Court News Ohio
Court News Ohio
Court News Ohio

Tuesday July 21, 2020

State of Ohio v. Drakkar D. Groce, Case No. 2019-0594
Tenth District Court of Appeals (Franklin County)

Sutton Bank v. Progressive Polymers LLC et al., Case No. 2019-1314
Eleventh District Court of Appeals (Portage County)

State of Ohio v. London Chapman, Case No. 2019-1410
Ninth District Court of Appeals (Lorain County)

Andrew Welsh-Huggins v. Office of the Jefferson County Prosecuting Attorney, Case No. 2019-1481
Seventh District Court of Appeals (Jefferson County)

Did State Prove Pattern of Corrupt Activity in Drug-Dealing Case?

State of Ohio v. Drakkar D. Groce, Case No. 2019-0594
Tenth District Court of Appeals (Franklin County)

Appeal –

  • Is the existence of an enterprise under R.C. 2923.31(C) established by showing the organization is fully operational and engaging in a pattern of illicit activity?
  • Is the time frame for a pattern of criminal conduct sufficient where the evidence shows the corrupt activity is neither isolated nor so closely connected to be considered a single offense?

Cross-Appeal –

  • To sustain a conviction for a violation of the corrupt-activity statute, must the state prove the defendant engaged in continuous criminal activity for a time period sufficient in length to permit the defendant and the defendant’s associates to pursue the enterprise’s criminal purpose?

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

In late March, the detective obtained a no-knock warrant to search the house, and a law-enforcement team conducted the search. Along with finding drugs, money, guns, scales, and baggies, the team discovered security cameras at the front and back doors and in the kitchen, along with a video monitor. The equipment was seized, and the footage was reviewed.

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

Groce, Dent, and Walker were tried together. (Brandon pled guilty before trial.) During the 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 substances, filling baggies, exchanging drugs for cash, and counting money. The footage showed events that took place over a several hours on one day.

Men Convicted of Pattern of Corrupt Activity
The jury found Groce guilty, and the court imposed a 28-year prison sentence. Dent and Walker also were convicted. The sentence for the corrupt-activity offense was 11 years.

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

The Franklin County Prosecutor’s Office appealed all of the reversals. The Ohio Supreme Court heard oral arguments in Dent’s and Walker’s cases in February of this year. (See Did Drug Dealing Amount to Engaging in Pattern of Corrupt Activity?) The Supreme Court also accepted Groce’s appeal, but held it for decisions in the other two cases. However, Groce asked the Court for the same right to be heard. The Court allowed his case to move forward.

Because of the COVID-19 pandemic, the Court will hear the appeal by videoconference.

Law Doesn’t Require Criminal Conduct for Certain Time Period, State Argues
R.C. 2923.32 describes the offense of engaging in a pattern of corrupt activity. The Ohio law is based on the federal Racketeer Influenced Corrupt Organizations (RICO) Act, which imposes enhanced sanctions to deal with organized crime. The prosecutor argues Ohio’s statute 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.

When the Tenth District overturned the convictions, it pointed to the U.S. Supreme Court’s decision in Boyle v. United States (2009). The prosecutor indicates that Boyle’s third requirement for proving an enterprise is “longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Boyle stated that an 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 ….”

The prosecutor maintains the evidence in this case showed the defendants weren’t in the planning stages of their joint endeavor to sell drugs. They had already secured and furnished the house, and they had installed a video surveillance system. They had purchased a large quantity of cocaine, as well as tools to manufacture and sell the drugs, and had guns and ammunition to protect their investment and operation, the prosecutor states. The activities of Groce, Dent, and Walker establish they had an ongoing relationship with a shared objective to produce and sell crack cocaine, the prosecutor argues, concluding that the evidence more than satisfies the elements of an enterprise under state law.

To establish a pattern of corrupt activity, Ohio law states that there must be 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 the crimes shown in the video weren’t isolated or unconnected, but instead were continuous, taking place over several hours. All of the crimes were directly related to the defendants’ organized and fully functioning drug operation in a drug house that had been in operation for many weeks, the prosecutor argues. The brief notes that Groce, who appeared in 14 of the 25 video clips, is shown manufacturing the drugs, packaging the product, and selling drugs to five buyers.

