Wednesday, October 25, 2023
State of Ohio v. Jessica F. Dunlop and State of Ohio v. Je’Brel D.T. Lewis, Case Nos. 2022-1227, 2022-1238, 2022-1229, and 2022-1237
Eleventh District Court of Appeals (Geauga County)
Randy Ludlow v. Ohio Department of Health, Case No. 2022-1391
Tenth District Court of Appeals (Franklin County)
Craig D. Corder et al. v. Ohio Edison Company, Case No. 2023-0216
Seventh District Court of Appeals (Harrison County)
When Police Found Car Owner with Suspended License Wasn’t Driving, Could Driver Be Questioned?
State of Ohio v. Jessica F. Dunlop and State of Ohio v. Je’Brel D.T. Lewis, Case Nos. 2022-1227, 2022-1238, 2022-1229, and 2022-1237
Eleventh District Court of Appeals (Geauga County)
ISSUE: When a police officer makes a valid stop of a vehicle registered to a driver with a suspended license and then learns the registered owner isn’t driving, may the officer continue to detain the vehicle and ask for the driver’s identification?
BACKGROUND:
In March 2021, Chester Township Police Officer Andrew Centrackio was parked alongside Mayfield Road in Geauga County and was randomly checking the vehicle registrations of passing vehicles. One of those vehicles belonged to Jessica Dunlap. Centrackio ran the plates against a database, which revealed that Dunlap had a suspended driver’s license. The database also described Dunlap’s height, weight, and gender, which indicated she was a shorter white woman.
Centrackio ordered Dunlap’s vehicle to pull over. As Centrackio approached the car, he couldn’t see who was driving until he reached the driver’s side window. Centrackio saw a taller, Black man driving the car, who learned was Je’Brel Lewis, and Centrackio saw that Dunlap was sitting in the front passenger seat. The officer explained that he stopped the vehicle because the registered owner had a suspended license.
The officer asked Lewis if he had a valid driver’s license. Lewis responded, “Ahh, I believe I’m valid. If not, she’s valid,” referring to Dunlap. Centrackio asked for Lewis’ license, and instead, Lewis handed him a state identification card. When the officer checked Lewis’ information, he learned that Lewis had a suspended driver’s license and a warrant for his arrest. Centrackio then asked Dunlap if someone could pick up her car because neither of them was permitted to drive. When she said she did not, Centrackio then impounded the vehicle and directed it to be towed.
Based on the outstanding arrest warrant, the officer asked Lewis if there were any weapons in the car, and Lewis indicated there was an unloaded handgun in the passenger side door compartment. The officer recovered the gun, and a loaded magazine in the back seat. The pair were arrested. Dunlap and Lewis were charged with improperly handling a firearm in a motor vehicle, a violation of R.C. 2923.16(B).
Pair Claim Search Was Illegal
Dunlap and Lewis pleaded not guilty to the charges and filed motions to suppress the evidence in Geauga County Common Pleas Court. The pair argued that the officer unlawfully extended the traffic stop and violated their rights under the Fourth Amendment to the U.S. Constitution. They maintained the officer conducted an unreasonable seizure by continuing to keep the car stopped while he asked for Lewis’ identification.
The trial judge denied the request to suppress the evidence of the gun and ammunition. Dunlap and Lewis pleaded no contest to the charges. Dunlap was sentenced to two years of monitored time under the supervision of the court which imposed no other conditions. Lewis was sentenced to two years of community control and 14 days in jail. The two appealed their convictions to the Eleventh District Court of Appeals.
The Eleventh District reversed the trial court’s decisions, finding that the evidence should have been excluded. The Eleventh District also certified that its decision conflicted with a ruling in a similar case issued by the Ninth District Court of Appeals.
The Geauga County Prosecutor’s Office appealed the decision to the Supreme Court of Ohio. The Supreme Court agreed to hear the cases and to address the conflict among appellate courts. The cases were consolidated for presentation at a single oral argument, which will take place at a special offsite session of the Supreme Court in Jefferson County.
The Court also agreed to allow the Ohio Attorney General’s Office to join the county prosecutor in presenting oral arguments. The prosecutor and attorney general agreed to split their oral argument time.
Brief Extension to Check Identification Permitted by Constitution, Prosecutor Asserts
The prosecutor’s office explains that under U.S. Supreme Court precedent, the test of whether an officer can stop a driver is if the officer has “reasonable suspicion” that a crime has been committed. The prosecutor notes that Dunlap and Lewis don’t dispute that Centrackio had a reasonable suspicion for stopping their vehicle because Dunlap was the registered owner and had a suspended license. What is disputed is whether the officer could further investigate once he realized that Dunlap, the owner, wasn’t driving. Centrackio testified he didn’t observe any other traffic violations.
