Oral Argument Previews

2014 Archive | 2013 Archive | 2012 Archive | Calendar
Live Streaming Video Coverage

Wednesday, May 7, 2008

Richard and Joann Bartchy et al. v. State Board of Education and Cincinnati City School District, Case no. 2007-0411
10th District Court of Appeals (Franklin County)

Frisch's Restaurants, Inc. et al. v. James G. Conrad [Marsha P. Ryan], Administrator, Ohio Bureau of Workers' Compensation, Case no. 2007-0544
10th District Court of Appeals (Franklin County)

State of Ohio v. Thomas L. Veney, Case nos. 2007-0656 and 2007-0657
10th District Court of Appeals (Franklin County)

State of Ohio v. Christopher Swann, Case no. 2007-1046
10th District Court of Appeals (Franklin County)


May Court Order Transfer of Property To Different School District Based on Non-Educational Factors?

Richard and Joann Bartchy et al. v. State Board of Education and Cincinnati City School District, Case no. 2007-0411
10th District Court of Appeals (Franklin County)

ISSUE: When the State Board of Education has disapproved a request by property owners to transfer their property from one school district to another based on a finding that the transfer would not confer any educational benefit on affected students, does a reviewing court commit reversible error by overruling the board’s decision and ordering that the transfer be approved based on non-educational factors?

BACKGROUND:  This case involves a petition submitted to the State Board of Education by Richard and Joann Bartchy and the owners of three other homes in the Cincinnati suburb of Madeira, seeking the transfer of those properties from the Cincinnati School District to the Madeira School District. In their petition and subsequent hearing testimony, the property owners stated that none of their households included a student who was then attending, had ever attended or planned to attend a public school. The owners indicated that their wish to transfer their properties to the Madeira district was based on their desire to conform the school district designation of the properties with their recent annexation into the city of Madeira, to more fully integrate themselves and their households into the Madeira community, and to potentially increase the property value of their homes by having them served by a more prestigious and desirable school district.

In response to the owners’ petition, the Ohio Department of Education requested input from the affected school districts. The Cincinnati School District opposed the transfer, citing the negative impact of lost tax revenue from the affected properties. The Madeira School District indicated that its schools were near capacity and that it was “not initiating, soliciting nor encouraging this request.” A State Board of Education hearing officer recommended denial of the requested transfer, and the board adopted his recommendation, citing the absence of any demonstrated educational benefit to students in either district and the negative impact on Cincinnati.  The property owners exercised their right to appeal to the Franklin County Court of Common Pleas, which affirmed the board’s action.

They subsequently appealed to the 10th District Court of Appeals.  The 10th District reversed the rulings of the state board and common pleas court, and issued an order directing the State Board of Education to approve the transfer.  In its decision, the court of appeals held that the hearing officer’s findings had not established by “reliable, probative and substantial evidence” that no educational benefit would result from the requested transfer of their property into the Madeira school district, and found that the owners’ statements regarding their isolation from surrounding homeowners on the basis of being in a different school district and their desire to be fully integrated into the Madeira community were sufficient to require approval of their petition.

The State Board of Education now asks the Supreme Court to reverse the 10th District.  Its attorneys argue that the court of appeals failed to follow the state law and administrative regulations that govern owner-initiated school district transfer requests, which they say clearly require that the board make its decisions on  the granting or denial of such transfers “with primary consideration given to the present and ultimate good of the pupils concerned.”  They assert that the hearing officer and common pleas court properly held that the burden of proof was on the property owners to demonstrate that the requested transfer of their property to Madeira would benefit students in the affected area or would benefit other students in either of the affected school districts. Because the property owners made no such showing, they argue, the board’s denial of the transfer and the common pleas court’s affirmance were consistent with the law and should have been given deference by the 10th District.

