Oral Argument Previews

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

Wednesday, February 16, 2011

In Re: C. B., Case no. 2010-0180
8th District Court of Appeals (Cuyahoga County)

In the Matter of C.P., Adjudicated Delinquent Child and Serious Youthful Offender, Case no. 2010-0731
4th District Court of Appeals (Athens County)

Mentor Exempted Village School District Board of Education v. William Mohat et al., Case no. 2010-0951
Certified Question of State Law From U.S. District Court, Northern District of Ohio

Beth A. Wilhelm-Kissinger v. Jeffrey R. Kissinger, Case no. 2010-0992
9th District Court of Appeals (Summit County)

Columbus Bar Association v. Kenneth Ray Boggs, Case no. 2010-1846
Franklin County

Toledo Bar Association v. David Romain Pheils, Jr., Case no. 2010-1886
Lucas County


Does Minor Child or Guardian ad Litem Have Standing to Appeal Denial of Motion for Permanent Custody?

In Cases Where Parent May Appeal if Permanent Custody Is Granted

In Re: C. B., Case no. 2010-0180
8th District Court of Appeals (Cuyahoga County)

ISSUES:

BACKGROUND:  In December 2005, a nine-month-old infant identified by the initials C.B. was removed from the custody of her parents by the Cuyahoga County Juvenile Court under an emergency order obtained by the Cuyahoga County Department of Child and Family Services (CCDCFS).  In June 2006 the court found that C.B. was a dependent child and granted temporary custody to CCDCFS, which placed her in a foster home. With the court’s approval, CCDCFS developed a case plan requiring both of C.B.’s natural parents to obtain mental health evaluations, follow any treatment plan recommended as a result of those evaluations, complete parenting classes, and take other steps that including providing  proof of employment and stable housing in order to regain custody of the child.

In June 2007, CCDCFS filed a motion to modify the court order awarding temporary custody of C.B. to an award of permanent custody that would terminate the rights of her natural parents and allow the agency to place C.B. for adoption. In an affidavit supporting  that motion, CCDCFS stated that C.B.’s father, Anthony Wylie, had a history of mental illness, had not complied with the requirements of the case plan regarding a psychiatric evaluation and follow-up treatment, and had not submitted proof of compliance with other terms of the case plan. Wylie opposed the motion for permanent custody and asked the court to appoint an attorney to represent him. He later asked the court to dismiss his appointed counsel and allow him to proceed pro se (act as his own attorney).

Multiple hearings were conducted in the case over the following year, many of which addressed pro se motions, objections to opposing evidence and requests for subpoenas of multiple witnesses introduced by Wylie. Those proceedings culminated in a mistrial caused by the resignation, after a physical confrontation with Wylie, of the guardian ad litem who had been representing the interests of C.B. in the case. Following new trial proceedings in the fall of 2008, during which C.B.’s mother and new guardian ad litem, Thomas Kozel, testified in support of an award of permanent custody to CCDCFS, the trial court initially ordered a continuation of temporary custody but then issued a judgment denying the petition for permanent custody, terminating temporary custody by CCDCFS, and awarding legal custody of C.B. to Wylie, with a phase-in period during which his visitation with the child would remain limited to supervised visits.

C.B.’s mother and Kozel entered separate appeals of the juvenile court’s orders. After initially accepting both appeals, the 8th District Court of Appeals issued an order dismissing them based on the Supreme Court of Ohio’s 2007 holding in In Re: Adams that the denial of a motion to modify temporary custody of a child to permanent custody was not a “final appealable order.”  Kozel sought and was granted Supreme Court review of the 8th District’s dismissal of his appeal on behalf of C.B.

