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Wednesday, April 20, 2011

State of Ohio v. Gary L. Adkins, Case no. 2010-0465
5th District Court of Appeals (Delaware County)

Lea D. Smith v. Vashawn L. McBride et al., Case no. 2010-0809
10th District Court of Appeals (Franklin County)

Jenifer Terry, Zoning Insp., Milton Township v. Gayle K. Sperry et al., Case no. 2010-0810
7th District Court of Appeals (Mahoning County)

Timothy T. Rhodes v. The City of New Philadelphia, Case no. 2010-0963
5th District Court of Appeals (Tuscarawas County)

May Pre-1996 Juvenile Traffic Offense Be Counted To Increase Later Drunk Driving Charge to Felony?

Case Questions Retroactive Application of Repeat Offender Statute

State of Ohio v. Gary L. Adkins, Case no. 2010-0465
5th District Court of Appeals (Delaware County)

ISSUE: R.C. 2901.08, a state law that took effect Jan. 1, 1996, directs Ohio courts to count a defendant’s juvenile traffic offenses as prior convictions in setting the level or the penalty for a  subsequent adult traffic offense. Before 1996, juvenile offenses were not considered in setting the level or penalty for an adult offense. In this case, the Supreme Court is asked whether R.C. 2901.08 may be applied to count a juvenile offense that was committed before 1996 in determining whether an adult arrested for a subsequent drunk driving violation should be charged with a felony rather than a misdemeanor.

BACKGROUND: Ohio’s “drunk driving” law, R.C. 4511.19, prescribes progressively more severe penalties for repeat offenders based on the number of their past convictions. R.C. 4511.19(G)(1)(d) specifies that if a person who is arrested for operating a motor vehicle under the influence of alcohol or drugs (OMVI) has five or more prior convictions for OMVI or a similar offense within the preceding 20 years, the defendant’s current offense will be charged as a felony rather than a misdemeanor.

In 2007, Gary Adkins of Delaware County was arrested for OMVI.  He was indicted by a grand jury for a felony-level offense based on a determination that he had five prior convictions for similar offenses within the preceding 20 years.  Adkins filed a motion for dismissal of the felony indictment based on the fact that one of the five prior “convictions” counted by the grand jury was a 1987 juvenile court case in which he had been charged as a juvenile traffic offender and not on an adult count of OMVI.  The trial court denied the motion to dismiss. Adkins entered a plea of no contest. He was found guilty of a felony count of repeat-offender OMVI and sentenced to 12 months in prison of which the first 60 days were mandatory. He was also fined $800, and his driver’s license was suspended for three years commencing on the date of his release from prison.

Adkins appealed his felony conviction and sentence, asserting that the trial court erred in counting his 1987 juvenile court adjudication as a prior OMVI conviction. The 5th District Court of Appeals affirmed the trial court’s judgment, citing two of its own prior decisions, State v. Glover (1999) and In Re Fogle (2007), which held that by enacting R.C. 2901.08, the legislature had authorized state courts to count defendants’ juvenile offenses in determining the level and setting the penalty for any new offense committed after Jan. 1, 1996.

Adkins sought and was granted Supreme Court review of the 5th District’s ruling.

Attorneys for Adkins point out that under R.C. 1.48, laws enacted by the General Assembly are presumed to be prospective (that is, to apply only to conduct that takes place after the effective date of the new law) unless the wording of the statute plainly indicates legislative intent that it be retrospective (that is, that it be applied to events that took place before the new law took effect). They argue that nothing in the language of R.C. 2901.08 plainly indicates legislative intent for its provisions to be applied retrospectively, and therefore the trial and appellate courts erred in applying the 1996 statute to count Adkins’ 1987 juvenile adjudication as a prior “conviction.”

