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Wednesday, March 23, 2011

In re: The Estate of Josephine A. Centorbi, Case no. 2010-0597
8th District Court of Appeals (Cuyahoga County)

In the Matter of: J.M., Adjudicated Delinquent Child, Case no. 2010-0780
3rd District Court of Appeals (Wyanndot County)

WCI Steel, Inc. v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2010-1027
State Board of Tax Appeals

City of Cleveland Heights v. Warren Lewis, Case no. 2010-1203
8th District Court of Appeals (Cuyahoga County)

State ex rel. Gary D. Zeigler, Stark County Treasurer v. Jaime Allbritain [Kenneth N. Koher], Stark County Treasurer, Case no. 2010-1570
Original Action in Quo Warranto (Stark County)


Does One-Year Statutory Deadline Bar State from Later Recovering Medicaid Payments from Decedent's Estate?

When Deceased’s Medicaid  Status Was Not Noted on Probate Form

In re: The Estate of Josephine A. Centorbi, Case no. 2010-0597
8th District Court of Appeals (Cuyahoga County)

ISSUE:  Under the statute of limitations set forth in R.C. 2117.061 for the state to file a claim against the estate of a decedent to recover past Medicaid payments, is the state barred from filing such a claim later than one year after the date of the decedent’s death, or is the running of the statute tolled (delayed) if the person responsible for the decedent’s estate fails to note on forms filed with the probate court that the decedent had been a recipient of Medicaid benefits?

BACKGROUND:  Josephine Centorbi, who had been a patient in a nursing home and whose costs for that care were covered by Medicaid, died in February 2007 without leaving a will.  Her only assets at the time of death were an Avon Products account balance of $311 and a ¼ interest in a home in Maple Heights that had been left to Centorbi and three of her sisters by their mother, and in which one of the sisters still lived.

In December 2007, one of Centorbi’s sisters, Diane Fiorille, filed a an application with the
Cuyahoga County Probate Court for relief from administration of Centorbi’s estate (that is, for permission to distribute the decedent’s assets to her surviving son without further legal proceedings).
The application form for relief from administration included a check-off box to indicate that the decedent “was 55 years of age or older and was a recipient of medical assistance under Chapter 5111 of the Revised Code.”  Fiorille did not check that box. The court granted relief from administration and Centorbi’s ownership interest in the Maple Heights property was transferred to her son, Anthony Centorbi.

In December 2008, a debt-collection law firm representing the state’s Medicaid estate recovery program filed an application to vacate the order transferring Centorbi’s ownership interest in the house to her son and reopen her estate. The probate court denied the application as not having been filed within the  applicable statute of limitations, set forth in R.C. 2117.061(E).  That statute requires that a claim against an estate for recovery of Medicaid payments must be presented to the person responsible for the decedent’s estate “not later than 90 days after the date on which a Medicaid estate recovery reporting form is received under division (B) of this section or one year after the decedent’s death, whichever is later.”

The state appealed the probate court’s ruling. On review, the 8th District Court of Appeals affirmed the probate court’s determination that the statute of limitations required the state to file a claim against Centorbi’s estate no later than one year after her death, which occurred in February 2007. The state sought and was granted Supreme Court review of the 8th District’s decision.

Attorneys for the Ohio Department of Job and Family Services, which administers the Medicaid estate recovery program, argue that contrary to the lower courts’ rulings, the language of R.C. 2117.061(E) sets two alternative time limits for the filing of a complaint:  the later of one year after the death of the Medicaid recipient or 90 days after the state receives the required notification form.  Because Fiorille failed to check the box on the probate form that would have resulted in the state being notified, they assert, the alternative statute of limitations based on the state’s receipt of a notification form was never triggered, and therefore the state’s December 2008 application to reopen the estate should not have been dismissed as untimely.

Attorneys for Fiorille and the Centorbi estate respond that it was impossible for Fiorille to have filed the “Medicaid estate recovery reporting form” referenced in R.C. 2117.061(E) because the state has never created the form that is specified in subsection (B) of the statute, which by law must include a full listing of the decedent’s probate and non-probate assets and detailed warnings about false or incomplete reporting of assets, among other items.  While Fiorille, who was not aided by an attorney, may have erred by failing to check a box on the probate court’s standard relief from administration form, they assert, that form was not the form referenced in the alternative statute of limitations and no such  form exists. Therefore, they contend, the only operable statutory time limit for the state to file a claim for recovery of Medicaid benefits from Centorbi’s estate was within one year after the date of her death.

