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Tuesday, May 27, 2014

Office of the Cuyahoga County Executive et al. v. City of Independence, Case no. 2013-0984
Eighth District Court of Appeals (Cuyahoga County)

Terrell Vanzandt, formerly known as Terrell Asberry v. State of Ohio, Case no. 2013-1010
First District Court of Appeals (Hamilton County)

State of Ohio ex rel. Plunderbund Media, LLC v. Thomas P. Charles [John Born], Director, Ohio Department of Public Safety, Case no. 2013-0596
Original action in mandamus

State of Ohio v. De’Argo Griffin, Case nos. 2013-1129 and 2013-1319
Second District Court of Appeals (Montgomery County)

Does Road Accessed Only by Bridge Have “General and Public Utility,” Triggering County’s Duty to Repair the Bridge?

Office of the Cuyahoga County Executive et al. v. City of Independence, Case no. 2013-0984
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Is a dead-end road housing several businesses and reached only by a bridge one of “general and public utility” so that the county has a duty to repair or replace the bridge?

Old Rockside Road was a two-lane county road until 1967. When a new four-lane highway called “Rockside Road” was built parallel to Old Rockside Road, the older street was “vacated” by Cuyahoga County and was returned to the two municipalities where it is located – Independence and Valley View.

In Independence, Old Rockside Road travels west from a bridge over the Cuyahoga River to a dead end where several businesses and a train station that is part of the Cuyahoga Valley Scenic Railroad are located.

In 2010, the Cuyahoga County engineer issued a report stating that the bridge needed significant repairs. When city officials asked the county to fix the bridge, the county declined, indicating that the bridge was not of general and public utility, so the county was not required to do the repairs.

The city asked the Cuyahoga County Board of Commissioners to review the case. At a December 2010 meeting, the board voted that the bridge did not have general and public utility and the county was not responsible for its repair. (The Cuyahoga County Board of Commissioners no longer exists. The appellants in this case are now the Cuyahoga County Executive and Cuyahoga County.)

Independence appealed to the Cuyahoga County Court of Common Pleas, which allowed additional evidence to be submitted. The court then reversed the board’s decision, finding that the county has the duty to repair the bridge.

The county appealed to the Eighth District Court of Appeals, which upheld the common pleas court’s decision.

The county then filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

Attorneys for the county argue that the determination by the common pleas court about whether the bridge has general and public utility was strictly a legal question, not a factual one, because it was based on facts that are undisputed.

They contend that Ohio law requires municipalities to maintain and repair bridges that are within their boundaries unless that responsibility is assigned to the county under R.C. 5591.02 and 5591.21. This bridge is not a “necessary bridge,” as required in the statutes, and because the bridge carries local, rather than general, traffic, the city must pay for the bridge’s repairs, the county asserts.

“In City of Piqua v. Geist … (1898), [the Ohio Supreme] Court declared that county commissioners were not required to construct and keep in repair bridges over natural streams and public canals, on streets established by a city or village for the use and convenience of the municipality, and not a part of a state or county road, holding that it was the duty of the city or village to keeps such bridges in repair,” the city’s attorneys wrote in their brief to the court.

They note that a two-day traffic study found that fewer than 2,000 vehicles per day used the bridge, which indicates the “particularly private utility” of the road.

The county’s attorneys also take issue with the fact that the city of Independence applied for a grant from the Northeast Ohio Area Wide Coordinating Agency (NOACA) to repair the bridge. (The county states that the city also received approval for the funding in September 2013.) The county claims that the city represented that the bridge is a city bridge for purposes of the grant, yet states that it is a county bridge in its appeal here. These contrary positions are illegal, the county concludes.

Attorneys for the city point out that the bridge provides access to the historic Cuyahoga Valley Scenic Railroad, the Cuyahoga Valley National Park, and several businesses. According to the appeals court decision, the businesses include one of the largest crane and equipment companies in North America; a sheet-metal manufacturer that serves the Cleveland Clinic, hospitals, and a university; a truck repair service with clients throughout the county; and an international label and decal business.

The city’s attorneys maintain that the Ohio Attorney General issued an opinion in 1990 that the decision whether a road is one of general and public utility is a factual determination. Because the common pleas and appellate courts have determined that the bridge supports a road that has general and public utility, the city asserts that the county is obligated to repair and maintain the bridge.
The city argues that there is no legal question for the Supreme Court to consider in this case.

The city’s attorneys also dispute the argument that the road and bridge have only local use. The city contends that no bright-line legal test exists to distinguish between “local” and “general” uses, and the statutes do not make reference to traffic volume as a determining factor. Those determinations are made on a case-by-case basis, the city maintains.

