Oral Argument Previews

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Wednesday, April 4, 2007

State of Ohio v. James P. Frazier, Case no. 2005-1316
Lucas County

City of Toledo v. Paul Tellings, Case no. 2006-0690
6th District Court of Appeals (Lucas County)

Lillian Rivera Cruz v. Luis Cumba-Ortiz, Case no. 2006-0973
8th District Court of Appeals (Cuyahoga County)

City of East Liverpool v. Columbiana County Budget Commission [et al.], Case no. 2006-1129
State Board of Tax Appeals (Columbiana County)


Death Penalty

State of Ohio v. James P. Frazier, Case no. 2005-1316
Lucas County

ISSUE: James Frazier of Toledo appeals his conviction and death sentence for the aggravated murder of Mary Lou Stevenson during a March 2004 robbery of her apartment. Frazier, who was also convicted of aggravated robbery and aggravated burglary, has asserted 22 allegations of legal and procedural error by the trial court as grounds for the Supreme Court to reverse his convictions or reduce his death sentence.

Among those assignments of error are claims that:

Contacts
David F. Cooper, 419.213.2061, for the State of Ohio and Lucas County prosecutor's office.

Spiros Cocoves, 419.241.5506, for James Frazier.

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Are State Law, City Ordinance Regulating All Pit Bulls as ‘Vicious Dogs’ Unconstitutional?

City of Toledo v. Paul Tellings, Case no. 2006-0690
6th District Court of Appeals (Lucas County)

ISSUE: Do provisions of state law and a Toledo city ordinance that define as “vicious dogs” all dogs of the breed commonly referred to as pit bulls, and that impose special requirements on owners of pit bulls, violate the U.S. and Ohio constitutions?

BACKGROUND: In this case, Paul Tellings of Toledo was cited by a city dog warden for violating a city ordinance that limits ownership of dogs identified as pit bulls to one such animal per household, and requires pit bull owners to provide proof of at least $100,000 of liability insurance coverage for personal injuries caused by the dog. Tellings, who was forced to get rid of two of three pit bulls he kept as family pets, entered a plea of not guilty in Toledo Municipal Court. He subsequently filed a motion to dismiss the charges against him on the ground that the Toledo ordinance and a state law regulating all pit bulls as “vicious dogs” were unconstitutional and therefore unenforceable.

The municipal court conducted a five-day hearing on the motion to dismiss during which it heard testimony from a variety of expert witnesses, law enforcement personnel and dog owners. The trial judge subsequently issued an opinion upholding the challenged laws as constitutional and denying the motion to dismiss. Tellings appealed that ruling to the 6th District Court of Appeals, which reversed the municipal court based on the Supreme Court of Ohio's 2004 decision in State v. Cowan, and held that the Toledo ordinance and challenged provisions of state law were unconstitutional. The city appealed the 6th District's holding, and the Supreme Court agreed to hear arguments in the case.

Attorneys for Toledo argue that the 6th District misapplied the Supreme Court's ruling in State v. Cowan. In Cowan, they assert, the Court overturned a local ordinance that gave dog wardens personal discretion to identify a dog as “vicious” and then to require, without any opportunity for judicial review, that the dog's owner must comply with special insurance and confinement requirements or face criminal sanctions.

In this case, they assert, the state legislature and Toledo City Counsel found sufficient grounds to enact laws identifying pit bull dogs as a special high-risk breed from which the public needed a higher degree of protection than other dogs, and establishing regulations to provide that protection. They point out that, unless a fundamental right is at issue, Ohio courts are required to presume that legislative enactments are constitutional unless it is shown that there is no rational basis or legitimate public purpose served by that legislation. In this case, they say, the court of appeals improperly substituted its own judgment to contradict the legislature's conclusion that, while not all pit bulls may be dangerous, there is sufficient evidence of heightened risk to public safety from the breed that special regulations applicable to all pit bulls and their owners are justified.

Attorneys for Tellings ask the Court to affirm the 6th District's holding that the Toledo ordinance under which he was charged and provisions of state law regulating all pit bulls as “vicious dogs” deny equal treatment to pit bull owners and impose unreasonable restrictions and costs on them that are not supported by any scientific data showing that pit bulls are more likely to attack or injure humans than a number of other breeds.

Contacts
Adam Loukx, 419.245.1020, for the City of Toledo.

Zol Zyndorf, 419.243.1144, for Paul Tellings.

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Does Reduction of Child Support Arrearage Violate Ban Against Retroactive Application of Statute?

Lillian Rivera Cruz v. Luis Cumba-Ortiz, Case no. 2006-0973
8th District Court of Appeals (Cuyahoga County)

ISSUE: Did an Ohio court abuse its discretion by retroactively applying current law that recognizes single-state jurisdiction over child support disputes to a case dating back to a former legal scheme under which different states could each have enforceable child support orders in effect against the same parent?

BACKGROUND: In 2003, Luis Cumba-Ortiz of Cleveland received a notice from a Puerto Rican court ordering him to pay his ex-wife, Lillian Rivera Cruz, an accrued child support arrearage of approximately $65,000, calculated at $40 per week for the 32 years since the issuance of an original 1971 support order. In June 2004, Cumba-Ortiz entered an agreement that he would pay ongoing support of $40 per week plus a processing fee to the Cleveland Child Support Enforcement Agency, and would begin making monthly payments toward the arrearage, but noted in writing that he had not waived his right to assert “jurisdictional defenses against all Puerto Rico orders.”