Continuity of Activities Not Proven, Offender Maintains
Groce’s brief contends that the longevity of the enterprise wasn’t the legal issue in Boyle. His brief focuses instead on the requirement of continuity in the enterprise, citing the U.S. Supreme Court’s decision in H.J. Inc v. Northwestern Bell Tel. Co. (1989). In that ruling, the nation’s highest court determined a pattern can be proven when there is either a closed-ended period of repeated conduct or open-ended continuity.

For a closed-ended pattern, there must be a series of related, underlying crimes that extend over a substantial period of time. Evidence of multiple crimes over a few weeks or months and threatening no future criminal conduct doesn’t amount to a pattern, the U.S. Supreme Court stated. Groce argues that four hours of drug transactions involving himself and his codefendants falls short of this standard.

H.J. Inc. also described open-ended continuity, which is established when the underlying crimes include a specific threat of repetition extending indefinitely into the future, are part of the enterprise’s regular way of doing business, or are a regular way of conducting an ongoing legitimate business. Groce notes that the prosecutor failed to have the customers, the informant, or the men who were in the house when it was searched testify to demonstrate the existence of a longer-term drug operation. He argues the physical evidence and the video clips didn’t prove that the drug activities on that one day were a distinct threat of future, long-term criminal activity.

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: Kimberly Bond, 614.525.3555

Representing Drakkar D. Groce: Dennis Belli, 614.300.2911

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Can Courts Interpret Loan Document’s Faulty Default Warning to Borrower?

Sutton Bank v. Progressive Polymers LLC et al., Case No. 2019-1314
Eleventh District Court of Appeals (Portage County)

ISSUE: While cognovit clauses attached to commercial loan documents must be strictly construed against those seeking to enforce them, must courts still follow traditional rules of contractual interpretation when there is a dispute as to the meaning of the clause?

In 2016, Darin Bay and his company, Progressive Polymers, borrowed $500,000 from Sutton Bank. They memorialized the agreement by signing a promissory note, which included a cognovit clause. The note defined several terms used in the loan agreement. The note was a standard form drafted by Sutton Bank that defined “I” to mean the borrower — in this case Bay and Progressive — and “you” to be the lender — Sutton Bank.

As part of the form, Sutton included a standard warning required by R.C. 2323.13(D). The warning was in larger type, all capital letters, and in bold. It stated: “By signing this paper you give up your right to notice and court trial . If you do not pay on time a court judgment may be taken against you without your prior knowledge and the powers of a court can be used to collect from you regardless of any claims you may have against the creditor whether for returned goods, faulty goods, failure on his part to comply with the agreement, or any other clause.”

Bay signed the form’s only two signature blocks beneath the warning in spaces listed for the “borrower.” He signed on behalf of Progressive and himself.

Two months later, Progressive told Sutton Bank it had ceased doing business and would no longer pay on the note. The bank filed a lawsuit against Progressive and Bay to obtain a judgment on the note for $410,000. The Portage County Common Pleas Court granted the judgment.

Bay and Progressive appealed the decision to the Eleventh District Court of Appeals, arguing the terms in the loan were defective and the warning clause pertained to Sutton Bank as the “you” in the provision. In a split decision, the Eleventh District reversed the trial court’s judgment and remanded the case for further proceedings.

Sutton Bank appealed to the Ohio Supreme Court, which agreed to hear the case. Because of the coronavirus pandemic, the Court will hear the appeal by videoconference.

