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Tuesday, May 1, 2007

Prouse, Dash & Crouch, LLP v. Bruce A. Gorcyca DiMarco et al., Case no. 2006-0957
8th District Court of Appeals (Cuyahoga County)

Norfolk Southern Railway Company v. Homer R. Bogle et al., Case no. 2006-1025
8th District Court of Appeals (Cuyahoga County)

Melisa Arbino v. Johnson & Johnson et al., Case no. 2006- 1212
U.S. District Court, Northern District

In Re: Lee Adams, Jr., et al., Case no. 2006-1695
8th District Court of Appeals (Cuyahoga County)

State ex rel. The Ohio General Assembly et al. v. Jennifer Brunner, Secretary of State of Ohio, Case no. 2007-0209

State of Ohio v. Clifton White, III, Case no. 2006-0295
9th District Court of Appeals (Summit County)


Does Ohio Court Have Jurisdiction Over Civil Suit Against Ex-Resident Who Still Owns Ohio Property?

Prouse, Dash & Crouch, LLP v. Bruce A. Gorcyca DiMarco et al., Case no. 2006-0957
8th District Court of Appeals (Cuyahoga County)

ISSUE: Does an Ohio trial court have personal jurisdiction over the parties in a civil lawsuit in which a Canadian law firm seeks recovery of unpaid legal fees from former Ohio residents now living in Canada when the primary asset available to satisfy a judgment is Ohio real property still owned by the defendants that they verbally pledged as security for the unpaid fees?

BACKGROUND: Prouse, Dash and Crouch, an Ontario, Canada law firm, represented former Parma, Ohio, residents Bruce and Linda DiMarco in multiple legal matters between 2000 and 2004. When Linda DiMarco originally contacted the firm in 2000, the couple had left their Parma home and were residing in Canada, where Bruce had been incarcerated on a warrant seeking his extradition to the U.S. to face charges of wire fraud and stock manipulation. The DiMarcos paid the law firm an original retainer and made periodic payments for subsequent legal services, but over time accumulated a sizable unpaid balance. When the law firm sought security for its mounting legal fees,  Bruce refused to sign a mortgage on the Parma house, but assured the firm that the debt would be covered by the equity in “his house” in Parma and personal property stored there including a collection of antique dolls.

After the DiMarcos failed to pay three successive invoices submitted by the law firm, the firm discovered that Bruce had conveyed title to the house in Parma to Linda in 1999, shortly before leaving the country and with the knowledge that he was more than $100,000 in arrears in child support payments to his ex-wife. The law firm subsequently filed suit in the Cuyahoga County Court of Common Pleas alleging fraud and breach of contract and seeking joint and several recovery of more than $200,000 in unpaid fees from the DiMarcos. The DiMarcos moved to dismiss the suit on the ground that an Ohio court lacked personal jurisdiction over the parties because both the plaintiff and defendants were residents of Canada. The trial court denied the motion to dismiss, holding that it did have jurisdiction to adjudicate the complaint. The court subsequently issued a judgment finding that the DiMarcos were in breach of contract and that the 1999 transfer of ownership from husband to wife was void as a fraudulent conveyance. The court  awarded the law firm damages of $206,342.

The DiMarcos appealed. On review, the 8th District Court of Appeals reversed the trial court and vacated its judgment, holding that an Ohio court did not have personal jurisdiction over the parties because neither was a resident of Ohio during the period of their contractual relationship, and none of the legal services for which the law firm was owed fees involved the property in Parma. Prouse, Dash & Crouch sought Supreme Court review of the 8th District's ruling, and the Court has agreed to hear arguments in the case.

Attorneys for the law firm urge reinstatement of the trial court judgment in their favor. They argue that the 8th District's decision ignores the fact that the DiMarcos were legal residents of Ohio before fleeing the state to avoid prosecution, and have never established legal residence in Ontario or another U.S. state since leaving Ohio. They assert that adopting the court of appeals' strict reading of jurisdictional requirements would mean that there no jurisdiction in which a plaintiff could sue them and recover damages despite the fact that they continue to own valuable property in Ohio.  They also note that, as part of  the law firm's representation of the DiMarcos, a member of the law firm made several trips to the Parma property to make arrangements to protect the house and inventory its contents. They argue that this activity by the firm in Ohio establishes the “nexus” necessary to give Ohio courts jurisdiction in the breach of contract case.

