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Wednesday, February 27, 2013

John Doe v. Brandon Bruner, Case no. 2012-0556
Twelfth District Court of Appeals (Clinton County)

John Freshwater v. Mount Vernon City School District Board of Education, Case no. 2012-0613
Fifth District Court of Appeals (Knox County)

State of Ohio v. James Dzelajlija, Case no. 2012-0651
Eighth District Court of Appeals (Cuyahoga County)

Disciplinary Counsel v. Dale Elmer Bricker, Case no. 2012-1713
Mahoning County

May Plaintiff Pursuing Civil Claim Based on Alleged Sexual Assault File Suit and Proceed Under ‘John Doe’ Pseudonym?

Does Intimate Nature of Conduct Support Exception to Rule Requiring Use of Real Name

John Doe v. Brandon Bruner, Case no. 2012-0556
Twelfth District Court of Appeals (Clinton County)

ISSUE:  In a civil case in which a plaintiff asserts claims for physical and psychological injuries allegedly suffered as the result of  a sexual assault, and the plaintiff seeks to file and prosecute his complaint under a “John Doe” pseudonym, what factors must a trial court consider in determining whether the privacy interest of the plaintiff outweighs the public interest in an open trial in which all parties’ names are disclosed?

BACKGROUND: In October 2009 a Wilmington College student applied for a civil protection order from the Wilmington Municipal Court.  The petitioner  alleged that he had been sexually assaulted by a fellow student, Brandon Bruner, and sought an order barring  Bruner from contacting him in the future.  The court issued the requested order. Bruner subsequently violated the order by sending the other student a text message.

In August 2010, the student who obtained the protective order  filed a civil lawsuit against Bruner in the Clinton County Court of Common Pleas, seeking damages for sexual assault and battery and intentional infliction of emotional distress.  Rather than using his real name, the plaintiff identified himself in the complaint only by the pseudonym “John Doe.”

 Bruner did not oppose the plaintiff’s filing of his complaint under a pseudonym,  however the magistrate in charge of pretrial proceedings in the case ordered Doe to submit a brief stating the legal basis under which he was asking the court to waive the requirement of Ohio Civil Rule 10(A) that the complaint in a civil action must state the name and address of the plaintiff and all other parties involved in the suit.  After reviewing Doe’s brief, the magistrate denied the request to proceed under a pseudonym and recommended that he be required to use his real name in the complaint or have it dismissed as non-compliant with Civ.R. 10(A).  Doe filed objections to the magistrate’s recommendation.  The trial court approved the magistrate’s decision and refused to proceed with the case under the “John Doe” complaint. In his journal entry recording that decision, the judge stated that allowing Doe to protect his own privacy by suing under a pseudonym while his complaint identified the defendant by name “rings hollow to this court.”

Doe appealed to the Twelfth District Court of Appeals, which affirmed the trial court’s action.  In its opinion, the court of appeals observed that neither the Ohio Supreme Court nor any of the state’s appellate districts had previously issued a decision defining the criteria that a civil plaintiff must meet in order to waive compliance with Civ.R. 10(A) and allow his suit to proceed under a pseudonym.
The panel cited several decisions in which federal circuit courts have applied differing standards in granting or denying a civil plaintiff’s petition to prosecute a civil action under a pseudonym.  After reviewing those decisions, the Twelfth District adopted the standard announced by the U.S. Sixth Circuit Court of Appeals in Doe v. Porter,  a 2004 decision in which the court held that a civil action may proceed under a pseudonym only where “the plaintiff’s privacy interest substantially outweighs the presumption of open judicial proceedings.” 

While acknowledging that one of the factors that federal courts have considered in weighing a plaintiff’s privacy interest is whether prosecution of his or her claim will require disclosure of information “of the utmost intimacy,” the court of appeals found that the sexual nature of the conduct at issue in this case was not sufficient, by itself, to outweigh the strong public interest in favor of open judicial proceedings and the potential unfairness of allowing the plaintiff  to conceal his identity  while the defendant was named in the complaint.

Doe sought and was granted Supreme Court review of the Twelfth District’s ruling.

Attorneys for Doe, supported by an amicus curiae (friend of the court) brief submitted by a coalition of groups that advocate for victims of violent crimes, urge the court to reverse the Eighth District and remand the case to the trial court with guidance as to specific factors it should consider in determining whether Doe’s privacy rights outweigh the public’s interest in an open trial. 

