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Tuesday, June 24, 2014

James A. Radcliff v. State of Ohio, Case nos. 2012-1985 and 2013-0004
Tenth District Court of Appeals (Franklin County)

David L. Laber v. State of Ohio, Case no. 2013-1174
Fourth District Court of Appeals (Lawrence County)

State of Ohio v. Bobby D. Nolan, Case no. 2013-1290
Eleventh District Court of Appeals (Portage County)

Cincinnati City School District Board of Education v. Joseph W. Testa, Tax Commissioner of Ohio, et al., Case no. 2013-1426
Ohio Board of Tax Appeals


Does Trial Court Need Statutory Authority, or Does Its Inherent Power Grant Authority, to Seal Records of Conviction?

James A. Radcliff v. State of Ohio, Case nos. 2012-1985 and 2013-0004
Tenth District Court of Appeals (Franklin County)

ISSUES:

QUESTION ON CERTIFIED CONFLICT:

BACKGROUND:
This case was appealed to the Ohio Supreme Court as a certified conflict arising from a Tenth District Court of Appeals’ decision in conflict with a Third District decision from 1996. The court also accepted Radcliff’s discretionary appeal. The Supreme Court stayed the briefing in this caseuntil a ruling was made on State v. Boykin and Akron v. Boykin.

In September 2011, James A. Radcliff, pro se, filed an application requesting the Franklin County Court of Common Pleas seal the record of his convictions for breaking and entering and passing bad checks. From 1973 to 1981, Radcliff had multiple convictions in Ohio. He was incarcerated for a short period of time after 1981, but after his release, went on to live a productive and law-abiding life. He married, had a child, supported his wife’s older children, and cared for his disabled wife.

He also worked for the Dublin City Schools as a custodian for 21 years, rising to the position of head custodian at Dublin Jerome High School. He originally noted a felony conviction on his employment application with the schools and indicated he would like to discuss the circumstance during an interview. His colleagues and supervisors in the school district praised his work and character, and he received awards for perfect attendance and performance. He was fired, however, when a local newspaper published an article noting school employees’ criminal records.

In January 2011, Governor Ted Strickland granted Radcliff “a full and absolute pardon” for his convictions, saying Radcliff had “been rehabilitated and ha[d] assumed the responsibilities of citizenship.”

In seeking to seal his record, Radcliff indicated he was not seeking an order for the sealing of his records for any statutory reasons, but because he had a pardon. The state, however, objected, saying Radcliff was ineligible to have his record sealed under R.C. 2953.52 or 2953.31. The Franklin County Court of Common Pleas held a hearing in July 2011 and concluded the pardon entitled Radcliff to “a full release” and sealing his records was “consistent with the public interest.”

The Effects of the Pardon
Before the Supreme Court’s October 2013 decision in State v. Boykin, which determined that a gubernatorial pardon does not automatically entitle the recipient to have the record sealed, three appellate district courts interpreted a pardon’s effect differently.

After the Boykin decision, a conflict remains between a First District opinion, which held that a pardon entitles the recipient to a judicial sealing of records (State v. Cope), and that of the Tenth District in this case.

The Tenth District ruled that this case “resolves to whether the governor’s absolute pardon erased defendant’s conviction and entitled defendant to invoke the court’s inherent jurisdiction to judicially expunge his record in order to protect his constitutional right to privacy.”

Acknowledging that Radcliff was indeed worthy of a fresh start, the Tenth District held that a “[d]efendant’s pardon alone does not erase his conviction and entitle him to judicial expungement. The applicable statutes governing expungement similarly do not provide defendant with the relief desired. If that is to change, the General Assembly likely will be the entity to accomplish it.”

Has Pepper Pike v. Doe Outlived Its Need?
According to the state, “[t]he inherent power to seal records recognized in a 1981 decision on Pepper Pike v. Doe was meant to fill a statutory gap – i.e., sealing of records of dismissals. But the General Assembly filled that gap long ago when it enacted R.C. 2953.51. The sealing of records in criminal cases is now governed entirely by statute, so Pepper Pike has outlived its purpose in criminal cases.”
In its argument, the state maintains the sealing of records and a pardon are governed by separate rules. The sealing of records of a conviction, it says, is available only for certain offenses, according to statute. Likewise, a pardon, it argues, releases the recipient from any remaining punishment, but it does not authorize a trial court to seal records of the conviction. In addition, the state contends, Pepper Pike only permitted the sealing of records in criminal cases when there is no conviction.