Attorneys for the DiMarcos argue that, at all times relevant to the law firm's breach of contract claim, all parties in the case were residents of Canada, the contract was entered into in Canada, and none of the legal matters for which the firm provided representation to the defendants was based on their ownership of property in Ohio. They point to prior court decisions that they say have held that the mere fact that a party owns property in a state does not give that state's courts jurisdiction over a foreign dispute that has no connection to the property in question.

Contacts
Daniel F. Lindner, 216.737.8888, for Prouse, Dash & Crouch LLP.

Paul Mancino Jr., 216.621.1742, for Bruce and Linda DiMarco.

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Is 2004 Ohio Law Regulating Asbestos Lawsuits Preempted By Federal Employers’ Liability Act?

Norfolk Southern Railway Company v. Homer R. Bogle et al., Case no. 2006-1025
8th District Court of Appeals (Cuyahoga County)

May a 2004 Ohio law setting mandatory medical evidence requirements that must be met  before an asbestos-related lawsuit may be heard by a state court be applied to cases brought by railroad workers against their employers under the Federal Employers' Liability Act (FELA)?

BACKGROUND:  FELA is a tort-based federal law that sets a nationally uniform compensation scheme through which railroad employees injured in the course of their employment may seek compensation from their employers. It is the exclusive remedy that railroad workers may invoke against their employers, and stands in place of the no-fault state workers' compensation laws that apply to most other American workers. Claimants under the FELA are specifically authorized to bring actions under the statute in either a federal or a state court. It has been established by prior court decisions that claims asserted by railroad workers against their employers based on workplace exposure to asbestos fall within the scope of  FELA.

In response to a high volume of asbestos-related lawsuits being filed in Ohio courts in recent years, in 2004 the General Assembly enacted H.B. 292. The bill created two new statutory requirements applicable to all new or pending asbestos cases brought in Ohio's state courts: (1) it requires that, before any asbestos claim may be heard by a state court, the plaintiff must first produce medical evidence that he or she currently exhibits specific symptoms of cancer, reduced lung function or other actual medical injury related to asbestos exposure; and (2) if the required proof of current illness or injury is not established, a trial court must dismiss the plaintiff's claim “without prejudice,” (i.e. without precluding the plaintiff from reasserting a similar claim at any later time that the plaintiff can establish the required medical evidence of actual asbestos-related illness).

In this case, Homer R. Bogle and three other former employees of the Norfolk Southern Railway Company or their estates filed lawsuits in the Cuyahoga County Court of Common Pleas seeking damages under FELA for alleged medical injuries as a result of exposure to asbestos and certain other hazardous substances during their employment with the railroad. Their suits were filed prior to the enactment H.B. 292 and were pending when the bill took effect.  When the plaintiffs did not file medical evidence that they were currently suffering from any of the symptoms spelled out in the new state law within the specified 120-day time limit for doing so, Norfolk asked the trial court to issue a declaratory judgment that their complaints were covered by H.B. 292, and therefore should be dismissed for failure to file the required medical evidence. The railroad also asked the trial court to declare that the requirements of H.B. 292 were not preempted (i.e. rendered invalid and unenforceable) by the Supremacy Clause of the U.S. Constitution on the basis that the state law conflicted with the FELA.

The trial court denied Norfolk's petition for a declaratory judgment, and held that the threshold medical evidence requirements imposed on Ohio asbestos plaintiffs by H.B. 292 were unenforceable in cases brought by railroad workers under the FELA because those requirements restricted the federally guaranteed right of railroad workers to pursue recovery from their employer under the FELA.  On review, the 8th District Court of Appeals affirmed the trial court's ruling.