The prosecutor maintains that when an officer finds another person driving a vehicle registered to a suspended owner, taking the small step to investigate whether the driver has a valid driver’s license doesn’t violate the Fourth Amendment. The officer still has reasonable suspicion based on the initial stop to extend the investigation, the office asserts.
The prosecutor asks the Supreme Court to follow the decision of the Ninth District in its 1993 State v. Graves decision. The Ninth District ruled that once a vehicle is legitimately stopped, asking for the driver’s identity is a “slight intrusion” that doesn’t violate the driver’s Fourth Amendment rights against unreasonable searches and seizures. The prosecutor argues the same reasoning should apply to Dunlap and Lewis.
The prosecutor notes that the officer testified the reason he asked for Lewis’ identification was to complete his report of the traffic stop. When Lewis responded to the officer’s question about his license, Lewis stated that he believed he had a valid license and, if not, Dunlap had a valid one. That answer extended the officer’s reasonable suspicion of a crime because the officer knew the statement about Dunlap wasn’t true, the prosecutor asserts. And once Lewis handed him a state ID instead of a license, that justified the officer’s step to verify Lewis’ driving status because it would be a crime if he allowed the vehicle to leave with no valid driver, the prosecutor maintains.
The office also cites the U.S. Supreme Court’s 2015 State v. Rodriguez decision, in which the high court found that when an officer initiates a traffic stop, the officer’s mission is to ensure vehicles on the road are operated safely and responsibly. Part of that stop includes checking a driver’s license, and such a stop doesn’t violate the Fourth Amendment, the prosecutor notes. Centrackio’s question to Lewis about his license promoted the state’s interest in making sure that only valid drivers are operating vehicles on the road, the office maintains.
Because the initial stop was valid, detaining the occupants for a brief time to ensure the driver was licensed wasn’t a violation of the Fourth Amendment, the prosecutor argues. Once the officer learned both drivers had suspended licenses and that Lewis had a warrant for his arrest, the officer was justified in questioning Lewis about having a gun in the car, the prosecutor maintains. The office concludes that the trial court properly denied the motion to suppress the evidence.
Attorney General Supports Prosecutor
The attorney general submitted an amicus curiae brief supporting the prosecutor’s position. The attorney general makes similar arguments to the prosecutor. The attorney general asserts that the binding precedent set by the U.S. Supreme Court in the Rodriguez decision and its 2020 Kansas v. Glover decisions permitted Centrackio to investigate whether Lewis had a valid driver’s license.
Stop Should End When Officer Learned Owner Committed No Crime, Suspects Assert
Dunlap and Lewis submitted separate briefs but make similar arguments. Dunlap explains that the Fourth Amendment permits an officer to initiate a traffic stop if there is “articulable and reasonable suspicion” of a crime. Once the officer has the information that dispels any suspicion of the crime, then any further investigation of the suspects isn’t allowed under the Fourth Amendment, she argues.
Once Centrackio observed that Lewis didn’t meet the description of the owner, the officer’s reasonable suspicion of the crime he suspected ended, Dunlap argues. At that point, Centrackio should have explained to the occupants why he stopped the vehicle and should have let them leave, Dunlap maintains.
The pair cite the Supreme Court of Ohio 1984 State v. Chatton decision and noted the Eleventh District relied on that case to determine that Centrackio’s stop was unlawful. In Chatton, an officer stopped a vehicle because its temporary license tag could not be seen when the vehicle passed the officer. After stopping the vehicle, the officer saw the tags in the car. The officer later testified that, in his experience, temporary tags are used to conceal the identity of stolen vehicles, and he asked the driver for identification. The Supreme Court ruled that once the officer determined the vehicle had temporary tags, his reasonable suspicion of a crime ended, and he wasn’t justified in extending the stop.
Dunlap notes the Fifth District appellate court issued a ruling similar to the Eleventh District when considering the issue of whether a police officer can continue to detain a vehicle once the officer sees the driver isn’t the registered owner with a suspended license. Both appellate courts applied the Chatton decision and found the stops were unreasonable.– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (case nos. 2022-1227, 2022-1238, 2022-1229, and 2022-1237).
Contacts
Representing the State of Ohio from the Geauga County Prosecutor’s Office: Nicholas Burling, nburling@geauga.oh.gov
Representing Jessica Dunlap from the Office of the Ohio Public Defender: Kathleen Evans, Kathleen.evans@opd.ohio.gov
Representing Je’Brel D.T. Lewis: Rachel Kopec, rachel@kopec-law.com
Representing the Ohio Attorney General’s Office: Michael Hendershot, Michael.Hendershot@OhioAGO.gov
Are Death Certificates Public Records?
