Municipal Case Law Update
Stephen L. Byron Margaret A. Cannon
(440) 951-2303 (216)
621-5101
stephen.byron@icemiller.com Margaret.cannon@icemiller.com
Rebecca K. Schaltenbrand
(216) 621-5307
rebecca.schaltenbrand@icemiller.com
Steve J. Smith Philip
K. Hartmann
(614) 462-2249 (614)
462-4941
stephen.smith@icemiller.com philip.hartman@icemiller.com
Christopher W.
Michael
(614) 462-1148
christopher.michael@icemiller.com
Administrative
Appeals
Lorenzo Properties, II, Inc. v. Akron, 2011-Ohio-5369.
Lorenzo
Properties sought a conditional-use permit from the City of Akron that would
allow a building Lorenzo owned to be split into three apartments. After
reviewing the application, Akron City Council denied the request and Lorenzo
filed a notice of appeal in the Summit County Common Pleas Court. The notice
included instructions to the clerk to serve a copy of the notice on the City at
the address of the City Law Department. The Law Department received the notice
one day after expiration of the time for appeal, and Lorenzo did not otherwise
file the notice of appeal with the City.
Lorenzo
also filed a praecipe with the court requesting the
City to prepare a transcript of the City’s denial of Lorenzo’s conditional-use
permit. Lorenzo timely served the praecipe on the
City at the City Law Department’s office. The common pleas court dismissed
Lorenzo’s attempted appeal as untimely. Lorenzo subsequently appealed the
court’s dismissal arguing that the court improperly dismissed its appeal
because the praecipe constituted a notice of appeal,
and that its service of the praecipe on the Law
Department was sufficient to file it with City Council.
On
appeal, the Ninth District Court of Appeals affirmed the court of common pleas
decision to dismiss Lorenzo’s appeal. In doing so, the appellate court rejected
Lorenzo’s claim that the praecipe was constituted a
notice of appeal because the praecipe did not
describe the particular decision that Lorenzo was appealing. The praecipe did not even indicate that Lorenzo was appealing a
decision of the City Council. As such, the praecipe
could not be considered a valid notice of appeal.
Additionally,
serving the praecipe on the City’s Law Department was
insufficient to perfect an appeal from an administrative body.
This
case was analyzed under Welsh Dev. Co. v.
Warren County Reg'l Planning Comm'n,
128 Ohio St.3d 471, 946 N.E.2d 215, 2011–Ohio–1604, which had held that timely
service of a notice of appeal by the Clerk of Courts office was sufficient to
perfect an appeal under R.C. 2505.04. This case stands for the proposition
that, while service of a notice of appeal by the clerk of courts on the
municipality is sufficient, appellants’ counsel will be at-risk if they depend
upon the clerk’s office for timely service.
State ex rel. Lane v. Pickerington, 130 Ohio St.3d 225, 2011-Ohio-5454.
A
former employee of the City of Pickerington had his employment terminated by
the City for certain disciplinary reasons. After receiving a hand-delivered
notice of the termination, the employee requested a hearing before the City
Personnel Appeals Board ("PAB"). His request was subsequently denied
in a letter sent from the City Law Director stating that the employee's former
position was unclassified and exempt under City Code.
Several
months after receiving the letter denying his request, the former employee
filed suit in the Court of Appeals for Fairfield County seeking a writ of
mandamus to compel the City and PAB to conduct a hearing on the merits of his
appeal. The court denied the writ because it determined that the former
employee had an adequate remedy at law available by way of administrative
appeal to the common pleas court from the PAB's decision. The former employee
subsequently appealed.
The
City argued on appeal that the denial should be affirmed citing Henderson v. Maple Hts. Civ. Serv. Comm.,
63 Ohio St.2d 39, 406 N.E.2d 1105 (1980) in support. However, the Ohio Supreme
Court distinguished Henderson
claiming that the letter sent by Pickerington's Law Director did not constitute
a final appealable order. Unlike in Henderson,
the Court determined that the City's letter was not issued on behalf of the PAB
and questioned whether the City's Law Director had the authority to issue a
decision on the PAB's behalf. Thus, the Court reversed the court of appeals
decision holding that there was no final appealable order issued by the PAB
from which an administrative appeal could be taken.
