Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, June 30, 2021

Cleveland Jackson v. State of Ohio et al., Case No. 2020-0676, and James D. O’Neal v. State of Ohio et al., Case No. 2020-0683
Tenth District Court of Appeals (Franklin County)

State of Ohio v. James R. West, Case No. 2020-0978
Tenth District Court of Appeals (Franklin County)

State ex rel. Ohio Attorney General v. Robert Burns, Case No. 2020-1078
Second District Court of Appeals (Montgomery County)

Is Ohio’s Execution Protocol Invalid Because It Didn’t Go Through Rulemaking Process?

Cleveland Jackson v. State of Ohio et al., Case No. 2020-0676, and James D. O’Neal v. State of Ohio et al., Case No. 2020-0683
Tenth District Court of Appeals (Franklin County)

ISSUE: Is Ohio’s execution protocol a rule subject to the formal rulemaking procedures of R.C. 111.15, making the protocol invalid for failing to comply with the statute?

In 1993, James O’Neal shot and killed his wife in the home she owned in Madisonville. O’Neal was
sentenced to death for his crimes, and his execution date is Aug. 16, 2023. In 2002, Cleveland Jackson robbed, and shot a gun into, a group of people in Lima, killing a teenager and a 3-year-old. Jackson also was sentenced to death, and his execution is scheduled for June 15, 2023.

O’Neal filed a lawsuit in Franklin County Common Pleas Court in January 2018, arguing that the state’s execution protocol, developed by the Ohio Department of Rehabilitation and Correction (DRC), was improperly adopted. He maintained that the protocol couldn’t be used for executions until it went through the state’s formal rulemaking process for all government agency rules. Jackson was permitted to intervene in the case in July 2018. The court in April 2019 granted the DRC’s motion requesting summary judgment.

Jackson and O’Neal separately appealed to the Tenth District Court of Appeals, which combined the cases for oral argument and the decision. In February 2020, the appeals court upheld the trial court decision, determining in part that the execution protocol isn’t a government agency rule.

Jackson and O’Neal separately appealed to the Ohio Supreme Court, which accepted each case and scheduled oral arguments on the same day. Jackson, O’Neal, and the DRC asked the Supreme Court to consolidate the cases for a combined arguments. On June 14, the Court agreed, allotting 15 minutes total for Jackson and O’Neal and 15 minutes for the state.

Because of the coronavirus health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be broadcast and livestreamed.

Statute Explains Rulemaking Process for Government Agencies
Rules developed by government agencies in Ohio must go through a formal rulemaking procedure. R.C. 111.15 defines a “rule” as “any rule, regulation, bylaw, or standard having a general and uniform operation adopted by an agency under the authority of the laws governing the agency; any appendix to a rule; and any internal management rule.” The law also notes what isn’t a rule, including “any order respecting the duties of employees.”

Under R.C. 111.15, government agencies must file all proposed rules with the Ohio secretary of state, the director of the Legislative Service Commission (LSC), and the Joint Committee of Agency Rule Review (JCARR). Internal management rules aren’t required to be filed with JCARR, but must be filed with LSC and the secretary of state.

Men on Death Row Argue Execution Protocol Must Follow Rulemaking Process
Jackson and O’Neal contend that the DRC was required to submit Ohio’s execution protocol – referred to as DRC 01-COM-11 – through the rules process in R.C. 111.15 because the protocol is a state agency rule. They argue the execution protocol qualifies as a rule because it establishes a standard having a general and uniform operation for the DRC in carrying out executions. The DRC’s own documentation indicates that the protocol is intended to be uniformly applied to those affected by the rule, Jackson notes.

He maintains that the Ohio Supreme Court has held in a number of cases, including State ex rel. Bd. of Edn. v. Holt (1962), that certain state agency resolutions and policies were rules, and the rules were invalid until properly filed as required by state law. Because DRC 01-COM-11 is a rule and the DRC didn’t file the protocol with the secretary of state, LSC, and possibly JCARR as required by R.C. 111.15, the protocol is invalidated, Jackson reasons.

O’Neal notes that the Tenth District described the protocol as “filling in the gaps” left by the General Assembly when enacting R.C. 2949.22, which governs executions. In the law, the legislature calls for “lethal injection” as the state’s method for carrying out a death sentence. In the DRC execution protocol, the agency describes the details of the methods, processes, and procedures for executing prisoners by lethal injection. O’Neal explains that making rules to fill the gaps in statutes is part of an administrative agency’s responsibility and power. He contends that the DRC’s directives in the protocol to fill the gaps don’t exempt the agency from the rulemaking requirements in R.C. 111.15. The serious subject matter of the protocol, which describes the methods for the state to take a life, supports the requirement that the protocol go through the rulemaking process, O’Neal adds.

