Oral Argument Previews

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Tuesday, February 25, 2014

State ex rel. Anthony Sylvester, AAA Sly Bail Bonds v. Tim Neal, Wayne County Clerk of Courts, Case no. 2012-1742; and State ex rel. Woodrow L. Fox, Woody Fox Bail Bonds v. Gary Walters, Licking County Clerk of Courts, et al., Case no. 2013-0364
Original Actions in Mandamus

State of Ohio v. Kareem Gilbert, Case no. 2013-0382
First District Court of Appeals (Hamilton County)

Cleveland Clinic Foundation et al. v. Board of Zoning Appeals, City of Cleveland, Case no. 2013-0654
Eighth District Court of Appeals (Cuyahoga County)

H.J. Heinz Co. et al. v. Mary Lou Burkhart, Case no. 2013-0580
Sixth District Court of Appeals (Wood County)

Is it Constitutional for a Court to Order Bail Requiring a 10 Percent Cash Payment and To Deny a Surety Bond as Payment?

State ex rel. Anthony Sylvester, AAA Sly Bail Bonds v. Tim Neal, Wayne County Clerk of Courts, Case no. 2012-1742; and State ex rel. Woodrow L. Fox, Woody Fox Bail Bonds v. Gary Walters, Licking County Clerk of Courts, et al., Case no. 2013-0364
Original Actions in Mandamus

Editor’s Note: In May 2013, the Supreme Court of Ohio granted a request to consolidate these two cases. The bail bonds companies will share the allotted 15 minutes of oral argument, and the county clerks will share 15 minutes of oral argument. A few weeks ago, the Supreme Court granted the state permission to participate in oral arguments with the county clerks of court. Attorneys for the state and for the clerks will share the allotted 15 minutes.


Shannon Rowe was indicted on a felony drug charge in Wayne County. In June 2011, the county’s common pleas court set his bond as 10 percent cash of a $5,000 appearance bond. His family could not afford the $500 cash payment, so they enlisted the services of AAA Sly Bail Bonds. One of its agents went to the court to cover the full amount of the bond in the form of a surety bond, which is a type of insurance issued to a court promising that a person being held on criminal charges will appear at a later date so he or she can be released from jail. A clerk in the Wayne County clerk’s office refused the surety bond because it was not the 10 percent cash payment.

In October 2012, AAA filed a request with the Ohio Supreme Court for a writ of mandamus, which would force the county court to accept surety bonds in all cases in which the court sets a bond.

Section 9 of Article I of the Ohio Constitution addresses bail, stating “All persons shall be bailable by sufficient sureties …. Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted. …”

Rule 46 of the Ohio Rules of Criminal Procedure reads:

(A) Types and amounts of bail. Any person who is entitled to release shall be released upon one or more of the following types of bail in the amount set by the court:

(1) The personal recognizance of the accused or an unsecured bail bond;

(2) A bail bond secured by the deposit of ten percent of the amount of the bond in cash. Ninety percent of the deposit shall be returned upon compliance with all conditions of the bond;

(3) A surety bond, a bond secured by real estate or securities as allowed by law, or the deposit of cash, at the option of the defendant.

Attorneys for AAA assert that Wayne County has repeatedly refused to accept surety bonds when a court orders a 10 percent cash bond under section (A)(2) of the rule.

AAA’s attorneys note that the Supreme Court considered the issue of cash-only bonds in Smith v. Leis (2005). The court in Leis held that cash-only bonds under section (A)(3) violate the constitution’s surety clause, and AAA’s attorneys argue the same analysis applies to section (A)(2).

“After all, if the court prohibits bail through a surety, it makes no constitutional difference whether the court requires the accused to pay the full amount of the bond under (A)(3) or only 10 [percent] of it under (A)(2),” AAA’s attorneys argue in their brief to the court. “The effect is the same: the accused has been denied his ‘absolute’ constitutional right to secure his release through sufficient surety.”

Once a court determines the bond amount, the accused has the constitutional right to use a surety bond to post bail, they conclude.

