In re D.S., Case no. 2014-0607
Fifth District Court of Appeals (Licking County)

Stephanie Watts et al. (including Three Rivers Local School District) v. Amber Sallee et al., Case no. 2014-0727
First District Court of Appeals (Hamilton County)

Ohio Department of Transportation v. Paul Risner, co-administrator of the estate of Amber Risner, et al., Case no. 2014-0862
Tenth District Court of Appeals (Franklin County)

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Is Ohio’s Juvenile Sex-Offender Law Unconstitutional?

In re D.S., Case no. 2014-0607
Fifth District Court of Appeals (Licking County)

ISSUES:

• Is a juvenile court without authority to hold an evidentiary hearing after a youth’s adjudication and disposition in order to prove the child is age-eligible to be registered as a sexual offender?
• Is the timing mechanism in R.C. 2152.83(B) unconstitutional because it violates the double jeopardy clauses of the U.S. and Ohio constitutions?
• Is the imposition of a punitive sanction that extends beyond the age jurisdiction of the juvenile court a violation of the due process clauses of the U.S. and Ohio constitutions?

BACKGROUND:
Charges were filed in Licking County Juvenile Court in August 2010 against a juvenile, identified in court documents as D.S., for two counts of gross sexual imposition and a count of public indecency. The complaint alleges D.S. was 13 and 14 years old at the time the offenses happened, between August 2009 and June 2010. D.S. admitted to the two counts of gross sexual imposition, the prosecution dropped the public indecency charge, and the judge committed D.S. in December 2010 to the Ohio Department of Youth Services (DYS) for two consecutive terms of at least six months.

After D.S. was released from DYS, the juvenile court held a sexual-offender classification hearing in June 2013. During the hearing, the prosecution presented evidence to prove D.S.’s age at the time of the offenses. The court found that D.S. was 14 at the time he committed at least one of the crimes. Offenders 13 or younger at the time of an offense are not eligible for classification. The Licking County court classified D.S. as a tier II juvenile sex offender, which requires him to register his address with law enforcement every 180 days for 20 years.

D.S. appealed the lower court decision to the Fifth District Court of Appeals, which in March 2014 affirmed the classification and determined that the state law is constitutional. He then filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

Public Defender’s Claims of Constitutional Violations
D.S.’s attorney from the Ohio Public Defender’s office asks the Ohio Supreme Court to rule that the juvenile court didn’t have the authority to hold the evidentiary hearing after adjudication and disposition, and that R.C. 2152.83 is unconstitutional.

In arguing that the juvenile court didn’t have the authority to hold the hearing after D.S. was released from DYS, his attorney writes that in 2012 the Supreme Court ruled in State v. Raber that the trial court acted without authority when it reopened a criminal case to classify the defendant as a sex offender more than a year after it had imposed its original sentence. She states D.S’s constitutional rights against double jeopardy were violated when the juvenile court’s decision in 2010 was reopened in 2013 and new evidence was presented.

Generally, the juvenile court’s jurisdiction for youth sentenced under R.C. Chapter 2152 would end when the child turns 21, but the classification as stated in R.C. 2152.83 can go beyond that so that “the child’s attainment of eighteen or twenty-one years of age does not affect or terminate the order.” D.S. will be required to register as sexual offender well past his 21st birthday when he would legally be considered an adult. His attorney calls it a “punitive sanction” that would be a violation of the child’s right to due process under both the Ohio and U.S. constitutions.

The 2012 Supreme Court decision In re C.P. stated that lifetime registration and community notification are opposite to the juvenile court system’s goals of rehabilitation, and the case is cited by D.S.’s attorney as an additional reason for the court to find D.S.’s punishment unconstitutional.

State’s Argument
In its reply, attorneys for the state argue that R.C. 2152.83 does allow a juvenile court to hold a classification hearing after the defendant’s confinement, and that there’s nothing in the statute requiring courts to make factual determinations at the time of adjudication. They cite In re I.A. (2014), the Supreme Court’s review of the statute that found juvenile courts have options as to when to conduct a classification hearing, including “at the time of the child’s release from the secured facility.”