Radcliff’s attorneys, though, hold fast to the court’s Pepper Pike ruling, which held that judges had the inherent authority to seal records in a criminal case when the charge had been dismissed. His attorneys also point to a more recent Supreme Court ruling, Schussheim v. Schussheim, which held in October 2013: “Courts have the inherent authority to expunge and seal records when a case involves unusual and exceptional circumstances and when the interests of the party seeking expungement outweigh the legitimate need of the government to maintain the records.”

Radcliff’s attorneys also cite the Supreme Court’s Rules of Superintendence. Sup.R. 45(E) states:

(E) Restricting public access to a case document
(1) Any party to a judicial action or proceeding or other person who is the subject of information in a case document may, by written motion to the court, request that the court restrict public access to the information or, if necessary, the entire document. Additionally, the court may restrict public access to the information in the case document or, if necessary, the entire document upon its own order. The court shall give notice of the motion or order to all parties in the case. The court may schedule a hearing on the motion.

(2) A court shall restrict public access to information in a case document or, if necessary, the entire document, if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest after considering each of the following:

(a) Whether public policy is served by restricting public access;

(b) Whether any state, federal, or common law exempts the document or information from public access;

(c) Whether factors that support restriction of public access exist, including risk of injury to persons, individual privacy rights and interests, proprietary business information, public safety, and fairness of the adjudicatory process.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2012-1985 and 2013-0004).

Contacts
Representing James A. Radcliff: John W. Keeling, 614.525.8783

Representing the State of Ohio from the Franklin County Prosecutor’s Office: Seth L. Gilbert, 614.525.3555

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Can Expressing Thoughts of Violence be Considered Terrorist Threat?

David L. Laber v. State of Ohio, Case no. 2013-1174
Fourth District Court of Appeals (Lawrence County)

ISSUE: Is the articulation of mere thoughts a terrorist threat under R.C. 2909.23(A)?

BACKGROUND:
David Laber was convicted under Ohio’s act-of-terrorism law after a conversation with a co-worker at a Lawrence County company in which he talked about thoughts of shooting two co-workers and bombing their place of employment. Laber’s co-worker notified company management, who fired him and notified authorities.

He was found guilty by a Lawrence County Common Pleas Court jury in October 2012 of violating R.C. 2909.23(A) and was sentenced by the judge to three years in prison. The Fourth District Court of Appeals in June 2013 denied Laber’s appeal of the case and affirmed his conviction. The 42-year-old has appealed his case to the Ohio Supreme Court while serving his sentence at the Pickaway Correctional Institution.

Laber’s attorney wrote in his argument to the Supreme Court that Laber’s conviction “is not supported by sufficient evidence” because the prosecution did not “prove that he expressed his statements with specific intent to intimidate or coerce” as defined by the state law.

He cites the 1964 U.S. Supreme Court case New York Times Co. v. Sullivan when asking the Ohio Supreme Court to consider Laber’s constitutional right to free speech: “Under the First Amendment, Mr. Laber’s words must be evaluated ‘against the backdrop of a profound national commitment to the principle that debate … should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.’”

He adds that Laber’s conviction “allows Ohio to criminalize mere speculative thoughts.”

The state contends this case has nothing to do with First Amendment rights and should be dismissed.

“In the appellate decision under review here, the Fourth District affirmed a jury verdict against challenges to the sufficiency and weight of the evidence. On appeal to the Fourth District, Laber never raised any First Amendment claim or suggested that his conviction could implicate the First Amendment,” the state solicitor wrote.

The state adds that the case is a “run-of-the-mill sufficiency challenge” that, as in the 2005 Ohio Supreme Court case State v. Brinkley, can be resolved by giving deference to the jurors who heard the testimony.

“He was prosecuted for statements he made, statements that the jury concluded were threats made with purpose to intimidate or coerce, and that did cause a reasonable expectation or fear in the co-worker who heard Laber voice his threats,” the state argues.

An issue still pending before the appeals court is whether Laber’s trial lawyer provided ineffective counsel by failing to file a pretrial motion to dismiss the indictment as unconstitutional under the First and Fourteenth amendments to the U.S. Constitution.