They also assert that, if the Court affirms the holding of the 10th District in this case, it will invite an epidemic of transfer requests by owners on the outskirts of urban school districts that convey no educational benefit to students but allow owners to obtain a windfall by re-drawing district lines so that their homes are in a more desirable school district. They point out that school district boundaries all over the state do not coincide with the boundary lines of political subdivisions, and argue that requiring approval of transfers of property between districts simply to align the two in the name of “community spirit” will predictably harm thousands of students left behind in urban districts with shrinking tax bases and create chaos in suburban districts unable to plan for or control the expansion of areas they must serve.

Attorneys for the Bartchys and other property owners respond that their petition and testimony before the hearing officer offered several student-related reasons why transfer of their homes from Cincinnati to the Madeira school district would be beneficial, including closer proximity to the nearest Madeira school and safer streets for bicycle travel between their homes and that school. They argue that the court of appeals correctly rejected the Cincinnati district’s claims of measurable harm to students in that large urban school system from the loss of revenue from their four middle-class residences, and urge the Court to affirm the 10th District’s holding that allowing isolated pockets of property owners to be part of the same school system as their neighbors does not threaten the future stability of the state’s school districting system.

Contacts
Timothy M. Burke, for Richard and Joann Bartchy and other property owners.

William Marshall, 614.466.8980, for the State Board of Education.

David C. DiMuzio, 513.621.2888, for the Cincinnati Board of Education.

Return to top

Did Workers’ Comp Bureau Abuse Discretion By Denying Rebates To Former State-Fund Employers?

Frisch's Restaurants, Inc. et al. v. James G. Conrad [Marsha P. Ryan], Administrator, Ohio Bureau of Workers' Compensation, Case no. 2007-0544
10th District Court of Appeals (Franklin County)

ISSUE: Did the Ohio Bureau of Workers’ Compensation abuse its discretion in granting premium rebates for the 1996 through 2002 policy years to state-fund employers who were insuring their employees for current-year risks during those years, but denying similar rebates to employers who had opted out of the state fund for some or all of the rebate years, but were still paying “retroactive” premiums for non-rebate years during the rebate period?

BACKGROUND: Ohio employers are required to provide workplace injury insurance for their employees under the state’s workers’ compensation law. An employer may provide the required coverage by paying regular premiums into a state insurance fund administered by the Bureau of Workers’ Compensation (BWC), or may “self-insure” by setting aside required annual amounts into a dedicated internal account from which employees who suffer work-related injuries or illnesses are compensated for their medical expenses and lost wages.

One of several premium payment options for employers who participate in the state insurance fund is the “Retro Program,” which allows an employer to pay a relatively small up-front premium to cover current-year risks in exchange for an ongoing obligation to make additional payments over the following 10 years that the state will apply retroactively to cover the first year’s loss experience. Because each year’s insurance coverage is paid for in installments spread over the following 10 years, Retro Program employers who opt out of the state fund at some point to become self-insured retain an obligation to continue making retroactive premium payments into the state fund to pay for back-year coverage.

Beginning in 1996 and continuing through 2002, the BWC experienced surpluses in its insurance fund balances above the projected amounts needed to pay current-year injury claims and maintain a safe reserve. Pursuant to R.C. 4123.32, a state law that authorizes the BWC to return any surplus to “employers who are subscribers to the state insurance fund,” the bureau adopted a policy granting rebates to state-fund employers that significantly reduced those employers’ premium obligations for each of the rebate years. The policy adopted by the bureau defined a “subscriber” to the state fund for purposes of rebate eligibility to be an employer that was insuring its current risks for claims arising in a rebate year by participating in the state fund. That definition excluded from rebate eligibility self-insured employers who were not paying their current-year premium for a rebate year through state fund contributions, but who were still making payments into the fund during a rebate year to satisfy their back-year liability as former participants in the Retro Program.

Frisch’s Restaurants, United Dairy Farmers and J.W. Harris Co., all of whom had been state fund participants under the Retro Program prior to 1995-96 but had opted to become self-insured, applied for but were denied rebates for the back-year Retro premiums they paid into the state fund in calendar years for which rebates were granted. They filed suit asking the Franklin County Court of Common Pleas to declare that they were eligible for the rebates denied by BWC. The bureau sought and was awarded summary judgment dismissing the plaintiffs’ claims. The trial court held that BWC had not abused its discretion in determining that employers who were not obtaining their current-year workers’ compensation coverage for a rebate year by paying into the state fund were not state fund “subscribers” eligible for that year’s rebate.