The appeals court also concluded that the DRC didn’t have to follow the R.C. 111.15 rulemaking procedure because R.C. 2949.22 doesn’t specifically direct the agency to follow the rulemaking procedure. O’Neal disagrees, maintaining that a reference to R.C. 111.15 in R.C. 2949.22 isn’t required and its absence doesn’t negate the DRC’s obligation to abide by the R.C. 111.15 rules process.

Jackson also focuses on the definition of “internal management rule,” which is “any rule, regulation, bylaw, or standard governing the day-to-day staff procedures and operations within an agency.” The Tenth District concluded that the protocol isn’t an internal management rule because it doesn’t apply to daily events at the DRC. Jackson counters that the only requirement for the protocol to be an internal management rule is that the DRC intends to apply the protocol uniformly to every execution, which it does.

Jackson additionally points to other jurisdictions – Nebraska, Oregon, Kentucky, Maryland, California – where execution protocols must follow state administrative rulemaking procedures.

State Counters Men Can’t Sue and Protocol Isn’t DRC Rule
The DRC, represented by the Ohio Attorney General’s Office, first challenges the right of Jackson and O’Neal to sue on this issue. The men must show that they suffered an injury that is likely to be corrected by what they are asking for in their lawsuit, the DRC notes. But, the agency contends, declaring the state’s execution protocol invalid doesn’t prevent the men’s executions. The DRC maintains that it isn’t required under Ohio law to use a written protocol, so it still could execute the men in the same way without the protocol. Because their injury can’t be corrected by a ruling in their favor, the men don’t have the standing to sue, the DRC states.

The DRC also argues the protocol is not a rule because it doesn’t have general and uniform application. Instead, the agency maintains, the protocol is an order that directs the duties of employees – an internal checklist for personnel carrying out executions. The DRC also states in its brief that the protocol is “malleable,” allowing staff to vary the procedures if warranted. In its view, a flexible protocol can’t be a general and uniform operation of the agency. The DRC concludes that orders about the duties of its employees aren’t rules under the R.C. 111.15 definition and don’t have to go through the state’s rulemaking process.

The agency also believes the General Assembly would have included in an important statute such as R.C. 2949.22 a directive that the DRC follow the rulemaking process if that’s what was intended. The agency describes the absence of a directive as “striking” in a law that gives the agency the responsibility for carrying out the “ultimate punishment of death.”

The DRC dismisses O’Neal’s gap-filling arguments. Not all agency processes that fill the gaps left by legislation are necessarily rules, the DRC states. It points to the Secretary of State’s election manual, which delineates many mechanics of voting but doesn’t go through the rules process. Another example cited is the mandate in state law that the Ohio Public Defender’s Office set up a process for handling appeals and postconviction matters. Not all details of this process must go through formal rulemaking, the DRC maintains.

The agency also disputes that the execution protocol is an internal management rule. The protocol doesn’t “govern” the DRC procedures and operations because the agency staff have significant discretion, the DRC contends. And, it maintains, executions aren’t “day-to-day” events, but instead happen rarely.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2020-0683 and 2020-0676).

Representing Cleveland Jackson from the Ohio Public Defender’s Office: Richard Cline, 614.466.1538

Representing James D. O’Neal: Shirley Shank, 614.326.1217

Representing the Ohio Department of Rehabilitation and Correction from the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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Does Judge’s Pointed Questioning of Defendant Violate Right to Fair Trial?

State of Ohio v. James R. West, Case No. 2020-0978
Tenth District Court of Appeals (Franklin County)

ISSUE: Did a judge’s pointed questioning to the defendant in front of the jury violate his rights to due process, resulting in the need for a new trial?
In January 2019, James West appeared in court to defend his role in an armed altercation that took place outside of the Beverage Warehouse in Columbus. West testified on his own behalf at trial. He was repeatedly interrupted by the judge, who questioned his credibility in front of the jury.

West is arguing in his appeal that his constitutional due process right to an impartial judge was violated, amounting to “structural error,” which entitles him to a new trial. Conversely, the prosecution asserts that West is bound to the “plain error” standard and must be able to prove that the judge’s conduct substantially impacted the outcome of the trial.