“For more than 100 years, it has been established that such ‘local use’ (absolving a county of its bridge maintenance obligation) applies only to streets established by a city for the exclusive use and convenience of the municipality. See City of Piqua v. Geist,” the city’s attorneys wrote. “In the present case, and as determined by the two lower courts, Old Rockside Road is not a street that is purely ‘local,’ nor is its use exclusive to Independence.”

The city also maintains that the common pleas court did not make its decision based on the bridge’s location between Independence and Valley View, as the county contends, but rather because the bridge serves a road of general and public utility.

As far as the grant application, the city’s attorneys assert that while the county was found to be responsible for the repair of the bridge in the lower courts, it has refused to make the repairs. The city then sought repair funds elsewhere with the full knowledge and cooperation of the county, the city’s attorneys contend. That effort to secure funds does not represent an illegal contrary argument, and it is improper for the county to raise it now because it was never made in the lower courts, the attorneys conclude.

An amicus curiae brief supporting the position of Cuyahoga County has been submitted by the County Engineers Association of Ohio.

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

Representing the Office of the Cuyahoga County Executive: Brian Gutkoski, 216.443.7860

Representing the City of Independence: Thomas Lee, 216.241.2838

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May Trial Courts Unseal Record of Acquittal in One Case for Later Prosecution in Another?

Terrell Vanzandt, formerly known as Terrell Asberry v. State of Ohio, Case no. 2013-1010
First District Court of Appeals (Hamilton County)

ISSUE: May a trial court unseal the case of an acquitted defendant so the state can pursue prosecution in another case?

Terrell Vanzandt was indicted in early 2012, and a jury acquitted him of all charges in August. In October, Vanzandt asked the court to seal the record of his case, which the court did.

Later that year, he was charged with retaliation against a confidential informant in the earlier case. The state requested that the first case be unsealed so it could be used as evidence for the new prosecution. The trial court granted the request.

Vanzandt appealed the decision to the First District Court of Appeals, which agreed with the trial court. He then filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

Attorneys for Vanzandt note that the Ohio Supreme Court ruled in Pepper Pike v. Doe (1981) that trial courts have the inherent power to order records to be sealed when charges are dismissed prior to trial. In 1984, the Ohio General Assembly then passed laws giving trial courts the authority to seal records when charges are later dismissed or someone is found not guilty.

Vanzandt’s attorneys argue that one of those statutes, R.C. 2953.53(D), clearly describes who may use the sealed records and how they may use them. Those with access to the records include the person whose records have been sealed, a law enforcement officer involved in the case for the defense of a related civil action, and a prosecutor determining a defendant’s eligibility for a diversion program. Vanzandt’s attorneys maintain that reopening Vanzandt’s sealed records for a subsequent prosecution is not allowed by this statute.

They conclude that the First District’s decision to give trial courts the judicial power to unseal the record of an acquitted defendant disregards the statutes, is contrary to the legislature’s intent, and violates the separation of powers between the legislature and the judiciary.

Attorneys from the Hamilton County Prosecutor’s Office ask the court to rule that trial courts have the right to unseal records of a sealed acquittal if there is a compelling reason to do so, and that one compelling reason is the state’s need to use the sealed records in a criminal prosecution. They contend that Ohio law neither allows nor prohibits the unsealing of records in the circumstances that occurred in this case.

The prosecuting attorneys also point to Pepper Pike. They argue that since that decision Ohio courts have continued to hold that trial courts have the judicial authority to seal records in unusual and exceptional cases. They assert that, by the same logic, courts should also have the power to unseal records in unusual and exceptional cases.

They add that their prosecution in the second case is dependent on proving that Vanzandt retaliated against a witness because the witness testified against him in the earlier case. To do that, the prosecutors maintain that they must also show there was actually a case in which the witness testified that led to the retaliation. This is not possible, they assert, when the underlying case is sealed.

The prosecuting attorneys argue that when the trial court unsealed the case for the retaliation action, it ordered that the case remain otherwise sealed and that the records be resealed after the retaliation case ended. The prosecutors conclude that the trial court properly balanced the state’s needs against Vanzandt’s interests.

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

Representing Terrell Vanzandt: Christine Jones, 513.946.3712

Representing the state of Ohio on behalf of the Hamilton County Prosecutor’s Office: Scott Heenan, 513.946.3227

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Are Investigations of Threats Against the Governor Public Record?

State of Ohio ex rel. Plunderbund Media, LLC v. Thomas P. Charles [John Born], Director, Ohio Department of Public Safety, Case no. 2013-0596
Original action in mandamus


Political blog Plunderbund Media states in its brief to the Ohio Supreme Court that this case began in April 2012 when the office of the Ohio governor declined to distribute the governor’s daily schedules to the Ohio Democratic Party because of security concerns and threats against the governor.