Elections
State ex rel. Miller v. Warren Cty. Bd.
Of Elections, 130 Ohio St.3d 24,
2011-Ohio-4623
The
Mason City Charter prescribed certain term limits for Mason City Council
(“Council”) members. This provision was later amended by a vote of the Mason
electorate. Prior to this amendment, Mike Gilb was
appointed to Council to complete an unexpired term that ended in December 2009.
Gilb resigned from this position one month before the
term ended. Subsequently, Gilb was appointed to
fulfill a second unexpired term that ends in December 2011. On June 9, 2011,
Relators to this action sent a letter to the Warren County Board of Elections
(“Board”) claiming that Gilb, who had taken out
candidate petitions for the November 8, 2011 general election for Council, was
ineligible to run under the term limits provisions of the Charter.
The
Board considered Relators’ letter and determined that there was no action to
take because Gilb had not filed a petition to run for
any office, and even if he did file a petition the question of whether a person
may hold an office is separate from whether a person may run for the office in
question. As a result, the Board opined that it could not prevent Gilb from running even if he were to file a petition for
candidacy. Gilb filed his nominating petition to run
for Council at the November 8 election on August 23, 2011. Relators brought
this expedited election action three days later seeking a writ of prohibition
and mandamus.
After
considering the merits of the case, the Supreme Court of Ohio determined that
Relators were not entitled to a writ of prohibition because they could not
establish that the Board was about to exercise quasi-judicial authority since
Relators submitted their letter to the Board prematurely. The letter was not a
valid protest under R.C. 3501.39, thus, the Board was not required to conduct a
hearing regarding Gilb’s petition for candidacy. Further,
Relators could not establish that they lacked an adequate remedy at law since
they could have raised their claims against Gilb in a
statutory protest pursuant to R.C. 3501.39. As a result, they were not entitled
to the requested writ of prohibition.
Regarding
Relators’ requested relief in mandamus, the Supreme Court concluded that the
requested relief was actually in the nature of a declaratory judgment and
prohibitory injunction, which divested the Court of jurisdiction to consider
the merits of the claim. The Court noted that although the allegations of the
Complaint were couched in terms of affirmative duties, Relators actually sought
a declaration that Gilb’s candidacy violated the term
limits of the Charter, and a prohibitory injunction preventing Gilb from appearing on the election ballot. Consequently
the writ was dismissed for lack of jurisdiction.
State
ex rel. Julnes v. S. Euclid City Council, 130 Ohio St.3d 6, 2011-Ohio-4485.
On
June 27, 2011, the South Euclid City Council enacted Ordinance No. 05-11, which
amended the zoning for certain property from a one family residential district
to a general commercial district. Three days later, a group of residents
opposed to Ordinance No. 05-11 filed a certified copy of the Ordinance with the
Clerk of Council, and sought to obtain the necessary signatures for a
referendum on the Ordinance. The referendum petitioners then filed their
petition with the Clerk to place the Ordinance on the November 8, 2011 ballot.
After
the petition was transferred to the Cuyahoga County Board of Elections
(“Board”), the Board determined that the petition contained sufficient valid
signatures and returned it to the Clerk. However, upon the advice of the City’s
Law Director, the Clerk determined that the petitioners had failed to file a
certified copy of the Ordinance with the City Finance Director and reported
this to Council. Council then decided not to submit the Ordinance to the
electorate. Four days after this decision, Relators filed this expedited
election action seeking a writ of mandamus to compel the Clerk to determine the
petition was valid and to compel the City Council to either repeal the
Ordinance or place it on the November 8, 2011 ballot.
After
considering the parties’ evidence and briefs, the Ohio Supreme Court granted
the requested writ of mandamus finding that the petitioners had complied with
the requirements of R.C. 731.32 by filing a certified copy of the Ordinance
with the City Clerk prior to circulating the referendum petition. The Court
noted that while R.C. 731.32 requires a certified copy of an Ordinance to be
filed with the city auditor before circulating a referendum petition, South
Euclid has no city auditor. Thus, the Court concluded that the City Clerk’s
duties under the City Charter regarding referendum petitions are more closely
aligned with the duties of a city auditor under R.C. 731.29 than the Director
of Finance’s duties are. For that reason, filing a certified copy of the
Ordinance with the Clerk was sufficient to comply with R.C. 731.32.