Attorneys for Kozel and C.B. argue that in Adams, the Supreme Court held that a public children’s services agency could not appeal the denial of its motion to convert temporary custody to an award of permanent custody because such an agency does not have “a substantial right” to obtain permanent custody of a child, and therefore not allowing an appeal does not deprive the appellant of a substantial right.  In this case, they assert, the party attempting to appeal was a guardian ad litem acting  on behalf of the child whose custody was at issue in the case.  They contend that, as the party most profoundly affected by the juvenile court’s rulings denying a motion for permanent custody and awarding legal custody to her father, the child whose custody is at issue does have a “substantial right” at stake, and therefore must be allowed to appeal those decisions. They point to court decisions holding that a parent whose rights have been terminated by the granting of permanent custody order has a right of appeal, and argue that equal protection of the laws requires that a child whose opportunity for a permanent placement in a stable home has been denied must be allowed the same right of appeal.

Anthony Wylie, appearing on his own behalf, raises multiple procedural objections to the continuing participation of C.B.’s mother and Kozel in attempts to appeal the rulings of the juvenile court.  On the merits of the appellants’ propositions of law, he urges the Court to follow its holding in Adams that the denial by a juvenile court of a motion to modify a temporary custody order to an award of permanent custody is not a final appealable order. He therefore asserts that the Court should affirm the 8th District’s ruling that neither C.B.’s mother nor Kozel acting as a guardian ad litem had legal standing to appeal the juvenile court’s orders denying permanent custody to CCDCFS and granting legal custody of his daughter to Wylie.

Contacts
R. Brian Moriarty, 216.566.8228, for C.B.

Jonathan N. Garver, 216.381.1112, for Thomas Kozel, Guardian ad Litem.

Anthony Wylie, pro se, 216.408.9386.

Return to top

Portion of Ohio's Juvenile Sex Offender Registration Statute Challenged as Unconstitutional

Lifetime Registration, Notification Mandatory for Serious Youthful Offenders

In the Matter of C.P., Adjudicated Delinquent Child and Serious Youthful Offender, Case no. 2010-0731
4th District Court of Appeals (Athens County)

ISSUE: Does a provision of state law that  “automatically” imposes lifetime sex offender registration and community notification requirements on any juvenile sex offender age 14 or older who is adjudicated as a Serious Youthful Offender (SYO) violate a defendant’s constitutional rights to due process and equal protection of the law?

BACKGROUND: In June 2009, a 15-year-old identified by the initials C.P. was charged in the Athens County Juvenile Court with two delinquency counts of rape and one delinquency count of kidnapping with a sexual motivation arising from a sexual assault on a younger child. The juvenile court denied a motion by the state to bind C.P. over for trial as an adult, based on the judge’s determination that there was a reasonable possibility of rehabilitation through the juvenile corrections system. 

The prosecutor then sought and obtained a grand jury indictment charging that C.P. should be designated  a Serious Youthful Offender (SYO), a legal category that allows a juvenile court to impose on a juvenile convicted of certain violent crimes not only a juvenile sentence, but also a stayed adult sentence that can later be activated if the juvenile commits future crimes while incarcerated or otherwise fails to comply with the terms of his juvenile sentence. C.P. entered admissions (the juvenile equivalent of guilty pleas) to all three charges and was adjudicated guilty and designated an SYO in relation to each offense.  He was sentenced to a minimum of three years in the custody of the Ohio Youth Commission and also received an adult prison term for each offense, with the adult sentences stayed pending successful completion of his juvenile dispositions.

The court also advised C.P. that pursuant to R.C. 2152.86, enacted as part of the 2008 “Adam Walsh Act,” his delinquency rape convictions and designation as an SYO in relation to those crimes required that he be classified as a “Public Registry Qualified Juvenile Offender Registrant” (PRQJOR) and therefore a Tier III (most dangerous) sex offender. Based on that classification, the court advised C.P. that he would be required upon his release from state custody to 1) register his current address, places of employment and other information with the sheriff in his county of residence every 90 days for the rest of his life and 2) have his photograph, current address, work and school information, vehicle descriptions and other personal information permanently posted on the state’s online roster of sex offenders and disseminated to neighbors, schools, day care centers and other specified recipients in any neighborhood where he took up residence—also for life.