They point out that many victims of crimes that involve intimate conduct such as sexual abuse − including abuse suffered by children but only disclosed after they reach adulthood − are extremely reluctant to seek personal vindication and compensation for their injuries in court because of the humiliation and personal embarrassment they would experience having their identity disclosed in court filings that are matters of public record.  They point out that while in the past such disclosure may only have exposed a litigant to the scrutiny of a handful of people who physically searched court records, the World Wide Web, online court dockets and ubiquitous search engines now allow anyone to search  a person’s name online in seconds, and to link to court records that describe the intimate details of that person’s victimization.  In light of the heightened exposure of information in court records to public scrutiny, they urge the court to set a standard for the use of a pseudonym in civil cases that allows trial courts to make a reasonable allowance for the privacy rights of persons whose injuries arise from personal and intimate circumstances.

Doe urges the court to adopt a non-exhaustive list of factors that trial courts should consider in reviewing litigants’ requests to proceed under  a pseudonym, including a) the extent to which the identity of the litigant has previously been kept confidential; b) the reason cited by the litigant for fearing or wishing to avoid disclosure;  c) the chilling effect of disclosure on the litigant’s ability to seek civil justice; d) the strength of the public’s need to know the litigant’s identity; e) whether the party seeking anonymity may have an ulterior motive; and f) whether either party is a public figure, creating a strong public interest in the identity of the litigants.

Bruner, who is self-represented in the case, did not file a responsive brief and therefore will not participate in oral argument before the justices.

Representing John Doe: Konrad Kircher, 513.229.7996

Brandon Bruner: pro se, no telephone contact information provided

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Did Public School Teacher’s Firing for Presenting Religious Doctrine In Science Class Violate His Free Speech Rights?

Suit Alleges School Board Policy Barring Teaching of Creationism Is Unconstitutional

John Freshwater v. Mount Vernon City School District Board of Education, Case no. 2012-0613
Fifth District Court of Appeals (Knox County)

ISSUE:  Did the firing of a public school teacher for violating a school district policy that prohibits teachers from distributing extracurricular materials of a religious nature to students in the classroom or endorsing the beliefs or principles of any religion in the course of instructing students violate the teacher’s right to freedom of speech and freedom of religion under the First Amendment of the U.S. Constitution?

BACKGROUND: In April 2008, the Mt. Vernon City School District Board of Education received a complaint from the parents of an eighth grade student indicating that their son’s science teacher, John Freshwater, had used an electrical demonstration device called a Tesla Coil located in his classroom to make a mark resembling a cross on the student’s arm. 

Following an investigation and administrative hearing triggered by the parents’ complaint, the school board made findings that Freshwater had for a number of years prominently displayed a bible on his desk and placed a box of bibles on a table at the back of his classroom, had decorated his classroom with posters, photos and slogans endorsing fundamentalist Christian beliefs, and had received warnings from his principal on several prior occasions for distributing extracurricular materials and making in-class statements that disputed the theory of evolution as set forth in the eighth grade science textbook and curriculum guidelines set by the school board, and for urging students in his class to embrace the biblical teaching of “creationism” as an alternative explanation of the origin of the universe and human life.

The school district retained the services of an independent referee to determine if Freshwater’s actions violated school district bylaws and policies, and if so whether those violations constituted “good and just grounds” to terminate his teaching contract under Ohio law.

The referee’s hearing was conducted over all or parts of 38 days between October 2008 and June 2010, during which time the referee heard testimony by 80 witnesses and admitted 350 exhibits into evidence. In January 2011, the referee issued a report recommending that Freshwater’s contract be terminated based on findings that he had violated school district bylaws and policies that prohibit teachers from engaging in classroom activities that “advance or inhibit any particular religion,” and that require teachers to adhere to the academic content standards set by the school board for their classes.  The referee also found that Freshwater had been insubordinate by refusing to fully comply with his principal’s directive that he remove religious displays from his classroom, and that his insubordination was itself independent grounds for termination.

The board adopted the referee’s report and terminated Freshwater’s teaching contract on January 10, 2011. Freshwater appealed the board’s action in turn to the Knox County Court of Common Pleas and the Fifth District Court of Appeals, both of which affirmed the referee’s findings that his violations of board policies and insubordination constituted sufficient cause for his firing.  Freshwater sought and was granted Supreme Court review of two constitutional challenges to his termination.

Attorneys for Freshwater assert that the board’s action terminating his employment violated his free speech rights under the First Amendment because his firing was based not on the type or context of his communications with his students, but exclusively on the content or viewpoint he expressed.  They point to U.S. Supreme Court cases that they say have held that schools may not censor the ideas that students are permitted to consider in exploring their academic studies, and argue that Freshwater’s introduction of extracurricular reading and multimedia materials contrasting the theory of evolution set forth in the district-approved science textbook with the countervailing  tenets of creationism or “intelligent design” was consistent with the school board’s policy that teachers should help students develop their critical thinking skills by looking at intellectual questions from multiple points of view.