Additionally,
the Court held that the Ordinance was subject to referendum even though it was
enacted as an emergency ordinance. Since the City Charter expressly subjected
emergency ordinances to referendum, the provisions of R.C. 731.29 and 731.30
did not apply in this situation to remove the Ordinance from the possibility of
referendum. Accordingly, the Relators had a clear legal right to have the
Ordinance either repealed or submitted to the electorate, and the Clerk and
Council had a corresponding legal duty to do the same.
Home Rule
Greene v. Cuyahoga Cty., 2011-Ohio-5493.
In
November 2009, the voters of Cuyahoga County adopted the Cuyahoga County
Charter (“Charter”), which replaced the county’s statutory form of government
with a new governing structure led by an elected county executive and 11-member
council. Under the Charter, the council would be vested with the authority
previously held by the county commissioners, and the county executive would be charged
with the duty of appointing individuals to hold county positions previously
held by elected office-holders, including the County Recorder. Additionally,
the former county offices would be abolished when the appointed individual took
office on or after January 1, 2011.
After
the Charter was adopted the County Recorder (“Recorder”), whose position would
be prematurely terminated when the new government took effect, filed this
action along with several other electors claiming that the Charter provisions
abolishing elected offices mid-term was retroactive law and unconstitutional.
The Recorder claimed that officeholders have a right under the Ohio
Constitution to fill the remainder of an elected term of office, and that
electors have a vested constitutional right to expect that an elected public
official will fulfill the entire term to which her or she was elected. After
the parties filed cross-motions for summary judgment, the Cuyahoga County Court
of Common Pleas granted the County’s motion. Only one of the original plaintiffs
appealed.
On
appeal, the Eighth District Court of Appeals affirmed the trial court’s
decision holding that Ohio law permits statutory offices to be abolished
mid-term, and that public officers have no vested property interest right in
the office they hold. The court noted that statutory county offices are created
by the General Assembly, not the Constitution of Ohio. Thus, the voters of
Cuyahoga County were empowered by Article X, Section 3, of the Ohio
Constitution to adopt home rule and abolish the statutory offices, even in
mid-term. Further, the court restated the long-standing principle that a county
office is a public privilege and not a right. Therefore, the Charter was not
unconstitutional, but rather a valid exercise of the County’s home rule authority.
Public Records
State ex rel. Dawson v. Bloom-Carroll Local School Dist., 2011-Ohio-6009.
In
March 2010, Angela Dawson sent an email to the treasurer of the Bloom-Carroll
Local School District (“District”) requesting copies of any and all invoices
the District had received from any law firm that had provided services relating
to any matters pertaining to herself and/or either of her children. The
District responded by providing Dawson with summaries of the invoices noting
the attorney’s name, the invoice total, and the matter involved. The District
did not provide Dawson with itemized invoices because they contained
confidential information relating to attorney-client communications, the areas
and issues the attorneys researched, and the legal issues upon which the
attorneys focused their attention.
Dawson
subsequently informed the District that she still desired the itemized
invoices, and hand-delivered a written request for said invoices on December
20, 2010. The District again denied the request on the basis that the invoices
contained confidential information.
Dawson
further sought to obtain any and all communications from the District’s
insurance carrier that described the liability and exposure of the District and
insurance carrier related to a lawsuit filed against the District by Douglas
Dawson. The District denied this request as well stating that only one document
dated February 9, 2010 was responsive to the request, and it too was
confidential in nature because it was prepared by the District insurer’s claims
analyst and appointed the District’s attorney to defend Dawson’s lawsuit.
As
a result of the District’s denial, Dawson subsequently instituted this original
action in mandamus seeking to compel the production of the itemized invoices
along with the February 9, 2010 letter. After the District filed a motion for
judgment on the pleadings, the Supreme Court granted an alternative writ and
ordered the District to submit unredacted copies of
the records for in camera review. Dawson claimed that the District waived any
privilege related to the February 9, 2010 letter because it openly discussed
the letter at a public meeting and voluntarily disclosed it to a former school
board member.