Attorneys for Norfolk, who are supported by an amicus curiae (friend of the court) brief filed by the Association of American Railroads, urge the Supreme Court to overrule the trial and appellate court decisions. They point to prior court decisions holding that a state law does not conflict with a federal statute when it merely sets procedural guidelines to be followed by litigants but does not change or restrict the substantive rights of the parties under the federal statute.  In the case of  H.B. 292, they say, the state legislature made it clear that its purpose in establishing threshold medical evidence standards for asbestos claimants was not to disqualify applicants who are not currently ill, but rather to give priority to those claimants who are already suffering from cancer, reduced lung capacity and other symptoms rather than making them wait to litigate their cases behind other claimants with no current medical symptoms.

Attorneys for Bogle and the other FELA plaintiffs did not file a brief within the time limit specified in the Supreme Court's rules of practice and procedure, and will therefore not take part in oral argument before the Justices.

Contacts
Kevin C. Aexandersen, 216.241.5310, for Norfolk Southern Railway Co..

Christopher J. Hickey, 216.241.1872, for the plaintiff railroad employees.

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Is Court Ruling Denying Permanent Custody of Child But Continuing Temporary Custody a ‘Final’ Order?

In Re: Lee Adams, Jr., et al., Case no. 2006-1695
8th District Court of Appeals (Cuyahoga County)

ISSUE: When a juvenile court denies a motion by a county child services agency to modify the disposition of a child from temporary to permanent custody, but continues the agency's temporary custody of the child, is the court's ruling a “final appealable order” subject to immediate review by a court of appeals?

BACKGROUND: In this case three children of a Garfield Heights couple, Lee and Michelle Adams, were identified as neglected or dependent children and were placed in the temporary custody of the Cuyahoga County Department of Children and Family Services (CCCFS). Following a two-year period during which the children remained in foster care while the parents unsuccessfully sought to regain custody, CCCFS filed a motion in the Cuyahoga County Juvenile Court to modify the disposition of the case and obtain permanent custody of the children. Following a three-day hearing at which the children expressed a strong desire to be reunited with their parents, the juvenile court denied the agency's motion to obtain permanent custody and ordered that the children remain in the temporary custody of CCCFS while the parents continued to work toward reunification of the family.

CCCFS filed an appeal of the juvenile court's ruling with the 8th District Court of Appeals.  Attorneys for the parents filed a motion to dismiss the appeal, arguing that the juvenile court decision maintaining the county's ongoing temporary custody of the children was not eligible for review by a court of appeals because it was not a “final appealable order” that disposed of the case. The 8th District agreed, and dismissed the agency's appeal. 

Attorneys for CCCFS now urge the Supreme Court to reverse and order the 8th District to hear their appeal. They assert that R.C. 2505.02, the section of state law governing appeals, provides that a party affected by a trial court ruling in a special proceeding may appeal when that ruling “affects a substantial right” of the appealing party and “determines the outcome” of the court action. They argue that permanent custody hearings are special proceedings, that the agency had a substantial right at stake because it was the court-designated custodian of the Adams children, and that the juvenile court's denial of their permanent custody motion determined the action because, without the ability to appeal, the agency would be indefinitely barred from achieving the object of its motion, which was to obtain permanent custody of the children.

Attorneys representing the Adams parents and independent counsel representing the children respond that the legal matter at issue in this case is the ultimate custody disposition of the children. They argue that the 8th District was correct in holding that the disputed juvenile court ruling in this case was not immediately appealable by CCCFS because it was not a “final” order that “determined the outcome” of the case, but was merely an interim order maintaining the current status quo by keeping the children in the temporary custody of CCCFS.  With regard to the claim by CCCFS that it has a “substantial right” to the custody of the Adams children, the Adamses argue that the state and federal constitutions grant rights to individuals, not to government agencies. They contend that prior court decisions cited by CCCFS have recognized a fundamental constitutional right of parents to appeal the termination or restriction of their rights to custody of their children, but have not extended any such recognition of substantial custody rights to a public agency.