The Ohio State Highway Patrol provides security for the governor, other state officials, and state offices and is part of the Ohio Department of Public Safety. The managing editor and co-owner of Plunderbund made a public records request by email to the public safety department asking for records of the threats. The department denied the request, stating that those investigations are “security records,” exempt from disclosure under R.C. 149.433.

The media outlet then filed a writ of mandamus with the Ohio Supreme Court, asking the court to order the department to provide the requested records.

In State ex rel. Miller v. Ohio State Hwy. Patrol (2013), the Ohio Supreme Court held that a state agency must show that any records withheld fit within a statutory exception to the public records law, Plunderbund’s attorney maintains. She contends that while “specific investigatory work product” does not have to be disclosed under R.C. 149.43(A)(2), the Miller court determined that this work product does not include “‘ongoing routine offense and incident reports.’”

“Under this Court’s long standing precedents, the materials requested by Plunderbund, at a minimum the [Records Information Management System (RIMS)] sheet and the initial reports, would have to be produced by Public Safety pursuant to these established standards,” she asserts in the company’s brief.

The attorney claims that the department cites R.C. 149.433, a different statute than in the Miller case, as its reason for not disclosing the threat investigation records. Noting that R.C. 149.433 was enacted in response to the 2001 terrorist attacks on the United States, Plunderbund’s attorney argues that the statute does not exempt all security records from public disclosure because many of them are “mundane” and do not deal with terrorist activity.

According to the statute, non-public “security records” are defined in part as “[a]ny record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage” or “[a]ny record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or respond to acts of terrorism.”

Plunderbund’s attorney argues that the statute focuses on the “public office” but does not mention public officers, so it does not apply to individuals such as the governor.

She also disputes the argument that the governor has a right to privacy that allows the public safety department to withhold the records that have been requested.

“Nothing in any threat letters or an investigation of them is private nor would it put them in any danger beyond what is always involved for a governor,” she writes. “The Department of Public Safety responds to this by saying that this public persona therefore justifies secrecy because he is therefore a target. John Kasich in no more a target than any other governor of the state of Ohio has been. The Highway Patrol cannot justify special rules just for him.”

Attorneys for the state counter that records of the department’s investigations of threats made against the governor are “security records,” which are not subject to mandatory release under the state’s public records law. They argue that the safety of the “public office” cannot be separated from the safety of the people who work there, and the office of the governor logically includes the governor himself.

“The [r]ecords sought by Plunderbund contain information directly used for protecting or maintaining the security of the Office of the Governor against attack, interference, sabotage, and acts of terrorism,” the state’s attorneys write in their brief to the Supreme Court. “Public disclosure of such threats increases the vulnerability and security risk to the Governor and could jeopardize his safety. They are not, as Plunderbund claims, simply ‘routine’ law enforcement reports. Rather, they are records that, if released, could diminish the effectiveness of the [Ohio State Highway Patrol’s] Executive Protection Unit, the Governor’s protective detail,” the state’s attorneys write.

The attorneys also contend that they are not obligated to provide redacted copies of the records to Plunderbund because obscuring or deleting any protected information applies to public records, and these records are exempt so are not required to be released at all. The release of even partial information, such as the content, number, or handling of prior or current threats, could be used by terrorists for intimidation or violence, the state’s attorneys argue. They also assert that the RIMS reports mentioned by Plunderbund are reports of “general incidents occurring on state property and not specific threats made against a public office or official,” so they are not “security records” as the threat investigations are.

The state also argues that the Fourteenth Amendment to the U.S. Constitution establishes that individuals have a “right to personal security and bodily integrity.” The state’s attorneys ask the court to examine whether the disclosure of threat investigation records infringes on the governor’s constitutional rights.

“Under the unique circumstances of this case, the State has a compelling interest in protecting the Governor’s safety and security that necessarily outweighs the public interest in accessing its government’s records,” the state’s attorneys conclude. “Plunderbund has not shown that it has a clear legal right to the records, or that the Department has a clear legal duty to produce them.”

An amicus curiae brief supporting Plunderbund Media’s position has been submitted by American Civil Liberties Union of Ohio Foundation.

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

Representing Plunderbund Media, LLC: Victoria Ullmann, 614.253.2692

Representing John Born, Director, Ohio Department of Public Safety: Hilary Damaser, 614.466.4543

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In Case Alleging Pattern of Corrupt Activity, What is Proper Jury Instruction for Defining “Enterprise”?

State of Ohio v. De’Argo Griffin, Case nos. 2013-1129 and 2013-1319
Second District Court of Appeals (Montgomery County)

ISSUE: In a trial alleging that a defendant has engaged in a pattern of corrupt activity, is an instruction to the jury sufficient to convey the law on the meaning of “enterprise” when the instruction states the elements of the offense, provides the statutory definitions of “enterprise” and “pattern of corrupt activity,” and informs the jury that it has to find both beyond a reasonable doubt?