In October 2017, West entered the Beverage Warehouse liquor store where he ran into his acquaintance, Patrick Akers. West and Akers began arguing. This argument escalated when West pulled out a large amount of money, to which Akers then responded by threatening to take the money from him. West threatened to beat up Akers if he tried to rob him. The pair almost began fighting in the store but eventually moved to the parking lot.

In the parking lot, one of West’s friends was armed and handed West a gun. Akers ducked behind a car and West fired his gun, resulting in Akers being shot in the leg. West also was struck by a bullet but left the scene in his car.

The police arrived and found only Akers in need of medical attention. Through a police photo array, Akers identified West and another man as the shooters. The confrontation was recorded by the Beverage Warehouse’s security cameras. When West was questioned by police, he denied ever shooting the gun. He later asserted that he did shoot the gun in self-defense but felt uncomfortable admitting to this to officers without an attorney present.

West was indicted on two counts of felonious assault and one count of having a weapon under disability. West elected to have a jury decide whether he committed the felonious assault charges, and the judge decide the remaining charge.

West Defends Himself in Court
At trial, West took the witness stand in his own defense. West explained the interactions that led up to the shooting, including his conversation with Akers. While West was telling the court his interpretation of Akers’ statement that he was going to take West’s money, the judge interjected and said, “He didn’t say he was going to rob you. You thought that’s what he was implying by saying the ‘N’ word, and I’m going to take your money?” Despite the questioning, West assured the judge that he understood Akers’ statement to mean he was going to be robbed by Akers.  

On cross-examination, the prosecutor used the judge’s words to further question West. The prosecutor asked, “As the judge correctly pointed out, [Akers] didn’t say he was going to rob you?” West began to share again why he was certain of the meaning of Akers’ statement, but was interrupted when the judge said, “They’ve heard you explain why.”

As the trial proceeded, the judge continued asking questions. When West was asked to respond to the security footage of the shooting, the judge interjected, “Is that you with the gun, shooting?” West answered affirmatively and added that he wasn’t trying to refute that he shot his gun, only that he acted in self-defense. The judge responded, “... you’ll get a chance to tell the jury. Let’s get the other angle up, and you can explain why you did what you did.”

The judge also asked West in front of the jury, “You lied to the police, didn’t you?” West attempted to explain that he didn’t have a lawyer present when his initial statement was made and was hesitant to say anything. But he was redirected by the judge to offer a simple yes or no. West acknowledged that he had initially lied to the police.

Jury Asked to Ignore Judge’s Remarks
Following witness questioning but immediately prior to jury deliberation, the judge instructed the jury that they were not to take his questions or tone of voice into consideration. He reiterated that his perspective on the case shouldn’t impact the jury’s decision. He explained that while his tone may have seemed annoyed toward the defendant, the jury must make an independent decision.

The jury found West guilty of both counts of felonious assault along with firearm specifications. The judge also convicted West of illegally possessing weapons.

During sentencing, the judge told West: “I think you absolutely lied and changed your story. I get it, nobody wants to do 12 or 13 years. People do lie when they’re facing heavy time. You’re out there thugging. Maybe you’re not a thug, I don’t know.”

West was sentenced to a total of 12 years in prison. He appealed to the Tenth District Court of Appeals, which in a split decision affirmed the trial’s court’s ruling.

West appealed to the Ohio Supreme Court, which agreed to hear the case. Because of the coronavirus health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be broadcast live and livestreamed.

West Argues that Judge’s Actions Amount to Structural Error
West argues the Tenth District used the wrong standard to determine if the judge’s actions entitle him to a new trial. West asserts that his due process rights under the U.S. Constitution’s Sixth Amendment were violated by the judge’s unequal questioning in front of the jury. West cites the Ohio Supreme Court’s 2002 State v. LaMar decision, which concluded, “[A] criminal trial before a biased judge is fundamentally unfair and denies a defendant due process of law.”  Because the error involved his constitutional right, and was evident during the trial but not rectifiable, it rises to the level of “structural error,” he argues. He describes structural error as a mistake so harmful that it impacts the integrity of the outcome of the proceedings.

He maintains the Ohio Supreme Court set a standard for reviewing a claim of structural error in its 2016 State v. Cepec decision, which stated the “threshold inquiry is whether, with reference to a range of acceptable, though not necessarily model, judicial behavior, the [trial] court’s conduct falls demonstrably outside this range so as to constitute hostility or bias.”

