The climate is heated between Cleveland’s botanical garden, which sits in Wade Park, and the heirs of the benefactor who donated the land.

Businessman and philanthropist Jeptha Wade gave 73 acres of green space and woods to the city of Cleveland in 1882. Wade Park is now the venue for several attractions, including the Cleveland Museum of Art, the Cleveland Museum of Natural History, and the Cleveland Botanical Garden (CBG). The controversy sprouted because the botanical garden is open six days a week, charges admission, and operates a parking garage.

The heirs contend that the limited hours, admission fees, and revenue generated from parking are contrary to the terms of Wade’s deed, which set the conditions of the gift.

Park Intended to Benefit All and to Be Open at All Times
In a three-page deed, Wade, who founded Western Union Telegraph and the Case Institute of Technology, designated the property for a park “for the benefit of all people” and “to be open at all times to the public.” The deed also required wrought-iron materials for any fencing installed in parts of the park.

CBG’s grounds cover 10 acres in Wade Park. The nonprofit garden leases its land from the city and from University Circle Inc., which leases a green space in the park called Wade Oval from the city.

In the 1990s, CBG launched a $70 million capital campaign to quadruple its space and construct a glass conservatory. The botanical garden issued $20 million in bonds that would be paid by charging for admission and parking beginning in 2003.

Dispute over Botanical Garden Lands in Court
In August 2013, CBG filed a complaint asking the Cuyahoga County Common Pleas Court to confirm that the operation of the garden’s grounds, including charging admission and parking fees, complied with the Wade deed’s limitations on the park’s use. CBG also claimed that the Wade heirs couldn’t contest any issue related to the deed’s fence restriction. The Wade heirs, including Staci Worthington Drewien, argued that the 1882 deed prohibits charging admission and parking fees, and they wanted any fencing not authorized by the deed to be removed.

The court ruled in April 2019 that CBG was adhering to the deed and that the heirs didn’t have the authority to seek the removal of the fencing. The heirs also lost certain rights under the deed because they didn’t preserve them as described in the Ohio Marketable Title Act (MTA), the court concluded.

The Eighth District Court of Appeals overturned the trial court’s ruling regarding the MTA, but upheld the decision about the botanical garden’s operations and the fencing. The heirs appealed to the Ohio Supreme Court, as did CBG, Cleveland, and University Circle. The Supreme Court accepted the appeal and cross appeals.

Public Access Too Restricted, Wade Heirs Maintain
Starting in 2003, CBG began ignoring the Wade deed’s mandate that the park “be open at all times to the public,” the heirs argue. They contend that CBG has fenced in the garden’s 10 acres and that the botanical garden is open only 25% of the week. During its open hours, CBG makes people pay to access the grounds, the heirs state, adding that by 2019 CBG had collected more than $13 million in parking and admission fees from the public. For 75% of the time, the grounds are completely inaccessible to the public – another violation of the deed, the heirs maintain.

They also contend that the city is the park’s trustee, not an owner that would be subject to the MTA’s rules governing land title transactions.

The Institute for Justice submitted an amicus brief in support of the heirs, asserting that the deed between Wade and Cleveland is a contract that can’t be undermined by the MTA.

Fees for Nonprofit Garden Permissible for Parks, CBG and City Argue
CBG responds that being open at all times doesn’t mean that access must be free. The nonprofit organization also maintains that the deed nowhere prohibits assessing fees or all fencing. Nor does the deed require the heirs’ consent before CBG can improve or maintain its grounds as long as those actions comply with the deed, the nonprofit states. CBG, along with the city and University Circle, emphasize that courts nationwide have found a deed’s park-use restriction doesn’t bar a city from leasing land to a private nonprofit that charges admission if the operations are consistent with the purposes of parks.

In addition, CBG, Cleveland, and University Circle maintain, the city owns Wade Park, and the MTA applies to park lands and other property that the government owns or manages. They argue the heirs had to follow the MTA and preserve their rights by filing an affidavit in the county recorder’s office in 1964.

Oral Argument Details
On May 11, the Supreme Court will hear Cleveland Botanical Garden v. Drewien and two other cases. The Court will consider four more on May 12. Oral arguments begin each day at 9 a.m.

Because of social distancing guidelines during the COVID-19 pandemic, the Court will hold its session by videoconference. The arguments will be streamed live online at sc.ohio.gov and broadcast live, and archived, on The Ohio Channel.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, May 11
An argument at a 2018 late-night Cleveland house party spilled into the street. The man who started the argument shot a pistol into the air, attempting to calm things down. However, one man leaving the scene was shot four times and later died in the hospital. Police couldn’t determine who shot the man. The argument instigator was found guilty of involuntary manslaughter for causing a death as a proximate result of having a weapon under disability. The man had a previous drug-related conviction that made him ineligible to possess a gun. In State v. Crawford, the man argues the conviction for having a weapon under disability couldn’t be used as the underlying charge to convict him of involuntary manslaughter because the weapons charge was unrelated to the death of the man at the party.

A Cleveland defense attorney was investigated for professional misconduct in handling cases for six clients. The attorney and the investigating bar association agreed to propose a two-year suspension with one year stayed. The professional conduct board, however, decided the attorney’s dishonesty required a two-year suspension with no time stayed. In Ohio State Bar Association v. Bruner, the attorney disputes a few findings and argues that his due-process rights were violated because he wasn’t permitted to present evidence at the disciplinary hearing to respond to the rule violations related to dishonesty. The bar association maintains the additional violations were part of the original complaint so the attorney was given fair notice.

Wednesday, May 12
In State v. O’Malley, a man who pled no contest to operating a vehicle while under the influence of alcohol (OVI) in Medina was required by state law to forfeit his pickup truck because the conviction was his third OVI offense. He challenges the constitutionality of the law, alleging that the forfeiture was an excessive fine. Noting that he lost his job because he had no transportation, he argues that, given his financial situation, the punishment was highly disproportionate to his offense. The city maintains that the man had multiple OVIs and seizing his vehicle protects the public.  

An infant born in Tiffin tested positive for cocaine, and the drug also was found in the umbilical cord. The infant’s mother was convicted of drug possession and sentenced to community service. She asserts in State v. Foreman that the prosecutor had to prove she obtained, possessed, or used drugs in Seneca County, but testing positive for drugs doesn’t prove possession in a county under Ohio law. The prosecutor notes that the hospital had a duty to report the positive drug tests to protect the infant and the mother acknowledged to a social services caseworker that she repeatedly used cocaine during her pregnancy. All the facts considered together support the prosecution for drug possession, the state contends.

A Lake County couple who divorced in 2001 agreed to split the husband’s federal pension when he retired. The ex-wife received court approval of a proposed split in 2013 when her ex-husband retired. The order provided her nearly half the retirement and called for each spouse to pay $140 per month for a survivor benefit annuity. The ex-husband maintained he wasn’t notified of the court’s action. In 2018, he sought a court order to vacate the pension-split ruling, but the trial court ruled he waited too long to act. In Ostanek v. Ostanek, the Court will consider whether the trial court’s pension split should be considered void ab initio, which would allow the ex-husband to appeal the ruling at any time.

A Cleveland-area attorney objects to a proposed fully stayed one-year suspension for alleging in court documents that the decisions by Ohio Supreme Court justices and Cuyahoga County appellate judges in two of his cases were guided by politics and not the law. In Cleveland Metropolitan Bar Association v. Morton, the attorney argues his comments about the jurists are constitutionally protected free speech and are accurate. The bar association not only believes the lawyer should be sanctioned, but also maintains the rule violations damage public confidence in the judicial system and that the lawyer should be barred from practicing law for at least six months.