Adkins’ attorneys argue further that, even if the Court should find that the legislature intended R.C. 2901.08 to be retroactive, past Supreme Court decisions interpreting Section 28, Article II of the Ohio Constitution have held that retroactive application of a law is unconstitutional if such application “imposes new or additional burdens, duties, obligations or liabilities as to a past transaction.”  In this case, they assert, retroactive application of R.C. 2901.08 has converted Adkins’ 1987 juvenile adjudication from a civil order that could not be counted in setting the penalty for a future adult offense into a criminal “conviction” that rendered him liable to dramatically increased punishment for his 2007 conduct, which would otherwise have been chargeable only as a misdemeanor.

Arguing for the state, attorneys from the Delaware County prosecutor’s office urge the Court to affirm the 5th District’s holding that applying R.C. 2901.08 to enhance Adkins’ 2007 offense was not unconstitutionally “retroactive” because it did not impose additional punishment for his conduct as a juvenile prior to the enactment of the statute, but only increased the prospective penalties for his future adult conduct if and when he committed additional OMVI violations.

Brian Walter, 740.833.2690, for the state and Delaware County prosecutor's office.

Robert E. Cesner Jr., 614.885.5429, for Gary Adkins.

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Is Police Officer Immune from Liability for Car Crash When Responding to Call from Outside His Jurisdiction?

Where No Mutual Aid Pact Authorized or Required the Officer to Respond

Lea D. Smith v. Vashawn L. McBride et al., Case no. 2010-0809
10th District Court of Appeals (Franklin County)

ISSUE: Ohio’s “sovereign immunity” statute, R.C. Chapter 2477, confers limited immunity from civil liability on the state and its political subdivisions (e.g. counties, cities, townships, school districts etc.) for injuries or economic loss a government agency or employee may cause to a third party in the course of performing their governmental functions.  In this case, the Supreme Court is asked to decide whether the immunity statute protects a township from liability for injuries to a third party that were caused by a township police officer who was involved in a traffic accident while responding to a call for assistance from a neighboring jurisdiction with which his township did not have a mutual assistance pact.

BACKGROUND: Under R.C. 2744.02(B) political subdivisions are generally not immune from liability for “injury, death or loss to personal property caused by the negligent operation of any motor vehicle by their employees” when the vehicle is being operated within the scope of the employee’s job duties. However an exception set forth in R.C. 2744.02(B)(1)(a) provides that a political subdivision is immune from liability arising from the negligent operation of a vehicle by a police officer if the officer causes injury while he or she is “responding to an emergency call” during the performance of the officer’s job duties.

In this case, Sergeant Travis Carpenter of the Clinton Township (Franklin County) police department overheard a radio call from a Franklin County sheriff’s deputy asking for assistance in pursuing a driver who had fled on foot after being pulled over by the deputy for a traffic offense. Although the deputy’s radio call had identified his location as outside of Clinton Township, Carpenter responded to the call.  In the course of doing so, his police cruiser collided with a car occupied by Lea Smith.

Smith filed a civil suit in the Franklin County Court of Common Pleas seeking recovery for her damages from the township. The township moved for summary judgment dismissing Smith’s complaint, arguing that it was immune from liability under the sovereign immunity statute because the accident that caused Smith’s injuries had occurred while Carpenter was responding to a call for assistance in his capacity as a police officer. The trial court agreed and granted summary judgment in favor of the township. Smith appealed that ruling. On review, the 10th District Court of Appeals affirmed the trial court’s holding that the township was entitled to summary judgment based on the affirmative defense of immunity under R.C. 2744.02(B)(1)(a).

Smith sought and was granted Supreme Court review of the 10th District’s decision.

Attorneys for Smith point out that in drafting the sovereign immunity statute, the legislature did not create a blanket exception from liability for traffic accidents caused by police during the performance of any official duty such as transporting a prisoner or driving to a training class, but specifically limited that exception to cases in which an officer is “responding to an emergency call.” While they acknowledge that the Supreme Court has interpreted the “emergency call” language in the statute broadly to include situations in which an officer is responding to any “call to duty,” they argue that in this case Carpenter had no “duty” to respond to a general assistance call from another police agency to which he was not answerable and that was outside his area of jurisdiction. They contend that Carpenter was not acting within his job duties but instead made a personal, spur-of-the-moment decision to leave Clinton Township and drive at high speed without using his flashing lights or siren to a location where upon arrival he would have had no legal authority to make an arrest or otherwise act as a police officer because there was no mutual aid agreement between Clinton Township and the neighboring community.