After
reviewing the records, the Supreme Court of Ohio denied the writ of mandamus
sought by Dawson. The Court opined that while a simple invoice ordinarily is
not privileged, itemized legal bills necessarily reveal confidential
information that falls within the attorney-client privilege. Further, to the
extent that narrative portions of attorney-fee statements are descriptions of
legal services performed by counsel for a client, they are protected because
they represent communications between the attorney and client about matters for
which the attorney has been retained by the client. The Court went on to reason
that the February 9, 2010 letter was also privileged under the attorney-client
privilege because the insurance carrier, in effect, stands in the shoes of the
District. As such, the letter was privileged from disclosure, and the District
did not waive the confidentiality of the document because it discussed the
merits of the document only during executive session. Therefore, mandamus was
denied.
State
ex rel. Davila v. Bucyrus, 194
Ohio App.3d 325, 2011-Ohio-1731.
In
2009, Davila sent a letter addressed to the City of Bucyrus (“Bucyrus”)
requesting copies of the minutes and public notices of all meetings held by the
City’s Records Commission. Davila also sent a letter that same day to the Bucyrus
Police Chief requesting access to the department’s reel-to-reel tapes and other
information relating to the tapes. The City produced the minutes and public
notices for the previous five years, requested a clarification of Davila’s request, and instructed Davila to contact other City
Officials to arrange a time that he could access additional information.
Unsatisfied after subsequent correspondence, Davila filed a complaint for a
writ of mandamus seeking to compel public disclosure and civil forfeiture.
Davila
served Bucyrus with a request for admission that provided for 28 days to
respond. Bucyrus failed to respond within the stated time and Davila moved that
his unanswered requests be taken as admitted and for summary judgment. Over
objection, the trial court granted Davila’s motions and awarded Davila a
judgment in the amount of $1,409,000 for the improper destruction of 1,409
records based solely on the unanswered requests for admission. The trial court
subsequently overruled Bucyrus’ moved for a judgment notwithstanding the
verdict, remittitur, and new trial, and Bucyrus
appealed.
The
Third District Court of Appeals reversed the trial court’s order finding that
the trial court should have granted Bucyrus’ motion to withdraw or amend its
default admissions because it would aid in hearing the merits of the case and
because Davila did not demonstrate prejudice. By not allowing Bucyrus to
withdraw its default admissions, the trial court eliminated any presentation of
the merits. Additionally, the Third District noted that Bucyrus had timely
filed an answer to Davila’s complaint that denied liability; thus, Davila could
not have reasonably relied on the default admissions. As a result, summary
judgment was improper because the trial court based its decision only on the
default admissions that should have been set aside and no other supporting
evidence.
Tort Immunity
Inland Prods., Inc. v. Columbus, 193
Ohio App.3d 740, 2011-Ohio-2046.
During
the unusually wet and rainy winter of 2004-2005, the City of Columbus
experienced severe saturation and flooding, which placed heavy stress on the
City’s sewer and drainage systems. As a result, the sewer and drainage systems
became overwhelmed and could not be relieved due to the unusually high
elevation of the Scioto River. City employees unsuccessfully attempted to
prevent the systems from backing up. The overwhelmed systems began discharging
through manholes located on City property and property owned by Inland
Products, Inc. (“Inland”).
Inland
then instituted this action to recover damages for the alleged negligent
maintenance and operation of the City’s sewer system that resulted in the
flooding of Inland’s property. The City moved for summary judgment claiming
political subdivision immunity under R.C. Chapter 2744. Specifically, the City
argued that Inland was attacking the design of the sewer system, a government
function that is immune from liability under R.C. 2744, and that it was immune
under R.C. 2744.03(A)(5) because Inland’s alleged injury resulted from exercise
of judgment or discretion. The trial court denied the City’s motion and the
City appealed under R.C. 2744.02(C).
