Oral Argument Previews for Wednesday, May 20, 2015

Wednesday, May 20, 2015

State of Ohio c/o Mike DeWine et al. v. State ex rel. Ohio Civil Service Employees Association et al., Case no. 2014-0319
Tenth District Court of Appeals (Franklin County)

Jeffrey C. Arnold v. State of Ohio, Case no. 2014-0718
Third District Court of Appeals (Seneca County)

Fulton County Board of Revision et al. v. The Metamora Elevator Company, Case no. 2014-0874
Ohio Board of Tax Appeals

Disciplinary Counsel v. Beverly J. Corner, Case no. 2014-1404
Franklin County

Do Prison Privatization Provisions in 2011-2013 Budget Bill Violate One-Subject Rule?

State of Ohio c/o Mike DeWine et al. v. State ex rel. Ohio Civil Service Employees Association et al., Case no. 2014-0319
Tenth District Court of Appeals (Franklin County)

ISSUES:
Appeal:

Do biennial budget bill provisions authorizing state agencies to raise revenue violate the Ohio Constitution’s one-subject rule for bills?
Do budget bill amendments to laws governing the private operation and management of prisons violate the constitution’s one-subject rule?
May a court order an evidentiary hearing to review each of the budget bill’s provisions to determine whether the bill violates the one-subject rule and to sever any parts in violation?

Cross-Appeal:

After the state sells a prison to a private prison contractor, does the Ohio Constitution forbid the state from paying an annual ownership fee to the contractor?
Are people who work for a private prison contractor pursuant to a contract with the state public employees under state law?

BACKGROUND:
In the mid-’90s, the General Assembly enacted legislation to permit the state’s Department of Rehabilitation and Correction (DRC) to contract with private companies for the operation and management of Ohio’s prisons if at least 5 percent was saved compared to DRC’s costs.

As part of the biennial budget bill for 2011-2013, the legislature passed an uncodified section (law that isn’t general or permanent) that permitted DRC to sell five state prisons or to hire companies that would privately operate the facilities. Revenue from sales would be deposited into a correctional facilities bond retirement fund to pay off outstanding bonds and then eventually could flow into the state’s general revenue fund. The new owner of a prison would have to pay property and income taxes.

In December 2011, the state sold the Lake Erie Correctional Facility in Conneaut for nearly $72.8 million to the Corrections Corporation of America (CCA) and contracted with the corporation to privately run the prison. Management and Training Corporation (MTC) was hired to handle operations for the state-owned North Central Correction Institution in Marion.

Parties File Lawsuit
In July 2012, the Ohio Civil Service Employees Association, a group of state prison employees affected by the prison privatization, and ProgressOhio.org filed a lawsuit against the state, the governor, numerous other high-level public officials, DRC and other departments, local officials, and the private contractors. The suit alleged that the 2011-2013 budget bill was unconstitutional, among other claims. The trial court dismissed the case.

The union, state prison employees, and advocacy group appealed to the Tenth District Court of Appeals. The appeals court rejected their arguments, except the allegation that the more than 3,000-page budget bill violated the one-subject rule in Ohio’s Constitution. The court concluded that the prison privatization measures weren’t rationally related to the bill’s appropriations, and ordered the case back to the trial court to decide whether the bill encompassed one subject and to review the budget bill line by line to remove any provisions outside the budget’s scope.

The state and the private prison contractors appealed to the Ohio Supreme Court, which agreed to hear the case.

One-Subject Rule and Appropriations: State and Contractor Assertions
Lawyers from the Ohio Attorney General’s Office contend in the brief that the legislature should be permitted to include any items in budget bills that “rationally affect the state budget and operations.” They maintain that appropriations, spending reductions, and income generators are proper for a budget bill. They point out that most budget provisions don’t directly impact revenues and expenditures but instead could rationally affect those income and expenses. Provisions rationally connected to the budget are appropriate in the bill, they argue.

This case presents an easier determination, however, they maintain, because the privatization provisions either increase income or cut expenses. They contend that the sale of prisons brings in revenue, which directly affects the budget. They note the more than $72 million generated by the sale of the Lake Erie prison.

In addition, the outsourcing of prison operations to private companies is at least rationally, if not directly, connected to the budget, they assert. They point to the statutory provision requiring private contractors to show they can save at least 5 percent in expenses if they run a prison. That savings helps to reduce expenses in the budget, making it an appropriate provision in a budget bill, they argue.

