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Tuesday, September 10, 2013

Board of Education of the Akron City School District v. Summit County Board of Revision, the Summit County Fiscal Officer, and Roger L. Barkoff and Sharon L. Barkoff, Trustees, Case no. 2012-1542
Ohio Board of Tax Appeals

Michael A. Lingo et al. v. State of Ohio et al., Case no. 2012-1774
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Zachary Bondurant and Jeffrey Stevens, Case no. 2012-2003
Fourth District Court of Appeals (Highland County)

State of Ohio v. Zachary Bondurant and Jeffrey Stevens, Case no. 2012-2006
Fourth District Court of Appeals (Highland County)

Disciplinary Counsel v. Paul Lawrence Wallace, Case no. 2013-0573
Franklin County

Does a School Board Showing Evidence of a Sale for Tax Valuation Have to Prove It Is Recent, or Does the Property Owner Have the Burden to Rebut the Sale?

Board of Education of the Akron City School District v. Summit County Board of Revision, the Summit County Fiscal Officer, and Roger L. Barkoff and Sharon L. Barkoff, Trustees, Case no. 2012-1542
Ohio Board of Tax Appeals

ISSUE: Which party in a dispute over a property’s value for tax purposes has the burden of proof to show that the sale met statutory requirements of being recent?

For tax year 2008, the Summit County Fiscal Officer assessed a property housing an Arby’s restaurant in the Akron City school district with a true value of $902,320 and a taxable value of $315,810. The Akron City School District Board of Education filed a complaint with the Summit County Board of Revision requesting increases to $1,407,000 as the true value and $492,450 as the taxable value, based on the price the property owners, Rodger and Sharon Barkoff, paid in August 2005.

The Barkoffs opposed the increases, arguing that the 2005 sale wasn’t “recent” as required by statute. They pointed to a 2008 sale of an Arby’s restaurant in Lucas County, which was similar to the fiscal officer’s valuation and they say better represented the value of their property because of market changes. The board of revision decided in favor of the fiscal officer’s values. The school board appealed to the Ohio Board of Tax Appeals.

The tax appeals board focused on the issue of whether the 2005 sale constituted a “recent” one. Stating that “it remains the burden of the party contesting the utility of a sale to rebut the presumptions to be accorded to it,” the tax board found that the 2008 sale of a property in a different county wasn’t an adequate indicator of a more appropriate value and the Barkoffs had shown no evidence that the 2005 sale shouldn’t be used. The tax board adopted the higher values based on the 2005 sale. The Barkoffs appealed the tax board’s decision to the Supreme Court.

Attorneys for the Barkoffs argue the school board, as the appealing party to the board of tax appeals, had the burden to show that the 2005 sale was recent for determining the 2008 tax value. They assert that the school board submitted no evidence to make its case and added that neither the fiscal officer nor the board of revision used the 2005 sale to assess the property’s tax value.

They also assert that the fiscal officer would have been aware of the 2005 sale when it made its assessment and would have taken into account whether the sale was recent in determining the taxable value of the property, yet it decided to use the lesser value. The tax board’s statement that the Barkoffs had to show why the 2005 sale was inappropriate shifted the burden to a non-appealing party, so the ruling was unreasonable and unlawful.

They also note that the facts in the Ohio Supreme Court case cited by the school board, Worthington City Schools Board of Education v. Franklin County Board of Revision (2011), aren’t the facts in this appeal so that holding doesn’t apply here. They add that Berea City School District Board of Education v. Cuyahoga County Board of Revision (2005) also doesn’t apply in this case because it didn’t involve the issue of recency.

Akron City School District Board of Education attorneys point to several Supreme Court cases, including the 1964 opinion in State ex rel. Park Invest. Co. v. Board of Tax Appeals, which said“[t]he best method ofdetermining value, when such information is available, is an actual sale of such propertybetween one who is willing to sell but not compelled to do so and one who is willing tobuy but not compelled to do so. This, without question, will usually determine the monetary value of the property.” The decision is now codified in R.C. 5713.03.

Citing Worthington, they also assert that once the school board showed evidence of the 2005 sale price, the Barkoffs were required to rebut that documentation with proof that the 2005 sale price wasn’t reflective of the property’s true value. They claim the Barkoffs didn’t meet this burden. On the issue of whether the school board was required to show that the fiscal officer erred by not using the 2005 sale price, the school board’s attorneys argue it’s common for property owners to contest determinations by fiscal officers for failing to recognize a sale.