Provision Clearly Applies to Borrower, Bank Argues
Promissory notes are unconditional promises to pay money at a future time, the bank explains. Cognovit clauses, which allow a lender to obtain a judgment from a debtor without notice and hearing requirements when the debtor defaults, are a regular tool used by financial institutions to make commercial loans, the bank explains. The promissory notes must contain the cognovit warning language mandated by R.C. 2323.13(D), and courts may not grant a judgment if the warning is missing or incorrect, the bank instructs

While the language of the note must be strictly construed by the plain meaning of the words, the bank argues that doesn’t bar a court from using the traditional rules of contract interpretation. Both parties
note that the Eleventh District cited its 2003 Sherock v. Ohio Mun. League Joint Self-Ins. Pool decision, which states that where a “contract gives precise meaning to a particular term, the term should be construed consistently as having that meaning throughout the contract, absent some evidence of intent to the contrary.”

The bank maintains the appellate court ignored the last clause from the sentence in the Sherock decision and didn’t look for contrary evidence. Despite the contract referring to Sutton as “you,” the standard cognovit warning clearly applied to Bay and Progressive, the bank maintains. The bank asserts the provision stating “by signing this note…,” which only the borrowers sign, indicates that Bay knew it pertained to him and his company. The warning’s reference to paying on time, giving up rights to notice, and waiving any claims against the lender, all are directed to the borrower, Sutton Bank observes. Bay signed as the borrower and was the only one signing the document, the bank submits. The bank maintains the intent of the parties was for the warning to be given to Progressive and Bay, which it was.

The bank argues any other interpretation of the clause would be absurd. The bank asserts that according to Bay’s argument, the warning would be to Sutton Bank, warning that Sutton Bank would have no right of notice from Sutton Bank, that it was seeking a judgment for default.

Court Can’t Rewrite Contract, Company Asserts
Progressive and Bay argue the bank made a mistake in drafting the contract and used a defective form. A court has the responsibility to strictly construe the contract and, as mentioned in Sherock, to use the precise meaning of a particular term consistently “as having that meaning throughout the contract.” The company argues the Eleventh District refused to rewrite Sutton Banks’s form to give the words “I” and “you” the exact opposite meaning in one paragraph of the contract. The company maintains that courts don’t have the authority to grant the bank’s wishes to rewrite the contract.

The company also maintains the appellate court did not ignore Sherock by ignoring “some evidence of intent to the contrary.” The company asserts there is no evidence in the case other than the contract itself, which in no part indicates that the meaning of “I” and “you” would be reversed in some part of the contract.

The company maintains that the note is unenforceable because of the defective warning, and suggests that Sutton Bank and other financial institutions making commercial loans revisit their forms to make clear that its warning is directed to the borrower.

The company acknowledges its interpretation of the contract may lead to an absurd result, but notes that happens regularly with contracts. The contract, like most contracts, has a clause that severs any defective provision from the contract and keeps the rest of the contract intact, the company asserts. If a court were to take any action in the case, it should follow the principles of contract law and sever the warning provision, the company argues. However, that would lead to the same result of the contract being unenforceable because it would no longer have the provision required by state law, the company concludes.

Friend-of-the-Court Briefs Submitted
Amicus curiae briefs supporting Sutton Bank’s position have been submitted by Ohio Bankers League, Community Bankers Association of Ohio, and Ohio Credit Union League.

Dan Trevas

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

Representing Sutton Bank: Michael Stultz, 419.447.5132

Representing Progressive Polymers LLC et al.: Patrick Keating, 330.376.5300

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Did Court’s Order that Defendant Avoid Impregnating Women Violate His Constitutional Rights?

State of Ohio v. London Chapman, Case No. 2019-1410
Ninth District Court of Appeals (Lorain County)

ISSUE: Did a trial court violate a defendant’s rights to due process, equal protection, and privacy under the U.S. and Ohio constitutions when it imposed a condition against conceiving a child while on community control?

In January 2016, London Chapman pled guilty to 11 counts of nonsupport of his dependents – offenses that are felonies. The Lorain County Common Pleas Court sentenced Chapman to five years of community control.

As one of the conditions of Chapman’s community control, the judge ordered that he “make all reasonable efforts to avoid impregnating a woman during the community control period or until such time that Defendant can prove to the [c]ourt that he is able to provide support for his children he already has and is in fact supporting the children or until a change in conditions warrant the lifting of this condition.”