Contacts
Joseph C. Young, 216.432.3345, for the Cuyahoga County Department  of Children & Family Services.

John J. Kulewicz, 614.464.5634, for Michelle Adams.

Christopher J. Pagan, 513.424.1823, for Lee Adams.

Charles M. Miller, 513.579.6967, for the Adams children.

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Does 2004 Tort Reform Legislation Violate Plaintiffs’ Right To Have Juries Decide Damage Awards?

Melisa Arbino v. Johnson & Johnson et al., Case no. 2006-1212
U.S. District Court, Northern District

ISSUES:  Do provisions of S.B. 80, a “tort reform” bill enacted by the Ohio General Assembly in 2004, unconstitutionally limit the rights of plaintiffs in personal injury lawsuits to obtain a complete remedy for their injuries and to have a jury determine the amounts of noneconomic and punitive damages to which they are entitled?

BACKGROUND:  S.B. 80, legislation enacted by the General Assembly in 2004 which took effect in April 2005, imposes caps on certain types of money damages that Ohio courts may award to successful plaintiffs in civil lawsuits. 

One provision of the bill limits the amount of “noneconomic damages” that may be awarded to a plaintiff in a personal injury suit (i.e. damages for intangible injuries such as pain and suffering, loss of consortium, disfigurement, mental anguish, etc.) to the greater of $250,000 or three times the amount of “economic damages” awarded to the same plaintiff based on the same injuries, up to an absolute maximum of $350,000. The bill makes an exception to these limits for plaintiffs who suffer permanent disability or the loss of a limb or bodily organ system. Other provisions of the bill prohibit Ohio courts from awarding a plaintiff punitive damages that exceed two times the amount of his or her compensatory damages from the same defendant, and further reduce the maximum punitive damages that may be awarded to a current plaintiff by the amounts of any punitive damages previously awarded against the defendant in other lawsuits based on the same tortious conduct.

In this case, an Ohio woman, Melisa Arbino, filed a product liability lawsuit against the Johnson & Johnson Pharmaceutical Co. in federal district court to recover damages for a series of blood clots and other continuing medical problems Arbino suffered in 2005 after using a hormonal birth control product  known as the Ortho Evra Birth Control Patch. During pretrial proceedings in federal district court, Arbino filed a motion for summary judgment asking the court to declare that provisions of S.B. 80 imposing  caps on the potential  amounts of noneconomic and punitive damages she could recover from Johnson & Johnson were unconstitutional and therefore unenforceable. While that motion was pending, Arbino's case was consolidated with those of dozens of other plaintiffs asserting claims against Johnson & Johnson based on medical problems allegedly caused by the Evra birth control patch.

After initially scheduling oral argument on Arbino's summary judgment motion, the U.S. District Court for the Northern District of Ohio postponed argument and submitted four “certified questions of state law” to the Supreme Court of Ohio. The Justices have agreed to answer three of the certified questions, which ask whether three specific Revised Code sections adopted or amended as part of S.B. 80 are unconstitutional because they violate plaintiffs' rights to trial by jury, to a remedy at law for their injuries and  to due process and equal protection of the laws. The certified questions also cover claims by the plaintiffs that S.B. 80 violates the constitutional separation of powers between the legislative and judicial branches of state government, and violates the provision of the Ohio Constitution that limits the content of a legislative enactment to a “single subject.”

Attorneys for Arbino point to 1991 and 1999 decisions in which the Supreme Court of Ohio struck down as unconstitutional caps on noneconomic damages and other limitations on personal injury awards that were included in previous “tort reform” bills enacted by the General Assembly. They argue that there is no material difference between the damage caps imposed by S.B. 80 and the caps that were held unconstitutional in the Court's earlier decisions, and assert that the current Court is obliged to affirm its previous rulings under the doctrine of stare decisis (to “let stand” rulings on legal issues that a court has previously decided).