Randy Ludlow v. Ohio Department of Health, Case No. 2022-1391
Tenth District Court of Appeals (Franklin County)
ISSUE: Is the information in a death certificate “protected health information” and exempt from disclosure to the public under the Ohio Public Records Act?
BACKGROUND:
On April 20, 2020, a Columbus Dispatch newspaper reporter filed a public records request with the Ohio Department of Health. Records kept by any Ohio public office are available to the people unless state law says the records cannot be disclosed.
The reporter, Randy Ludlow, requested a spreadsheet of all data from death certificates delivered by local agencies to the state health department over several weeks, starting from March 1, 2020. Every death certificate in Ohio must be sent to the state health department, which collects the information in a database called the “Electronic Death Reporting System” (EDRS). The COVID-19 pandemic had reached Ohio in spring 2020, and Ludlow wanted information about deaths caused by the disease.
The health department denied the public records request and several additional ones from Ludlow. The department stated in part that retrieving the data would require reprogramming computers and software, which the department said it wasn’t required to do.
In October 2020, Ludlow modified his request by asking for select data from the database. Among the information kept in the EDRS database is the deceased person’s name, address, sex, age, race, birth data, marital status, and the time, place, and cause of death. The health department provided the data to the reporter except for the birthdates, names, and addresses. The department subsequently released the birthdates. In giving its reason for excluding names and addresses, the department concluded that the data is “personal information,” which state law says can’t be disclosed.
In January 2021, Ludlow asked for the latest death certificate data that had been delivered to the health department up to the date of the new request. He also maintained that the names and addresses in the database are public records, and he again requested that data for the period beginning in March 2020. The health department gave Ludlow the records, except for the names and addresses.
Reporter Sues for Access to Death Certificate Records
Ludlow filed a lawsuit in the Ohio Court of Claims in January 2021. That court hears disputes over access to public records. Ludlow alleged that the health department denied access to public records in violation of the Public Records Act, R.C. 149.43.
In the Court of Claims, attorneys called “special masters” are assigned to evaluate public records cases. The special master in this case issued a report in June 2021 recommending that the court order the health department to release the requested records. The health department objected to the recommendation. A judge in the Court of Claims reviewed the matter. The judge overruled the objections and ordered the department to produce the requested records.
The health department appealed to the Tenth District Court of Appeals, which overturned the Court of Claims ruling. The Tenth District concluded that the health department was correct to withhold the names and addresses in its responses to Ludlow.
He appealed to the Supreme Court of Ohio, which agreed to review the issue. The Supreme Court will hear the case at a special offsite court session in Jefferson County
Health Department Death Data Is Public Record, Former Reporter Argues
Ludlow, who is now retired, argues that death certificates are public records as defined in the Public Records Act. Death certificates are documents received and kept by a public office – the state health department – in an electronic form (the EDRS database), and they document the department’s functions, operations, or other activities, Ludlow states in his brief.
He notes that the act lists records that aren’t considered public records. Medical records are one type of record that isn’t public. However, Ludlow explains, the definition of “medical records” is “any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment.” (Emphasis added.) The General Assembly clearly intended for death records to be public, Ludlow maintains.
He and the health department debate the impact of R.C. 3701.17 on this case. In 2004, the legislature enacted that law, which explains that “protected health information” reported to health departments and agencies is confidential. “Protected health information” is defined as “information, in any form … that describes an individual’s past, present, or future physical or mental health status or condition” if the information reveals, or could be used to reveal, the individual’s identity. The release of protected health information is prohibited without the individual’s written consent.
Ludlow points out that a person who has died cannot give written consent to release this type of information. Nor does the statute give an estate administrator or executor the authority to give this consent after someone dies, he notes. Ludlow also argues that someone who has died couldn’t have a “physical or mental health status or condition.” He reasons that the statute prevents the release of the protected health information of living, not deceased, individuals.
Ludlow adds that state laws use “decedent” when referring to deceased people, and that word doesn’t appear in R.C. 3701.17. He agrees with the Court of Claims, which observed that if the protected health information law applied to deceased individuals, it would mean state and local health departments have been violating the law since 2004 every time they released a certified death certificate. That interpretation would be “an absurd result,” Ludlow’s brief argues.
“[A]llowing the public access to the official cause of death recorded by the state promotes transparency, and by extension, confidence in the workings of government,” the brief states. “On the other hand, restricting access to official cause of death information in the EDRS serves no legislative purpose. The database is just a central depository for information in records subject to disclosure to anyone who requests them.”