Addressing
numerous assignments of error, the Tenth District Court of Appeals affirmed in
part and reversed in part the trial court’s decision. The Tenth District
affirmed the trial court’s ruling that R.C. 2744.02(B)(2)
did apply to remove immunity from the City because the operation of the sewer
systems was a proprietary function. The court also determined that the trial
court did not err in finding that genuine issues of fact existed as to whether
City employees acted negligently in closing certain gates, and whether the
employees’ actions caused the flooding on Inland’s property. However, the court
reversed that part of the trial court’s ruling denying summary judgment under
R.C. 2744.03(A)(3) because the City employees’ decision to conduct hydraulic gradeline modeling prior to adopting a sewer operation
system involved the exercise of judgment or discretion sufficient to reinstate
immunity under the statute. The case was remanded to determine whether the City
negligently operated the sewer systems.
Hawsman v.
Cuyahoga Falls, 2011-Ohio-3795.
Hawsman, a minor, injured his knee while using a
diving board at the City of Cuyahoga Falls’ Natatorium, a venue which the City
owns and maintains. Hawsman’s parents filed suit as a
result of their son’s injuries alleging that the City negligently maintained
the diving board. The City moved for summary judgment claiming that it was
immune from suit pursuant to R.C. Chapter 2744 and the Supreme Court’s holding
in Cater v. Cleveland, 83 Ohio St.3d.
24 (1998). The trial court agreed and granted the City’s motion. The Hawsmans timely appealed the decision.
On
appeal, the Ninth District Court of Appeals reversed the trial court’s
decision, holding that the City was not immune because R.C. 2744.02(B)(4) applied to the City Natatorium and the operation and
maintenance of the swimming pool was a governmental function that removed the
City’s general grant of immunity. In doing so, the Ninth District found the
Supreme Court’s decision in Cater lacking
in precedential value, and discussed other courts of appeals decisions that
called Cater into question. Specifically,
the Ninth District agreed with the Third and Fourth District Courts of Appeals
decisions determining that public recreational facilities fall under the
exception to immunity found in R.C. 2744.02(B)(4). The Sixth and Eighth
Districts conflict with this interpretation as each has followed Cater upholding political subdivision
immunity for torts occurring at public recreational facilities. The Eighth
District has also held that the more specific provisions of R.C. 2744.01(C)(2)(u) prevail over the more general provisions of R.C.
2744.02(B)(4).
The
City has appealed the Ninth District’s reversal, and the Supreme Court of Ohio
accepted jurisdiction to hear the case on December 21, 2011. This is likely due
to the erratic and inconsistent interpretations the courts of appeals have
given to public recreational facilities in connection with R.C. Chapter 2744,
which the foregoing demonstrates.
Johnson
v. Cleveland, 194
Ohio App.3d 355, 2011-Ohio-2152.
The
City of Cleveland’s Emergency Medical Service (“EMS”) responded to a call
initiated by Plaintiff Johnson’s girlfriend after Johnson had smoked a
cigarette laced with phencyclidine (“PCP”). After EMS arrived, Johnson refused
medical treatment or evaluation and appeared to be suffering no visible
impairment. EMS technicians remained at Johnson’s residence for approximately
20 minutes before being released by the lead technician. After leaving the
residence, EMS placed a call to Johnson’s residence approximately 10 minutes
later, and Johnson appeared to be fine.
Shortly
after the call was made to Johnson’s residence, EMS was called back to the same
scene for a “psychiatric/suicide” attempt after Johnson had jumped off of the
second story of the residence. Johnson seriously injured himself as a result of
the leap. EMS arrived quickly, immobilized Johnson,
and assessed Johnson while transporting him to a nearby hospital. Johnson was
treated for multiple fractures and became permanently paralyzed from the waist
down. He subsequently filed this action against the City of Cleveland and the
EMS personnel who responded to the calls.
The
trial court denied the City’s motion for summary judgment based on R.C. Chapter
2744 finding that there were genuine issues of material fact as to whether the
facts alleged by Johnson constituted willful or wanton conduct. Cleveland
timely appealed the trial court’s denial pursuant to R.C. 2744.02(C).