Contacts
Rachel A. Kabb-Effron, 216.991.5222, for Diane Fiorille and the Centorbi Estate.

Alexandra T. Schimmer, 614.995.2273, for Ohio Dept. of Job and Family Services.

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Does Mandatory Sex Offender Registration of 16-Year-Old But Not Younger Juveniles Violate Equal Protection?

In the Matter of: J.M., Adjudicated Delinquent Child, Case no. 2010-0780
3rd District Court of Appeals (Wyanndot County)

ISSUE: Is the constitutional right to equal protection of the law violated by a provision of Ohio’s Adam Walsh Act (AWA), R.C. 2152.83, that requires all 16 and 17-year-olds found guilty of first-time sexually oriented offenses to register with law enforcement and be publicly identified as juvenile sex offenders, but gives courts discretion to determine on a case-by-case basis whether 14 and 15 years olds who commit identical offenses must register as sex offenders?

BACKGROUND:  J. M. was found guilty in the Wyandot County Juvenile Court on a delinquency count of gross sexual imposition based on conduct that occurred in 2007, when he was 16 years old.
He was committed to a juvenile correction facility.  Upon his release from custody in 2009, J.M. was classified as a Tier II juvenile offender registrant under the AWA and was ordered to register as a sex offender every six months for the next 20 years. 

J.M. appealed his classification as a Tier II offender under the AWA, arguing that application of the AWA to his case was unconstitutionally retroactive because his offense was committed before the AWA’s July 1, 2007 effective date. He also asserted that the provisions of R.C. 2152.83 giving the juvenile court no discretion in setting his classification while granting discretion in cases involving 14 and 15-year-old offenders violated his constitutional rights to due process and equal protection of the law.  The 3rd District Court of Appeals rejected each of those claims and affirmed his classification and registration requirement.

J.M. appealed the 3rd District’s ruling to the Supreme Court.  The Court accepted his appeals based on retroactivity and due process and held them pending its decisions in two other cases that have already been argued which raised those same constitutional challenges. Those decisions remain pending. The Court separately ordered J.M and the state to submit briefs and appear for oral argument on the sole issue of whether the different treatment of 16 and 17-year-old offenders and 14 and 15-year-old offenders in R.C. 2152.83 violates equal protection.

Attorneys for J.M. argue that nothing in the language of the statute itself or in the legislative history of its enactment sets forth a rational basis for treating two youthful first offenders who commit identical crimes differently solely on the basis of their age on the date of their crime. While the statute declares that the legislature’s intent in classifying and registering sex offenders is to protect the public from future offenses, they assert that the state has not produced any data showing that a 16 or 17-year-old is more likely to reoffend than a 14 or 15-year-old. To the extent that such a belief underlies the law’s disparate treatment of older children, they argue that it is not a “rational basis” for unequal treatment because empirical studies have found that, to the extent there is any difference in recidivism based on the age of first offense, younger first offenders are slightly more likely than older minors to reoffend.

Attorneys for the state respond that courts reviewing legislative enactments must begin with a strong presumption that they are constitutional, and in this case J.M. bears the burden of proving beyond a reasonable doubt that there is no rational basis for the law’s different treatment of younger and older juvenile offenders.  They point to numerous state laws that treat younger juveniles differently than older ones, and note that society in general holds 16 and 17 year-olds to a higher standard of accountability for their actions as they approach adult legal status.  They argue that, among other factors, the greater size and physical maturity of older minors, and their added mobility after becoming eligible to drive, are rational bases to impose registration requirements on them that may not be necessary for younger offenders.

Contacts
Amanda J. Powell, 614.466.5394, for J.M.

Douglas D. Rowland, 419.294.5878, for the state and Wyandot County prosecutor's office.

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How Specific Must Tax Appeal Notice Be In Identifying Commissioner's Alleged Error

WCI Steel, Inc. v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2010-1027
State Board of Tax Appeals

ISSUE:  R.C. 5717.02 requires that when a property owner appeals to the State Board of Tax Appeals (BTA) to challenge a determination by the state tax commissioner of the taxable value of property, the notice of appeal must include a copy of the tax commissioner’s valuation notice, and must “specify the errors therein complained of ... ”  In this case, the Court is asked to review a ruling in which the BTA dismissed an appeal based on the board’s finding that the notice of appeal filed by the property owner did not identify the alleged error(s) in the tax commissioner’s determination of value with a sufficient degree of specificity to invoke the BTA’s jurisdiction.

