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Wednesday, Jan. 9, 2008

Cleveland Construction, Inc. v. City of Cincinnati, and Timothy Riordan, Bernadine Franklin, Nate Mullaney, Alicia Townsend, Kathi Ranford, and Valley Interior Systems, Inc., Case no. 2007-0114
1st District Court of Appeals (Hamilton County)

State of Ohio v. Robert W. Bates, Case nos. 2007-0293 and 2007-0304
2nd District Court of Appeals (Miami County)

State of Ohio v. Marquis A. Hairston, Case no. 2007-0394
10th District Court of Appeals (Franklin County)

State of Ohio v. D.H., Case nos. 2007-0291 and 2007-0472
10th District Court of Appeals (Franklin County)


May Contractor Seek Money Damages from City for Rejection of Lowest Bid on Contract?

Cleveland Construction, Inc. v. City of Cincinnati, and Timothy Riordan, Bernadine Franklin, Nate Mullaney, Alicia Townsend, Kathi Ranford, and Valley Interior Systems, Inc., Case no. 2007-0114
1st District Court of Appeals (Hamilton County)

ISSUES:
1. Does a disappointed bidder who submitted the low bid on a city contract have a constitutionally protected property interest in that contract when the city's sole basis for rejecting the low bid was the bidder's failure to meet race and gender-based subcontractor requirements, despite a city ordinance that specifically barred the city from applying those requirements to reject the low bid?

2. If the disappointed low bidder in this case does have a constitutionally protected property right in a city contract, do federal civil rights statutes allow the low bidder to seek money damages from the city for the lost profits it would have earned on the project if the contract had been lawfully awarded?

BACKGROUND: The Supreme Court has agreed to review two disputed legal issues in a complex case involving the 2004 award of a public contract by the City of Cincinnati. The case involves a suit filed by Cleveland Construction Inc., which submitted a bid that was more than $1.2 million lower than the bid of Valley Interiors Systems for the drywall portion of a multi-million dollar expansion and renovation of the Cincinnati Convention Center. The city's purchasing agent disqualified Cleveland's bid and accepted Valley's bid as “lowest and best” on the basis that Valley's bid specified that at least 35 percent of the contract would be fulfilled by minority-owned and female-owned small business subcontractors, while Cleveland's bid did not meet that requirement.

Cleveland sued, unsuccessfully seeking injunctions to stop the city from proceeding with the project with Valley as the drywall contractor. Among other claims it advanced in protracted litigation, Cleveland asserted that the race and gender-based subcontractor requirements included in the city's bid specifications were discriminatory. They also pointed to a specific provision in the city's purchasing ordinance specifying that a higher bid meeting subcontractor outreach goals could be accepted over an otherwise-qualified lower bid that did not meet those goals only when the higher bid was less than $50,000 more than the low bid. Cleveland asserted a claim for money damages under Section 1983 of the federal civil rights act, arguing that because it had submitted the low bid and the city had no discretion or authority under its own purchasing ordinance to reject the low bid in this case, the city's discriminatory action had deprived Cleveland of a property interest in the profits the company would have earned if the drywall contract had been lawfully awarded.

In a multi-part decision, the trial court entered a judgment declaring the race and gender-based subcontractor requirements to be discriminatory and enjoining the city from applying them in awarding any future contracts. The judge granted Cleveland an award of attorney fees, but issued a directed verdict denying Cleveland's petition for recovery of lost profits from the drywall contract. Both sides appealed. The 1st District Court of Appeals affirmed the trial court's findings in favor of Cleveland, and reversed the directed verdict on the issue of money damages. The 1st District held that Cleveland was entitled under federal case law to pursue recovery for any damages that it could prove were attributable to the city's discriminatory acts, including claimed lost profits, and remanded the case to the trial court for further proceedings on those issues.

Cincinnati now asks the Supreme Court to overrule the 1st District and reinstate the trial court's directed verdict denying Cleveland's claim for lost profits. They point to this Court's 2006 decision in Cementech, Inc. v. City of Fairlawn as a definitive holding that under Ohio law, disappointed bidders on government contracts are not entitled to recover for lost profits from work they did not perform. With regard to Cleveland's claims under Section 1983, they contend that recovery under that statute requires a claimant to show that it suffered actual injuries, and that those injuries arose directly from the denial of a constitutional right. They argue that while a vendor may assert an interest in a city contract under principles of contract law, it does not have a constitutional right to perform prospective work for a city. They also point to the trial court's finding that Cleveland did not submit documentation of any actual losses it suffered as a result of the city's action, and therefore did not meet the burden of proof required to defeat the city's motion for a directed verdict on the issue of money damages.