Citing In re Nowak (2004), which quotes an earlier ruling, they maintain that the one-subject rule has been “‘liberally construed’” to avoid “‘hamper[ing] the legislature’” or “‘embarrass[ing] honest legislation.’” Deference must be given to the legislature by finding one-subject violations only if the provisions’ inclusion in the budget is “manifestly gross and fraudulent,” they conclude.

Attorneys for prison contractor MTC make many arguments similar to the state’s about the one-subject rule and the revenues and expenditures positively affected by the sale and private operation of prisons. They also note the additional revenues created for the state from property and income taxes that prison contractors have to pay, as well as the lowered expenses resulting when the state no longer owns or operates a prison.

One-Subject Rule and Appropriations: Appellees’ Contentions
Attorneys for the civil service union, the state prison employees, and ProgressOhio.org respond that the revenue generated and costs reduced are less than claimed because they are offset by other money the state is paying to the private contractors. To run the Lake Erie facility, the state provides CCA a per diem, which amounts to more than $29 million annually, they note. The state also pays CCA an annual ownership fee of $3.8 million per year, and they maintain that those annual payments will continue until 2032 for a total subsidy of $79.8 million over 21 years.

They add that 11 individuals named in the case lost their jobs at the prisons, while others have suffered pay cuts, loss of seniority, long commutes to new jobs, and termination of their participation in the state’s retirement system if they couldn’t find other positions for the state.

They assert that the statutory language requiring private contractors to show 5 percent savings in operational costs can’t be viewed as an appropriation in the 2011-2013 bill because it was enacted in 1995. And the sale of the Lake Erie prison hasn’t led to the supposed revenue stream because statutory restrictions have kept the money locked in the bond fund, they maintain.

Regardless, neither are appropriations, they argue. Statute defines “appropriation” as the legislature’s authorization to make an expenditure or to incur obligations for specific purposes. Citing State ex rel. LetOhioVote.org v. Brunner (2009), they contend that the Ohio Supreme Court concluded that laws inextricably linked to appropriations are not appropriations. They maintain in the brief that the state’s proposed standard that anything “rationally connected” to the budget is an appropriation “is so broad that almost nothing would be excluded” from the biennial bill. Because the new provision allowing the sale of five prisons or the amendments permitting private contractors to take over their operations didn’t set aside money for a public purpose, the provisions aren’t appropriations, they conclude.

Challenges to Evidentiary Hearing
The state’s attorneys also protest the “intrusive provision-by-provision analysis” of the budget bill ordered by the Tenth District. Even if the legislation contains some measures not rationally related to appropriations, they argue that the bill shouldn’t be completely invalidated. Eliminating the problematic provisions is the better course, they assert. However, they maintain that the prison privatization enactments are within the proper scope of the appropriations bill.

The request to strike down the entire bill “would fundamentally alter how the General Assembly balances the state budget every two years,” they contend. And in the lawsuit the appellees didn’t reference thousands of provisions that would now be improperly reviewed under the Tenth District’s ruling, they argue. The Supreme Court isn’t required to consider the constitutionality of specific provisions that weren’t challenged in the case, they conclude.

Attorneys for the civil service union, state prison employees, and ProgressOhio.org support the Tenth District’s call for a hearing on the bill’s constitutionality but didn’t present specific arguments on the issue in the brief submitted to the court.

Annual Ownership Fee Contested in Cross-Appeal
Attorneys for the civil service union, state prison employees, and ProgressOhio.org also filed a cross-appeal on two issues. The first deals with Ohio Constitution, Article VIII, Section 4, which states, “The credit of the state shall not, in any manner, be given or loaned to, or in aid of any individual association or corporation whatever; nor shall the state ever hereafter become a joint owner, or stockholder, in any company or association, in this state, or elsewhere, formed for any purpose whatever.”

The attorneys point out that the annual ownership fee of $3.8 million paid by the state to CCA is for the “purchase price recovery, renovation and fixed equipment associated with the ownership(s) of the Lake Erie Correctional Complex,” according to the state’s proposal. They argue the state had already sold the facility, so the fee isn’t for purchasing the prison, nor is anything being leased. The operation and management of the facility is paid through a separate contract, they add.

They view the fee as an illegal subsidy – monetary assistance granted by the government. They contend that a 1989 Ohio Supreme Court decision (State ex rel. Tomino v. Brown) prohibits government participation in “ventures that subsidize commerce or industry.” The costs of owning the prison are CCA’s responsibility, not the state’s, they maintain.