C.P. appealed to the 4th District Court of Appeals on constitutional grounds, asserting that his automatic lifetime classification as a Tier III sex offender under R.C. 2152.86 based on offenses committed as a juvenile violated his rights to due process and equal protection of the law, and that application of the adult Tier III lifetime registration and community notification requirements to him as a juvenile constituted cruel and unusual punishment. The 4th District rejected his arguments and affirmed his sex offender classification and registration/notification requirements.  C.P. then sought and was granted Supreme Court review of the constitutional issues he raised in the court of appeals.

Attorneys for C.P. advance the following arguments:

Due Process: They point out that in In Re D.H., a 2009 decision upholding Ohio’s SYO statute as constitutional, this Court cited as a key due process protection the fact that no portion of the stayed adult portion of a juvenile’s blended SYO sentence may be activated until after a full hearing at which the juvenile is represented by counsel and is able to present evidence on his own behalf.  They argue that R.C. 2152.86 provides no such due process protection because it mandates that the same lifetime registration and community notification sanctions applicable to the worst adult sex offenders be automatically imposed on juvenile offenders like C.P. without any opportunity to be heard, even though their cases were not bound over for trial as adults and they remain under the jurisdiction of the juvenile court.

Equal Protection:  They note that under Ohio’s current statutory scheme, a 13-year–old  who committed crimes identical to those committed by C.P. and was adjudicated to be a SYO would not be subject to any registration or community notification requirements, while C.P. is subject to the same mandatory lifetime registration and notification applicable to the worst adult sex offenders on the sole basis that he was 15 when his crimes were committed. They argue that there is no scientific or factual evidence that 15-years-olds are more likely to reoffend or less likely to respond to rehabilitation in the juvenile justice system than 13-year-olds, and assert that there is no rational basis for the state to impose such different requirements on offenders who are both minors in the eyes of the law, and therefore both presumptively subject to less severe punishment than adult offenders.

Cruel and Unusual: They argue that state and federal court decisions have held that, just as minors are presumed to lack sufficient judgment or mental maturity to vote, consume alcohol, sign binding contracts or serve in the military, they are also presumed less culpable and subject to less drastic punishment than adults when they violate a law. They assert that  imposing the same lifetime stigma of being publicly identified as a sex offender on a 15-year-old as on an adult is inconsistent with the principle of reduced culpability and the different objectives of the juvenile and adult justice systems.

Attorneys for the state respond that Ohio’s SYO statutes provide extensive procedural protections including the right to grand jury review and a jury trial before a minor is determined to be a serious youthful offender and therefore subject to PRQJOR status.  In this case, they argue, C.P. was afforded the full range of those due process rights and was not entitled to a separate hearing regarding his registration status. 

They cite prior court decisions upholding provisions of state law that impose a higher level of criminal culpability on one class of minors than on another based on their relative ages, and say the Court must presume that difference in culpability was a sufficient rational basis for the legislature to set more stringent registration and notification standards for 14 to 17-year old offenders than for younger children.

They also note that the Eighth Amendment right against cruel and unusual punishment applies only to criminal penalties, and point to this court’s decisions in State v. Ferguson (2008) and State v. Wilson (2007) holding that Ohio’s sex offender registration provisions are civil and remedial rather than punitive or criminal in nature, and therefore those provisions are not subject to challenge under the Eighth Amendment.

Contacts
Brooke M. Burns, 614.466.5394, for C.P.

George Reitmeier, 740.592.3208, for the state and Athens County Prosecutor's Office.

Return to top

Is Timely Complaint on Behalf of Decedent Void If Estate Was Not Established Until After Lawsuit Filing Deadline?

Or Can Creation of Estate, Appointment of Representative 'Relate Back' To Date Suit Filed

Mentor Exempted Village School District Board of Education v. William Mohat et al., Case no. 2010-0951
Certified Question of State Law From U.S. District Court, Northern District of Ohio

ISSUE: When a timely wrongful death lawsuit on behalf of a decedent and others is filed before an estate has been legally established for the decedent, and before the person who filed the complaint has been named administrator/personal representative of the decedent, and the statute of limitations for filing a wrongful death suit expires before the estate is established and a personal representative is named, must the trial court dismiss the wrongful death claim on behalf of the estate as not timely filed, or may the court proceed on the decedent’s claim by finding that formation of the decedent’s estate and appointment of the estate’s representative “relate back” to the date on which the original complaint was filed?