They also explain that the clerk’s office receives a handling fee from cash bonds and contend that the fee is motivating the court’s rejection of surety bonds.

The Licking County case involves the same issue regarding 10 percent bonds. Woody Fox Bail Bonds also filed a request with the Ohio Supreme Court for a writ to force the Licking County court to accept surety bonds in lieu of the 10 percent cash payment – though the bail bonds agency noted in its request to consolidate the cases that its writ has been filed against not only the county clerk but also the judges who issued the bail orders. The Supreme Court consolidated the two cases for oral argument.

Attorneys for Woody Fox also cite Leis, which involved a judge who set a $1 million cash-only bail. They assert, as AAA does, that the Supreme Court determined that cash bonds violated Ohio’s constitution and Rule 46, concluding that 1998 amendments to both did not authorize cash-only bails because they would violate the defendant’s ability to use a surety to obtain bail.

While section (A)(2) allows a court to set the bail amount and set a 10 percent cash payment for the accused to receive bail, Fox’s attorneys contend that the clerk and the court “trample upon the rights afforded to Ohio citizens” when they refuse to accept a surety bond as payment and condition a defendant’s release from jail on paying cash only.

“There is absolutely no legitimate reason for a court to require a 10 [percent] Bond be satisfied only in cash to the exclusion of a surety bond, because the requirement to satisfy bail with cash only is wholly unrelated to the appearance of the accused at the next court proceeding,” they write in their brief. “To hold otherwise would offend the right to a sufficient surety under the Ohio Constitution and cause a certain class of persons to be unlawfully detained.”

Like AAA, Fox’s attorneys also point to the handling fee the clerk’s office receives from cash bail payments. They maintain that the courts make no money when a surety bond is posted. However, the courts receive a percentage of the cash deposit if the accused appears at the next court proceeding and receive the full bond amount if the accused does not show up, they assert. These courts are refusing surety bonds because they want the revenue associated with cash payments, they conclude.

Attorneys for the Wayne County Clerk of Courts counter that the first two types of bonds listed in the criminal rule do not require a surety bond from a third party. They argue that the clerk was not under any obligation to accept the surety bond offered for Rowe. Instead, they claim the clerk’s duty, based on the court’s order, was to accept only a 10 percent cash payment on the bond amount.

They contend that the Leis decision is in conflict with the Rule 46 and that Leis improperly held that every person is guaranteed a right to post bail with a surety bond using a commercial bail bonds agency. They assert that the court should reconsider the definition of a surety as laid out in Leis and instead define it, as used in the constitution, to mean simply a security, rather than a third-party bail bonds agency.

“[I]t was not the intent of the people when amending the Ohio Constitution or the framers when enacting this Constitution that all appearances of a defendant must be insured by a third party bail bondsman,” they write in their brief. “Instead, the intent was that this Court was given unfettered discretion to enact conditions of bail that would secure a defendant’s appearance. The Smith v. Leis decision that is the foundation of the defendant’s Mandamus action was wrongly decided and should be reversed or limited in its application.”

Attorneys for the Licking County Clerk of Courts maintain that section (A)(2) does not provide for that particular type of bond to be satisfied by any means except for a 10 percent cash deposit, and this rule was written and adopted by the Supreme Court, which ensured that it did not conflict with the state’s constitution.

The “sufficient sureties” clause of the constitution was intended to protect defendants from excessive bail and ensure they have the means to post bail, the Licking County attorneys argue, but it was not designed to protect the commercial bail bonds business of providing sureties.

They counter that if the Supreme Court thought the 10 percent bond was an impermissible cash-only bond, the court never would have adopted it based on its reasoning in Leis.

They reference a similar case, State ex rel. Williams v. Fankhauser (2006), heard by the Eleventh District Court of Appeals. They argue that the appellate court correctly ruled that because the Leis court reviewed all of Rule 46 and held that it does not impose any cash-only bonds, the decision implies that section (A)(2) is not a cash-only bond. Therefore, they conclude the 10 percent cash payment does not violate the constitution’s sufficient sureties clause.