The plaintiffs argue that the fundamental constitutional right to trial by jury has historically been held to encompass not only having a jury decide which side has prevailed in a trial, but also allowing jurors to determine how much the prevailing party is entitled to recover in damages. They contend that the caps imposed on noneconomic and punitive damages by H.B. 80 are arbitrary numbers imposed by the legislature with no connection to the injuries suffered by individual plaintiffs. As such, they assert, the caps deprive Arbino and other personal injury claimants of their right to have a jury determine the types and amounts of compensation that are appropriate under the specific facts of their individual cases. They also argue that the H.B. 80 caps violate the constitutional right of citizens to equal protection of the law because they allow plaintiffs whose injuries are relatively small to collect 100 percent of the damages they have suffered, while restricting the recovery of those who have suffered much more severe injuries to a lesser percentage of their noneconomic damages.

Their position is supported by amicus curiae (friend of the court) briefs submitted to the Court by the Ohio Academy of Trial Lawyers and multiple state and national consumer and plaintiff-oriented interest groups.

Attorneys for Johnson & Johnson, supported by amicus briefs submitted by the State of Ohio, the Ohio Association of Civil Trial Attorneys and multiple business and industry associations, urge the Court to uphold the constitutionality of S.B. 80. They note that courts analyzing enactments of the legislature are required to begin with a strong presumption that statutes are constitutional, and to place a heavy burden of proof on parties seeking to invalidate an act of the legislature. With regard to the 1991 and 1999 Supreme Court decisions that held previous tort reform measures unconstitutional, they argue that H.B. 80 was specifically designed to address concerns expressed by the Court in earlier decisions regarding unequal treatment of those plaintiffs with the most severe injuries. They point to specific language in the current statute that was not included in prior tort reform bills that exempts plaintiffs who have suffered loss of a limb or permanent disability from the cap on noneconomic damages.

They argue that the legislative purpose underlying S.B. 80 was to rein in the high costs of civil lawsuit awards in order to protect the state's economy and the financial and employment security of all Ohioans.  Because the bill's caps on noneconomic and punitive damage awards allow reasonable recovery for all but the most severely injured plaintiffs, and exempt victims of catastrophic injuries from the caps, they argue that the statutory scheme must be upheld as constitutional because there is a clear “rational basis” for its limitations on personal injury damage awards.

Contacts
Janet G. Abaray, 513.852.5600, for Melisa Arbino.

Julie A. Callsen, 216.696.2286, for Johnson & Johnson Pharmaceutical Co.

Frank M. Strigari, 614.466.2872, for the State of Ohio.

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Did Secretary of State Violate Ohio Constitution By Returning Unsigned Bill To Governor for Veto?

State ex rel. The Ohio General Assembly et al. v. Jennifer Brunner, Secretary of State of Ohio, Case no. 2007-0209

ISSUE:   Under the Ohio Constitution, when the legislature enacts a bill but does not present it to the governor until after the legislative session has been adjourned, and the governor delivers the bill to the Secretary of State without either signing or vetoing it, does the bill become law 10 days after the date on which it was presented to the Governor, or 10 days after the date on which the legislative session was adjourned?

BACKGROUND: In this case, a bill enacted during the final days of  the 126th Ohio General Assembly, S.B. 117, was presented to outgoing Governor Bob Taft on Dec. 27, 2006, one day after the State Senate adjourned sine die on Dec. 26, thereby ending the legislative session. The bill included provisions barring use of public nuisance lawsuits and capping noneconomic damages that can be recovered from former manufacturers of lead-based paint. Governor Taft delivered the bill to outgoing Secretary of State Ken Blackwell's office on Jan. 5, 2007, without either signing it or attaching written objections to indicate that he was exercising his power to veto it.  On that same day, Governor Taft issued a news release indicating that it was his intention to allow the bill to become law without his signature.