Chapman appealed to the Ninth District Court of Appeals. The Ninth District looked to the Ohio Supreme Court’s ruling in State v. Jones (1990), which provides a three-part test to determine whether a condition of probation meets the goals in the relevant statute. The Ninth District determined that the condition placed on Chapman was permissible because it met the Jones test. The Ninth District also reviewed the constitutionality of Chapman’s community-control condition but concluded the trial court’s decision didn’t address his constitutional arguments. The appeals court returned the case to the trial court to consider those arguments.

The trial court resentenced Chapman in June 2018, imposing the same anti-procreation condition and addressing his constitutional claims. On appeal, the Ninth District ruled the condition didn’t violate Chapman’s constitutional rights.

Chapman appealed to the Ohio Supreme Court, which agreed to review the case. Because of the COVID-19 pandemic, the Court will hear the appeal by videoconference.

Father Contends Procreation Ban Not Related to His Rehabilitation
Chapman examines his community-control condition based on the test in Jones, which states that courts must “consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation.”

Chapman maintains that the court’s condition ordering him to avoid impregnating women has no relationship to his offense, which was failure to pay child support.

Nor is the condition reasonably related to his rehabilitation, he contends. He notes that the trial court also ordered him to seek and maintain employment to pay his support obligations. He agrees that an employment condition is connected to his rehabilitation to support his children, but he rejects the view that a ban on procreation is related. He adds that if he violates the no-procreation order, he will be incarcerated, which will prevent him from giving his children any financial support because he will be in prison.

The trial court’s order also stated that the no-procreation condition could be terminated under 12 circumstances. He argues, however, that the steps are either out of his control or tied to his financial well-being. He compares the court’s order to a “debtor’s prison” because the mechanisms that would remove the condition are contingent on whether he pays more than $200,000 in five years. Noting that individuals with money could restore their right to procreate under this order, he maintains that he is being punished for being poor and can’t be imprisoned based on an inability to pay.

State Argues Condition Will Help Father to Support His Current Children
The Lorain County Prosecutor’s Office argues the no-procreation condition is related to Chapman’s rehabilitation because it increases the likelihood that he will be able to support his children in the future – meeting Jones’ first prong. The prosecutor adds that Chapman incorrectly focuses on the penalty of incarceration if he doesn’t comply with the community-control conditions, rather than the benefit if he follows the court’s order.

The state contends that the condition meets the second prong of Jones because it is reasonably related to Chapman’s conviction for failing to support his children. By ordering him not to have more children, the court helps to ensure he can support the children he has, the state argues. Acknowledging that the condition addresses the creation of children, the state counters that additional children lead to more financial obligations, which will likely lead to Chapman’s failure to pay child support in the future. These concerns are “intrinsically tied to the basis of his conviction,” the state’s brief asserts. The brief indicates that these points taken together satisfy Jones’ third prong.

The prosecutor adds that Chapman was given several ways to terminate the no-procreation condition. The court’s condition doesn’t eliminate his ability to procreate because the order offers a non-exhaustive list of a dozen “lifting mechanisms” that would remove the ban, the prosecutor contends. The brief notes that a recent Ninth District decision determined a parent’s child support obligation isn’t a debt. The prosecutor concludes that it’s more than reasonable for Chapman to be required to meet the financial obligations that arose when he created his children.

Father Maintains Condition Not Narrowly Tailored to Support State Interest
If the Court needs to address the constitutional concerns in this case, Chapman believes he also wins his appeal. His brief describes the right to have a child as “[o]ne of our most sacred rights.” Because procreation is a fundamental right, the state must show that an infringement on that right is narrowly tailored to meet a compelling state interest, Chapman states. This type of legal analysis is called “strict scrutiny.”

Chapman maintains that the court’s community-control condition is unconstitutional under the strict-scrutiny standard because it isn’t narrowly tailored to serve the state’s interest in requiring parents to support their children. He contends that he has been working and paying child support consistently since 2016, but the trial court wants him also to pay all the back child support he owes to regain his right to procreate – more than $200,000 in a five-year period. He argues it is unlikely he will be able to pay that amount, so the condition doesn’t achieve the state’s interest in providing support to children. And, he notes, although the state maintains his actions have cost it resources, it keeps expending resources to prosecute his case.