They also reason that the judges named in the Licking County case are not liable for damages because they have immunity as employees of a political subdivision and they are exempt from civil liability for actions taken in their official capacity as judges.

An amicus curiae (friend of the court) brief supporting the position of AAA Sly Bail Bonds has been submitted by the American Bail Coalition, et al. An amicus curiae (friend of the court) brief supporting the position of Woody Fox Bail Bonds has also been submitted by the American Bail Coalition, et al.

Ohio Attorney General Michael DeWine has filed an amicus brief supporting Licking County Clerk of Courts.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket, 2012-1742 and 2013-0364.

Representing Anthony Sylvester and AAA Sly Bail Bonds: Patrick Cusma, 330.454.9960

Representing Tim Neal, Wayne County Clerk of Courts: Nathan Shaker, 330.262.3030

Representing Woodrow L. Fox and Woody Fox Bail Bonds: Kendra Carpenter, 614.310.4135

Representing Gary Walters, Licking County Clerk of Courts, et al.: Amy Thompson, 740.670.5255

Representing the state of Ohio: Kristopher Armstrong, 614.728.4735

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When a Defendant Violates a Plea Agreement After Being Sentenced, Is a Court Permitted to Invalidate the Plea and Reinstate the Original Charges?

State of Ohio v. Kareem Gilbert, Case no. 2013-0382
First District Court of Appeals (Hamilton County)


In 2009, Kareem Gilbert was indicted for shooting and killing a man in Cincinnati. Gilbert entered into a plea agreement in May 2010 for the reduction of a charge from aggravated murder to manslaughter, as well as other reduced and dismissed charges, and an 18-year prison sentence. In exchange, he agreed to cooperate in the investigation of his father in a separate murder investigation and to testify at that trial.

A year later, the state asked the trial court to cancel the plea agreement because Gilbert did not cooperate as agreed with the state’s other case against his father. Gilbert’s attorney did not object, and the court granted the state’s request. Gilbert and the state agreed on a different plea, and he was given a new sentence of 18 years to life.

On appeal, the First District Court of Appeals reversed the second conviction and ordered the trial court to reinstate Gilbert’s original 2010 conviction, holding that the court could not undo the original conviction because it was a final judgment.

The state appealed the decision to the Ohio Supreme Court, which agreed to hear the case.

Attorneys from the Hamilton County Prosecutor’s Office argue that Gilbert perpetrated a fraud on the court by failing to do what he agreed to do in the plea agreement. They contend that Gilbert could count on the agreed-on conviction and sentence only if he met his part of the deal.

In addition, they maintain that Gilbert agreed in 2011 to have the original plea agreement withdrawn and conceded that he had violated the terms of the agreement. Because his attorney did not object to the state’s request to invalidate the plea, the prosecuting attorneys argue he has waived his right to appeal the issue.

The prosecuting attorneys also assert that the trial court kept its jurisdiction to continue proceedings against Gilbert if he breached the plea agreement.

They cite several cases in which plea bargains have been viewed as binding contracts. They note that the plea agreement in this case set out the expectations of both sides, including that the original charges could be reinstated if he violated the agreement and that Gilbert waived any double jeopardy or speedy trial constitutional issues if a new prosecution was initiated.

The prosecutors argue that when a defendant does not meet his obligations under a plea agreement, the government is then relieved of its promises. Among other cases, they reference State v. Taylor (1993), in which the Ninth District Court of Appeals held that a court is justified in vacating a plea when a defendant does not meet the conditions of the agreement.

They contend that Gilbert wants the benefit of the plea deal, while simultaneously claiming he has a right to renege on his part of the agreement.