They contend D.S.’s constitutional rights were not violated when the juvenile court classified him a sex offender. There was no double jeopardy, or multiple punishments, because there was only one conviction and then a later hearing for other consequences – as the law allows. On the issue of due process, they write in the brief to the court that R.C. 2152.83 gives the juvenile offender many chances to challenge classifications. It also gives the judge discretion to consider other factors, such as the juvenile’s remorse, which they argue is different than the law “condemned” by the court in C.P. because it eliminated that type of judicial discretion.

They discount the use of Raber to resolve the juvenile case because the statutes and the procedure in the cases are different. In Raber, the common pleas court determined at the first hearing that the adult defendant couldn’t be classified as an offender, while in D.S.’s case, a juvenile court “deferred” the determination.

They end the state’s brief by calling the “social-science and public-policy” citations used by D.S. and the groups who filed an amicus brief in the case better suited for the legislature than the court.

Friend-of-the-Court Brief
An amicus curiae brief supporting the position of D.S. has been submitted collectively by the following:

• Children’s Law Center
• Juvenile Law Center
• Dr. Elizabeth J. Letourneau
• National Juvenile Defender Center
• Nicole Pittman
• Schubert Center for Child Studies
• The Association for the Treatment of Sexual Abusers

- Stephanie Beougher

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

Contacts
Representing D.S.: Brooke Burns, Office of the Ohio Public Defender, 614.466.5394

Representing the State of Ohio from the Attorney General’s Office: Eric Murphy, 614.466.8980

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What Are Bus Drivers’ Obligations When Dropping Off Students?

Stephanie Watts et al. (including Three Rivers Local School District) v. Amber Sallee et al., Case no. 2014-0727
First District Court of Appeals (Hamilton County)

ISSUES:

• Does lawsuit against school district involving student who exited a school bus and was injured after the bus driver had traveled further along the bus route encompass the operation of a motor vehicle?
• Does a school bus driver violate state law when the driver continues on the bus route after child runs off without permission without reaching a place of safety on the side of the road where the child lives?
• Does a violation of the statute prohibiting bus drivers from starting the bus until a child is in a safe place on the child’s residence side of the road involve negligent supervision of a child rather than negligent operation of a motor vehicle?

BACKGROUND:
Amber Sallee, age 6, attended first grade at Miami Heights School in the southwestern Ohio town of Cleves. The school is part of the Three Rivers Local School District.

On Feb. 26, 2009, Sallee rode her bus home after school. At her stop, the girl exited the school bus but didn’t cross the street as usual to head to her residence. The bus driver, Lisa Krimmer, said Sallee instead ran off down the same side of the street with another student. Krimmer testified that she beeped her horn to get the girl’s attention without success. The driver then called school officials to let them know Sallee hadn’t gone home and was with the other student.

The driver continued her route and traveled a few more stops. About that time, Sallee tried to cross the street and was hit by a vehicle driven by Stephanie Watts. The girl’s injuries included a broken femur.

Case History
Sallee’s mom filed a personal injury lawsuit in February 2012 asking for damages. The relevant part of the lawsuit alleged that the bus driver was negligent because she didn’t follow the appropriate procedure for dropping off students. As Krimmer’s employer, Three Rivers was included in the suit. The school district requested summary judgment, claiming it cannot be sued because it’s a political subdivision. The trial court agreed.

Sallee appealed to the First District Court of Appeals, which reversed and found in favor of the girl. The appeals court determined that the school district wasn’t entitled to immunity in this case. Three Rivers appealed to the Ohio Supreme Court, which agreed to consider the issues.

Operation of Motor Vehicle
School districts are political subdivisions under state law, and political subdivisions generally have immunity from civil lawsuits claiming damages for injury or loss to person or property. However, the law lists five exceptions. In one of the exceptions, found in R.C. 2744.02(B)(1), immunity is removed and political subdivisions may be responsible for injuries when an employee negligently operates a motor vehicle while in the scope of her employment.

Attorneys for Three Rivers contend that the exception doesn’t apply in this case because the bus wasn’t present when Sallee was injured. In addition, they argue the girl’s injuries didn’t result from the driver’s operation of the bus.

Attorneys for Sallee respond that the bus driver violated R.C. 4511.75(E), which bars bus drivers from moving the bus until a child has reached a place of safety on the side of the road where the child’s residence is located. That violation establishes negligent operation of a motor vehicle and removes the school district’s immunity from civil liability, they assert. When Krimmer began moving the bus, other traffic also could travel along the road again, which ultimately led to the child being hit, they conclude.