BACKGROUND: Eric Mohat committed suicide in March 2007 after allegedly being bullied and harassed by fellow students at Mentor High School. His parents, William and Janis Mohat, filed a wrongful death suit in federal district court in March 2009 asserting claims against the Mentor school board, superintendent Dr. Jacqueline Hoynes, high school principal Joseph Spiccia and math teacher Thomas Horvath.  The complaint alleged that the defendants “knew or should have known” about the harassment that led to Eric’s death, but failed to take action to stop it.

The Mohats’ suit, which was filed just three days before the expiration of the two-year statute of limitations (legal time limit) for filing a wrongful death claim, sought damages on behalf of their son’s estate and also asserted separate damage claims on their own behalf. In May 2009, after the statute of limitations had expired, the defendants pointed out that the Mohats had not made the required filing in probate court to establish an estate for their son and appoint a personal representative of the estate.  In June 2009, unaware that Eric had resided in Lake County, the Mohats’ probate attorney mistakenly filed documents in Cuyahoga County establishing an estate for Eric and naming his mother as administratrix. The Mohats’ complaint was amended to reflect that filing.

In September 2009 the defendants filed a motion for judgment on the pleadings. They argued that all claims asserted on behalf of Eric’s estate should be barred because 1) no estate for Eric existed at the time the complaint asserting claims on his behalf was filed; 2) the estate that had later been created could not assert valid claims against the defendants because it was established in the wrong jurisdiction; and 3) the statute of limitations for filing a wrongful death claim on behalf of Eric’s estate had expired in March 2009, before any estate had been established.  In November 2009, an estate was created for Eric in Lake County, and his mother was again named executrix.

In January 2010, the federal district court stayed proceedings in the case and submitted to the Supreme Court of Ohio a certified question of state law. That question asks whether, when a lawsuit has been timely filed on behalf of a decedent, the plaintiffs’ failure to legally create an estate for the decedent and appoint a representative of the estate before the statute of limitations has expired requires dismissal of claims on behalf of the decedent as time-barred, or if creation of an estate and appointment of a representative can be accomplished after the statute has run but before the claims are settled because those actions “relate back” to the filing date of the original complaint.

Attorneys for the school board and other defendants argue that the Ohio statutes governing civil lawsuits restrict the filing of a claim on behalf of a deceased person to the individual who has been named by a probate court as the personal representative of the decedent’s estate.  In this case, they say, no one had the legal standing to file a wrongful death suit against them on behalf of Eric Mohat’s estate before the statute of limitations for filing such an action expired in March 2009,  because no estate had been created and no representative had been named prior to that date. Thus, they contend, the complaint filed against them on behalf of Eric’s estate was null and void from the moment it was filed, and no subsequent actions by the Mohats can “relate back” to the filing of a legal nullity.

Attorneys for the Mohats respond that the defendants are asking the Court to promote form over substance by dismissing the timely claims they have asserted on behalf of their son without a hearing on the merits based on a technical flaw in the preliminary pleadings.  They point out that, because Eric was a minor who had  had no property or debts to settle at the time of his death, there was no reason to make filings in probate court to establish an estate or appoint a personal representative until they learned that it was technically necessary to do so in order to prosecute a wrongful death claim on their son’s behalf. 

They point to a concurring opinion joined by four justices in a 1994 Supreme Court of Ohio decision, Ramsey v. Neiman (1994), which held that it is not necessary for the person filing a wrongful death suit on behalf of a decedent to have been appointed the decedent’s personal representative before the complaint was filed, so long as that person is ultimately appointed as the estate’s representative before a judgment or settlement is entered in the case.  In this case, they argue, the Mohats took immediate action to create an estate and appoint Mrs. Mohat as her son’s representative as soon as they learned those steps were necessary, and any delay in completing those non-substantive filings did nothing to change the allegations in the complaint or otherwise prejudice the defendants, who will have to litigate all the same legal issues in response to the parents’ claims against them − whether or not the claims advanced on behalf of Eric are dismissed.