Attorneys for Cleveland acknowledge that the Supreme Court of Ohio's Cementech decision precludes any state law claims for recovery of lost profits in this case, but cite multiple cases from the federal courts that they say have affirmed the rights of discrimination victims to recover money damages including lost profits from business contracts from which the claimants were illegally excluded by discriminatory conduct. In this case, they say, both lower courts found that the race and gender-based subcontractor requirements were the sole basis for Cleveland's loss of the convention center contract, and that the city's application of those requirements violated antidiscrimination provisions of the U.S Constitution. Therefore, they contend, the 1st District was correct in remanding their Section 1983 claim to the trial court to determine whether and to what extent Cleveland suffered actual damages as a result of being excluded from the drywall contract because of the city's unconstitutional discrimination.

Contacts
Richard Ganulin, 513.352.3329, for the City of Cincinnati.

W. Kelly Lundrigan, 513.662.3680, for Cleveland Construction, Inc.

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May Court Order Prison Term To Be Served Consecutively to Sentence from Another Court?

State of Ohio v. Robert W. Bates, Case nos. 2007-0293 and 2007-0304
2nd District Court of Appeals (Miami County)

ISSUE: Under Ohio's current criminal sentencing statutes, does a trial court sentencing a felony offender have authority to order that its sentence be served consecutively to a sentence previously imposed by a different Ohio court for a different offense?

BACKGROUND: Robert Bates is appealing a decision by the 2 nd District Court of Appeals that upheld his sentencing for felony crimes in Miami County. Bates was already serving a ten-year prison sentence for robbery and firearms charges from Montgomery County when he was sentenced in neighboring Miami County in March 2005 for similar charges in an unrelated case. The trial court sentenced him to three, three-year terms to run concurrently with each other, but ordered that the aggregated three-year term be served consecutively to the ten-year sentence previously imposed in Montgomery County.

Bates has appealed the 2nd District's decision. He argues that in light of the Supreme Court's 2006 decision in State v. Foster, which severed some sections of the sentencing statute as unconstitutional, R.C. 2929.14(E)(4) now authorizes a judge to order that prison terms for separate offenses must be served consecutively only when those terms are imposed by a single court in a single proceeding. Accordingly, Bates asserts that the Miami County court exceeded its statutory sentencing authority in ordering that his sentence from that court be served consecutively to his Montgomery County sentence.

The state's attorneys label Bates' argument “absurd.” They assert that State v. Foster did not find all provisions of the sentencing statute unconstitutional, and they argue that “had the legislature desired subsection (E)(4) to apply only to multiple sentences for offenses arising out of the same proceeding, it would have provided those restrictions in plain terms.”

Contacts
Michael R. Gladman, 614.469.3939, for Robert Bates.

James D. Bennett, 937.440.5960, for the State of Ohio and Miami County prosecutor's office.

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Does 134 -Year Sentence Constitute Cruel and Unusual Punishment?

State of Ohio v. Marquis A. Hairston, Case no. 2007-0394
10th District Court of Appeals (Franklin County)

ISSUE: Is a trial court's sentencing order imposing consecutive prison terms totaling 134 years for 26 felony offenses committed during three home invasion robberies unconstitutional under the prohibition against “cruel and unusual punishment?”

BACKGROUND: Marquis Hairston is appealing a 10th District Court of Appeals ruling that upheld the sentence he received for multiple felony convictions arising from three home invasion robberies he and others committed in Columbus' German Village neighborhood. Hairston was convicted in 2006 on 26 felony counts arising from the three robberies, which took place in the early morning hours of Sept. 27, Oct. 10 and 25, 2005. In each case, the victims were forced at gunpoint to take off their clothing, were tied up and threatened, and personal property from their homes was taken away in their stolen vehicles. Hairston was apprehended by police and pleaded guilty. He was sentenced to prison terms totaling 134 years. The Franklin County Court of Common Pleas ordered all sentences to be served consecutively.

Hairston appealed to the 10th District, arguing that the trial court's imposition of maximum sentences on all charges and its order that the sentences be served consecutively constituted cruel and unusual punishment. The 10th District ruled that the trial court did not abuse its discretion in imposing sentence.

Hairston argues that the trial court has sentenced him, for all intents and purposes, to life in prison for three robberies that did not result in life-threatening injuries to any of the victims. He asks the Supreme Court to hold that, when compared to the shorter sentences imposed on defendants convicted of more serious offenses, the trial court's sentence in his case is cruel and unusual, in violation the 8th Amendment of the United States Constitution and Art. I, Sec. 9 of the Ohio Constitution.

Prosecutors respond that the trial court's imposition of multiple proportionate punishments for multiple crimes does not constitute cruel and unusual punishment, even if the aggregated prison terms exceed the defendant's natural life expectancy. They cite State v. Foster (2006), which authorizes trial courts to exercise “full discretion” in deciding when to impose maximum and consecutive sentences. They argue that the 10th District employed the correct legal analysis in holding that the 8th Amendment focuses on the proportionality of the sentence imposed for each specific crime, not on the cumulative sentence.