The constitutional prohibition against double jeopardy (being tried or sentenced twice for the same offense) does not bar Gilbert’s prosecution after he violated the plea deal, they maintain. When a plea is contingent on a defendant’s cooperation with the state, the prosecutors assert that jeopardy continues until all conditions of the plea are met. The U.S. Supreme Court agreed, they argue, in Ricketts v. Adamson (1987), a case in which a defendant who had been sentenced and started serving time breached a plea agreement by refusing to testify. The court held that a plea specifying that charges can be reinstated under certain conditions is equivalent to waiving a double jeopardy defense.

Attorneys for Gilbert respond that once a trial court has entered a valid final judgment entry in a case, it no longer has authority to reconsider that judgment (with two exceptions, neither of which applies in this case). Once the court entered its judgment in Gilbert’s case in 2010, it lost jurisdiction over the case, Gilbert’s attorneys argue.

They contend that many cases cited by the prosecutors involve trial courts reconsidering issues before a defendant was sentenced, whereas, here, Gilbert had already been sentenced. They add that the state’s reliance on Taylor is misplaced, claiming that the court in Taylor was not considering the issue of whether a trial court has jurisdiction to reconsider its own final judgment.

Gilbert had a legitimate expectation that his conviction and sentence were final when the court issued its judgment in 2010, his attorneys assert. They reason that protections against double jeopardy prohibit the trial court from invalidating his plea and putting him in jeopardy for a second time for the same offense.

“There is no dispute a trial court can set aside or vacate a plea prior to sentencing the defendant,” they write in their brief to the court. “But none of the cases relied on by the State address the situation presented here, where the defendant has already been sentenced, thus divesting the trial court of jurisdiction over the case.”

Nor has any fraud been perpetrated on the court, Gilbert’s attorneys maintain. Instead, they counter that the prosecutors naively and poorly handled this case, and it is not the job of the Ohio Supreme Court to correct their errors. The plea agreement system in the state has not been undermined by the appellate court’s decision in this case, they conclude.

Amicus curiae (friend of the court) briefs supporting the position of the Hamilton County Prosecutor’s Office have been submitted by the Ohio Prosecuting Attorneys Association and the Ohio Attorney General. The Office of the Ohio Public Defender has filed an amicus brief supporting Kareem Gilbert.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the state of Ohio from the Hamilton County Prosecutor’s Office: Melynda Machol, 513.946.3119

Representing Kareem Gilbert: Ravert Clark, 513.587.2887

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Is a Helipad a Permitted “Accessory” Use for a Hospital Located in a Local Retail Business District in Cleveland?

Cleveland Clinic Foundation et al. v. Board of Zoning Appeals, City of Cleveland, Case no. 2013-0654
Eighth District Court of Appeals (Cuyahoga County)


Fairview Hospital, one of eight regional hospitals affiliated with the Cleveland Clinic, sits on land zoned as a “local retail business district” in the Kamm’s Corner neighborhood of Cleveland. In October 2010, the hospital applied to the city for a permit to build a two-story addition, add a helipad on the addition’s roof, and renovate a parking lot. The city denied the application.

The Cleveland Clinic appealed the decision to the city’s board of zoning appeals. The board approved both a variance for the addition and the parking lot renovation, but it concluded that a helipad was not authorized by the relevant city zoning law.

The clinic appealed the helipad decision to the Cuyahoga County Court of Common Pleas, which reversed the board’s denial of that proposal, finding that hospitals and their “accessory uses” are permitted in local retail business districts. The city ordinance defines an “accessory use” as “a subordinate use … customarily incident to and located on the same lot with the main use ….”

The city then filed an appeal in the Eighth District Court of Appeals. The appellate court reversed and, on reconsideration, upheld its reversal. In its December 2012 opinion, the court held that the zoning board reviewed the ordinance and the evidence, and reasonably concluded that the helipad was not permitted by the zoning law. The appeals court determined that the common pleas court abused its discretion when it found that the zoning board’s denial of the helipad was not supported by “reliable, probative, and substantial evidence.”

The Cleveland Clinic appealed to the Ohio Supreme Court, which agreed to hear the case.