Health Information Law Prohibits Disclosure of Identifying Information, State Asserts
The Attorney General’s Office, which represents the health department, notes that the public records law bars officials from disclosing records if state or federal law prohibits their release. The attorney general contends that, based on R.C. 3701.17, names and addresses in the health department database cannot be disclosed to the public.
Looking at the definition of “protected health information,” the attorney general argues that the cause of death data from a death certificate often reveals a past physical status or condition. If the cause of death and a name or address are linked together, it will identify or can be used to identify the person who died, the attorney general maintains. Those factors make the names and addresses in the database protected health information under state law, the attorney general argues. The law allows the information to be released only in a summary or aggregate form, and names and addresses must be excluded, the attorney general contends.
The attorney general also argues that R.C. 3701.17 and the definition of “protected health information” nowhere state that the protections expire when a person dies. The attorney general points to the Supreme Court of Ohio decision in State ex rel. CNN, Inc. v. Bellbrook-Sugarcreek Local Schools (2020). The Supreme Court reviewed a law regarding student confidentiality, R.C. 3319.321, which prohibits public schools from releasing “personally identifiable information other than directory information concerning a student attending a public school” unless the student, if 18 or older, consents. The Court concluded that the statute had no exception to allow the release of information if a student is deceased. The attorney general maintains the reasoning applies in this case, too.
The attorney general writes that R.C. 3701.17 “sets a sensible default rule: sensitive health information is presumptively protected from public-records requests even after death, unless the subject either consented to release before dying or one of the other statutory exceptions applies.”
The attorney general argues that most people want sensitive information, such as their health histories, to be kept private, even after they die. The General Assembly is tasked with balancing that interest with the right of the public to government records, and in this case the law doesn’t entitle Ludlow to the requested information, the attorney general concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Randy Ludlow: John Greiner, jgreiner@ficlaw.com
Representing the Ohio Department of Health from the Ohio Attorney General’s Office: Michael Hendershot, michael.hendershot@OhioAGO.gov
Does Easement Allow Power Company to Use Herbicide to Clear Vegetation?
Craig D. Corder et al. v. Ohio Edison Company, Case No. 2023-0216
Seventh District Court of Appeals (Harrison County)
ISSUE: Did a trial court’s interpretation of an easement that prohibited an electric power company from spraying herbicide on vegetation under its power lines frustrate the purpose of the easement and prevent the company from delivering safe, reliable power?
BACKGROUND:
This is the second time the Supreme Court of Ohio will consider the dispute between the Corder family in Harrison County and Ohio Edison Company, which operates about 7,000 miles of electric transmission lines in Ohio.
The Corders own 12.1 acres of property that contain three easements granted to Ohio Edison Company. The easements, all identical in language, were signed in 1948 by the previous owners of the property. A portion of the easement states that Ohio Edison has the “right to trim, cut and remove” trees, limbs, underbrush, or other obstructions that might interfere with the power lines. In 2010, Ohio Edison adopted a vegetation management plan that was required by the Public Utilities Commission of Ohio (PUCO). As part of the approved plan, the company was authorized to use herbicide to control plants underneath its power lines.
In 2017, the Corders filed a lawsuit in Harrison County Common Pleas Court seeking an injunction to prevent Ohio Edison from using herbicide on 3.9 acres of the Corders’ land. The Corders maintained that spraying herbicide was hazardous to their organic farming and to a family member’s health.
Ohio Edison argued that the common pleas court couldn’t consider the matter, and that the PUCO had sole discretion to determine whether the easement allowed the company to use herbicide. The trial court agreed and dismissed the case. The Corders appealed to the Seventh District Court of Appeals, which reversed the trial court’s decision in 2019. The Seventh District didn’t rule on whether the easement allowed the spraying of chemicals, but rather remanded the case to the trial court to decide.
Ohio Edison appealed the Seventh District’s decision to the Supreme Court, which in 2020 sided with the appeals court decision to send the case back to the trial court to interpret the easement.
In 2021, the trial court determined the language of “trim, cut and remove” didn’t authorize the use of herbicides. Ohio Edison appealed the decision to the Seventh District, which affirmed the trial court’s decision.
Ohio Edison appealed the Seventh District’s decision to the Supreme Court, which agreed to hear the case at a special offsite session of oral arguments in Jefferson County.
Easement Grants Right to Use Herbicide, Power Company Asserts
Ohio Edison argues that the trial court used a “cramped” interpretation of the easement language to limit the company’s ability to maintain the vegetation under its power lines by only allowing cutting and trimming of the plants. The company asserts that when interpreting an easement, the court must consider what the easement is for and permit the easement holder to carry out its purpose. The easement should be considered as a whole and not focus on the meaning of a single word or phrase in isolation, the company argues.