In its brief, Summit County’s fiscal officer and the board of revision focus on the burden-of-proof issue. Citing Worthington, they argue that once the school board showed evidence of the 2005 sale price, the burden shifted to the property owners to show that the sale price isn’t the true property value for taxes, which they say the Barkoffs did not do. They ask the court to find in favor of the tax board’s higher valuation.

Representing Rodger and Sharon Barkoff: Todd Sleggs, 216.771.8990

Representing the Summit County Board of Revision and Summit County Fiscal Officer: Regina VanVorous, 330.643.8409

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Are Court Costs Charged by a Municipal Court Legal, and Can They Be Challenged in a Court of Common Pleas?

Michael A. Lingo et al. v. State of Ohio et al., Case no. 2012-1774
Eighth District Court of Appeals (Cuyahoga County)


In June 2005, Michael Lingo, Gregory Williams, and William Glick filed a class action complaint against the Berea Municipal Court and the state arguing they had been overcharged for court costs in municipal, county, and mayor’s courts. Their attorneys filed the case in the Cuyahoga County Court of Common Pleas on their behalf, as well for a larger group of people who, they assert, were also charged excessive fees.

The clerk of the Berea Municipal Court, Raymond Wohl, opposed certification of the class action and simultaneously filed a motion to dismiss it for lack of subject matter jurisdiction. In February 2008, he asked the Ohio Supreme Court for a writ of prohibition to prevent the common pleas court judge from proceeding in the case, arguing that a direct appeal to the appellate court was the only remedy for recovering improper court costs. The Supreme Court dismissed the case, which returned to the common pleas court.

In November 2011, the common pleas court granted summary judgment to Lingo, finding that Wohl violated state law governing the collection of court costs, and it granted certification for the class action. Wohl appealed to the Eighth District Court of Appeals.

The court of appeals panel reversed, stating that the common pleas court had no jurisdiction to review the Berea Municipal Court’s charging of court costs and that each instance of alleged overcharging should be appealed directly to the court of appeals.

Attorneys for Lingo appealed to the Supreme Court, which agreed to review the Eighth District’s ruling.

Lingo’s attorneys argue that the Berea Municipal Court clerk has wrongly imposed court costs on misdemeanor and traffic offenders for charges that have been dismissed, required payments of costs on each offense rather than per case, and assessed an unauthorized “court processing fee.” They assert that the municipal court is charging costs that aren’t authorized by statute and, by doing so, is exceeding the court’s jurisdiction. As a result, the attorneys say these orders imposing court costs are void.

The distinction between “void” and “voidable” orders, they add, is a central issue in this case. They cite the Ohio Supreme Court’s opinion in State v. Fischer (2010), which states that “a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act. Unlike a void judgment, a voidable judgment is one rendered by a court that has both jurisdiction and authority to act, but the court’s judgment is invalid, irregular, or erroneous.”

However, the Eighth District’s ruling stated, “Moreover, whether void or voidable, the remedy lies in a direct appeal, not a collateral attack on the judgment in a different court.” A collateral attack is a separate case that challenges another decision indirectly, while a direct appeal raises issues in the same case to a higher court. The Eighth District concluded that the common pleas court had no jurisdiction to review orders of the municipal court.

Lingo’s attorneys disagree, asserting that because the municipal court’s costs were void their clients could file their suit as a “collateral attack” in the common pleas court. However, they say the Eighth District “now holds that void and voidable judgments alike cannot be challenged collaterally and can only be overturned through timely motions to vacate and direct appeals.” Attorneys for Lingo ask the Supreme Court to “reestablish that void judgments are not appealable and may be discarded as mere nullities by any court at any time.” The attorneys say the Eighth District in this case has eliminated the long-held distinction between void and voidable and, as a result, “has sowed the seeds for confusion and uncertainty for decades to come.”

Attorneys for Wohl argue that the common pleas court had no jurisdiction to hear and decide an appeal from the municipal court. They cite the Ohio Supreme Court’s decision in State v. Threatt (2006), which said a sentencing entry is a final appealable order as to costs, and they assert that only the court of appeals has jurisdiction to consider an appeal of court costs while the common pleas court cannot act as an appellate court to review this type of order.

Wohl’s attorneys agree with the Eighth District’s findings that the class action’s claims were an impermissible collateral attack and also agree that if the municipal court made a ruling outside its statutory authority, the order would be voidable rather than void. Citing three Supreme Court cases discussing sentencing errors, Wohl’s attorneys say that a trial court’s “void and voidable sentences” can be directly appealed to the appropriate court of appeals.