Attorneys for the state and for CCA counter that Section 4 is about the use of the state’s borrowing power. The provision bars the state from giving or loaning the state’s credit to a private entity, they assert. They contend that the section doesn’t address the state’s sale of property or contracts with private companies for goods or services.

When the state sold the Lake Erie prison to CCA, they note that the state didn’t become a joint owner and it didn’t lend its credit to the company. The state pays the annual ownership fee to CCA to compensate it for the use of the prison to house the state’s inmates, they maintain. They compare the fee to rent or a lease. The so-called subsidy, which in this case is for a public service, isn’t one that violates the constitution, they conclude.

Public Employees Claim
The second issue raised in the cross-appeal is whether the trial court had jurisdiction to decide whether the prison employees now working for the private contractors are still public employees. Attorneys for the civil service union, state prison employees, and ProgressOhio.org assert that prison employees at CCA and MTC are public employees because they are employed under a state contract. They contend that R.C. 9.06(K) mandates that the statutory claim be filed in the Franklin County Court of Common Pleas. The State Employment Relations Board (SERB) doesn’t have jurisdiction over the private contracts, they argue.

The state’s attorneys and counsel for both prison contractors respond that claims related to statutes outside of Chapter 4117, which govern public employees collective bargaining rights, are permitted in the trial court, but this claim is based on that chapter and must first be considered by SERB. Only after SERB makes an initial determination whether the employees are public employees can they appeal the decision to the courts, they argue. They add that R.C. 9.06(K) is a “venue provision” and doesn’t apply in this matter.

Division of Oral Argument Time
The Supreme Court has allotted 10 minutes for arguments from the state and MTC; 10 minutes to the Ohio Civil Service Employees Association, the prison employees, and ProgressOhio.org; and 10 minutes for CCA.

Additional Briefs
Amicus curiae briefs supporting the position of the Ohio Civil Service Employees Association et al. position have been submitted by:

- 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 State of Ohio, the governor, other high-level public officials, the Department of Rehabilitation and Correction, and other departments from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

Representing Management and Training Corporation: Adam Martin, 216.928.2200

Representing Ohio Civil Service Employees Association, a group of prison employees affected by the privatization, and ProgressOhio.org: James Melle, 614.271.6180

Representing Corrections Corporation of America: Charles Saxbe, 614.221.2838

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Was Man Convicted of Domestic Violence Denied a Fair, Impartial Trial?

Jeffrey C. Arnold v. State of Ohio, Case no. 2014-0718
Third District Court of Appeals (Seneca County)

ISSUES:

Did the trial court abuse its discretion when it advised a witness he had no right to invoke his privilege under the Fifth Amendment and refuse to testify?
Was the trial court prejudiced in presuming defendant’s guilt, denying the defendant a fair trial under the Sixth and Fourteenth amendments of the U.S. Constitution?
Was the defendant denied the right to confront a witness when the trial court allowed the witness to read his written statement to police into the record without cross-examination?

BACKGROUND:
Fostoria police were dispatched to a home on March 25, 2013, after a neighbor reported hearing a disturbance. Police charged Jeffrey Arnold with domestic violence, a first-degree misdemeanor, for assaulting his father Lester Arnold.

At the bench trial in Fostoria Municipal Court, Lester refused to testify in his son’s trial and invoked his rights under the Fifth Amendment, which protects against self-incrimination. The judge ordered the father to testify, and the prosecution had Lester read the statement he made to police that Jeffrey had grabbed his hair and tried to strangle him. Two police officers who responded to the domestic violence call and Jeffrey’s mother also testified.

The judge found Jeffrey guilty and sentenced him to 150 days in jail. He took the case to the Third District Court of Appeals, arguing his father should have been allowed to invoke his Fifth Amendment right; that he didn’t receive a fair, impartial trial under the Sixth and Fourteenth amendments; and there wasn’t enough evidence to prove the domestic violence charge. In a 2-1 decision filed in March 2014 affirming the conviction, the appeals court stated the statute doesn’t require physical harm. The appeals court also didn’t find any constitutional violations were made during the trial. Jeffrey is now asking the Ohio Supreme Court to reverse his conviction and order a new trial.