They argue that the belief that the universe and all life emanated from a divine creator is not an exclusive tenet of any one church or sect, or even of the Christian faith, but is rather a fundamental belief of many of the world’s major religions. Thus, they assert, Freshwater’s teaching his students to consider the possible role of an intelligent creator in the formation of the cosmos and human development was not a violation of the school district’s ban on religious advocacy in the classroom, because creation theory does not “advance or inhibit any particular religion,” but merely encourages consideration of a generalized religious view of reality.

Attorneys for the school district respond that when Freshwater spoke to a captive audience of public school students in his role as a employee of the Mt. Vernon City School District, what he said was not private speech subject to wide First Amendment protections but was rather “governmental speech” by a representative of the school board that was subject to the strict prohibition in the Establishment Clause against government actions that advocate or endorse the tenets or principles of any religion.

They assert that it is the duty of the school board and not Freshwater to determine the proper scope of the science curriculum for the district’s eighth grade students, and note that Freshwater’s teaching contract required him to follow the academic content standards set by the board, regardless of his personal opinions or religious beliefs. They also argue that the multitude of religious displays and posters in Freshwater’s classroom, and many of the anti-evolution pamphlets, videos and classroom exercises he repeatedly presented to his students, were not generalized messages suggesting the possible role of an undefined spiritual force in the creation of the world, but made specific reference to passages and themes in Christian scripture that state as an article of religious faith that the universe and all life in it were created by the God of the Christian Bible.  Thus, they say, the referee and lower courts correctly found that after being warned by his employer on multiple occasion, Freshwater continued to violate the Establishment Clause by injecting his personal religious beliefs into the instruction he presented to students in a public school, and the district had not only the right but the duty to terminate him on that basis.

NOTE: Amicus curiae (friend of the court) briefs supporting the position of the school district have been submitted to the court by, among others, the Anti-Defamation League, National Center of Science Education, American Humanist Association and Americans United for Separation of Church and State.

Representing John Freshwater: R. Kelly Hamilton, 614.875.4174

Representing Mt. Vernon City School District Board of Education: David K. Smith, 216.503.5055

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May Trial Court Deviate From Appellate Mandate When Basis For Appellate Ruling Is Superseded by Supreme Court Decision?

Where High Court Overrules Precedent That Was Basis for Appellate Grant of New Trial

State of Ohio v. James Dzelajlija, Case no. 2012-0651
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: When a court of appeals has remanded a case to a trial court for a new trial based on a Supreme Court precedent, and the Supreme Court issues a new decision abandoning that precedent before the trial court has commenced the defendant’s new trial, may the trial court deviate from the appellate mandate and reinstate its original judgment and sentence based on the intervening Supreme Court decision?

BACKGROUND: James Dzelajlija of Cleveland was convicted in 2006 on two counts of robbery and received a prison sentence. On appeal, his conviction was reversed and the case was remanded for a new trial based on the trial court’s improper admission of opinion evidence.

After a second jury trial in February 2008, Dzelajlija was again found guilty on both counts and received a new prison sentence.  He appealed the new convictions and sentence, this time arguing that 1) the indictments under which he had been charged were defective for failure to state the required guilty mental state (recklessness) that the state must prove to obtain a conviction for the crime of robbery, and 2) his convictions were against the manifest weight of the evidence.

In March 2009, citing the Supreme Court of Ohio’s July  2008 holding in State v. Colon that failure to include the required guilty mental state in an indictment is a structural error that requires that a defendant receive a new trial, the Eighth District Court of Appeals reversed Dzelajlija’s convictions and sentence and remanded the case to the trial court for a third trial. Because its ruling that the indictment was defective already required a new trial, the Eighth District declined to rule on Dzelajlija’s additional challenge based on the weight of the evidence.

The case was returned to the trial court in May 2009,  and a new trial was scheduled for September 14, 2010.  On August 27, 2010, however, the Supreme Court released a decision, State v. Horner, in which it overruled its previous holding in Colon and held instead that, if an indictment tracks the language of the criminal statute describing the charged offense, it provides the defendant with adequate notice of the charges against him and is therefore not defective.

At a hearing on September 14, 2010, the trial court determined that because the Eighth District had based its remand and new trial order in the case solely on the Supreme Court’s holding in Colon, and Colon had been expressly overruled by Horner, the Horner decision had effectively reinstated Dzelajlija’s indictment and convictions as valid, and therefore permitted the trial judge to deviate from the court of appeals mandate to conduct a new trial in the case.  Based on that analysis, the trial court resentenced Dzelajlija to the same prison term it had imposed previously without conducting a new trial.