Contacts
Kenneth D. Myers, 216.241.3900, for William and Janis Mohat.

David Kane Smith, 216.503.5055, for the Mentor Exempted Village School District Bd. Of Education.

Return to top

Is Denial of Motion to Disqualify Opposing Counsel in Divorce Case a 'Final Appealable Order?'

Beth A. Wilhelm-Kissinger v. Jeffrey R. Kissinger, Case no. 2010-0992
9th District Court of Appeals (Summit County)

ISSUE:  Does the denial of a party’s motion to disqualify opposing legal counsel in a divorce proceeding affect a substantial right of the movant, and therefore qualify as a “final” order subject to immediate appeal?

BACKGROUND:  R.C. 2505.02 identifies the types of rulings or orders of a trial court that qualify as “final” orders that may be immediately appealed to a court of appeals. (Trial court rulings that do not qualify as a “final appealable order” may only be appealed after the trial court has entered a final judgment in the underlying case.) One subsection of the statute, R.C. 2505.02(B)(2), allows the immediate appeal of “an order that affects a substantial right made in a special proceeding.”

In this case Jeffrey Kissinger and his wife, Beth Wilhelm-Kissinger, were the parties in a divorce proceeding before the Summit County Domestic Relations Court.  In the course of those proceedings, Mr. Kissinger filed a motion to disqualify Mrs. Kissinger’s attorney, David Ferguson, and other attorneys in his law firm from further participation in the case.  The motion was based on claims that Ferguson had possession and knowledge of materials that Mrs. Kissinger had obtained without permission by breaking into a laptop computer owned by Mr. Kissinger’s employer and had transmitted to Ferguson for use in the divorce case. Those materials allegedly included 21 privileged communications between Mr. Kissinger and his attorneys.

The trial court entered a judgment order denying the motion to disqualify.  Mr. Kissinger attempted to appeal that ruling, however the 9th District Court of Appeals dismissed his appeal on the basis that denial of a motion to disqualify counsel in a divorce proceeding did not qualify as a final, appealable order and therefore could not be appealed until after a final judgment had been entered in the divorce action.  Mr. Kissinger subsequently sought and received an order in which the 9th District certified that its ruling denying an immediate appeal of his motion to disqualify was in conflict with Crockett v. Crockett, a 2003 decision in which the 10th District Court of Appeals held that a motion to disqualify counsel in a divorce proceeding  was a final appealable order.  The Supreme Court agreed to review the case in order to resolve the conflict between appellate districts.

Attorneys for Mr. Kissinger assert that because both the 9th and 10th districts agreed that an order denying a motion for disqualification of counsel in a divorce action is an order “made in a special proceeding,” the only legal issue in dispute is whether such a motion also “affects a substantial right” and therefore qualifies as a final appealable order under R.C. 2505.02(B)(2).

They cite two Supreme Court of Ohio decisions: Bernbaum v. Silverstein (1980) and Russell v. Mercy Hospital (1984), in which they say this Court found that a motion to disqualify counsel in a civil action affects “a substantial right,” and argue that the Court can reverse the 9th District’s ruling based on those precedents alone.

They also assert that the 9th District erred by finding that Mr. Kissinger’s motion to disqualify counsel did not affect a substantial right because such an order “may be effectively reviewed after final judgment.”  They point out that the language of R.C. 2505.02(A) defining a “substantial right” does not impose any requirement that the right asserted not be amenable to a remedy after final judgment in the underlying case, and argue that the only language in the statute imposing such a requirement is part of a different subsection, 2505.02(B)(4), that is not applicable to the type of order at issue in this case, but applies exclusively to a different category of trial court orders “that grant or deny a provisional remedy.”

Mrs. Kissinger did not enter a brief in the case, and therefore under the Supreme Court’s rules of practice and procedure the Court will hear oral argument only by attorneys for Mr. Kissinger.

Contacts
Gary M. Rosen, 330.376.8336, for Jeffrey Kissinger.

David H. Ferguson, 330.762.9933, for Beth Wilhelm-Kissinger.