Attorneys for the clinic assert that the Ohio Supreme Court’s precedent and the state’s statutes have established that courts must apply a de novo standard of review when it interprets statutes involved in administrative appeals. As part of this review, they maintain that a court must determine whether an ordinance is clear and unambiguous and, if not, only then decide whether to defer to the involved agency’s interpretation. However, they contend that the Eighth District did not identify any ambiguous language in the law when it ruled that the lower court should have given “due deference” to the zoning board.

The clinic’s attorneys point to the Ohio Supreme Court’s decision in State v. Porterfield (2005), which stated, “Only when a definitive meaning proves elusive should rules for construing ambiguous language be employed. Otherwise, allegations of ambiguity become self-fulfilling.”

And if there is any ambiguity in the zoning code, they argue that the law is required to be interpreted in favor of the property owner. Longstanding precedent supports the argument that property restrictions cannot include limitations that have not been clearly dictated, they maintain, so the appellate court had no basis for deferring to the board’s interpretation.

The clinic’s attorneys contend that a helipad meets the definition of “accessory use” because it is customarily incident to the main use of the hospital – as evidenced, they assert, by the fact that virtually all hospitals in northeast Ohio have helipads.

Attorneys for the city of Cleveland counter that a court may not substitute its judgment for that of an agency, such as the zoning appeals board, but instead must affirm the agency’s decision if there is a preponderance of reliable, probative, and substantial evidence.

They argue that the common pleas court abused its discretion in its judgment because it did not explain why it disagreed with the zoning board’s interpretation of the city zoning law. They also assert that the clinic wrongly argues that ambiguous zoning provisions must be strictly construed in favor of the property owner. The correct standard of review, they claim, is explained in R.C. 2506.01 and turns on “whether the administrative agency’s decision was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by a preponderance of substantial, reliable, and probative evidence on the whole record.”

They note that a “local retail business district” is defined in the ordinance as “a business district in which accessory uses are such uses that are permitted as are normally required for the daily local retail business needs of the residents of the locality only.”

“While having a helipad situated on the hospital’s grounds may be desirable, it is not necessary for a hospital’s primary operation,” they write in their brief to the court. “While an engine is necessary for an automobile to operate; a hospital can function without a helipad. … In other words, a helipad may be useful to Fairview Hospital, but it is not a permitted accessory in a Local Retail Business District.”

They contend that because the ordinance does not explicitly list helipads or heliports as a permitted accessory use in such a district, then they are not allowed. The city’s attorneys argue that the common pleas court did not justify its finding because it did not explain how a helipad was “customarily incident” to a hospital, especially one located in a retail business district next to a residential neighborhood.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Cleveland Clinic Foundation and Fairview Hospital: Irene Keyse-Walker, 216.592.5000

Representing the Board of Zoning Appeals, City of Cleveland: Carolyn Downey, 216.664.3567

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Does the Rule Regarding Hearsay Exceptions Apply to Depositions From a Prior Lawsuit In Which the Defendant Was Not a Party?

H.J. Heinz Co. et al. v. Mary Lou Burkhart, Case no. 2013-0580
Sixth District Court of Appeals (Wood County)

ISSUE: Is a deposition taken in an unrelated tort action admissible against a defendant employer in a subsequent workers’ compensation action when the employer was not a party to the tort action?  

Donald Burkhart was employed by H.J. Heinz from 1946 until his retirement in 1986. He first worked as a maintenance employee at the Bowling Green plant and then transferred to the Freemont plant in 1975 when the Bowling Green plant closed. Following his retirement, Mr. Burkhart developed mesothelioma (a type of cancer that most commonly affects the lining of the lungs due to exposure to asbestos) and died in 2007.

Nearly two years after Mr. Burkhart’s death, his wife, Mary Lou Burkhart, filed a claim with the Ohio Bureau of Workers’ Compensation, seeking benefits for the death of her husband due to alleged asbestos exposure at Heinz.

Heinz contested this claim, and hearings were conducted before the Ohio Industrial Commission. Two hearing officers denied Mrs. Burkhart’s claim, and the Industrial Commission refused to hear Mrs. Burkhart’s further appeal.

