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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:
- The trial judge's instructions to the jury were defective for several reasons, including the judge's failure to tell jurors during the sentencing phase that the standard of proof Frazier must meet to establish mitigating factors favoring a life sentence rather than death was not the stringent standard of “beyond a reasonable doubt” as in other stages of the trial, but was the less-demanding standard of a “preponderance of the evidence.”
The state responds that Frazier did not raise this objection at trial, when the instruction could have been immediately corrected, and thus has waived the error unless it shows that it clearly affected the jury's death penalty decision. They say Frazier's contention that the jury may have applied a “beyond reasonable doubt” standard to his arguments for mitigation is mere speculation, and does not clearly establish that the jury would have voted for a life sentence rather than death if the court had clarified this point in its instructions.
- Frazier asserts that the trial court violated his right to a fair trial by allowing the state to introduce testimony by the coroner suggesting that the victim had been sexually assaulted and by allowing the prosecutor to make repeated statements to the jury over defense objections alleging rape of the victim. They argue that this testimony and the prosecutor's statements were highly prejudicial and improperly encouraged the jury to impose a death sentence, because Frazier was never charged with sexually assaulting Stevenson and none of the elements of his charged offenses or the death penalty specifications against him made any mention of rape or attempted rape.
The prosecutor's office responds that the coroner's testimony listed all the injuries to Stevenson that were observed during a post-mortem examination of her body, which included bruising and other trauma to her vaginal area. They argue that while there was insufficient evidence to charge Frazier with the additional crimes of rape or attempted rape, the state was within its rights to advise the jury about physical evidence suggesting that sexual assault may have been part of Frazier's motivation for the attack that resulted in the victim's death.
- Defense counsel assert that the death penalty should never have been an option in Frazier's case under U.S. and Ohio Supreme Court decisions barring execution of the mentally retarded. While psychological testing showed that Frazier has an I.Q. score in the low 70s, which is above the threshhold for classification as retarded under Ohio's criminal statutes, they point to his childhood assignment to special education classes and later approval for Social Security disability benefits and housing assistance based on his mental limitations as evidence that a) his sentence should not be more severe than a term of life imprisonment and b) his trial counsel failed to provide him with effective representation by failing to argue retardation.
The state responds that Frazier's IQ score and results of a court-ordered psychological exam did not meet the guidelines for classification as mentally retarded under federal and state case law, and notes that the criteria to qualify for Social Security and housing assistance are not the same as those required to presume reduced mental capacity of a criminal violator. They note that his trial attorneys initially asserted retardation as a mitigating factor, but withdrew that claim with Frazier's consent when his IQ scores failed to meet the statutory and case law guidelines for such a defense.
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.
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.
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.
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:
- H.B. 329 unconstitutionally treats residents of cities like East Liverpool differently than the citizens of the largest political subdivisions in other Ohio counties, because it arbitrarily sustains the “veto power” of cities with more than 20,000 residents or 15 percent of their county's population over changes in state funds allocations within their counties while allowing East Liverpool to be stripped of that power.
- The provision of H.B. 329 allowing a new alternate allocation formula to be adopted by a majority of the political subdivisions in certain counties without counting the largest political subdivision in calculating a majority unconstitutionally deprives the citizens of East Liverpool and similarly situated cities of the fundamental right to have their elected representatives vote on an important governmental decision that applies no differently to them than it does to residents of any of the other political subdivisions in the county.
Attorneys representing the Columbiana County commissioners respond that:
- Established case law in Ohio has held that a municipality or other political entity does not have legal standing to pursue an “equal protection” challenge to the constitutionality of a statute because the constitution grants rights to individuals rather than to political subdivisions.
- A court reviewing a constitutional challenge to a duly-enacted state law is required to begin with strong presumption that all legislative enactments are constitutional unless it is shown that there is no rational basis underlying the content of the statute. In this case, they say, the legislature recognized that in certain Ohio counties, the existing procedure for allocating state funds among local political subdivisions gave excessive control over those funds to the largest city in a county when that city did not include a significant percentage of the county's total population. They argue that the legislative intent of H.B. 329 was to correct this inequity, and say this public purpose clearly meets the ‘rational basis' test necessary to uphold the bill as constitutional.
Contacts
John R. Varanese, 614.220.9440, for the
City of East Liverpool.
Stephen W. Funk, 330.376.2700, for the Columbiana County Commissioners.
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.