“If this condition is held to be narrowly tailored to meet a compelling state interest, there is the possibility that [judges] overuse this provision,” his brief states. “At what point does too many children become ‘too many?’ At what point of poverty do we emasculate individuals? Do poor women have to abort their pregnancies to avoid future criminal non-support charges? What charges are reasonably related to procreation?”

Chapman also asserts that the no-procreation condition is overly broad, because it doesn’t explain what qualifies as “reasonable efforts” to avoid impregnating women. His brief concludes the Court “would be castrating Mr. Chapman with paper if this Court upheld the Trial Court’s restriction.”

State Asserts Those Convicted Have Reduced Liberties
The prosecutor agrees with Chapman that procreation is a fundamental right derived from the right to privacy, but maintains courts have concluded that conditions set by courts for community control are permitted to infringe on a person’s fundamental rights. The prosecutor argues that a person who has been convicted has a reduced expectation of privacy and doesn’t have the same liberties as one who hasn’t violated the law.

The state rejects the argument that the no-procreation condition must be reviewed under the strict-scrutiny standard for whether it’s narrowly tailored to meet a state interest. The court was allowed to infringe on Chapman’s fundamental rights, given his criminal convictions, the state maintains. It contends that the condition imposed on Chapman instead must be analyzed based on whether it was reasonable and whether the trial court abused its discretion. In the state’s view, the court carefully crafted a temporary and reasonable condition for Chapman.

The no-procreation condition also isn’t overbroad, the prosecutor argues. If the court gave Chapman examples of reasonable efforts to avoid impregnating women, the list couldn’t possibly be exhaustive, plus there are certain procreation precautions, such as abstinence, that a court can’t mention, the prosecutor maintains. The office is confident the condition is clear enough that Chapman knows what is expected of him. Pointing to the lifting mechanisms, the prosecutor states that they also ensure the condition isn’t overbroad because the condition can be removed in those circumstances.

Civil Liberties Group Argues Condition Is Unconstitutional
An amicus curiae brief supporting Chapman’s position has been submitted by American Civil Liberties Union of Ohio Foundation. The organization, which will argue with Chapman before the Court, contends that the no-procreation condition is unconstitutional, even in a probation context, because the condition revokes a fundamental right on the basis of wealth. The lifting mechanisms are equally flawed and unconstitutional, the group states. Its brief maintains that the trial court criminalized Chapman’s indigency by confusing criminal penalties for intentional nonpayment of support with a community-control condition taking away his reproductive rights until payment regardless of his intent – a decision “repugnant to the principles of due process and equal protection.”

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 Lorain County Prosecutor’s Office: Jennifer Goodall, 440.329.5396

Representing London Chapman: Giovanna Bremke, 440.340.3938

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Did Prosecutor’s Evidence Support Blocking Release of Jefferson County Shooting Video?

Andrew Welsh-Huggins v. Office of the Jefferson County Prosecuting Attorney, Case No. 2019-1481
Seventh District Court of Appeals (Jefferson County)

ISSUE: Must a public office produce competent, admissible evidence to support an assertion of an exception to the Public Records Act?

On Aug. 21, 2017, Judge Joseph Bruzzese Jr. of the Jefferson County Common Pleas Court was walking to work at the courthouse when he was shot. Judge Bruzzese and a nearby probation officer each returned fire at Nate Richmond, who was killed. Judge Bruzzese was wounded and hospitalized, but recovered.

The courthouse has a security camera system, and a camera captured the shooting, the return fire, and the emergency response.

Andrew Welsh-Huggins, an Associated Press reporter, asked the Jefferson County prosecuting attorney for a copy of the external courthouse surveillance video showing the shootings of Judge Bruzzese and Richmond. The prosecutor denied the request, citing several exceptions in Ohio’s Public Records Act, including that the requested record was part of the prosecutor’s trial preparation file, was a confidential law enforcement record, and was part of the courthouse’s infrastructure security system.