In October 2004, Cumba Ortiz received a notice that Cruz had obtained an adjusted order from the Puerto Rico court certifying that their daughter Leslie, now 36 years of age, was permanently disabled and ordering him to begin paying support of $1,676 per month, plus installments on the $65,000 arrearage. The Cuyahoga County Domestic Relations court accepted the October 2004 Puerto Rico support order for enforcement. Cumba-Ortiz filed a motion to vacate the Ohio order enforcing the new Puerto Rico support award and arrearage. His motion was denied. He appealed the trial court's ruling, and the 8th District Court of Appeals partially reversed with regard to the extent of his liability for arrearage.

The court of appeals held that exclusive jurisdiction over Cruz's claim for child support had passed from Puerto Rico to New York in 1976 when Cruz and Leslie had moved to that state, where Cumba-Ortiz was then residing, and she obtained a new support order there. The 8th District ruled that a 1978 court order obtained by Cumba-Ortiz terminating his New York support obligation after Ruiz and the child left the state had “stopped the clock” on the accumulation of any additional arrearage from 1978 until 2003, when Cruz reactivated her Puerto Rico support action by filing a new petition there.

Attorneys representing Cruz and the Cleveland Child Support Enforcement Agency now ask the Supreme Court to reverse the 8th District's ruling and reinstate the trial court order requiring Cumba-Ortiz to pay arrearage back to the date of the original 1971 support order. They assert that the 8th District erred by retroactively applying state and federal law changes that took effect in the 1990s. They note that under multi-state child support compacts in effect from 1950 to 1994, more than one state could maintain a valid and enforceable child support order in the same case. While recent legislation now requires that exclusive jurisdiction over all child support actions in a case be consolidated in a single state, they argue that Cruz has a vested right to be compensated according to the multi-state enforcement regime that was in place at the time her original Puerto Rico support order was granted.

Cumba-Ortiz points out that, at the time the 1976 New York support order was entered, he, Cruz and their daughter were all residents of New York, and that New York courts therefore assumed exclusive jurisdiction over all child support orders affecting them. He urges the Supreme Court to affirm the 8th District's holding that, from the date of the 1978 New York order terminating his support obligation in that state, there was no valid support order in place under which an arrearage could accumulate until his ex-wife re-filed in Puerto Rico 25 years later.

Contacts
Robert H. Grano Jr, 216.443.8868, for Lillian Rivera Cruz and Cleveland Child Support Enforcement Agency.

Jose A. Torres-Ramirez, 216.771.6303, for Luis Cumba-Ortiz.

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Does Legislation Changing Local Tax Allocation Process Deny Equal Protection to Certain Cities?

City of East Liverpool v. Columbiana County Budget Commission [et al.], Case no. 2006-1129
State Board of Tax Appeals (Columbiana County)

ISSUE: Did the state legislature violate the constitutional equal protection rights of the citizens of East Liverpool and certain other Ohio cities when it adopted H.B. 329 (2002), a bill authorizing representatives of some, but not all of the political subdivisions in certain counties to vote on revisions to the annual allocation formula for state local government funds?

BACKGROUND: In adopting H.B. 329 in 2002, the state legislature set new procedural guidelines for changing a county's annual allocation of state Undivided Local Government Fund (ULGF) and Undivided Local Government Revenue Assistance Fund (ULGRAF) monies among the political subdivisions within the county. The changes were applicable only to counties in which the largest political subdivision a) had a population of less than 20,000, and b) the population of the largest political subdivision represented less than 15 percent of the total population of the county. These new criteria applied to Columbiana County and its largest political subdivision, the city of East Liverpool.

The bill included two new provisions applicable only to counties meeting the above criteria: 1) A “veto vote” previously exercised by the largest political subdivision over any change in future fund allocations within the county could be eliminated if a combination of smaller political subdivisions with a combined population of more than half of the county's residents adopted a resolution eliminating that requirement. (2) If the “veto vote” of the largest subdivision in a qualifying county was eliminated, adoption or rejection of a proposed new alternate distribution formula for the next budget year required affirmative votes from a majority of the political subdivisions within the county, but with the specific proviso that the vote of the largest subdivision in the county not be counted in determining whether a majority vote had been achieved for the amended allocation formula.

After H.B. 329 took effect, other political subdivisions in Columbiana County took advantage of its provisions to adopt a resolution stripping East Liverpool of its veto vote over future changes in the formula allocating annual ULGF and ULGRAF among the county's local government units. Following the procedures set forth in the bill, the county subsequently adopted a new state funds allocation formula which it applied for the 2003, 2004 and 2005 tax years. The formula adopted under the post-H.B. 329 process allocated a smaller percentage of the county's total ULGF and ULGRAF appropriations for those years to East Liverpool than the city had received under the pre-H.B. 329 allocation formula.

East Liverpool filed objections to the 2003, 2004 and 2005 Columbiana County allocation formula with the State Tax Commissioner, who upheld the new formula as valid. The city then appealed the commissioner's rulings to the State Board of Tax Appeals (BTA), which denied all of East Liverpool's objections with the exception of arguments based on alleged violations of the constitutional rights of East Liverpool residents. The BTA decision noted that it has no jurisdiction to hear or decide questions involving constitutional issues, and so was leaving the city's arguments on those issues unaddressed. East Liverpool has exercised its right to appeal the BTA's ruling to the Supreme Court.

Attorneys for East Liverpool now ask the Supreme Court to rule on the constitutional issues left unaddressed by the BTA. Specifically, they argue that the Court should hold that the changes in Columbiana County's 2003, 2004 and 2005 state funds allocation formula adopted pursuant to H.B. 329 are unconstitutional and therefore unenforceable because:

Attorneys representing the Columbiana County commissioners respond that:

Contacts
John R. Varanese, 614.220.9440, for the City of East Liverpool.

Stephen W. Funk, 330.376.2700, for the Columbiana County Commissioners.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.