On
appeal, the Eighth District reversed the trial court’s decision holding that
reasonable minds could not find that the actions of the EMS personnel rose to
the level of willful or wanton conduct. Noting that willful or wanton conduct
requires a showing of more than mere negligence, the Eight District stated that
there was nothing in the record to suggest that the EMS personnel engaged in
any misconduct with the intent to injure Johnson. Specifically, the paramedics
timely responded to the scene, visually assessed Johnson, continued to wait on
the scene, and informed Johnson’s girlfriend to call if anything changed. Neither
was there any evidence that the EMS personnel should have been aware that there
was any great probability that harm would result or that they perversely
disregarded a known risk. Thus, Cleveland was entitled to summary judgment
under R.C. Chapter 2744.
Long v.
Hanging Rock, 2011-Ohio-5137.
The
Chief of Police (“Chief”) of the Village of Hanging Rock had his position
terminated because he was unable to run and perform a fitness and agility test
due to injury he sustained in the course of his employment. He subsequently
filed a complaint against the Village and other Village Officials alleging,
amongst other things, that the Village wrongfully discharged him from his
employment in retaliation for filing a workers’ compensation claim. Both sides
moved for summary judgment with the Village arguing that it was immune from
suit under R.C. Chapter 2744. The trial court denied the motions with respect
to immunity and wrongful discharge.
Chief
appealed the partial denial of summary judgment to the Fourth District Court of
Appeals. After the parties had the chance to brief the issue of political
subdivision immunity, the Fourth District affirmed the trial court’s decision
to deny the Village immunity with respect to the wrongful discharge claim. Specifically,
the fourth District determined that the Political Subdivision Tort Liability
Act does not apply to the Chief’s claim for wrongful discharge in violation of
public policy.
Also,
genuine issues of material fact existed as to whether the Village’s acting
Police Chief acted with a malicious purpose, in bad faith, or in a wanton or
reckless manner when he posted a mocking picture of Chief at the police
station. According to the court, reasonable minds could conclude that this
conduct demonstrates malice, bad faith, or wanton or reckless conduct. Notably,
the Fourth District refused to hear any issues on appeal regarding the merits
of the case, despite the fact that some issues were intertwined with the issue
of immunity, claiming that R.C. 2744.02(C) did not confer jurisdiction to hear
any issues other than the denial of immunity.
Zoning
Three
Wide Entertainment v. Athens Bd. Of
Zoning Appeals, 194 Ohio App. 3d 1,
2011-Ohio-2304.
Three
Wide submitted a zoning-permit application to the Athens Board of Zoning
Appeals (“Board”) for property owned by Three Wide along Stimson Avenue in
Athens. Three Wide sought the permit to operate an adult oriented business on
the property. After a hearing was held describing Three Wide’s business in
detail, the Board voted 5-0 to deny the application because the proposed use
was not a principally permitted use. Three Wide then
submitted three additional permit applications with each proposing a different
use. These applications were each refused by the zoning administrator based on
the prior denial, and subsequently denied by the Board after a second hearing.
After
the second denial, Three Wide filed a R.C. 2506 appeal with the Athens County
Court of Common Pleas. The court determined that the Board had applied the
wrong legal standard in denying Three Wide’s permit applications, and vacated
the Board’s decision but stated that its judgment was not a judgment of
reversal. The Board subsequently appealed the court’s decision.
On
review, the Fourth District Court of Appeals affirmed the common pleas court’s
decision finding that the court did not abuse its discretion by concluding that
the Board used the incorrect legal standard in denying Three Wide’s
applications. The Fourth District noted that, under the Athens City Code, the
Board’s limited duty was to review Three Wide’s applications and determine
whether the proposed business fit within the definition of a principal
permitted use of a B-3 Zone or whether the business qualified as the same
general character as such a principal permitted use. The record indicated that
the Board members were unclear as to what their role was in reviewing the
applications, and that Board members relied on extraneous considerations in
denying the applications. The Board members essentially substituted their own
considerations and factored in the potential effects that an adult oriented
business would have on Stimson Avenue instead of solely determining whether the
business was a principal permitted use. Therefore, the common pleas court did
not abuse its discretion in vacating the Board’s decision.
This publication is intended for general information
purposes only and does not and is not intended to constitute legal advice. The
reader must consult with legal counsel to determine how laws or decisions
discussed herein apply to the reader's specific circumstances.