Editor’s Note: The Supreme Court determined that a conflict exists between two appellate districts on this issue and ordered that the certified-conflict case (2013-1319) be consolidated with an appeal from the state (2013-1129) for oral arguments.

In 2009, De’Argo Griffin, Anthony J. Franklin, and another person were indicted for possession of heroin, possession of criminal tools, and engaging in a pattern of corrupt activity. Griffin and Franklin had a joint trial before a jury, which found them both guilty of the charges.

Griffin appealed to the Second District Court of Appeals, which in February 2012 upheld his convictions. Franklin had also appealed, and the Second District reversed his conviction a few months earlier for engaging in a pattern of corrupt activity. Because Griffin’s attorney had not raised the issue that led to the reversal on Franklin’s corrupt activity charge, Griffin asked the court to reopen his appeal. The court granted his request to hear that issue and other alleged errors.

The Second District reversed four of Griffin’s five convictions for possessing criminal tools and also overturned his conviction for engaging in a pattern of corrupt activity. The appellate court concluded that the trial court should have given the jury the instruction defining “enterprise” that Griffin’s attorney had requested.

The state appealed the part of the decision about the jury instruction to the Ohio Supreme Court, which agreed to hear the case.

The Second District also certified to the Supreme Court that its decision in this case conflicts with a 1996 decision from the Eighth District Court of Appeals (State v. Habash). The Supreme Court determined that a conflict exists and combined the conflict case with the state’s appeal for oral arguments.

At trial, Griffin’s attorney requested that a specific instruction be given to the jury about the meaning of “enterprise”: “the State’s evidence should show that a group of persons associated together for the common purpose of engaging in a course of criminal conduct, that there was an ongoing organizational entity whose members functioned as a continuing unit,” and “an association in fact enterprise under RICO must have a structure.”

That language is based on federal requirements for proving there is an enterprise in a federal Racketeer-Influenced and Corrupt Organizations Act (RICO) case, based on a 2009 U.S. Supreme Court decision (Boyle v. United States). The trial judge declined Griffin’s request and instead provided instructions to the jury based on Ohio statutes (R.C. 2923.31, 2923.32), which are part of the state’s version of the federal RICO laws.

Attorneys from the Montgomery County Prosecutor’s Office cite the Ohio Supreme Court’s ruling in State v. Madrigal (2000), which they quote: “It is prejudicial error to refuse a requested charge that is pertinent to the case, states the law correctly, and is not covered by the general charge.” The prosecutors argue, however, that Madrigal makes clear that a defendant is not harmed when a court decides not to give a particular instruction if the substance of the instruction that was requested is conveyed to the jury.

In their brief to the court, they contend that the definition of “enterprise” provided in Ohio law and given to the jury “adequately conveyed the substance of the federal definition of ‘enterprise.’”

“The judge’s instruction in Griffin’s case set forth the elements of engaging in a pattern of corrupt activity found in R.C. 2923.32, provided the jury with the statutory definitions of ‘enterprise’ and ‘pattern of corrupt activity’ in R.C. 2923.31, and expressed to the jury that the ‘enterprise’ and the ‘pattern of corrupt activity’ were separate elements, both of which the jury had to find established before rendering a guilty verdict,” the prosecutors wrote.

In Boyle, the prosecutors contend, the U.S. Supreme Court determined that an enterprise must have certain structural features (“a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose”), but courts are not required to use the word “structure” in a jury instruction and they have discretion in the instruction’s language as long as the substance of those structural features is conveyed to the jury. The language of Ohio’s related statutes, and the jury instructions in this case, adequately expressed the elements needed to prove the existence of an enterprise, the prosecuting attorneys conclude.

The attorney for Griffin responds that to show that there was an enterprise the state must prove that a structured relationship existed between parties, that the organization’s purpose was to commit criminal activities, and that the organization had been around long enough to commit a certain number of acts.

He maintains that the definition of “enterprise” in Ohio’s laws is incomplete.

“Federal Racketeering Law, upon which Ohio’s statute is based, requires proof of: (1) an ongoing organization, formal or informal; (2) with associates that function as a continuing unit; and (3) with a structure separate and apart, or distinct, from the pattern of corrupt activity; United States v. Turkette (1981),” he wrote in his brief to the court. “The absence of either organizational structure or of a continuing operation of the group is fatal to a Racketeering charge, and the jury should have been so instructed as requested.”

An amicus curiae brief supporting De’Argo Griffin has been submitted by Office of the Ohio Public Defender.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2013-1129 and 2013-1319).

Representing the state of Ohio from the Montgomery County Prosecutor’s Office: Kirsten Brandt, 937.225.4117

Representing De’Argo Griffin: Darrell Heckman, 937.653.7186

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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.