Oral Argument Previews

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Tuesday, Jan. 20, 2009

City of Lima, Ohio v. State of Ohio, Case no. 2008-0128
3rd District Court of Appeals (Allen County)

State of Ohio v. City of Akron et al., Case no. 2008-0418
9th District Court of Appeals (Summit County)

State of Ohio v. Kevin L. Bradley, Case no. 2008-0488
2nd District Court of Appeals (Champaign County)

Medina County Bar Association v. Kenneth J. Lewis, Case no. 2008-2068


Does State Law Banning City Employee Residency Requirement Violate Cities’ ‘Home Rule’ Powers?

City of Lima, Ohio v. State of Ohio, Case no. 2008-0128
3rd District Court of Appeals (Allen County)

State of Ohio v. City of Akron et al., Case no. 2008-0418
9th District Court of Appeals (Summit County)

[NOTE:  The two cases captioned above will be argued separately  before the Supreme Court on Jan. 20.  Because both cases address the same constitutional  issue and the parties advance very similar legal arguments, they are summarized together below.  The Court has subsequently accepted and is holding appeals in four additional cases in which other Ohio cities have challenged the constitutionality of R.C. 9.481. The held cases involve the cities of Cleveland, Toledo, Dayton and Warren. The Court has indicated that it will decide those cases consistent with its rulings in the Lima and Akron cases.]

ISSUE:  Does a state law enacted in 2006 unconstitutionally infringe upon the “home rule” power of Ohio cities by prohibiting them from enacting or enforcing municipal ordinances that require city employees to reside within the geographic boundaries of the city for which they work?

BACKGROUND: Effective May 1, 2006, the General Assembly adopted R.C. 9.481 which provides that (with limited exceptions): “ ... no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state.” The effect of this legislation was to bar future enforcement of municipal ordinances already in place in many of the state’s large cities requiring that, as a condition of employment, city employees must maintain their primary residence within the geographic boundaries of that city.

Immediately following the enactment of R.C. 9.481, the cities of Lima and Akron filed lawsuits in their respective county Courts of Common Pleas seeking declaratory judgments that the state law was void and unenforceable because it violated the “home rule” provision of the Ohio Constitution (Article XVIII, Section 3). That provision grants municipalities “authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with the general laws.” The state filed responsive motions in both trial courts opposing the requested declaratory judgments and seeking summary judgments upholding the legislature’s constitutional authority to enact R.C. 9.481 and affirming that the new state law superseded and invalidated the cities’ local residency requirements. 

Both the Allen County (Lima) and Summit County (Akron) common pleas courts issued summary judgments in favor of the state. Both cities appealed the trial courts’ rulings. On review, both the 3rd District (Lima) and 9th District (Akron) courts of  appeals reversed the respective trial courts and held that R.C. 9.481 was unconstitutional and therefore unenforceable. The state sought and was granted Supreme Court review of both court of appeals decisions.

Attorneys for the state, supported by amicus briefs submitted by numerous public employee labor organizations, argue that the legislature had authority to enact R.C. 9.481 under Article II, Section 34 of the Ohio Constitution. That provision grants the General Assembly power to enact laws “fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power.”  

They assert that the “general welfare” language included in Article II, Section 34 was intended to give the legislature broad authority to adopt laws regulating terms and conditions of employment that extend beyond the physical boundaries of a workplace. They also argue that the underlying purpose of R.C. 9.481 – which is to guarantee the right of Ohio workers to live where they choose – is an issue of uniform statewide application that meets all the requirements of a “general law” and therefore takes precedence over any conflicting local ordinance or regulation.

Attorneys for Lima and Akron, supported by amicus briefs from the cities of Cleveland, Dayton, Toledo and Youngstown and the Ohio Municipal League, urge the Court to affirm the rulings of the 3rd and 9th District courts of appeals. They assert that both appellate panels correctly held that the authority conferred on the General Assembly by Article II, Section 34 of the state constitution is limited to legislation regulating wages, hours and working conditions in a workplace during an employee’s hours of employment. They contend that there is no legislative history or case law that supports extending the state’s lawmaking authority under Section 34 beyond a workplace to regulate other terms or conditions of an employment relationship including where an employee resides during his or her off-work hours.