BACKGROUND:  WCI Steel Inc. filed a petition with the state tax commissioner seeking a reduction in the commissioner’s 2003 tax valuation of the company’s machinery and equipment. The petition also  requested refunds of excess taxes WCI claimed to have paid on that same property for the 2001 and 2002 tax years.  The petition asserted that the equipment in question was so old and inefficient that it was functionally obsolete, and therefore had a much lower real market value than that set by the commissioner.  WCI supported its argument with a third-party appraisal of  its equipment that set its true value at $30 million, as opposed to the commissioner’s 2002 valuation of the same property at $121 million.

The commissioner denied WCI’s refund claims for 2001 and 2002, and issued a deficiency finding assessing additional property tax against the company for 2003 based on WCI’s undervaluation of its equipment in its 2003 tax return.  WCI appealed the commissioner’s valuation to the BTA, which accepted jurisdiction and initiated appeal proceedings. In its pleadings to the BTA, WCI included a new appraisal by a different third-party appraiser who used a different valuation model than the first appraiser had used, but arrived at a similar valuation of the property at issue.

While WCI’s appeal was under review, the Supreme Court of Ohio issued a decision, Ohio Bell Tel. Co. v. Levin, in which the Court reversed a ruling by the BTA based on a holding that the owner’s notice of appeal had  not clearly alleged as error by the commissioner the issue on which the BTA had based its decision, and therefore the BTA had acted without jurisdiction in considering that issue. The BTA asked WCI and the tax commissioner to file supplemental briefs addressing any jurisdictional issues they thought might be raised in this case in light of the Ohio Bell decision.

In his supplemental brief, the commissioner argued that pursuant to Ohio Bell, the BTA did not have jurisdiction to review WCI’s appeal because WCI’s notice of appeal alleged that the commissioner had erred by failing to adopt the valuation methodology proposed by its first appraiser, but all the evidence actually presented to the BTA was based on the second appraiser’s valuation method, which had never been reviewed or rejected by the commissioner. The BTA agreed with the commissioner’s argument, dismissed WCI’s appeal for lack of jurisdiction, and ordered that the commissioner’s determination of value be adopted as final.

WCI has exercised its right to appeal the BTA’s decision to the Supreme Court.

Attorneys for WCI urge the Court to affirm earlier decisions holding that a taxpayer’s appeal to the BTA of a determination of the commissioner is a de novo proceeding in which the BTA may consider not only evidence considered in the commissioner’s proceedings, but also new arguments and evidence presented by the opposing parties for the first time. They assert that in its notice of appeal to the BTA, WCI identified the commissioner’s “error” as overvaluation of the company’s machinery at a figure higher than $30 million resulting from his exclusive reliance on a standardized “302 computation” approach.   They argue that the BTA erred by going beyond the statutory requirement that an appeal notice must “specify the errors” that led to an overvaluation of property and improperly added an additional requirement that WCI must specify in its appeal notice the precise alternative evidentiary findings and valuation methodologies the commissioner should have applied in order to arrive at a correct valuation. 

Attorneys for the tax commissioner respond that the BTA ruling correctly applied this Court’s holding in Ohio Bell.  They argue that the commissioner administratively rejected WCI’s arguments for a lower valuation of its equipment based on a “comparative sales” valuation standard used by the company’s first appraiser, but WCI’s appeal notice sought reversal of the commissioner’s determination based on different valuation models employed by a different third-party appraiser. Because those alternative valuation methods were never submitted for consideration by the commissioner, and were not rejected in his decision, they argue, the commissioner’s failure to follow those methods cannot be asserted as “errors” in the commissioner’s determination of value, and therefore under Ohio Bell the BTA has no jurisdiction to consider them.

NOTE:  Amicus Curiae (friend of the court) briefs have been submitted in this case by the Ohio Chamber of Commerce and the Ohio State Bar Association.

Contacts
Steven A. Dimengo, 330.376.5300, for WCI Steel Inc.

Barton A. Hubbard, 614.466.5967, for the State Tax Commissioner.