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

Contacts
Representing David Laber: Peter Galyardt, 614.466.5394

Representing the State of Ohio on behalf of the Lawrence County Prosecutor’s Office: Eric E. Murphy, 614.466.8980

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Can Someone Be Convicted of Attempted Felony Murder in Ohio if Found Not Guilty of Attempted Murder?

State of Ohio v. Bobby D. Nolan, Case no. 2013-1290
Eleventh District Court of Appeals (Portage County)

ISSUE: Is attempted felony murder a viable criminal offense in Ohio?

BACKGROUND:
Bobby D. Nolan shot an acquaintance, Travis McPeak, in the leg during a confrontation after a night of drinking and drug use. Nolan was found guilty by a Portage County Common Pleas Court jury in 2012 of attempted felony murder, felonious assault, and having a weapon under disability. He was found not guilty of attempted murder. A judge sentenced Nolan to 10 years in prison.

Nolan appealed the decision in June 2013, and the Eleventh District Court of Appeals reversed the lower court’s decision in part, stating: “[B]ecause attempted felony murder constitutes a logical impossibility which cannot be charged as a criminal offense, it was plain error for the trial court to permit the state to go forward on that count.” The state appealed the decision to the Ohio Supreme Court.

In its brief submitted to the court, the state contends the Eleventh District Court of Appeals’ decision in this case conflicts with the Supreme Court’s decision in State v. Williams (2010).

“This Court expressly found a defendant may be found guilty of attempted felony murder and felonious assault by means of a deadly weapon when the victim lives despite injuries sustained by the gunshot. ‘[W]hile [the defendant] may be found guilty of both offenses, he may be sentenced for only one,’” the prosecuting attorney wrote.

“Under the felony murder statue, the state was not required to prove that Nolan intended to cause Travis to die, only that Nolan knew that physical harm to Travis was probable,” the attorney adds.

Nolan’s attorney argues that it is “logically impossible” that attempted felony murder is a crime in Ohio and asks how one can attempt an unintended result.

“Felony murder arises from an inadvertent homicide incident to the commission of a felony and is distinguishable from murder by its lack of intent to cause injury .... Since attempt requires a knowing or purposeful culpability, whereas felony murder has intent only by operation of a legal fiction, there can never be attempted felony murder,” Nolan’s attorney wrote.

An amicus curiae brief supporting Nolan’s position has been submitted by the 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.

Contacts
Representing Bobby Nolan: Richard E. Hackerd, 216.241.8282

Representing the State of Ohio on behalf of the Portage County Prosecutor’s Office: Victor V. Vigluicci, 330.297.3850

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Can Board of Education Challenge Real Property Tax Exemption After Window to Participate Has Closed?

Cincinnati City School District Board of Education v. Joseph W. Testa, Tax Commissioner of Ohio, et al., Case no. 2013-1426
Ohio Board of Tax Appeals

ISSUE: May a board of education (BOE) participate in the property tax exemption process and its appeal when the BOE does not seek to intervene within the prescribed timeframe of the statute governing the process, but challenges an exemption whose status changes at the “first available opportunity”?

BACKGROUND:
The Cincinnati School District (CPS) did not object in 2006 to the City of Cincinnati’s application to the Ohio Tax Commissioner to exempt a parcel of private property to expand the city’s convention center. After initially ruling in 2011 that the property was not eligible for a tax exemption, the commissioner reversed his prior “final determination” in 2012 after language inserted in the 2012-2013 budget bill exempted the property. CPS sought to intervene in the commissioner’s reconsideration of the real property tax exemption on September 29, 2011, the effective date of the legislation. Both the commissioner and the Ohio Board of Tax Appeals (BTA) denied CPS’s request to participate in the tax proceedings. CPS appealed to the Ohio Supreme Court. (CPS also appealed the denial to participate to the Franklin County Common Pleas Court, which stayed the proceedings pending the outcome of this case.)

Under R.C. 5715.27, Ohio school districts have the right to receive notice of exemption applications on property located within the school district. Ohio school districts also have the right to participate in administrative hearings on exemption applications by filing a statement indicating an intent to participate in the proceedings prior to the first day of the third month after the exemption application is docketed.

In its brief, CPS admits that it did not object to the city’s 2006 application. CPS’s attorneys argue that CPS did not initially participate in the proceedings because the budget bill language at issue had not been enacted yet.