The cities argue further that R.C. 9.481 does not qualify as a “general law” of the state that takes precedence over a conflicting local ordinance because it does not meet two tests adopted by the Supreme Court in Canton v. State (2002). In Canton, they note, the Court held that even when a legislative  enactment is statewide in scope and operates uniformly across the state, it is not a general law unless it also: 1) “prescribe(s) a rule of conduct upon citizens generally,” and 2) “set(s) forth police, sanitary or similar regulations rather than purport(s) only to grant or limit legislative power of a municipal corporation to set forth police, sanitary or similar regulations.” They argue that the plain language of R.C. 9.481 disqualifies it as a general law under Canton because the statute does not prescribe any rule of conduct on citizens, but rather acts only to prohibit municipalities from establishing a condition of employment for their own workers.

[NOTE: On Jan. 16, the Court granted a motion permitting the city of Cleveland to participate as amicus curiae (a friend of the court) in the oral argument of the Lima case.]

Contacts
Benjamin C. Mizer, 614.466.8980, for the State of Ohio.

Anthony L. Geiger, 419.221.5183, for the City of Lima.

Gary S. Singletary, 216.664.2737, for the City of Cleveland (amicus curiae).

Deborah M.  Forfia, 330.375.2030, for the City of Akron.

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Is Imposing Harsher Penalty for Same Offense After Offender Wins Appeal ‘Vindictive’ Sentencing?

State of Ohio v. Kevin L. Bradley, Case no. 2008-0488
2nd District Court of Appeals (Champaign County)

ISSUES:  In a case where 1) a criminal defendant who has been convicted and sentenced for multiple offenses wins a new trial on appeal, 2) on remand, some of the counts on which the defendant was convicted at his first trial are dropped by the state in exchange for guilty pleas to other counts at his second trial, 3) in re-sentencing the defendant for one or more of the original counts the trial court imposes a longer prison term than it imposed for the same count at his first trial, and 4) the judge’s stated purpose in imposing a longer sentence is to compensate for the reduced public protection and deterrent effect on the defendant that will result from the dismissed counts:

BACKGROUND: In 2004 Kevin Bradley of Mechanicsburg was convicted on 15 criminal counts including aggravated drug possession and vandalism. For those convictions, the Champaign County Court of Common Pleas sentenced Bradley to prison terms totaling 26½ years. Bradley appealed. The 2nd District Court of Appeals reversed his convictions and vacated his sentence on procedural grounds, and ordered that he be given a new trial. On remand, Bradley negotiated a plea agreement in which the state dropped 12 of the 15 counts on which he was previously convicted, and he agreed to plead guilty to the three remaining counts from his original trial plus a new charge of soliciting a witness to commit perjury during his first trial.

After accepting Bradley’s guilty pleas to the amended charges, the same trial judge who sentenced him at his first trial conducted a new sentencing hearing. At that hearing, the judge stated that he believed that prison terms totaling more than 26 years were the appropriate sanction for the crimes of which Bradley was originally convicted, and stated that in order to protect the public and deter Bradley from future offenses, he was required to consider the dismissed counts and the penalties previously imposed for them in determining what sentences he should impose for the four counts that remained before the court. The judge subsequently sentenced Bradley to maximum and consecutive prison terms for each of the four counts to which he had pleaded. Those sentences, which totaled eight years, included five years for a drug possession count for which Bradley had originally been sentenced to four years, and 12 months for a vandalism count for which Bradley’s original sentence had been six months.

Bradley appealed his sentences to the 2nd District, arguing that by increasing his original sentences for the drug possession and vandalism counts after he had won reversal of those convictions, the trial judge had acted vindictively contrary to a 1969 U.S. Supreme Court decision, North Carolina v. Pearce.  Bradley also argued that by maximizing his sentences for the four counts to which he pleaded guilty at his second trial to “make up for” the sentences for other charges from his first trial that had been dismissed, the common pleas court had engaged in “aggregate” or “package” sentencing for multiple offenses – a practice explicitly barred by the Supreme Court of Ohio’s 2006 decision in State v. Saxon. The 2nd District initially upheld the trial court’s new sentencing order, but later reconsidered its ruling and issued a new opinion holding that the increased sentences imposed for the drug possession and vandalism counts were presumptively vindictive under Pearce, and that the trial judge’s explicit comparison of the aggregate sentences from Bradley’s first and second trials rendered the re-sentencing order invalid under Saxon.

