appropriate to hear the case in another court, and that ruling couldn’t be appealed at this early stage of the case. Miami Valley notes the Eighth District didn’t apply Chambers because that decision didn’t address cases that were dismissed without prejudice. The Eighth District cited its own precedent that trial court rulings that allow a case to be refiled, aren’t final orders, Miami Valley states. The Eighth District ruling doesn’t conflict with Supreme Court decisions and should stand, the company concludes.

Dan Trevas

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

Representing Crown Services and American Zurich Insurance: Timothy Marcovy, 216.241.7740

Representing Miami Valley Paper Tube Company: John Fiocca, 614.469.7130

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Did Drug Dealing Amount to Engaging in Pattern of Corrupt Activity?

State of Ohio v. Alvin C. Dent Jr., Case no. 2019-0651 and State of Ohio v. William L. Walker Jr., Case no. 2019-0654
Tenth District Court of Appeals (Franklin County)

ISSUE: Did the evidence establish that corrupt activity was a pattern rather than so closely connected as to be considered a single offense?

After receiving complaints of drug activity, excessive foot traffic, and overall nuisance, law enforcement began an investigation in February 2016 into activities around a Columbus house. A detective conducted spot checks as well as longer surveillance of the house, and later sent in a confidential informant, who purchased cocaine there.

In late March, the detective obtained a no-knock warrant to search the house, and a team conducted the search. Along with finding drugs, money, guns, scales, and baggies, the team discovered a monitor and security cameras inside the house. The equipment was seized, and the footage was downloaded.

Alvin Dent Jr., William Walker Jr., and others were indicted on multiple felonies, including cocaine possession, cocaine trafficking, illegal manufacture of drugs, and engaging in a pattern of corrupt activity.

Dent, Walker, and one of the other individuals were tried together. At trial, 25 video clips from the house security system were played. The detective described what he believed the footage depicted, including at least 15 drug sales and individuals preparing crack cocaine, cutting up cocaine rocks, weighing drugs, filling baggies, exchanging drugs for cash, and counting money. The footage showed events that took place over a few hours on one day.

Defendants’ Convictions Included Pattern-of-Corrupt-Activity Offense
The jury found Dent guilty, and the court imposed a 22-year prison sentence, with 14 years of mandatory prison time. Walker also was convicted and sentenced to 20 years. The sentence for the corrupt activity offense was 11 years.

Dent and Walker appealed separately, challenging their convictions for engaging in a pattern of corrupt activity. The Tenth District Court of Appeals overturned the conviction in each case, concluding that proof of a greater duration or a connection between offenders was necessary.

The Franklin County Prosecutor’s Office appealed the reversals . The Ohio Supreme Court agreed to review the issue and consolidated the cases for oral argument only.

Criminal Conduct over Specific Amount of Time Not Needed, State Argues
R.C. 2923.32 describes the offense of engaging in a pattern of corrupt activity. The prosecutor states that the statute prohibits organized criminal activity, and doesn’t require proof that a criminal enterprise existed for a specific time period or that the pattern of corrupt activity went on for a defined time frame.

In Boyle v. United States (2009), the U.S. Supreme Court identified three requirements to show an enterprise: (1) a purpose; (2) relationships among those associated with the enterprise; and (3) “longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Boyle states that the enterprise “is simply a continuing unit that functions with a common purpose” that “remain[s] in existence long enough to pursue a course of conduct ….”

Ohio law defines a pattern of corrupt activity as two or more predicate crimes related to the same enterprise that “are not isolated, and not so closely related to each other and connected in time and place that they constitute a single event.”

The prosecutor maintains that, contrary to the Tenth District’s decision, there are no time requirements for showing a pattern of criminal conduct. The video footage in these cases revealed the defendants’ purpose to run a drug-dealing business through a course of conduct that included making and packaging the product, selling it, and counting their proceeds, the prosecutor states. The office argues the crimes on the video weren’t isolated or unconnected. Instead, the prosecutor asserts, the crimes shown were continuous, occurring over several hours, and were directly related to the organized drug operation in a drug house that had been in operation for many weeks.

Continuous Activity and Longevity Not Proven, Men Maintain
Walker counters that a conviction for engaging in a pattern of corrupt activity can’t stand on merely the commission of multiple crimes by several individuals. According to Walker, the state makes the concepts of “continuous activity” and “longevity” meaningless.

“The video clips here simply do not prove that the activity extends ‘in space, time, or sequence,’ or has ‘the ability to last a long time,’ or is “regular and recurring,” or that it is in any way “frequent or widespread,’” his brief states. “The only way to reach that conclusion is to impermissibly stack inferences. The video clips themselves, however – which is all the State presented – at best demonstrate individuals working over a several-hour period (i.e., isolated offenses and/or a single event) at a possible place of business. Irrespective of whether a trier of fact could infer from the clips that the house was a drug house, it could not properly further infer from that inference the necessary ongoing connections between Mr. Walker and the other individuals or the house to establish he was part of an association-in-fact enterprise.”

Dent’s separate brief contends that, if the prosecutor’s view is adopted, the “longevity of an enterprise could occur over the course of a single day, or even a single hour, so long as its members pursue the purpose of the enterprise.” He argues the word “continuous” instead requires that the activity occur over a significant period of time, rather than the hours the prosecutor depended upon to secure the convictions in these cases. The state offered no evidence that Dent, Walker, or the other codefendants had relationships beyond that single day depicted on the video, Dent maintains.

Both Walker and Dent state that Ohio appellate courts have required a longer amount of time and more than serial drug sales to support a conviction for engaging in a corrupt activity. 

Dent has waived participation in oral argument.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2019-0651 and 2019-0654).

Representing the State of Ohio from the Franklin County Prosecutor’s Office: Kimberly Bond, 614.525.3555

Representing William L. Walker Jr.: Dustin Blake, 614.224.4114

Representing Alvin C. Dent Jr.: Brian Rigg, 614.425.0170

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