On the morning of Jan. 8, 2007, Governor Taft was succeeded in office by Governor Ted Strickland and Secretary of State Blackwell was succeeded in office by Secretary of State Jennifer Brunner. During that day, Governor Strickland's office contacted Secretary of State Brunner's office and requested that S.B. 117 be returned to the governor. Brunner complied with that request. Later on Jan. 8, Governor Strickland returned S.B. 117 to the Secretary of State with written objections and a letter confirming that he was exercising his constitutional authority to veto the bill.

Subsequently, Ohio Senate President Bill Harris and Ohio House Speaker Jon Husted filed an original action in  the Supreme Court, asking the Court to issue a writ of mandamus compelling Brunner to fulfill the constitutional duties of her office by compiling, publishing and distributing the text of S.B. 117 as a  valid state law. Their petition asserts that Brunner should be ordered to take these steps based on a legal determination that the bill became law at the time of its original filing with the Secretary of State by Governor Taft on Jan. 5, 2007.

The legislative leaders argue that under Section 16, Article II of the Ohio Constitution, when the legislature adjourns before a newly enacted bill has been signed or vetoed by the governor, the bill becomes law “unless, within ten days after such adjournment, (the bill) is filed by (the governor) with his objections in writing, in the office of the secretary of state.” In this case, they say, the legislature adjourned on Dec. 26, 2006, and Governor Taft filed S.B. 117 with the secretary of state without written objections on the tenth countable day (Sundays are excluded) after adjournment, Friday, Jan. 5, 2007.  Because the bill became law on Jan 5, they contend, Brunner was obliged to proceed with her duty to “compile, publish and distribute” the bill as a valid state law and had no constitutional authority to send it back to Governor Strickland on Jan. 8 or to accept his re-submission of the bill with a purported “veto message” later that day.

They also argue that, whether or not a bill has become law, once the governor has transmitted it to the secretary of state and the secretary of state has accepted it for filing, the governor has no further control over the bill and the state constitution requires the secretary of state to perform his or her  duty to “retain and safely keep it” for publication, and makes no provision for a “return” of the bill to the governor. The legislature's position is supported by an amicus curiae (friend of the court) brief submitted on behalf of several statewide business and industry associations, including the Ohio Chamber of Commerce, Ohio Manufacturers Association and Ohio Business Roundtable.

Attorneys for Brunner respond that a full reading of Section 16, Article II of the state constitution makes it plain that, whether or not the legislature adjourns in the interim,  the Governor always has 10 days from the date of presentment of a newly enacted bill to exercise his executive power to review that legislation and either sign it, veto it or allow it to become law without his signature by letting the 10-day review period expire. In this case, they assert, the date of presentment was Dec. 27, and Governor Strickland requested the return of the bill on the tenth countable day thereafter, Monday, Jan. 8. They argue that nothing in the constitution made the Secretary of State's Jan. 5 receipt of an unsigned bill from the governor's office a legally significant event, or authorized Brunner to refuse a request from the governor's office to return the bill for reconsideration within the 10-day gubernatorial review period provided in the constitution.

They contend that if the Court adopts the reading of the state constitution proposed by the legislative leaders, the result would be to allow the legislative branch to shorten or even eliminate the 10-day gubernatorial review period provided by the constitution simply by adjourning a legislative session without presenting newly enacted bills to the governor, and waiting until the last day or even after the 10-day post-adjournment time limit has expired before presenting them. They argue that this interpretation cannot have been the intention of the framers of the constitution because it violates the separation of powers between branches of state government and conflicts with the purpose of the gubernatorial veto power, which is to provide a check and balance on the power of the legislature.

Brunner's position is supported by a joint amicus brief submitted by Governor Strickland and 18 Ohio constitutional law professors, and by briefs submitted by consumer-oriented interest groups including the American Association of Retired Persons, National Association of Consumer Advocates and the Cleveland and Columbus legal aid societies.

Contacts
Suzanne K. Richards, 614.464.6458, for the Ohio General Assembly.

Brian J. Laliberte, 614.728.5470, for Secretary of State Jennifer Brunner.

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May Trial Court Affirm Death Sentence When Both Defense and State Experts Find Offender Retarded?