The clerk’s attorneys also filed seven cross-propositions of law, including one stating that municipal courts have wide discretion to assess court costs. Lingo’s attorneys argue that the Supreme Court should refuse to consider these arguments because Wohl’s counsel never filed a cross-appeal.

Note: An amicus curiae (friend of the court) brief supporting Michael Lingo et al. has been submitted by the Office of the Ohio Public Defender. The clerks of court for the Bedford Municipal Court (Thomas Day, Jr.), Chardon Municipal Court (Victoria Dailey), and Willoughby Municipal Court (Lisa Mastrangelo) have filed an amicus brief supporting Berea Clerk of Court Raymond Wohl. The Kettering Municipal Clerk of Court (Andrea White) has filed a separate amicus brief supporting Wohl. Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2012-1774, in the search box.

Representing Michael Lingo, Gregory Williams, and William Glick: Paul Flowers, 216.344.9393

Representing the State of Ohio and Raymond Wohl: David Cuppage, 216.621.8484

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In Ohio’s RICO Statute, Do the Profits Required for Corrupt Activity Apply to the Profits Made by the Enterprise as a Whole or the Profits Made Per Individual?

State of Ohio v. Jeffrey Stevens, Case no. 2012-2003
State of Ohio v. Zachary Bondurant, Case no. 2012-2006
Fourth District Court of Appeals (Highland County)


NOTE: This summary covers two cases to be heard separately by the Supreme Court. The cases involve two people who were tried together for related crimes, and the appeals court combined the two cases to issue its opinion. The attorneys in each case have asserted different arguments in their briefs to the Supreme Court. Stevens will be heard first by the court, followed by Bondurant.

The Highland County Sheriff's Office and the U.S. 23 Pipeline Major Crimes Task Force were conducting investigations into drug-related activity over several months in late 2010 and early 2011. On several occasions, a detective had undercover informants buy heroin and cocaine from suspected drug dealers in Greenfield and Hillsboro. In April 2011, several people were indicted. All the defendants except for Jeffrey Stevens and Zachary Bondurant entered into plea agreements. Stevens and Bondurant were tried together in a jury trial.

The state alleged that Bondurant and Stevens were both involved in a “drug ring,” headed by Rodger Cassell, to establish that they were part of an enterprise for corrupt activity. The jury found Stevens guilty and he was sentenced to 13 years, 7 months, and it also convicted Bondurant, who was sentenced to 11 years, 7 months.

Stevens and Bondurant appealed separately to the Fourth District Court of Appeals, though the court considered their appeals together and issued one decision. Stevens and Bondurant argued in part that the trial court erred when it interpreted the statutory $500 threshold (now $1,000) defining a pattern of corrupt activity to apply to the profits of the group as a whole rather than the profits per individual. The evidence at trial showed neither of them profited individually by more than $500. However, the court stated that, while the statute is ambiguous, the legislature intended Ohio’s Racketeer-Influenced and Corrupt Organizations (RICO) statute to reduce or eliminate organized criminal activity involving two or more people by making those participating accountable. The court found that the statute refers to collective profit, so it only requires that the state prove the enterprise as a whole profited more than $500, which was shown at the trial.

Stevens and Bondurant appealed separately to the Supreme Court, which agreed to hear their cases.

Stevens: The statute is ambiguous
Attorneys for Stevens argue that R.C. 2923.31(I)(2)(c) is ambiguous about whether the threshold amount defined as corrupt activity is determined by calculating the combined value of an individual’s illicit activities or the aggregated value of the enterprise’s, or group’s, illicit activities. They note that the trial court said there is no case law on point with this issue and add there are reasonable arguments for either interpretation of the statute. They assert it makes sense for the law to mean that “for an individual’s criminal conduct to merit a separate punishment as part of a group, then that individual’s own conduct must rise to a threshold amount.” Regardless of interpretation, they argue that Ohio law and the U.S. Supreme Court’s opinion in U.S. v. Santos (2008) require courts to interpret unclear criminal statutes in the favor of the accused.

Bondurant: The statute is clear
On the other hand, Bondurant’s attorneys argue that the Ohio RICO statutes are clear. R.C. 2923.32(A)(1) states, “No person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of unlawful debt.” Bondurant’s attorneys assert that the plain language of the statute states that a person must commit the corrupt activity, and none of the words indicate that codefendants’ actions should be considered collectively when determining if a person has engaged in corrupt activity. They add that it follows that the related RICO statutes cannot be read as allowing violations of more than one individual to be combined.