The power company explains that state law requires it to safely maintain its power lines, and after a massive power blackout in 2003 that affected several states, power companies have had to establish vegetation management plans to prevent trees and other obstacles from interfering with power lines. Because removing the vegetation prevents damage to power lines and prevents fires, the company argues it ought to be allowed to remove vegetation using any plans approved by the state regulator, the PUCO. The PUCO has endorsed the use of herbicide as a safe and effective way to manage vegetation. The company maintains the Corders have not presented any evidence that herbicides pose a safety threat in the area where it is scheduled to be used.
The company disputes the trial court’s and the Seventh District’s interpretation of the easement that “trim, cut and remove” gives the company two options – either trimming vegetation to reduce its size or cutting down plants to kill them. The trial court found that “remove” is a requirement that once the plants have been cut or trimmed, Ohio Edison has to carry them away from the property and not leave dead trees or branches on the Corders’ property. Ohio Edison argues that despite there not being a comma between “cut” and “remove,” the easement grants three rights, and removing the plant is one of them.
Although the 1948 easements don’t contain any reference to herbicides, the company states that removal could take all forms necessary to prevent the plants from interfering with the power lines. A proper interpretation of the easements is that they would allow an approved method of removing vegetation, such as using herbicides, the company argues. To bolster their argument, the company notes that a 1948 dictionary definition of “remove” contains four definitions for the word, including “to eradicate” and “to eliminate.”
The company argues that if the Seventh District decision stands, the company would face the complicated and expensive task of having to clear vegetation from thousands of private property owners with nearly 70-year-old easements who could object to using herbicides. The company would have to renegotiate the easements or seek to purchase the private property underneath the power lines through eminent domain. The company urges the Supreme Court to adopt a broader reading of the terms of the easement to allow spraying chemicals.
Clear Language of Easement Prevents Spraying Chemicals, Property Owners Maintain
Despite Ohio Edison’s explanation of the reasons why it should be allowed to use herbicides, the Corders maintain this case is about a straightforward interpretation of the language in the easement. The lower courts correctly ruled that the easement doesn’t give Ohio Edison the right to spray chemicals against their wishes, the Corders assert.
The key problem with Ohio Edison’s argument is that if “remove” was a third, independent option, then there would be no need for the words “trim” and “cut” in the easements. “Remove” would wipe out any use for “trim” and “cut,” and that would contradict the rules for interpreting written agreements such as easements, the landowners explain. A court is supposed to give meaning to every word in the easement, they argue. The Corders also dispute the company’s contention that “remove” is a “catch-all” phrase that allows the company to use any means it wants to remove the vegetation from underneath the lines. The landowners point to more modern easements granted to power companies that include the terms “or otherwise remove” to cover the use of herbicides and other removal methods.
The Corders argue the easements clearly provide the option to trim or cut the plants and the duty to remove whatever has been cut or planted. They dispute Ohio Edison’s interpretation of “remove,” which would allow for the use of herbicides, because the chemicals don’t actually remove the plants. Citing the power company’s own expert witnesses, the Corders note the herbicide would slow the growth of the plants or leave them to die and wither in place, neither of which is considered removal.
The Corders also express alarm that that the company would believe the parties in 1948 would have considered “remove” to be defined as “eradicate” rather than consider other dictionary definitions such as “shift location” or “take away.” In their brief, the Corders write:
“Imagine, for example, a judge becoming exasperated with counsel at oral argument: ‘That’s enough! Bailiff, remove attorney Smith!’ The bailiff would (one hopes) understand that he had not been instructed, as though by a movie villain, to ‘eliminate’ or ‘eradicate’ the offending barrister. Certainly, it would be unreasonable to spray poor attorney Smith with chemicals until he died.”
The landowners maintain that Ohio Edison can either follow the easement as written or follow the appropriate procedures to acquire the rights to spray chemicals and pay compensation for taking the land.
Friend-of-Court Briefs Submitted
An amicus curiae brief supporting Ohio Edison’s position was submitted by the Ohio Attorney General’s Office. Another brief in support of Ohio Edison was jointly filed by AEP Ohio Transmission Company, Dayton Power and Light Company, Ohio Power Company, the Ohio Rural Electric Companies, and Vectren Energy Delivery of Ohio.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Ohio Edison Company: Denise Hasbrook, dhasbrook@ralaw.com
Representing Craig D. Corder et al.: Nicholas Andersen, nick@aacolpa.com