They also assert that, at the least, Smith raised material questions of fact regarding whether Carpenter was answering a “call to duty” at the time of the accident and whether his actions outside of Clinton Township fell within the scope of his job duties, and argue that those questions should have been held sufficient to defeat the township’s motion for summary judgment and allow Smith to argue her case before the trial court.  

Attorneys for the township urge the Court to affirm the 10th District’s conclusion that Carpenter was responding to a call to duty at the time of the accident and therefore the township is entitled to immunity under R.C. 2477.02(B)(1)(a).  They point out that nothing in the language of the immunity statute requires that an officer must be within the precise geographic boundaries of his or her jurisdiction in order to be covered, and argue that responding to a call for assistance from an officer in an adjacent community involving an immediate situation such as a fleeing prisoner is within the obligations of a police officer, whether or not there is a formal mutual aid pact between the two communities.

Brian G. Miller, 614.221.4035, for Lea Smith.

Boyd W. Gentry, 937.222.2333, for Clinton Township.

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Does Law Bar Township from Prohibiting Use of Land for Winery if 'Any Portion' Also Used For Growing Grapes?

Jenifer Terry, Zoning Insp., Milton Township v. Gayle K. Sperry et al., Case no. 2010-0810
7th District Court of Appeals (Mahoning County)

ISSUE: May a township zoning board prohibit the owner of a parcel of land from using it to operate a winery if “any portion” of the same parcel is also used for viticulture (i.e., for growing grapes to be used in winemaking)?

BACKGROUND:  In 1995, Gayle Sperry purchased a vacant lot of roughly ¾ acre in size on Scenic Drive in a residential area of Milton Township in Mahoning County. After building a home on the property in which she still resides, Sperry erected a separate structure that she intended to use as a winery. 

In 2005, Sperry and her son and daughter-in-law sought and obtained the necessary state and federal permits and a vendor license from Mahoning County to begin operating a winery known as the Myrddin Wine Co. on the Scenic Drive property. They called the township zoning inspector, Betsy Opre, to inquire about any zoning permits or variances that would be required.  Opre advised the Sperrys that their use of the land to operate a winery was permissible, and that no written certificate or letter of approval was required because the township only issued approvals orally.

Over the next several years the Sperrys cultivated approximately 800 grape vines and processed the grapes into wine which they fermented, aged, bottled and subsequently sold in the non-residential structure on the Scenic Drive property. Approximately 20 of the grape vines were located on the winery property itself, while the remainder were at different locations including a 90-acre plot of farmland across the road from the winery.

In January 2008, Milton Township filed a complaint in the Mahoning County Court of Common Pleas alleging that the winery was in violation of the applicable township zoning ordinance. The township’s current zoning inspector, Jennifer Terry, asserted that use of the property to operate the winery was a commercial rather than an agricultural use, and sought a court order affirming the township’s right to enforce its zoning regulation and prohibiting the Sperrys from continuing to operate a winery on the property.

The trial court entered summary judgment in favor of the township. The Sperrys appealed.  On review, the 7th District Court of Appeals affirmed the trial court’s decision.  In a 2-1 majority opinion, the court  of appeals held that although the state law defining “agriculture,” R.C. 519.01, specifically includes viticulture as an agricultural activity, the statute also provides that using property to “process, dry, store or market” agricultural products qualifies as agricultural use only when the latter activities are secondary to actually growing crops or raising animals.  In this case, the court ruled that the primary use of Sperry’s Scenic Drive property was as a commercial winery, rather than for growing grapes, and therefore the land was subject to the township’s zoning restrictions.