Mrs. Burkhart then appealed to the Court of Common Pleas of Wood County. Heinz filed a motion for summary judgment (judgment entered by a court without a full trial). In opposing this request, Mrs. Burkhart provided various exhibits, one of which was a transcript of her husband’s video deposition (an oral statement made formally under oath, often for an investigation or trial) from a previous lawsuit. This lawsuit was a product liability suit against various companies believed to manufacture or sell products containing asbestos.

The trial court struck this exhibit, as well as several others, from the record, and then granted summary judgment in favor of Heinz.

Mrs. Burkhart appealed this judgment to the Sixth District Court of Appeals, arguing the trial court erred when it struck the exhibits from the record. The Sixth District found that the common pleas court had abused its discretion when it excluded these exhibits and reversed the lower court’s decision.

Heinz appealed to the Ohio Supreme Court, which agreed to hear the case.

Both sides in the appeal point to the analysis of Ohio Evidence Rule 804(B)(1) in the seminal Third U.S. Circuit Court of Appeals case Lloyd v. American Export Lines, Inc. (1978) to make their case about whether the transcript of Mr. Burkhart’s testimony should have been struck from the record. The test in Lloyd requires courts to determine whether a party from an earlier lawsuit is a “predecessor in interest” that has a similar motive to cross-examine about the same matters as the present party would have and was “accorded an adequate opportunity for such examination.”

In their brief filed with the Supreme Court, Heinz’s attorneys state that the analysis “requires more than simply determining whether there is a singular or global issue that is common to the parties in both the former and current litigation.” According to the brief filed by Mrs. Burkhart’s attorneys, however, the trial court must only analyze whether “any party to the previous litigation [had] a like motive to cross-exam[ine] the declarant as the present party.”

Heinz’s attorneys argue that none of the defendants from the earlier lawsuit can be considered a predecessor in interest because the record does not indicate any existence of similar motives, similar interest, or similar circumstances between the prior and current litigation. They cite several federal and state cases that recognize the potential prejudice that can arise in these instances and the need for the court to fully consider the circumstances under which the deposition was taken to understand the true motive in the first case.

Attorneys for Heinz assert that the motives of the defendants from the product liability lawsuit were not just different, but wholly opposed to the interests of Heinz. They argue that the deposition was riddled with leading questions meant to suggest that asbestos existed at the Heinz plants with the intention to establish that while it existed, the asbestos had not been manufactured by the defendants’ companies. They also stress that none of the defendants objected to the suggestion that Heinz was responsible for allowing asbestos to exist at its plants. Therefore, in this case, the Lloyd analysis fails and the trial court did not abuse its discretion when it struck Mr. Burkhart’s deposition from the record, they conclude.

Attorneys for Mrs. Burkhart argue that the parties did not need to ask the specific questions Heinz may have used during a cross-examination to be considered a predecessor in interest. They maintain it is enough that the motive during the cross-examination was similar to that of the present party.

Mrs. Burkhart’s attorneys assert that because the Sixth District determined that the former lawsuit was concerned with Mr. Burkhart’s exposure, or lack thereof, to asbestos while employed by Heinz, the defendants in the prior lawsuit cross-examined Mr. Burkhart under the same or similar motive as Heinz in the present case. They conclude that by properly applying the analysis of rule 804(B)(1) in Lloyd, the Sixth District was correct in reversing the trial court’s decision and allowing Mr. Burkhart’s deposition to be admitted.

The Ohio Bureau of Workers’ Compensation did not file a brief in this case, so they will not be permitted to present an oral argument.

An amicus curiae (friend of the court) brief supporting the Heinz Company’s position has been submitted by the Ohio Manufacturers’ Association.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing H.J. Heinz Co.: Keith Savidge, 216.566.8200

Representing Mary Lou Burkhart: David Bates, 330.650.0088

Representing the Ohio Bureau of Workers’ Compensation: Attorney General Michael DeWine, 614.466.4320

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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.