Reporter Contests Denial of Video
In May 2018, Welsh-Huggins filed a complaint against the prosecutor in the Ohio Court of Claims. The parties participated in a mediation, which was unsuccessful. In September, the court’s special master assigned to handle the case requested additional information from the prosecutor, including a complete, unredacted copy of the video; a copy of a video recorded by a street camera; additional evidence to support the claimed exceptions to the state’s public records law; and “any desired affidavit from agency officials and subject matter experts.”

The county’s prosecutor, Jane Hanlin, responded with an affidavit from herself and a copy of the shooting video, which was filed under seal. The special master requested further information, and Hanlin provided several still photos and another personal affidavit. In reply to a request for details about the functionality of the video, the prosecutor submitted another affidavit from herself.

Special Master Concludes Prosecutor Didn’t Prove Exemption
The special master issued a report and recommendation in January 2019, finding that the prosecutor’s office hadn’t met its burden to show that the video was exempt from disclosure as a security record under the Public Records Act. The report noted that the prosecutor’s office didn’t support the claims of exemption with information from any law enforcement, security, or technology experts. The report also concluded no evidence was submitted to show the video discloses information “directly used to protect or maintain the courthouse’s security against attack, interference, or sabotage,” or discloses any current security response plans.

The special master ordered the release of the video with redactions to protect certain law enforcement officers. The prosecutor objected to the report, but the Court of Claims in February 2019 adopted the special master’s report and recommendation.

Appellate Court Rules Reporter Had to Object to Affidavits
The prosecutor appealed to the Seventh District Court of Appeals. The appeals court noted that the prosecutor’s affidavit stated the video shows the security system’s technical capabilities, the camera’s blind spots, and the emergency response and methods. The Seventh District acknowledged the affidavit was based on hearsay and wasn’t from the court’s security office. However, the affidavit could be used as support for the position that the video is a security record because Welsh-Huggins didn’t object to it, the Seventh District determined. The court blocked the video’s release, concluding the video is a security record exempt from disclosure.

Welsh-Huggins appealed to the Ohio Supreme Court, which accepted the case. Because of the COVID-19 pandemic, the Court will hear the appeal by videoconference.

Legislature Institutes Simpler Process for Public Records Challenges
The General Assembly enacted R.C. 2743.75 in 2016 to establish an “expeditious and economical procedure” to resolve disputes alleging the denial of access to public records under the Public Records Act. It offers a simpler process than the traditional approach of filing for a writ of mandamus and assigns a special master in the Court of Claims to review the claims. No discovery is allowed in the process created by the statute, and briefing is limited. However, the special master can require additional information or documentation. The streamlined process is designed to reduce costs and delays in public records cases.

Reporter Argues Appeals Court Complicated Legislature’s System
Welsh-Huggins argues that the Seventh District’s decision both “threatens the integrity” of the R.C. 2743.75 process and contradicts the Supreme Court’s precedent interpreting the “security record” exception.

The Seventh District accepted that the video was exempt from disclosure because it’s a “security record,” as defined in R.C. 149.433. The security record definition applicable to this case is “a record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.”

Welsh-Huggins notes that the special master contrasted the evidence for the prosecutor’s claim of an exception with the support provided in State ex rel. Plunderbund Media v. Born (2014). In Plunderbund, the Ohio Supreme Court concluded that records of threats against the governor are security records not subject to disclosure to the public. The special master found that, unlike the current case with affidavits from only the Jefferson County prosecutor, the state’s public safety office had provided affidavits from several law-enforcement and telecommunications experts to back their claim for nondisclosure.

Welsh-Huggins maintains that a public office asserting an exception because of risks not clear within the records must offer more support for withholding the record than conclusory statements made in an affidavit. Although the Seventh District found the prosecutor’s affidavit consisted of hearsay statements, it ruled that record requesters must make objections to affidavits or other evidence in order to possibly prevail should an appeal occur, he argues. He notes, though, that R.C. 2743.75 doesn’t allow parties to file objections unless the special master authorizes it in writing.