Arnold’s Argument
Lester, the only other person in the room when his son was accused of assaulting him, refused to testify in the trial because of his Fifth Amendment right from self-incrimination. Citing the 2007 Ohio Supreme Court case State v. Beebe, attorneys for Jeffrey contend it was a reversible error when the prosecuting attorney improperly advised the elder Arnold that he had no right to invoke that privilege. They also point to Ohio v. Reiner, U.S. Supreme Court (2001), which gave a witness the right to invoke the privilege “even though he or she may maintain any innocence of wrongdoing.”

In the second argument to the Supreme Court, Jeffrey’s attorneys claim the judge’s actions during the trial showed a prejudicial presumption that Jeffrey was guilty and denied him a fair, impartial trial afforded under the Sixth and Fourteenth amendments. Examples cited included repeatedly overruling Lester’s Fifth Amendment privilege, allowing a police officer’s testimony that the defense objected to as hearsay, and interrupting the defense’s closing argument. They also state there was a lack of physical evidence to find Jeffrey guilty: “the trier of facts clearly lost its way and created a manifest miscarriage of justice.”

The final proposition before the court is the trial court erred when it allowed Lester to read his statement into evidence. Drawing a parallel to the U.S. Supreme Court’s ruling in Crawford v. Washington (2004) that a tape-recorded statement to police played in court violated the confrontation clause in the Sixth Amendment, Jeffrey’s attorneys note the defense wasn’t able to carry out “any meaningful cross-examination” when the Fostoria court allowed Lester to read the statement on the stand after he testified he couldn’t remember what he’d said to police. That the statement was admitted into evidence without the defense counsel able to object because he was talking to his client, is offered as further proof of the trial court’s error.

Can’t Plead the Fifth
In the brief filed with the Supreme Court, attorneys for the state argue Jeffrey “lacks standing to assert his father’s Fifth Amendment rights” and that Lester couldn’t invoke the Fifth under the circumstances. They cite the Eighth District Appeals Court’s 2001 case State v. Ramjit, which held the appellant had no standing to raise someone else’s Fifth Amendment right, and that in Hoffman v. United States (U.S. Supreme Court, 1951) privilege only applies to answers that could lead to the person’s prosecution. In this case, the state contends Lester only made a blanket statement to “protect his son from prosecution.”

When Jeffrey’s defense attorneys failed to object during the trial based on the Sixth Amendment’s confrontation clause, the state claims it can’t be raised on direct appeal because the Ohio Supreme Court “consistently held that the failure to object waives all but plain error.” And in their review of the case record, Jeffrey had an “adequate opportunity to confront and cross-examine his father.”

To the claim that Jeffrey didn’t receive a fair, impartial trial, the state counters by citing the five rules for determining whether a trial judge’s remarks are prejudicial from the 1978 Ohio Supreme Court decision State v. Wade:

The burden of proof is placed upon the defendant to demonstrate prejudice.
It is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for.
The remarks are to be considered in light of the circumstances under which they are made.
Consideration is to be given to their possible effect upon the jury.
Consideration is to be given to their possible impairment of the effectiveness of counsel.

Using those standards, according to the state, Jeffrey can’t demonstrate prejudice or that he was denied a fair trial.

Friend-of-the-Court
An amicus curiae brief supporting the Jeffrey Arnold’s position has been submitted by the Ohio Association of Criminal Defense Lawyers.

- Stephanie Beougher

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

Contacts
Representing Jeffrey C. Arnold: Gene P. Murray, 419.435.2284

Representing the State of Ohio: Timothy J. Hoover, Fostoria City Law Director, 419.435.5723

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Should Grain Storage Bins Be Taxed as Real or Personal Property?

Fulton County Board of Revision et al. v. The Metamora Elevator Company, Case no. 2014-0874
Ohio Board of Tax Appeals

ISSUES:

Do grain storage bins fall into the category of buildings, structures, or improvements on land that must be taxed as real property?
Can grain storage bins be considered a “fixture” under state law or only as a “building” or “structure”?

BACKGROUND:
The Metamora Elevator Company, a grain processing business, owns 18 grain storage bins on 8 acres in Fulton County. The county auditor classified the storage bins as an improvement to the land and taxed them as real property.

Metamora contested that classification for tax year 2009, but the Fulton County Board of Revision agreed with the auditor. Metamora asked the state Board of Tax Appeals to review the matter. In May 2014, the board determined that the bins should be taxed instead as personal property, concluding that they are temporary, rather than permanent, structures and are “business fixtures” under state law.