Return to top

Attorney Discipline

Columbus Bar Association v. Kenneth Ray Boggs, Case no. 2010-1846
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Columbus attorney Kenneth Ray Boggs be indefinitely suspended for multiple violations of state attorney discipline rules in his dealings with four different clients.

The Board found that in the course of representing the complaining clients, Boggs failed to disclose that he was not covered by malpractice insurance, failed to deposit unearned fee advances in a trust account separate from his own operating funds, failed to act with diligence and promptness on behalf of his clients, failed to keep clients reasonably informed about the status of their cases.  The board also found that in two instances Boggs charged clearly excessive fees, and in one instance engaged in conduct that reflected adversely on his fitness to practice law.

Boggs has filed objections to the board’s findings and recommended sanction of an indefinite suspension.  He argues that the testimony presented at his hearing in support of two most serious counts against him did not constitute clear and convincing evidence of the charged disciplinary rule violations. While admitting that he did commit less serious misconduct in his dealings with the complaining clients, he asks the Court to reject the board’s recommendation as disproportionate to his violations and instead impose a two-year suspension with the second year stayed on conditions.  

Attorneys for the Columbus Bar Association, which prosecuted the complaint against Boggs before the disciplinary board, respond that the severity of the recommended sanction reflects the fact that Boggs has been found guilty of very similar professional misconduct on two prior occasions, but continued to violate his duties to clients despite a public reprimand and a stayed license suspension imposed against him in those cases. Accordingly, they urge the Court to affirm the board’s conclusion  that an indefinite license suspension is the appropriate sanction for Boggs latest acts of misconduct.

Contacts
Michael L. Close, 614.221.5216, for the Columbus Bar Association.

Kenneth R. Boggs, pro se, 614.598.6918.

Return to top

Attorney Discipline

Toledo Bar Association v. David Romain Pheils, Jr., Case no. 2010-1886
Lucas County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Toledo attorney David R. Pheils Jr. be suspended for one year, with the last six months of that term stayed, for violations of state attorney discipline rules arising from two loans totaling $14,500 made by Pheils’ wife to a client while Pheils was representing the client in a civil lawsuit.

The board found that by arranging loans from his wife that helped his client pay living expenses while Pheils continued to represented that client Pheils violated the professional conduct rules that prohibit an attorney from providing financial assistance to a client and that prohibit violating a disciplinary rule through the acts of another person.  The board also found that, by acting as counsel for his wife in obtaining a promissory note from his client for the proceeds of the two loans at the same time he continued to represent the client in the underlying civil action, Pheils engaged in a conflict of interest without notifying the client and obtaining his written consent.

Pheils has entered objections to the board’s findings of fact, conclusions of law and recommended sanction. He argues that he did not provide financial assistance to his client but merely facilitated a loan agreement between the client and his wife, who made the loan from funds over which Pheils had no control.  He also contends that he no longer represented the client in the underlying civil case at the time the promissory note between the client and his wife was executed, because the parties in the civil action had already entered into a verbal settlement agreement resolving that dispute, and therefore his representation of his wife in the subsequent loan transaction did not constitute a conflict of interest.  In light of those arguments, he asks the Court to find that his actions did not violate any professional conduct rules and to dismiss the complaint against him without a sanction.

Attorneys for the Toledo Bar Association, which prosecuted the complaint against Pheils before the disciplinary board, urge the Court to affirm the findings and impose the sanction recommended by the board. They assert that while the disciplinary rule barring an attorney from providing financial assistance to a client might permit an attorney to help a client identify a disinterested source of arm’s length financial help, it does not permit an attorney to arrange for such assistance from the attorney’s spouse.  They also point out that Pheils continued to represent the client in the civil case for several months after he entered into a verbal agreement to settle the dispute, and in fact specifically advised the client not to sign a final settlement release that Pheils claimed went beyond the verbal agreement, and entered an appeal on the client’s behalf after the loans and promissory note transaction had been completed.

Contacts
Patrick B. Cavanaugh, 419.243.4006, for the Toledo Bar Association.

Marshall D. Wisniewski, 614.598.6918, for David R. Pheils Jr.

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.