Dzelajlija appealed again, asserting that the trial court had acted without jurisdiction and violated his due process rights by ignoring the Eight District’s judgment vacating his convictions from the second trial, and by failing to comply with the court of appeals’ mandate that he receive a new trial. The Eighth District agreed, and issued an order vacating the latest sentence imposed by the trial court.  The state, represented by the Cuyahoga County prosecutor’s office, sought and was granted Supreme Court of the Eighth District’s most recent ruling.

Attorneys for the state assert that, while a trial court must normally implement the mandate  of a court of appeals without consideration of the higher court’s basis for the mandate, it is permissible for a lower court to deviate from such a mandate under “extraordinary circumstances,” which they say includes an intervening decision of a superior court that effectively invalidates the basis for the appellate mandate. In this case, they argue, the Eighth District’s remand order was based solely on Colon, and the Supreme Court’s release of the Horner decision abandoning Colon in August 2010 effectively eliminated the only legal basis on which it had ordered a new trial for Dzelajlija  before that trial got underway.  They contend that under these and similar circumstances, forcing a busy trial court to relitigate a case that has already been tried to juries twice before, based on a technical flaw that has since been determined by a superior court not to be a reversible error, elevates form over substance and represents a waste of scarce judicial resources.

Attorneys for Dzelajlija urge the court to affirm the judgment of the Eight District, which they say correctly found that because the state did not appeal the court of appeals’ 2009 judgment ordering a new trial based on Colon, that judgment became final and binding on the parties and the validity of Dzelajlija’s second conviction was no longer  a “pending” matter more than a year later when the Supreme Court issued its Horner decision overruling Colon. Because Dzelajlija’s convictions and sentence from his second trial had already been held invalid, and the court of appeals mandate empowered the trial court only to dismiss those convictions and conduct a new trial, they assert that the trial judge had no jurisdiction to apply the revised legal analysis of Horner to reinstate his convictions or to resentence him without a new trial and finding of guilt on the robbery charges.

Representing the state and Cuyahoga County prosecutor’s office: T. Allan Regas, 216.443.7800

Representing James Dzelajlija: Cullen Sweeney, 216.443.3660

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Attorney Discipline

Disciplinary Counsel v. Dale Elmer Bricker, Case no. 2012-1713
Mahoning County

The Board of Commissioners on Grievances & Discipline has recommended that Youngstown attorney Dale E. Bricker be publicly reprimanded for failing to segregate funds he held for clients from his own funds in a dedicated client trust account. 

Bricker entered into stipulations with the Office of Disciplinary Counsel in which he admitted that, after spending more than 30 years as in-house counsel for a private company, upon opening a private law practice in 1995 he failed to read and comply with the professional conduct rules that require an attorney to hold client funds that are in his or her possession in a separate account that may not be used to hold legal fees that the attorney has earned from clients or to pay the attorney’s personal or law office operating expenses.  Bricker acknowledged that from 1995 until 2010, he kept legal fees he had earned from clients on deposit in the same checking account that he used to contain funds that he held in trust for his clients, and sometimes used proceeds from that account to pay for personal and law office expenses.

The disciplinary board found that Bricker’s conduct violated the state disciplinary rules that require attorneys to maintain a dedicated client trust account and perform regular reconciliations of that account,  and that prohibit commingling an attorney’s personal and law office funds with those held in trust for clients.

In setting the sanction for these violations, the board considered the mitigating factors that Bricker, had no prior disciplinary infractions in more than 50 years of law practice, did not act with a selfish or dishonest motive, caused no harm to his clients, cooperated fully with disciplinary authorities, expressed remorse for his conduct and has adopted office management practices that are in compliance with the Rules of Professional Conduct.

The Office of Disciplinary Counsel has filed two objections to the board’s findings and recommended sanction.  Citing the long duration of Bricker’s commingling of his own funds with those his clients, his failure to maintain accounting records required to protect the interests of clients, and the multiple instances in which he made disbursements to cover personal expenses from accounts that contained client funds, the Disciplinary Counsel disputes the board’s failure to find that, in addition to his other rule violations, Bricker engaged in conduct that reflects adversely on his fitness to practice law.  Based on its belief that Bricker should also have been cited for the latter offense, the Disciplinary Counsel argues that a more appropriate sanction in this case would be a six-month license suspension, stayed on conditions that Bricker complete additional continuing education coursework related to trust accounts and that his practice be monitored for one year.

In his response to these objections, Bricker urges the court to defer to the judgment of the board of commissioners and the three-member hearing panel that considered the evidence in the case, both of which agreed that a reprimand rather than a license suspension was the appropriate penalty for his misconduct.

Representing Office of Disciplinary Counsel: Jonathan E. Coughlan, 614.461.0256

Representing Dale Bricker: John B. Juhasz, 330.758.7700

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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.