West explains an appellate court traditionally applies a “harmless error” review standard to a claim of errors during a trial. Under such a review, the error must be prejudicial to a defendant, he argues. However, with structural errors, there is no requirement that the defendant prove the errors were prejudicial, only that the trial court’s conduct constitutes “hostility or bias,” West concludes.

West notes because his attorney didn’t object to the judge’s questions, the appellate court determined it couldn’t use the harmless error standard. Instead of applying the correct structural error standard, the Tenth District relied a “plain error” standard, which also was wrong, he maintains.

West concludes that because the judge displayed bias throughout the trial and during the sentencing hearing, he is entitled to a new trial.

Judge’s Behavior Must Affect Outcome, Prosecutor Asserts
The Franklin County Prosecutor’s Office challenges West’s argument that because the error has the potential to impact his constitutional right, it automatically constitutes structural error. The prosecutor clarifies that structural error is a type of harm within a criminal trial, and not a standard of review in itself. The two standards of review are harmless error and plain error, the office explains, and the Tenth District correctly used plain error because West didn’t object to the judge’s questions during the trial.

The prosecutor notes that the Tenth District majority didn’t accept West’s claim that proof of “hostility or bias” was all that is required to receive a new trial under plain error review. The office asserts to justify reversal under plain error there must be proof that: (1) there was error; (2) the error was plain at the time the error was committed; and (3) the error affected substantial rights.

The prosecutor writes that West can’t meet the plain error standard because he is unable to demonstrate that the trial’s outcome was impacted by the judge’s conduct, as required by the third type of proof, relating to substantial rights.  

Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting West was filed by the Ohio Association of Criminal Defense Lawyers, which highlights the importance of the neutrality of courts as to not unfairly impact a defendant’s due process rights.

Ellen Gill

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

Representing James R. West: Joseph Landusky, 614.449.0449

Representing the State of Ohio from the Franklin County Prosecutor’s Office: Michael Walton, 614.525.3555

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Can Community School Director Be Forced to Pay Back Misappropriated State Funds?

State ex rel. Ohio Attorney General v. Robert Burns, Case No. 2020-1078
Second District Court of Appeals (Montgomery County)

ISSUE: Is a public official liable under R.C. 9.39 if the official “collects” public money on behalf of a public office even if the official has no control of the funds or authority to expend the funds?

New City was a Dayton community school that operated from 2004 until 2010. Community schools, commonly known as charter schools, receive public funds to educate students, but operate independently from elected local boards of education. New City operated under the direction of a board of directors. During the 2009-2010 fiscal year, Robert Burns served as director of the New City school, and his contract with the board of directors essentially put him in charge of the school’s day-to-day operations.

Under Ohio law, traditional public schools require the board of education to hire a superintendent to oversee school operations. A school treasurer is hired by the board and reports directly to the board, not the superintendent. Ohio lawmakers created a similar system for community schools. New City’s board hired Carl Shye as the school’s chief fiscal officer, reporting directly to the board and not to Burns. Unlike Burns, Shye wasn’t a New City employee, but an independent contractor based in Columbus. Shye served as the chief fiscal officer for several community schools.

As New City’s director, Burns approved the grant fund applications for state dollars to operate the school and approved the school’s annual budget. The State Auditor’s Office audited New City for the 2009-2010 fiscal year, and in April 2012, issued a finding of recovery for $51,670. The audit cited questionable expenditures by Shye and others. The auditor made a separate finding of recovery against Shye for $28,320.

A few weeks after the audit, federal authorities announced a wide-ranging investigation into Shye for “public program embezzlement” resulted in a plea agreement. Shye was sentenced to in October 2012 two years in prison for embezzling nearly $473,000 from community schools, including New City

Recovery of Funds Sought from School Director Years Later
In July 2018, the Ohio Attorney General’s Office filed a complaint against Burns and other New City officials holding them strictly liable for $51,670, as identified in the auditor’s report six years earlier. Burns asked the trial court for summary judgment, stating that he couldn’t be held legally responsible for the return of the money because he didn’t receive the funds or have the authority to control the money. State law gave the fiscal officer full control of funds the school received, he argued. The trial court rejected the request and found the state could pursue Burns personally for the money.

Burns appealed to the Second District Court of Appeals, which reversed the trial court’s ruling in a split decision.

The attorney general appealed to the Ohio Supreme Court, which agreed to hear the case. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be broadcast and livestreamed.