Frisch’s and the other plaintiffs appealed the trial court’s ruling to the 10th District Court of Appeals. The appellate panel voted 2-1 to affirm the trial court’s holding that the BWC acted within its discretion in denying the rebates. The plaintiffs petitioned the Supreme Court to review the 10th District’s decision, and the justices have agreed to hear arguments in the case.

Attorneys for the plaintiffs assert that the state law authorizing the BWC to issue premium rebates, R.C. 4123.32, does not give the bureau power to establish different categories or classes of employers and grant rebates to some classes while denying them to others. They argue that the plain language of the statute requires that, if rebates are awarded for a given year, they must be granted to all “subscribers” who made premium payments into the state insurance fund during the year for which a rebate is declared. They contend that the fact that payments they made into the state fund during some or all of the rebate years were for earlier policy years is irrelevant to their eligibility, and that the BWC acted contrary to law when it failed to treat them the same as all other employers who made premium payments to the state fund during a year for which rebates were granted.

Attorneys for the BWC point to prior court decisions holding that, when the legislature has created a board or commission and specifically empowered it to administer a specialized area of law, the rulings and policies of such boards should enjoy a strong presumption of validity, and courts reviewing such agencies’ decisions should overrule them only if the court finds that the challenged ruling was clearly contrary to law or had no “rational basis.”

In this case, they say, the trial and appellate courts correctly held that BWC acted within its sound discretion in determining that premiums paid into its insurance fund for a given year that exceeded projected current-year claims should be rebated to employers who were current participants in the state fund program, and not be rebated to self-insured employers whose only contributions to the fund during a rebate year were to satisfy back-year liability.

Contacts
Robert S. Corker, 513.984.2040, for Frisch's Restaurants and other plaintiffs.

Elise W. Porter, 614.466.2872, for Ohio Bureau of Workers' Compensation.

Return to top

Must Judge Advise a Defendant Orally of State’s ‘Beyond Reasonable Doubt’ Burden?

State of Ohio v. Thomas L. Veney, Case nos. 2007-0656 and 2007-0657
10th District Court of Appeals (Franklin County)

ISSUE:  Before accepting a criminal defendant’s guilty plea to a felony charge, must a trial court “strictly comply” with a rule requiring the judge to orally advise the defendant that, by pleading guilty, the defendant is giving up the right to a trial at which the state would be required to prove his guilt “beyond a reasonable doubt.”

BACKGROUND:  Ohio Criminal Rule 11(C)(2)(c) requires that, before accepting a defendant’s plea of guilty in a felony case, a trial judge must first engage in a colloquy (conversation) with the defendant in which the judge is required to notify the defendant about five specific constitutional rights he will be giving up by pleading guilty. The rule also requires that the judge must determine from the defendant’s responses that the defendant understands each of the enumerated rights, and is knowingly and voluntarily giving it up. Among the specific rights a judge is required to discuss during a plea colloquy is the defendant’s right to a trial in which the state would have the burden of proving  prove his guilt “beyond a reasonable doubt.”

On July 16, 2004, Thomas Veney was indicted on counts of felonious assault and kidnapping, both with one-year and three-year firearm specifications. The indictment stemmed from an incident in which Veney had an argument with his wife, held a gun to her head, threatened to shoot her and fired a gun into the wall of his home. When the gun jammed and his wife fled the house, Veney followed her outside and fired additional shots as she ran away. 

Veney accepted a plea bargain in which he pleaded guilty to attempted felonious assault, a third-degree felony. In court, prior to accepting his guilty plea, the trial judge engaged in the colloquy with Veney required by Crim.R. 11. During that discussion, however, the judge failed to advise Veney that he was giving up the right to a trial at which the state would have to prove his guilt beyond a reasonable doubt. Following the judge’s advisement, Veney affirmed his understanding of his rights and entered a plea of  guilty. He was convicted and sentenced to a total of five years in prison. 