The auditor and board of revision filed an appeal with the Ohio Supreme Court.

Tax Values and Rules
According to the company’s brief, the storage bins hold, aerate, and process grain to control the grain’s humidity level. The bins are “modular and mobile” metal structures bolted to concrete platforms. The auditor appraised Metamora’s overall property at more than $1.8 million, which included the nearly $1.1 million value of the bins. If the bins are removed from the real property assessment and considered personal property, the property value would drop to about $738,000.

Both parties cite a January 2008 bulletin from the state tax commissioner. It states that “portable grain storage bins regardless of size” are classified as personal property, while “elevators, storage bins, and storage silos used in agricultural operations” are real property.

Tax Authorities: Storage Bins Are Buildings or Structures
Attorneys for the county auditor and board of revision assert that the storage bins are “buildings” or “structures,” based on definitions in R.C. 5701.02. Buildings and structures are taxed as real property.

“The grain storage facilities involved in the present appeal are precisely what is referred to in these two statutory definitions: all such grain storage structures are ‘a permanent fabrication or construction, attached or affixed to land’ and each is a structure that ‘increases or enhances utilization or enjoyment of the land.’”

They contend that the 18 bins are permanent because they were constructed as buildings or structures between 19 and 39 years ago, with 13 built in the 1970s. Whether the bins can be removed isn’t relevant to whether they are real or personal property for tax purposes, they argue. They add that the tax commissioner’s designation of “portable storage bins” as personal property likely refers to a different type of storage unit – prefabricated bins assembled elsewhere and brought to a site.

They maintain that a building or structure doesn’t have to be “permanently attached” to the land to be real property, although in their view these bins are attached to the property.

Tax Authorities: Storage Bins Aren’t Fixtures
The auditor’s and board’s attorneys argue that the storage bins can’t be either a “fixture” or a “business fixture” under the law because the bins, according to the definitions, would first have to be “an item of tangible personal property.” Instead, the bins are “buildings” or “structures,” which are “permanent fabrication[s] or construction[s],” they maintain.

They contend that the mentions of “storage bins” in one of the personal property definitions “does not include independent structures that are only used for the purpose of storing grain and other types of goods.”

Grain Company: Storage Bins Are Temporary, Not Real Property
Attorneys for Metamora counter that the movable bins are temporary containers used to benefit the grain processing business but don’t enhance the use of the property. Metamora’s attorneys note that the definition of “structure,” which is real property under Ohio law, includes “storage silos for agricultural products.” They point out, however, that storage silos and storage bins are different items. They add that the statutory definition of “business fixture,” a type of personal property under the law, specifically includes “storage bins.” The distinction between “storage silos” and “storage bins” is based on permanence, they argue.

They cite the Ohio Supreme Court’s decision in Funtime Inc. v. Wilkins (2004), which provided a test for deciding whether an item is real or personal property. First, it must be determined whether the item is a building, structure, improvement, or fixture according to R.C. 5701.02, which defines real property. If not, the item constitutes personal property. However, they maintain, if the item qualifies as real property under R.C. 5701.02, then R.C. 5701.03’s definitions of personal property must be reviewed as well to determine whether the item falls under one of the “otherwise specified” exceptions to real property.

They conclude that the grain storage bins are not buildings, structures, improvements, or fixtures under R.C. 5701.02’s real property definitions, so they can’t be taxed as real property. This view is further supported by the specific mention of “storage bins” in the definitions of personal property in R.C. 5701.03, they assert.

Tax Commissioner’s Waives Oral Argument
The state tax commissioner is also an appellee in this case. The office didn’t submit a brief to the court and has been advised that it cannot participate in oral arguments.

Friend-of-the-Court Briefs
Amicus curiae briefs supporting the Metamora Elevator Company’s position have been submitted by:

- 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 Fulton County Auditor and the Fulton County Board of Revision: Kelley Gorry, 614.228.5822

Representing the Metamora Elevator Company: Jonathan Brollier, 614.227.8805

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Attorney Discipline

Disciplinary Counsel v. Beverly J. Corner, Case no. 2014-1404
Franklin County

In August 2014, the Board of Commissioners on Grievances and Discipline issued a report recommending that Beverly J. Corner of Columbus be suspended from practicing law for two years, with one year stayed if she meets certain conditions. (The board is now called the Board of Professional Conduct.)