Officials Who Receive or Collect Money Responsible for Its Use, State Argues
“All public officials are liable for all public money received or collected by them or by their subordinates under color of office….,” R.C. 9.39 states.

The attorney general argues the case turns on the meaning of  “received or collected.” The office argues the legislature drafted the law so that “received” and “collected” have different meanings. The office contends the Second District majority wrongly concluded that the words “received” and “collected” mean essentially the same thing and incorrectly determined that because Burns hadn’t received the funds, he wasn’t liable under R.C. 9.39.

To “collect” funds, one doesn’t have to affirmatively secure or obtain the funds, the attorney general argues. Burns, in his role as director, signed and submitted successful grant applications securing hundreds of thousands of dollars for New City, which means he collected the funds for the school, the office asserts.

The Supreme Court’s 2010 Cordray v. Internatl. Preparatory School decision states, “R.C. 9.39 represents a codification of Ohio common law imposing strict liability on public officials for the loss of public funds with which they have been entrusted.” The attorney general explains the principles of applying strict liability in common law was to hold the public official accountable for any loss, regardless of intent, and even if the money is stolen by others. The law acts as “insurance against the delinquencies” of officials and their staffs, and gives public officials incentives to take prudent steps to safeguard against the loss or misappropriation of funds, the office notes.

The law holds the chief executive officer of a public office accountable, and prior court rulings have concluded that community schools are public offices, the attorney general explains. Because Burns was the top official, he is liable for the money misappropriated by his subordinates, the attorney general argues. The office disputes the Second District’s rationale that the common law and R.C. 9.39 imply that the official must have control of the money to be responsible. The attorney general counters that nowhere in the text of the law does it state the public official must control the money to be held liable.

Control Critical to Liability of Official, Director Asserts
Burns also points to the Internatl. Preparatory decision, stating the Court determined the liability of community school treasurers in that case. The Court pronounced that “public officials are liable for the public funds they control,” Burns notes. The Court clearly announced the policy of Ohio law for more than a century is that public officials are liable for the loss of funds they control, he argues. When lawmakers codified the common law principle in 1985, they made no clear effort to expand the policy to apply it to public officials who have no control of the funds, he asserts.

Burns notes state law gave him no authority over Shye, who was appointed by the board of directors and reported directly to the board. Burns had the ministerial duty of signing the applications for the grant funds and was responsible for the school’s educational operations. But Shye independently controlled the funding and oversaw all the expenditures of state funds, Burns contends. He argues the attorney general wants to expand a longstanding rule, without citing any precedent, in which public officials are held strictly liable for the loss of funds over which they had no control.

The term “received or collected” first appeared in Ohio statutes in 1902, Burns notes, and have been used consistently to convey possession and control of public funds. That meaning wasn’t changed when lawmakers updated the public officials liability laws in 1985, which is when R.C. 9.39 was adopted, he asserts.

R.C. 9.39 applies to funds an official received or collected “under color of office,” Burns states, adding that “color of office” is defined in R.C. 117.01(A) to mean “actually, purportedly, or allegedly done under any law, ordinance, resolution, order, or other pretension to official right, power, and authority.” Burns had no authority to take any action regarding the school’s public funding other than to approve the budget. Shye reported directly to the board, and Burns had no “legal avenue” to insert himself between the board and Shye to control the public funds, Burns states. Burns couldn’t act under the color of office to intervene in the spending decisions and can’t be held liable for the losses, he concludes.

Overturning Decision Would Endanger Education, School Leaders Argue
An amicus curiae brief supporting Burns was jointly submitted by the Buckeye Association of School Administrators, Ohio Association of School Business Officials, and Ohio School Boards Association. The groups warn that overturning the Second District’s decision would have “absurd and unintended consequences” that would deter qualified individuals from taking school leadership positions out of fear of facing liability for funds they don’t control.

The groups notes that, in 2019, the General Assembly affirmed the concept that strict liability doesn’t apply to officials who don’t exercise control over public funds. Lawmakers revised the liability for public school treasurers in R.C. 3313.25, no longer holding a treasurer strictly liable for a loss of public funds. Treasurers are liable for a loss as a result of the treasurer’s negligence or other wrongful act. The groups state it defies logic that other administrators who do not control public funds remain strictly liable for loss or misuse of funds, but treasurers who actually control the public funds are only liable for negligence.

Dan Trevas

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

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

Representing Robert Burns: Janet Cooper, 937.224.5300

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