Veney subsequently appealed his conviction to the 10th District Court of Appeals, claiming that his guilty plea was invalid because the judge failed to advise him orally of the state’s obligation to prove his guilt beyond a reasonable doubt if the case went to trial. The court of appeals reversed the conviction and granted Veney a new trial, holding that the trial court was required to “strictly comply” with Criminal Rule 11(C)(2)(c), and strict compliance required automatic reversal of a conviction if no oral beyond-reasonable-doubt advisement was given.

The state, represented by the Franklin County prosecutor’s office, now asks the Supreme Court to reverse the 10th District’s ruling. They urge the Court to follow its 1981 decision in State v. Sturm, which held in a footnote that a trial court’s failure to advise a defendant about the beyond-reasonable-doubt burden of proof the state must bear at trial was not subject to a “strict compliance” standard but to the less-demanding standard of “substantial compliance.” Under that standard, they assert, a defendant’s conviction may be upheld if the state can show 1) that the defendant was informed about the state’s burden of proof despite the judge’s error, and 2) that the outcome of his case was not prejudiced by the omitted oral notification. Both of those requirements were met in this case, they assert, because Veney received and signed a printed plea agreement form that informed him about the beyond-reasonable-doubt standard if he went to trial, and Veney’s decision to plead guilty was not influenced by the judge’s mistake because Veney knew the state had overwhelming evidence that would have proved his guilt beyond a reasonable doubt if he abandoned the plea bargain and went to trial. 

Attorneys for Veney respond that, because 95 percent of all felony cases are resolved through a guilty plea, and because prosecutors place significant pressure on defendants to plead guilty to avoid costly and time-consuming trials, it is essential that state courts strictly comply with the procedural rules that protect defendants from being confused or coerced into giving up their fundamental due process rights by pleading guilty.

In this case, they say, the 10th District correctly rejected the “substantial compliance” standard urged by the state and instead applied the “strict compliance” standard imposed by the U.S. Supreme Court’s 1969 decision in Boykin v. Alabama. While Boykin does not specifically address the beyond-reasonable-doubt burden of proof, they note, it does strictly require oral advisement of three of the other specific constitutional rights listed in Ohio Crim.R. 11(C)(2)(c). They argue that a defendant’s right to acquittal if charges against him are not proved beyond a reasonable doubt is no less fundamental than the other constitutional rights enumerated in Boykin, and assert that it would make no sense for the Court to apply Boykin to strictly require oral advisement of three rights listed in Crim.R. 11(C)(2)(c), but apply a lesser standard for advisement about the other basic rights listed in the same rule.

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

John W. Keeling, 614.719.2061, for Thomas Veney.

Return to top

Does Rule Requiring Corroboration of ‘Hearsay’ Evidence Violate a Defendant’s Due Process Rights?

State of Ohio v. Christopher Swann, Case no. 2007-1046
10th District Court of Appeals (Franklin County)

ISSUE: Is a criminal defendant’s due-process right to present a complete defense violated when a trial court refuses to allow the jury to consider “hearsay” evidence about a third party’s alleged statements that he committed the crime of which the defendant is accused, when exclusion of the hearsay evidence is based on the absence of corroborating circumstances that “clearly indicate the trustworthiness” of the third party’s statement?

BACKGROUND:  Ohio and other jurisdictions generally prohibit the introduction of “hearsay” evidence in criminal cases. The term hearsay refers to testimony by a witness about statements allegedly made by another person when: 1) the declarant (person who allegedly made the statement) is not available to be cross-examined regarding the accuracy or truthfulness of his alleged statement, and 2) the witness’ testimony is offered to assert the truth of  the declarant’s statement.           