What if Child Runs Off?
The school district’s attorneys counter that R.C. 4511.75(E) wasn’t violated in this case.

“When students do not listen to a bus driver, act without the permission of a bus driver, or fail to follow protocols of riding the school bus, it is impossible for the driver to follow R.C. 4511.75(E),” they write in the school district’s brief. “Therefore, the statute must be applied logically to the facts of a case.”

Otherwise, they assert, a bus driver would have to wait at a stop indefinitely, even if, for example, the child entered a friend’s house to spend the night. They argue that such situations would create an illogical, unreasonable, and absurd result. They maintain that the statute’s purpose is to protect students boarding and leaving the bus who are at risk when they cross in front of the bus and other vehicles. Once the child leaves the bus driver’s supervision, though, the driver can no longer protect the child, they maintain.

The child’s attorneys contend that the legislature, through the statute, imposed a specific duty on bus drivers and school districts employing the drivers. When the driver continued down the road without ensuring that Sallee had crossed over to the side of the street where she lived, the driver and the school district breached the duty required by the law, they assert. By moving forward along her route, the driver’s breach of her duty “proximately caused” Sallee’s injuries, they argue.

They maintain that the restrictions in the statute are reasonable, and Krimmer could’ve waited until Sallee crossed the road and wouldn’t have been delayed for long if she had. As far as the claim of unreasonable, absurd results, they note that the school district cites no cases demonstrating those kinds of consequences.

Supervision of Students
Attorneys for Three Rivers discuss the Ohio Supreme Court’s decision in Doe v. Marlington Local School Dist. Bd. of Edn. (2009). They note the ruling analyzed the meaning of “operation” in the immunity exception in R.C. 2744.02(B)(1). They contend that the court determined a bus driver’s duties may include supervision of students, but not everything the bus driver does encompasses operation of a motor vehicle.

And, as in Doe, they assert, the (B)(1) exception also doesn’t include claims that a bus driver is negligent while supervising students when they don’t go home or ignore the driver.

The child’s attorneys respond that the bus driver’s actions did involve operating a motor vehicle because she moved the bus away from the stop. They also argue a bus driver’s supervisory duties include making sure a child crosses to her residence side of the road, and that supervision also involves operating a motor vehicle.

Friend-of-the-Court Briefs
An amicus curiae brief supporting the Three Rivers Local School District’s position has been submitted by Ohio Association of Civil Trial Attorneys. The Ohio Association for Justice has filed an amicus brief supporting Amber Sallee.

- Kathleen Maloney

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

Contacts
Representing the Three Rivers Local School District: David Balzano, 513.603.5346

Representing Amber Sallee: Dennis Mahoney, 513.241.7111

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What Safety Standards Must ODOT Meet When Making Road Improvements?

Ohio Department of Transportation v. Paul Risner, co-administrator of the estate of Amber Risner, et al., Case no. 2014-0862
Tenth District Court of Appeals (Franklin County)

ISSUE: When the Ohio Department of Transportation makes specific highway improvements, do only those particular improvements need to meet current construction standards?

BACKGROUND:
Three teenage girls stopped at a gas station on State Route 220 in Pike County on their way to meet friends at Lake White. Ashley Royster was driving the vehicle, Amber Risner was sitting in the front passenger seat, and another friend was in the back seat. After leaving the gas station, Royster drove north on S.R. 220 and stopped at the intersection with S.R. 32, a four-lane divided highway with a median. The intersection was marked with a stop sign and a red flashing light. Yellow flashing lights faced traffic traveling in both directions on S.R. 32.

Near midnight on September 12, 2009, Royster proceeded to cross S.R. 32 and didn’t stop in the median. Her vehicle collided with a tractor-trailer traveling westbound on S.R. 32, and Risner was thrown from the vehicle and killed.

In March 2011, Risner’s parents, Paul and Catherine, sued the Ohio Department of Transportation (ODOT) in the Court of Claims, which handles civil lawsuits against state agencies. ODOT had added the red and yellow flashing lights, along with advance warning signs, on the highways in 2000 and 2004. The court granted summary judgment to the state agency, finding in part that ODOT’s installation of the flashing lights and signs were “maintenance” and that the agency didn’t have a duty to ensure that the sight distances at the intersection met certain standards.