They also argue that the appeals court decision allows a person to be prosecuted for a pattern of corrupt activity just by associating with another person engaged in a criminal activity. That ruling, they assert, makes it unclear when a person’s actions causes him or her to be liable for someone else’s corrupt activities – which they say is constitutionally doubtful. They argue that the state is asking the Supreme Court to make individuals associated with a criminal enterprise responsible for the acts of the others involved without requiring that they personally conduct or participate in the acts.

Citing the Ohio Supreme Court’s decision in State v. Schlosser (1991), they assert that the state can’t aggregate the amounts “performed’ by two participants in an enterprise to reach the threshold amount.

The state’s response
Attorneys for the state argue that the Ohio RICO statute is designed to prohibit group, not individual, conduct, so the state only needs to show that the enterprise as a whole profited more than $500. They state: “The purpose of the statute is to capture even the smallest fish involved in the enterprise, therefore the value of violations by the enterprise should be aggregated.” They add that, to hold otherwise, would let individuals escape punishment because they weren’t personally involved in a transaction of more than $500 even though the enterprise profited significantly. Citing the U.S. Supreme Court in Salinas v. United States (1997), the state’s attorneys argue that Stevens and Bondurant were complicit with the ring-leader Cassell in obtaining more than $30,000 in profit so they are liable as conspirators even if they didn’t commit the acts themselves.

Stevens’ attorneys also argue that statutory ambiguity was an issue in sentencing Stevens. His conviction for engaging in a pattern of corrupt activity would have been a second-degree felony, except that it was elevated to a first-degree felony based on the related acts of other defendants in the enterprise. His attorneys assert that because the statute is unclear, it should have been interpreted in Stevens’ favor and he should have been sentenced for a second-degree felony.

On the sentencing issue, attorneys for the state say that R.C. 2923.03(F) requires that a person conspiring with another is to be sentenced the same as the principal offender, so Stevens was properly sentenced based on the offenses of others in the enterprise.

Representing Jeffrey Stevens: Bryan Hicks, 513.228.1111

Representing Zachary Bondurant: Eryn Mihocik, 614.466.5394

Representing the State of Ohio: Anneka Collins, 937.393.1851

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Attorney Discipline

Disciplinary Counsel v. Paul Lawrence Wallace, Case no. 2013-0573
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that Columbus attorney Paul Wallace be suspended from the practice of law for two years, with one year stayed, for multiple violations of the Rules of Professional Conduct. The board’s report also recommends that he serve one year of monitored probation following reinstatement.

The board found that Wallace misappropriated funds, forged signatures, failed to keep required records, and engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation.

The Supreme Court in 2000 suspended Wallace from practicing law for six months for attempts to mislead a client. Following that, a second complaint was filed, which delayed Wallace’s application for reinstatement because of the pending disciplinary case. The court dismissed the charges in that complaint, and Wallace was reinstated in March 2002. In the current case, the board noted that he was effectively suspended for 20 months following the 2000 decision because of the pending disciplinary case and the board took this into consideration in its current recommendation to stay 12 months of the two-year suspension.

Wallace has filed objections to the board’s recommended sanction in the current case. He asserts that he successfully represented the two clients for 18 months but admits his handling of the clients’ funds was “done very badly” and he didn’t adhere to requirements for the separation of client funds or maintaining records.

He argues that in this case and the 2000 suspension no financial or legal harm came to any client. He states that an actual suspension at this point will end his career and that “the public can be protected, if the Court deems it necessary, by monitoring supervised by [Disciplinary Counsel].” He says he now has systems in place for correctly handling client funds and IOLTA accounts. He asks the court to modify the board’s recommended sanction and instead stay the entire suspension, with probation and monitoring.

The Office of Disciplinary Counsel, which prosecuted the complaint against Wallace before the board, argues that Wallace’s statements gloss over his troubling misconduct. Along with commingling funds and his IOLTA violations, Wallace forged his clients’ signatures, misappropriated more than $24,000, misled his clients, and falsely claimed to one client that the other had authorized Wallace’s signature on a check, the Disciplinary Counsel points out. They add that Wallace’s “penchant for dishonesty strikes at the core of the legal profession and warrants the actual suspension as recommended by the board.”

Representing the Office of Disciplinary Counsel: Jonathan Coughlan, 614.461.0256

Paul Wallace, pro se: 614.221.3821

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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.