The board found that Corner had improperly managed her trust account (IOLTA) and records, misappropriated client or third-party funds in eight cases, collected an illegal or excessive fee in another matter, and mishandled a bankruptcy case. The violations stem from complaints filed by the state’s disciplinary counsel and by the Columbus Bar Association. The board combined the cases for its hearing.

Misconduct
After a seven-month investigation in 2011 by the disciplinary counsel, Corner assured the organization she understood her obligations in maintaining a trust account and would attend an educational seminar explaining IOLTA management. The next year, however, she overdrew her trust account, and the disciplinary counsel discovered she again was mishandling her IOLTA account and her clients’ funds. The board’s report states that Corner agreed that her actions violated four professional conduct rules.

The board also details various personal injury, property damage, and custody cases Corner handled from 2008 through 2013. Corner agreed that she failed to follow three professional conduct rules requiring a client’s written consent to share fees with another lawyer and the prompt delivery of funds to clients and third parties.

In another matter, Corner was hired in 2011 by Floyd Evans, a driving instructor who was teaching a student the year before when they were hit by another vehicle. The student was killed, and Evans was injured. He was represented by another attorney for about a year before switching to Corner, who agreed to a 30 percent fee contingent on receiving an award.

The prior attorney alerted Corner he would be owed money if there was an award for his time working on the case. They agreed to a payment of $9,333 for his legal work. The case settled for $145,000. Corner paid herself 30 percent (about $43,000) and the other attorney $9,333. In total, Evans paid $52,833, or 36 percent, of his settlement for attorney fees. Corner disputes the disciplinary counsel’s assertions that she collected an excessive fee and that she didn’t promptly send money to one of the medical providers.

In the complaint from the bar association, Corner had been chastised by a trial court for failing to adequately represent a client trying to file bankruptcy. The board determined that Corner mishandled the client’s funds, and Corner agreed to violations of three conduct rules in this case.

As conditions for Corner’s reinstatement, the board recommended that Corner continue treatment for depression and obtain a health professional’s letter stating she’s competent to practice law. The board’s report was submitted to the Ohio Supreme Court for consideration.

Case Returned to Board to Consider Restitution to Driving Instructor
After reviewing the board’s report, the disciplinary counsel asked the court to remand the case to the board to decide whether Evans was owed restitution because he paid more than 30 percent in legal fees to two attorneys. In a December 2014 supplemental report, the board decided instead to dismiss the two disputed violations in the Evans case rather than order restitution. The board concluded that the evidence presented at the hearing didn’t support a finding that paying 36 percent in legal fees was illegal and excessive. It also dismissed a charge related to underpaying one of the medical providers because the outstanding balance was written off.

Disciplinary Counsel’s Objections
The board was to consider only whether to provide reimbursement to Evans, not reconsider the conclusions it had already made regarding the two related rule violations, the disciplinary counsel asserts in its objections to the board’s report. Counsel maintains that the board exceeded its authority and reached beyond the remand order’s scope.

The disciplinary counsel contends that Evans’ first attorney’s fees should have been taken from the 30 percent contingent fee. Counsel points out that the additional 6 percent Evans paid his attorneys amounted to $10,000 for him. He should only have to pay one contingent fee, they maintain.

The disciplinary counsel notes that the underpayment to one of the medical providers was due to Corner’s miscalculations, and she then told Evans he would have to pay the $2,505 balance to the facility. Even though the provider wrote off the balance, Corner still was found to have violated a conduct rule by not paying the full amount the first time, counsel concludes.

Emphasizing that Corner puts herself before her clients, the disciplinary counsel recommends a full two-year suspension.

Corner’s Responses
Attorneys for Corner counter that the board has the right to correct its errors, so it didn’t go beyond its authority when dismissing two rule violations in its supplemental report. They add that the board is obliged to give the Supreme Court accurate findings and conclusions. They maintain that the settlement portion paid to the attorneys wasn’t excessive and amounts to a fee dispute, not an unreasonable fee. They also assert that the payment to the medical provider was resolved when the balance was eliminated, so the evidence doesn’t support a professional conduct violation.

Corner asks the court for a two-year suspension, all stayed, under the conditions the board recommended along with attorney monitoring of her law practice.

Oral Argument Waiver
The Columbus Bar Association didn’t submit a brief in the case and will not participate in arguments before the court.

- 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 Office of Disciplinary Counsel: Scott Drexel, 614.461.0256

Representing Beverly J. Corner: Alvin Mathews Jr., 614.460.1619

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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.