The Sperrys sought and were granted Supreme Court review of the 7th District’s ruling.

Attorneys for the Sperrys argue that the lower courts erred by relying on general language in R.C. 519.01 that requires growing crops to be the primary use of agricultural land, rather than a different  statute, R.C. 519.21(A) that specifically addresses the zoning of land used for viticulture.  In the latter statute, they point out, the legislature specifically prohibits any zoning that would bar construction or use of  “buildings or structures that are used primarily for vinting and selling wine that are located on land any part of which is used for viticulture. ...”  Because it is undisputed that the Sperrys grow grape vines on part of Scenic Drive property, they assert, the plain language of R.C. 519.21(A) bars the township from any zoning that would prevent the Sperrys from using that land for a winery.

Attorneys for Milton Township urge the Court to affirm the 7th District’s conclusion that the specific language of  R.C. 519.21(A) must be read together with the more general language of R.C. 519.01. When the two laws are read together, they assert, they allow a township to bar the operation of  a commercial winery on a property unless the primary use of that property is growing grapes. They argue that a literal reading of  R.C. 519.21 by itself would result in the “absurd” situation that a zoning authority would be forced to allow the operation of a commercial winery on any piece of residential property if the owner planted a single vine that bore a single grape anywhere on that property.

David S. Pennington, 614.791.9112, for Gayle Sperry et al.

Mark Finamore, 330.394.6148, for Milton Township Zoning Inspector Jennifer Terry.

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Is Party Requesting Improperly Destroyed Records 'Aggrieved' Simply Because Records Were Unavailable?

Timothy T. Rhodes v. The City of New Philadelphia, Case no. 2010-0963
5th District Court of Appeals (Tuscarawas County)

ISSUE:  A provision of the Ohio Public Records Act, R.C. 149.351(B)(2), provides that if a city or other political subdivision of the state destroys or otherwise disposes of public records in a manner that is not authorized under the city’s official records retention policy, or without authorization from the Ohio Historical Society, any person who is “aggrieved” by the improper destruction of those records may file suit and obtain a $1,000 civil forfeiture (cash award) from the political subdivision for each record that was improperly disposed of. In this case, the Supreme Court is asked whether a person requesting public records that have been improperly destroyed is automatically “aggrieved” and therefore eligible to recover a civil forfeiture simply because the requested records were not available, or if a person seeking the records must show that he or she suffered some actual harm or prejudice as a result of the destruction of the records.

BACKGROUND: The Ohio Public Records Act, which is codified in Chapter 149 of the Revised Code, requires cities and other political subdivisions to create a records retention commission. These commissions are required to adopt and file with the Ohio Historical Society (OHS) a formal records retention policy that sets mandatory retention periods and procedural guidelines for the eventual destruction or disposal of written and electronic documents that are created by or filed with city government offices and agencies in the course of conducting their official functions.

In 2007, Timothy Rhodes sent public records requests to the city of New Philadelphia and several other northeast Ohio communities asking for access to reel-to-reel audio tapes the cities’ police departments may have used to document the daily radio calls made to and from their police dispatchers between 1974 and 1995.  All of the communities responded that they had long since ceased using that technology and had disposed of the tapes and tape machines, and therefore were unable to provide the requested records. All of the jurisdictions except New Philadelphia also documented that their destruction of tapes had been accomplished pursuant to their official records retention policies and with the consent of the OHS.  Upon further inquiry, Rhodes determined that New Philadelphia had never adopted or filed a city records retention schedule/disposal policy with the OHS, and had not obtained the society’s authorization before erasing and ultimately disposing of the reel-to-reel tapes it had used to document dispatcher calls between March 1989 and December 1995.  