The Risners appealed to the Tenth District Court of Appeals, which reversed. The Tenth District determined that the addition of the lights and signs constituted “improvements,” which required ODOT to make changes so the intersection conformed to sight-distance standards for motorist safety.

The state agency appealed to the Ohio Supreme Court, which agreed to consider the case.

Limits of State Immunity
In 1984, an Ohio Supreme Court decision interpreted a statute limiting the state’s immunity from lawsuits. The court ruled that the state “cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.” However, the court noted that the state, like a private party, may be liable in the execution of policy decisions to engage in certain activities or functions.

ODOT’s Positions
Attorneys for ODOT argue that this case is about the agency’s transportation policies, which includes engineering, safety, regulations, and budgets. The state and its agencies are protected from tort liability for policy choices they make about roads and traffic issues, they assert.

They note that ODOT has statutory authority to develop comprehensive and balanced state policies to provide adequate transportation in the state, and its activities include improvement projects for road safety prioritized based on the agency’s resources. The intersection of S.R. 220 and S.R. 32 was reviewed, and some safety features were added. These were policy choices, they contend.

Even when the Ohio Supreme Court found ODOT liable in a 1996 case (Semadeni v. Ohio Dept. of Transportation), ODOT’s attorneys maintain that the decision explained that ODOT may be liable when it fails to execute a policy in a reasonable timeframe, but it isn’t liable for adopting a policy to improve safety.

If the court determines that ODOT isn’t immune for its policy choices about the intersection, they argue that decisions involving private entities demonstrate that ODOT still wouldn’t be found responsible in this case. They mention that, based on those rulings, ODOT wouldn’t required to update the intersection to standards put in place after the intersection was created, there is no duty to upgrade all intersections every time new design standards are developed, and studying issues at a location doesn’t make the agency negligent if it doesn’t make improvements.

They add that the Tenth District’s distinction between “maintenance” of and “improvements” to roads isn’t relevant. Because the addition of lights and warning signs were improvements to the intersection of the two state routes, the relevant question is when those modifications trigger liability, they assert. The upgrades were a choice balancing many considerations, they argue. The lights and warning signs themselves had to conform to 2000 or 2004 standards, but their installation didn’t trigger a duty to upgrade the entire intersection to those standards, they contend.

Requiring only the specific improvements to meet the construction and design standards in place at that time “also accords with the discretion that should attach to ODOT’s choices about what projects it should undertake and how extensive those projects should be,” they write in the agency’s brief. “Those judgments require engineering and resource questions that ODOT must evaluate for all 43,000 miles of roads it oversees.”

Family’s Responses
Attorneys for the Risners assert that ODOT made improvements to this intersection because of safety issues that had been documented. If the agency makes road and traffic improvements that fully address the safety concerns, then there is no potential for liability, they maintain.

“If, however, the improvements do nothing to rectify the identified safety issues, then the lack of an upgrade has the potential, and should have the potential, to result in liability,” they write in the brief to the court.

They also cite the Semadeni decision. In their view, the court ruled if a project involves a redesign or reconstruction, then ODOT may need to ensure the road meets the construction and safety standards on the books at the time the upgrade is made. They claim that these upgrades involved redesigning or reconstructing the intersection. They argue that ODOT owes motorists a “duty of care” to meet its own safety guidelines in these circumstances. In addition, they stress that Semadeni also established that the way a policy decision is implemented may be actionable.

They contend that ODOT’s reports show that it knew since 1995 about the high number of accidents related to a rise in the road on S.R. 32 before the intersection with S.R. 220. They argue the installation of the overhead flashing lights in 2000 and the warning signs in 2004 didn’t improve the sight-distance problem and didn’t comply with ODOT’s related design standards at the time. They assert that had ODOT updated the intersection to the current standards, the hazard would’ve been eliminated. The way the agency chose to implement its policy decision to make the intersection safer breached its duty to Ohio motorists, they conclude.

Friend-of-Court Brief
An amicus curiae brief supporting the Risners’ position has been submitted by the Ohio Association for Justice.

- Kathleen Maloney

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

Contacts
Representing the Ohio Department of Transportation from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

Representing Paul Risner et al.: Douglas Blue, 614.224.6969

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