On behalf of the state, the Champaign County prosecutor’s office sought and was granted Supreme Court review of the case. They argue that the U.S. Supreme Court’s holding in Pearce does not bar a trial judge from imposing a more severe sentence for a conviction on remand than was imposed at the defendant’s original trial, so long as the judge makes specific findings on the record that demonstrate a non-vindictive motive for the increased sentence. They point to other Ohio and federal court decisions which have held that a sentencing court may consider other charges that have been brought against a defendant as a basis for increased penalties even when those charges did not result in convictions. They also argue that a new sentence on remand can not be reversed as “vindictive” under Pearce if the combined new sentences do not exceed the total years of imprisonment that were imposed at the defendant’s first trial.

In this case, they point out, even with the increased sentences imposed for his drug possession and vandalism counts,  Bradley’s total term of imprisonment under the resentencing order was less than one third the length of the prison terms to which he was sentenced at his first trial.

Attorneys for Bradley respond that Pearce sets a clear requirement that when the same trial judge who sentenced a defendant for a criminal charge imposes a more severe sentence on remand after a successful appeal, there is a presumption of vindictiveness that may only be overcome by judicial findings setting forth specific events or conduct by the defendant after the original sentencing that illustrate a need for increased penalties to protect the public or deter future offenses. In this case, they note, the only findings made by the trial judge to support increased sentences for the drug possession and vandalism counts made no mention of any post-sentencing events or conduct on Bradley’s part, but rather referred to the judge’s belief that Bradley’s original sentence was appropriate punishment for his crimes, and indicated the court’s intent to compensate for the dismissal of many of the original charges by increasing the sentences for the remaining counts.

They urge the Court to affirm the 2nd District’s holding that the judge’s stated reason for increasing Bradley’s sentences on remand did not meet the Pearce requirement to overcome a presumption of vindictiveness. They also urge affirmance of  the court of appeals’ conclusion that, based on the judge’s clear intent to make the aggregated time of Bradley’s new sentences come as close as legally possible to the aggregate of his original sentences, the trial court impermissibly engaged in “package” sentencing rather than setting appropriate stand-alone sentences for each of his individual offenses.

Contacts
Scott D. Shockling, 937.484.1900, for the state and Champaign County prosecutor’s office.

Stephen P. Hardwick, 614.466.5394, for Kevin Bradley.

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Attorney Discipline

Medina County Bar Association v. Kenneth J. Lewis, Case no. 2008-2068

The Board of Commissioners on Grievances & Discipline has recommended that Berea attorney Kenneth J. Lewis be suspended from practice for two years for forging the signature of a municipal court judge on a draft judgment entry granting occupational driving privileges that Lewis gave to a client he was representing in a DUI case.

The board found that Lewis’ conduct violated multiple state attorney discipline rules including those that prohibit illegal conduct that reflects adversely on a lawyer’s honesty, conduct involving fraud, deceit, dishonesty or misrepresentation, and conduct prejudicial to the administration of justice. In recommending  a two-year suspension, the disciplinary board cited the aggravating factor that it believed Lewis was untruthful in his testimony before a hearing panel that the only reason he forged the judge’s signature was to show his client what an approved driving-rights judgment entry would look like.

Lewis has filed objections to the board’s findings and recommended sanction, and asks that the Court impose a stayed license suspension as the appropriate sanction for his misconduct. He admits signing the judge’s name on a driving-privileges entry he had prepared for his client, but points to the fact that neither he nor his client ever attempted to file the forged entry with the court as evidence that  his intent was not to defraud the court or enable his client to drive without court approval, but only to show his client what an approved entry would look like.

Contacts
John C. Oberholtzer, 330. 725.4929, for the Medina County Bar Association.

Larry H. James, 614.229.4567, for Kenneth Lewis.

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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.