State of Ohio v. Clifton White, III, Case no. 2006-0295
9th District Court of Appeals (Summit County)

ISSUE:  In an “ Atkins ” hearing to determine whether an offender's death sentence must be reduced to life imprisonment because the offender is mentally retarded, does the trial court commit reversible error in holding that the defendant has not proven his retardation by a preponderance of the evidence when the  expert psychologists who examined the defendant and testified at the hearing on behalf of the state and the defense both concluded that the defendant is mentally retarded?

BACKGROUND: Clifton White III of Akron was convicted of aggravated murder and sentenced to death for the December 1995 shotgun slaying of Deborah Thorpe, the mother of Michael Thorpe, who had begun dating White's former girlfriend, Heather Kawczk. White also was convicted of shooting and killing Kawczk's mother and shooting and severely wounding Michael Thorpe, who intervened when White confronted Kawczk at gunpoint at her place of employment a few minutes after killing their mothers.

In 2002, while White was pursuing post-conviction relief in federal court, the U.S. Supreme Court ruled in Atkins v. Virginia that the 8 th Amendment to the U.S. Constitution prohibits the execution of mentally retarded persons as cruel and unusual punishment.  Later that year, the Supreme Court of Ohio in State v. Lott established procedures to be followed by Ohio courts in reviewing Atkins mental retardation claims asserted by Ohio offenders who were under death sentences.

White filed a new post-conviction petition asserting that he is mentally retarded and therefore not eligible for execution. Pursuant to Lott, the Summit County Court of Common Pleas granted discovery, appointed experts and conducted an evidentiary hearing. At that hearing, both the expert psychologist selected by the state and the expert psychologist selected by the defense testified that, based on their examinations of White, the results of a battery of scientific tests and information they gathered from persons who had known and interacted with White, he met the criteria for classification as mentally retarded.

Notwithstanding the testimony of the expert witnesses, the trial judge affirmed White's death sentence, holding that White had not presented evidence sufficient to establish that he was retarded. Citing testimony presented at the hearing by Heather Kawczk, who had dated and briefly lived with White, and facts from White's original  trial showing that he functioned normally in a number of areas of daily life, the trial court held that the opinions of the experts were not sufficient to overcome the countervailing lay evidence that White was not retarded.  On review, the 9th District Court of Appeals affirmed the trial court's ruling.  The court of appeals stated that the trial court's ruling must be reviewed on an “abuse of discretion” basis, and under that standard of review it must be affirmed because the appellate panel did not find the trial court's action to be “unreasonable, arbitrary or unconscionable.”

Attorneys for White now urge the Supreme Court to overrule the trial court and court of appeals and remand his case for resentencing. They argue that in light of the expert testimony presented at his Atkins hearing, and the absence of any conflicting expert testimony, White provided legally sufficient proof that he is retarded and therefore ineligible for execution. They point to language in the Lott decision directing that Ohio courts hearing claims of retardation “should rely on professional evaluations of [a petitioner's] mental status.” While acknowledging that expert testimony is not the only information a court may consider at an Atkins hearing, White asserts that the trial judge's opinion shows that he improperly rejected the results of scientific testing and the opinions of recognized experts because they did not correspond to his own preconceptions and widely held stereotypes about what life activities retarded persons can and cannot master.

Attorneys for the state point to language in State v. Lott indicating that expert testimony should be given consideration in deciding Atkins claims of retardation, but holding that the court may also consider relevant lay testimony and retains its authority as the ultimate finder of fact.  In this case, they say, the trial court found major incongruities between the findings of the expert witnesses that White had an I.Q. of 52 and significant adaptive behavior problems and the established facts that he had a driver license and had purchased his own car, had mastered a demanding computer game, selected and purchased appropriate clothing for his daughter, obtained money orders to pay his own bills and conducted other everyday living activities without assistance.

Contacts
Richard S. Kasay, 330.643.2800, for the State of Ohio and Summit County prosecutor's office.

Kathryn L. Sandford, 614.644.1604, for Clifton White III.

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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.