Contacts
Toki M. Clark, 614.224.2125, for Marquis Hairston.

Steven L. Taylor, 614.462.3555, for the State of Ohio and Franklin County prosecutor's office.

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Does Juvenile Sentenced as Adult Have Same Jury Rights As Adult Offenders Under State v. Foster?

State of Ohio v. D.H., Case nos. 2007-0291 and 2007-0472
10th District Court of Appeals (Franklin County)

ISSUE: Is R.C. 2152.13, which authorizes Ohio juvenile court judges (rather than juries) to make findings that support imposition of an adult prison term against a juvenile offender, unconstitutional under the U.S. Supreme Court's holding in Blakely v. Washington and the Supreme Court of Ohio's decision in State v. Foster ?

BACKGROUND: Under R.C. 2152.13, adopted by the General Assembly in 2001, an Ohio juvenile judge sentencing a “serious juvenile offender” (a minor convicted of an offense that would be a violent felony if committed by an adult) is authorized to make factual findings that support imposition of a term of adult imprisonment to be served in addition to a normal juvenile sentence.

In this case, a 15-year-old boy identified as D.H. was charged with murder and attempted murder for firing shots from a handgun during a neighborhood fight that resulted in the death of a bystander and the wounding of another person involved in the fight. The Franklin County Juvenile Court declined to remand the case to adult court, but conducted jury proceedings prescribed by R.C. 2152.13 in cases where the court has an option to impose a “blended” sentence including both juvenile sanctions and an adult prison term. The jury found D.H. not guilty on the murder and attempted murder counts, but guilty of the lesser offense of reckless homicide with a firearm specification. In imposing sentence, the juvenile judge made factual findings that, given the seriousness of the offense, the defendant's history and other factors, a traditional juvenile sentence was not adequate to rehabilitate D.H. Based on those findings, the judge sentenced D.H. not only to a term of juvenile commitment potentially lasting until his 21st birthday, but also to adult prison terms totaling an additional six years. The court's sentencing order stayed the adult prison term pending D.H.'s successful completion of his juvenile sentence.

D. H. appealed his convictions and sentence to the 10th District Court of Appeals. His attorneys argued the imposition of an adult prison term in his case was unconstitutional under the Supreme Court of Ohio's 2006 ruling in State v. Foster, in which the Court held that an adult defendant's constitutional right to trial by jury included the right to have a jury, rather than a judge, make any factual findings resulting in an enhanced or non-minimum sentence. The 10th District affirmed the action of the trial court, but certified that its ruling was in conflict with an earlier decision of the 3rd District. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Attorneys for D.H. argue that the 10th District erred in basing its decision on the U.S. Supreme Court's 1971 ruling in McKeiver v. Pennsylvania. In McKeiver, they assert, the Court distinguished between the jury rights of adult offenders facing lengthy, punitive prison sentences and juvenile offenders who face only time-limited sanctions aimed at rehabilitating children. They argue that Ohio's enactment of R.C. 2152.13 eliminated that distinction in cases like this one, because the law now authorizes juvenile courts to impose adult criminal sanctions including long terms of imprisonment. They assert that the reasoning in McKeiver cannot be applied to cases in which a juvenile faces a “blended” sentence that could subject him to many years of adult confinement, and argue that juvenile defendants charged under R.C. 2152.13 must be granted the same jury rights as adult offenders, including the right under State v. Foster to have all sentence-enhancing findings of fact made by a jury rather than a judge.

The state, represented by the Franklin County prosecutor's office, urges the Court to affirm the 10th District's ruling. They assert that the “blended” sentencing permitted under R.C. 2152.13 is intended to provide a “middle ground” between automatically transferring the cases of all juvenile defendants who commit major crimes to adult courts and allowing dangerous and unrehabilitated juvenile offenders who commit violent crimes to return to the street as soon the juvenile court's time-limited sentence expires at age 21.

They point out that, consistent with McKeiver, the additional term of adult confinement a judge may impose under the serious juvenile offender statute is a stayed penalty that is actually imposed only if a juvenile has not demonstrated rehabilitation by the end of his juvenile sentence. They argue that the factual findings required to add a potential adult prison term to a juvenile's sentence require familiarity with the standards, facilities and programs available in Ohio's juvenile justice system, and that such determinations are properly made by juvenile judges rather than by jury members.

Contacts
John W. Keeling, 614.462.3960, for juvenile offender D.H.

Katherine J. Press, 614.462.4440, for the State of Ohio and Franklin County prosecutor's office.

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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.