CPS initiated its challenge “at the first available opportunity” as outlined in a 1986 Supreme Court case Bd. of Edn. of the South-Western City Schools v. Kinney, the attorneys write.

Before September 29, 2011, “there was no earlier opportunity for CPS to oppose the constitutionality of the Challenged Provisions for they were not then enacted.”

CPS’s attorneys claim the commissioner and the BTA have a “misguided interpretation” of the statute at hand.

“Of course, CPS was not clairvoyant and did not know in 2006 that the General Assembly at the behest of the City would enact legislation five years later granting a retroactive exemption that applied solely to the Convention Center Parcel,” the brief notes.

CPS’s attorneys see three constitutional violations with the convention center tax exemption budget-bill amendment: 1) it applies the tax exemption to prior tax years violating the prohibition against “retroactive laws”; 2) it is unrelated to budget appropriations, which violates the single-subject rule; and 3) it applies only to the Cincinnati convention center, which violates a requirement for laws to operate “uniformly” through the state.

The attorneys also cite a 1980 case in which the Supreme Court did not take as constrained a view as the commissioner and BTA about whether they could have considered the constitutional issues.

The city of Cincinnati’s attorneys claim that CPS is “five years too late” in filing its application.

“Prior to the events in this case, the City applied for and received tax exemption for sixteen of the Center’s parcels,” the attorneys state in their brief. “The BOE neither requested notice of, nor opposed, those exemption applications, and it never filed complaints against those parcels’ continued exemption. Consistent with its historic acquiescence to the Center’s exemption, the BOE did not request notice of, or make itself a party to, the 2006 Exemption Application in 2006. Ohio law will not allow the BOE to do so now.”

Cincinnati’s attorneys also assert that CPS cannot raise the constitutional arguments because they were not part of its notice of appeal before the Supreme Court, and they were not addressed by the BTA.

In addition, city attorneys dispute CPS’s “first available opportunity” argument.

“By neglecting to become a party to the 2006 Exemption Application in 2006, the BOE opted to forgo its limited statutory opportunity to participate in, oppose, and appeal from, any decision on the 2006 Exemption Application, regardless of any subsequent change in statute or case law,” they write. “The time for the BOE to opt-in to oppose the 2006 Exemption Application came and passed in 2006, and the General Assembly’s passage of the R.C. 5709.084 Amendments in 2011 did not re-wind the clock or create a new opportunity for the BOE to insinuate itself in the 2006 Exemption Application.”

Attorneys for the commissioner also argue that CPS missed its chance.

“The Board of Education cannot pursue relief on the merits of the underlying application for exemption for this parcel of property – it has no right,” they state in their brief. “Under settled precedent, every tribunal along the way has lacked jurisdiction to hear its claims. It’s that easy. Everything else, the sum total of the Board of Education’s arguments, is an attempt to avoid the consequences of its own actions.”

The attorneys note that there is no open-ended right to challenge an exemption.

“The Board of Education seeks unlimited time in which to challenge a property owner’s exemption application, irrespective of the General Assembly’s instructions,” they write. “This result would be fundamentally unfair to property owners who, like the City of Cincinnati in this case, must spend considerable resources fighting the Board of Education’s untimely and unauthorized litigation.”

They also claim CPS seeks “an unwarranted windfall.” (CPS estimates that it would have received more than $7 million in property tax revenues from the parcel over the time period in question.)

“When, like here, a board of education abandons its statutory right to participation, and has not received a distribution of the funds, it has no vested right to such funds and cannot collaterally attack the General Assembly’s allocation decision.”

The commissioner’s attorneys also find fault with the “first available opportunity” argument.

“The Board of Education is mistaken about the term ‘available,’” they write. “In this case, there was no ‘available’ opportunity, because the Board of Education failed to follow the steps necessary to make an opportunity available.”

The Hamilton County auditor did not file a brief in this case, so he will not be permitted to present an oral argument before the court.

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

Contacts
Representing the Cincinnati City School District Board of Education: David Olson, 513.651.6905

Representing the City of Cincinnati: Richard Lovering, 614.227.2300

Representing the Hamilton County Auditor: Thomas Scheve, 513.946.3049

Representing Tax Commissioner Joseph Testa: Daniel Fausey, 614.466.5967

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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.