There are limited exceptions to the hearsay rule set forth in Ohio Evidence Rule 804(B), including an exception in Evid.R.804(B)(3) for “statements against interest” (i.e. statements that are “so far contrary” to the personal or financial interest of the person making the statement that a reasonable person in his situation would not have made the statement unless he believed it to be true).  Evid.R.803(B)(3) goes on, however, to state that hearsay evidence about a statement that would expose the declarant to criminal liability, whether offered to help convict or to help exonerate another person, “is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

In this case, Christopher Swann of Columbus was charged with felonious assault for the non-fatal shooting of John Stith during a neighborhood dispute in June 2005. Swann was identified both by Stith and another eyewitness as the shooter. During his trial, Swann maintained his innocence and introduced testimony by four alibi witnesses who stated that Swann was at a nearby house playing cards at the time of the shooting. His attorneys also attempted to introduce hearsay testimony before the jury by several witnesses claiming that they heard another man, Delmar Carlisle, make statements indicating that he, and not Swann, had shot Stith.

After questioning Carlisle outside the presence of the jury, where he invoked his Fifth Amendment right against self-incrimination and refused to answer any questions related to the incident, the court found that he was unavailable to be called as a witness. The court subsequently reviewed statements offered by the four persons alleging that they had heard Carlisle “brag” that he had done the shooting. Applying Evid.R.803(B)(3), the trial judge ruled that Swann could not present hearsay testimony telling the jury about Carlisle’s alleged confession on the basis that there were not sufficient corroborating circumstances to clearly indicate that Carlisle’s statements were trustworthy. Swann was convicted of felony assault with a firearm specification and sentenced to nine years in prison.

Swann appealed, and the 10th District Court of Appeals voted 2-1 to vacate his conviction and remand the case for a new trial. In its lead opinion, the 10th District held that, under the U.S. Supreme Court’s 2005 ruling in Holmes v. South Carolina, the trial court in this case acted unconstitutionally in applying Ohio Evid.R. 803(B)(3) in such a way that it prevented Swann from presenting to the jury a “complete defense” that included both his alibi evidence and the testimony he tried to present about Carlisle’s alleged confession. The state, represented by the Franklin County prosecutor’s office, sought and was granted Supreme Court review of the 10th District’s ruling.

The prosecutors argue that the 10th District’s decision went beyond the U.S. Supreme Court’s holding in Holmes and basically invalidated the requirement that an Ohio defendant must present convincing corroborative information before he is permitted to introduce hearsay testimony that another person has confessed to his crime. In light of the requirement that jurors must acquit a defendant if they have any “reasonable doubt” of his guilt, they assert, allowing defendants to present hearsay testimony about an alleged  third-party confession without any opportunity for the state to cross-examine the declarant or any requirement for corroboration of the alleged confession places prosecutors at a serious disadvantage in court and reverses the long-established presumption against the admissibility of hearsay evidence.

In distinguishing this case from Holmes, the state notes that  U.S. Supreme Court held that the trial judge violated Holmes’ fair trial rights by barring hearsay testimony about an alleged third-party confession based solely on the strength of the state’s forensic evidence against the defendant, without independently evaluating the credibility of the proffered hearsay witnesses or the circumstances supporting or undermining the reliability of the alleged confession. In this case, they point out, the trial judge properly considered not only the positive identification of Swann as the shooter by the victim and another eyewitness, but also the facts that Carlisle had lived with and been supported by Swann, whom he regarded as a father figure, and that the witnesses attesting to Carlisle’s alleged confession included the mother of Swann’s child and two of Swann’s cousins.

Attorneys for Swann urge the Court to affirm the holding of the 10th District that a defendant’s due-process right to present a complete defense demands that jurors be able to hear and evaluate all relevant evidence, and make their own judgment about the credibility of witnesses and the plausibility of a third party’s confession. In this case, they say, the trial judge violated Swann’s right to a fair trial by preventing the jury from hearing any testimony about Carlisle’s claims to have been the shooter – despite the facts that Carlisle’s statements were clearly against his own interest, the witnesses attesting to his statements were persons close to both Swann and Carlisle, and police reports from the night of the shooting indicated Carlisle’s presence at the crime scene.

Contacts
Seth L. Gilbert, 614.462.3555, for the State of Ohio and Franklin County prosecutor's office.

Diane Worthington, 614.354.4697, for Christopher Swann.

Return to top

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.