After obtaining that information, Rhodes filed suit against New Philadelphia under R.C. 149.351(B)(2), alleging that the city’s disposal of its dispatcher tapes had not been accomplished in compliance with the Public Records Act. Based on the fact that the New Philadelphia police had reused the same tapes over a period of more than six years, erasing the contents of two tapes each day  and reusing them to record the new day’s calls, Rhodes asserted that the city had improperly destroyed 730 public records each year for 6 years and 9 months, totaling 4,968 violations.  Based on that calculation, Rhodes sought a $1,000 civil forfeiture for each violation, resulting in a total claim of $4,968,000.

Both the city and Rhodes filed motions for summary judgment. The trial court denied both sides’ motions, finding that there was a material question of fact regarding whether Rhodes was “aggrieved” by the city’s failure to provide the requested tapes. The case was tried to a jury, which entered a verdict in favor of the city based on its finding that the evidence presented at trial showed that Rhodes had no interest in actually receiving or reviewing the missing tapes, but had requested them for the sole purpose of collecting forfeitures from the city based on their improper destruction. Under those circumstances, the jury found that Rhodes was not “aggrieved” by the destruction of the tapes because he had not demonstrated any actual harm to him arising from the city’s public record law violations.

Rhodes appealed.  On review, the 5th District Court of Appeals vacated the trial court’s judgment and remanded the case with a directive to issue summary judgment in favor of Rhodes on the question of liability (i.e., to find that Rhodes qualified as an aggrieved person eligible to seek forfeitures for the missing records), and to conduct a new trial limited to the issue of how many “violations” of the public records act had been committed by the city’s erasures of its dispatcher tapes.  In its opinion, the court of appeals specifically held that the trial court should have granted Rhodes’ pretrial motion for summary judgment because the only showing a plaintiff must make to qualify as an aggrieved person under R.C. 149.351(B)(2) is that he or she had been denied access to requested public records because those records had been unlawfully destroyed.

New Philadelphia sought and was granted Supreme Court review of the 5th District’s ruling.

Attorneys for the city argue that when the legislature amended the Public Records Act to allow individual plaintiffs to initiate civil forfeiture actions, it could have adopted language allowing “any person unable to access a requested record” because of its improper destruction to file such a claim, but instead limited forfeitures to “any person who is aggrieved” by the improper removal or destruction of a public record. They argue that, contrary to the 5th District’s interpretation, by including the requirement that a plaintiff be “aggrieved” lawmakers intended to limit forfeiture actions to cases in which the record-seeker can show some actual harm or prejudice to his legal or personal interests as a result of the record-keeper’s violation. 

In this case, they contend, the trial court properly denied summary judgment because there was a material question about whether Rhodes had any intention of actually reviewing or even obtaining the requested records, and the jury properly denied his claim for damages based on its finding that the evidence presented at trial showed that Rhodes was not aggrieved because his sole purpose for requesting the dispatcher tapes was to exploit the forfeiture provision and obtain a windfall financial “recovery” when he had suffered no actual harm.

Attorneys for Rhodes urge the Court to affirm the ruling of the 5th District, which they say properly held that the purpose of R.C. 149.351(B)(2) is to strongly motivate public officials and agencies to comply with their legal duty to retain and preserve public records by imposing significant financial penalties on them for failing to do so.  They point out that the Public Records Act does not require persons requesting public records to state any purpose or reason for such requests, and does not condition the duty of government agencies to preserve and provide access to records based on a requester’s motives.  In this case, they argue, the trial court erred by basing its judgment on Rhodes’ perceived motive for seeking the destroyed tapes, and the 5th District correctly reversed that judgment.

NOTE:  Amicus curiae (friend of the court) briefs supporting the position of New Philadelphia have been filed by the State of Ohio, the Ohio Municipal League and the Ohio Association of Civil Trial Attorneys.  An amicus brief supporting the position of Mr. Rhodes has been filed by Edwin Davila, an individual involved in public records litigation elsewhere in the state.  Copies of the amicus briefs and all other filings in the case are available at: http://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2010/0963.

John T. McLandrich, 440.248.7906, for the city of New Philadelphia.

Craig T. Conley, 330.453.1900, for Timothy Rhodes.

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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.