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Is Offender's Appeal Moot If Full Sentence Completed and He Didn't Seek Stay of Execution in Appeals Court?

City of Cleveland Heights v. Warren Lewis, Case no. 2010-1203
8th District Court of Appeals (Cuyahoga County)

ISSUE:  When a defendant charged with a misdemeanor enters a not guilty plea and is convicted after a trial, and the defendant then makes an unsuccessful motion in the trial court for a stay of execution of his sentence pending appeal, is the defendant’s subsequent appeal of his conviction rendered moot if he did not move for a stay of execution in the court of appeals and completes all aspects of his sentence while his appeal remains pending?

BACKGROUND: In June 2008, Warren Lewis of Cleveland Heights was charged with misdemeanor counts of obstructing official business and resisting arrest. Lewis entered not guilty pleas on both counts and went to trial in the Cleveland Heights Municipal Court. At the conclusion of the state’s case and again at the conclusion of all evidence, Lewis moved for acquittal on both charges under Criminal Rule 29, which permits a court to enter an order of acquittal if the evidence presented at trial  was insufficient to support a conviction for a charged offense. The trial judge denied the Rule 29 motions.

After deliberating, the judge dismissed the resisting arrest count but found Lewis guilty of obstructing official business and sentenced him to three days in jail, a fine of $100 plus court costs, and six months of non-reporting probation.  The court suspended the jail term. Lewis entered a motion asking the court to stay execution of his sentence pending appeal. The court denied the motion for stay. Lewis subsequently paid the fine and court costs, but filed an appeal of his conviction in the 8th District Court of Appeals.

In its review of the case, the 8th District on its own initiative raised the issue of whether Lewis’ appeal was moot (no longer a matter subject to litigation) because he had already voluntarily completed all aspects of his sentence.  A majority of the appellate panel held that because Lewis had contested the charges against him at trial and had filed a motion to stay execution of his sentence in the trial court, Lewis had not complied with his sentence “voluntarily” and therefore his appeal was not moot. Turning to the merits, the 8th District reversed the trial court’s judgment and vacated Lewis’ conviction based on a finding that the trial evidence was not sufficient to support it.

Cleveland Heights sought and received a ruling by the 8th District that its ruling on the mootness of Lewis’ appeal was in conflict with decisions of the 2nd and 7th District courts of appeals in similar cases. The Supreme Court has agreed to hear arguments in the case to resolve the conflict among appellate districts.

Attorneys for the city urge the Court to reverse the 8th District’s decision granting Lewis’ appeal and instead hold that the appeal should have been dismissed as moot based on a 1975 Supreme Court of Ohio decision, State v. Wilson. Because Lewis did not include in his appeal any evidence that allowing his conviction to remain in place would cause him collateral disability or impair his civil rights, they argue, his appeal should have been dismissed as moot pursuant to Wilson.

Attorneys for Lewis respond that unlike Lewis, the defendant in Wilson did not contest the charge brought against him at trial, or file Rule 29 motions for acquittal after the close of evidence, or file a motion for a stay of execution of sentence, but rather attempted to appeal a conviction after pleading no contest to the charged offense at trial and promptly paying the fine imposed against him.

They argue that nothing in the state laws or rules of court governing criminal appeals requires that a defendant who has contested the state’s charge at every step of the proceedings and has filed an unsuccessful motion for stay of execution of sentence in the trial court must also file a second such motion in the court of appeals to avoid having his appeal dismissed as moot.

Contacts
Kim T. Segebarth, 216.291.5775, for Cleveland Heights.

Kenneth D. Myers, 216.241.3900, for Warren Lewis.

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Is Law Authorizing Removal of County Treasurer Without a Hearing Unconstitutional On Its Face?

State ex rel. Gary D. Zeigler, Stark County Treasurer v. Jaime Allbritain [Kenneth N. Koher], Stark County Treasurer, Case no. 2010-1570
Original Action in Quo Warranto (Stark County)

ISSUE: Does a state law that authorizes a county board of commissioners to remove a county treasurer from office “immediately on the institution” of a lawsuit seeking recovery of funds missing from the county treasury facially violate the due process provisions for removal of a public official set forth in  Article 38, Section II of the Ohio Constitution?