The Seventh District’s ruling implies that a special master in the R.C. 2743.75 process must take the statements in an affidavit at face value even if they are hearsay or the public official has no expertise on the subject, Welsh-Huggins asserts. He explains that the special master, who is the fact-finder in the process, rejected the affidavits. With that conclusion, he argues he didn’t need to object and didn’t waive anything if the case was appealed.

His brief also states that the process in R.C. 2743.75 differs from a mandamus action and from a bench trial in a civil case. Imposing trial practice procedures, such as formal objections to evidence, as expected by the Seventh District adds complexity to the process and undermines the legislature’s goal in enacting the law.

Prosecutor Maintains Video’s Release Would Give Training Tools to Potential Shooters
The prosecutor’s brief counters that if the Supreme Court accepts Welsh-Huggins’ arguments, the Court will “set an ill-conceived and dangerous precedent” that will mandate the release of other security records from all public buildings in the state. If released, the video in this case would serve as a training tape for a future shooter, allowing that person to study the terrain, the vulnerabilities of judges and other public officials, and the actions of first responders during attacks, the brief argues.

The prosecutor notes that the video shows not only the shooting but also where the judge conceals his weapon, the location of the camera in the area, the technical capabilities of the camera and the playback system, the emergency response procedures, and more. The prosecutor’s brief maintains that the Seventh District determined the video was a security record by simply reviewing it: “The video, itself, was submitted into evidence by [the prosecutor’s office] and clearly establishes itself as a security record.”

The brief asserts that little of the information in Hanlin’s 27 pages of affidavits is hearsay or conclusory because they are based on her personal knowledge and she was present at the scene of the shooting. The video and affidavits contain many details establishing that the surveillance system’s records are used to protect or maintain the security of a public office and public officials against attack, interference, or sabotage, the brief states. And, just as Plunderbund involved threats against the governor, the video of this shooting documents threats to a state judge, and its release would jeopardize the security of judges and court staff, the prosecutor maintains.

The prosecutor also contends that Welsh-Huggins had the burden of showing by clear and convincing evidence that he is entitled to the record. However, the prosecutor argues, the special master didn’t require such evidence and didn’t request any other evidence from the reporter, even though the special master asked her office multiple times for additional information. The prosecutor states her office was denied the opportunity to participate in a trial or hearings to present evidence and witness testimony. If the Court of Claims had allowed that opportunity, the prosecutor’s office indicates it would have, for example, offered testimony from the county commissioners, sheriff, judges, and the county’s information technology staff.

“The substance of the video itself shows all that is really needed in this case,” the prosecutor writes. “Common sense dictates that the video is a security record. Expert testimony was not necessary, whether hearsay or otherwise. This case begs the question of whether we really need an expert to say that we do not want it to be any easier to shoot a judge or other public official than it already is. It begs the question of whether we really need an expert to tell a factfinder what is clearly visible in this security record.”

The prosecutor’s office concludes that security systems and security records of all courthouses and public records aren’t public records and are never subject to disclosure under the Public Records Act.

Organizations Submit Amicus Briefs on Each Side
The Ohio Coalition for Open Government, Ohio Association of Broadcasters, two national news companies, and nine other media organizations filed a joint amicus curiae brief supporting the Associated Press reporter. They argue the Seventh District didn’t defer as required to the trial court’s findings; reweighed the evidence itself; and relied only on the prosecutor’s affidavit, which the Seventh District agreed wasn’t from a security expert.

An amicus brief supporting the Jefferson County prosecutor was submitted by the Ohio Prosecuting Attorneys Association. The group contends that the prosecutor’s affidavit describes how the video shows security system capabilities and emergency procedures of courthouse security and medical services – all of which demonstrate that the video is a security record exempt from disclosure.

Kathleen Maloney

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

Representing Andrew Welsh-Huggins: John Greiner, 513.629.2734

Representing the Office of the Jefferson County Prosecuting Attorney: Jane Hanlin, 740.282.5323

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