BACKGROUND: In addition to reviewing decisions of the state’s 12 district courts of appeals and the rulings of certain state regulatory bodies, the Supreme Court of Ohio also has original jurisdiction to hear cases in which a party seeks one of several types of  “extraordinary writs” that compel a government official to perform or cease from performing certain acts. In this case, the Court is asked by former Stark County treasurer Gary Zeigler to issue a writ of quo warranto ordering that he be restored to his former office and the current occupant of that office, Alexander Zumbar, be removed.

In March 2009, Stark County officials discovered that a large sum of money had been misappropriated from the county treasury by Chief Deputy Treasurer Vincent J. Frustaci.  A report issued  by the Auditor of State in June 2010 established the total amount of funds taken by Frustaci at $2.9 million. Zeigler, who had recently begun his third four-year term as county treasurer, was not found to have engaged in malfeasance or neglect of duty with regard to Frustaci’s conduct. In July 2010, the county prosecutor sought recoupment of the missing funds pursuant to R.C. 321.37, which authorizes filing suit against a county treasurer and against the surety companies with which Zeigler had contracted to cover the treasurer’s potential liability for losses to the county caused by theft. The prosecutor filed the recoupment action, naming Zeigler and his sureties as defendants.

 A few days after the recoupment action was filed, the county commissioners sent Zeigler a letter stating that they had scheduled a meeting for Aug. 2 to “discuss the treasurer’s office.”
While no mention of removal from office was made in the letter, media reports indicated that the commissioners had publicly stated they intended to use the scheduled meeting to remove Zeigler from office pursuant to R.C. 321.38. That statute reads in full: “Immediately on the institution of the (recoupment) suit mentioned in R.C. 321.37, the board of county commissioners may remove such county treasurer and appoint some person to fill the vacancy created. The person so appointed shall give bond and take the oath of office prescribed for treasurers.”

Zeigler filed suit in the Stark County Court of Common Pleas seeking a declaratory judgment that R.C. 321.38 was unconstitutional and an injunction barring the commissioners from removing him from office pursuant to that statute. The court granted a temporary restraining order, but on August 23, 2010 entered a judgment denying Zeigler injunctive relief and declaring R.C. 321.38 to be constitutional.  That same day, the commissioners held a meeting of which Zeigler received notice but which he declined to attend. At that meeting the commissioners adopted a resolution removing Zeigler from office under the authority of R.C. 321.38 and appointing a temporary replacement. 

Zeigler vacated the treasurer’s office, but on August 27, 2010 he filed an appeal of the trial court’s ruling in his declaratory judgment action in the 5th District Court of Appeals, and on Sept. 7, 2010 filed this original action asking the Supreme Court to issue a writ of  quo warranto reinstating him to the office of Stark County Treasurer. The 5th District has stayed proceedings in the declaratory judgment appeal pending this Court’s grant or denial of quo warranto.

Attorneys for Zeigler argue that R.C. 321.38 is unconstitutional “on its face” because the plain language of the law authorizes county commissioners to remove an elected county treasurer from office based on the single fact that a recoupment lawsuit has been filed against him, without any requirement of notice to the treasurer of the alleged reasons for his removal or a hearing at which the treasurer can respond to those allegations, both of which they say are mandatory requirements for the removal of a public official under Section 38, Article II of the Ohio Constitution. They assert that in a court action challenging the constitutionality of a law on its face (as opposed to a challenge based on the application of a law to a specific case), the court must base its judgment exclusively on the text of the challenged statute and may not consider actions that may have been taken by a party applying that law in a specific case in an attempt to remedy its constitutional defects.

Attorneys for the Stark County commissioners respond that a follow-up letter sent to Zeigler prior to the August 23 meeting at which he was removed from office provided the notice required by Section 38, Article II of the state constitution, and the commissioners’ meeting to which Zeigler was invited but which he did not attend provided him with the constitutionally required opportunity to respond to the legal reasons cited by the commissioners for his removal. They point out that following Zeigler’s removal, in November 2010 Stark County voters duly elected the current occupant of the  office, Alexander Zumbar, to serve as county treasurer until the current term of that office expires in December 2012. If Zeigler’s quo warranto claim is granted, they contend, the sovereign right of the county’s voters to choose local officials will be violated and a person who was properly removed from office according to law will be placed back in a position of public trust.

Contacts
Matthew W. Nakon, 440.930.8051, for Gary Zeigler.

Ross Rhodes, 330.451.7863, for the Stark County Board of Commissioners.

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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.