State of Ohio ex rel. Kurt Singer v. Fairland Local School District Board of Education, Case no. 2015-1517
Writ of Mandamus

In the Matter of the Complaints of Katherine Lycourt-Donovan, Seneca Builders LLC, and Ryan Roth et al. v. Columbia Gas of Ohio Inc., Case no. 2016-0080
Public Utilities Commission of Ohio

In re: D.S., Case no. 2016-0907
Tenth District Court of Appeals (Franklin County)

State of Ohio v. Orlando Batista, Case no. 2016-0903
First District Court of Appeals (Hamilton County)

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Is Long-Term Substitute Custodian a Regular Nonteaching School Employee?

State of Ohio ex rel. Kurt Singer v. Fairland Local School District Board of Education, Case no. 2015-1517
Writ of Mandamus

ISSUE: Is an employee who works more than 120 days in a public school district a “regular nonteaching school employee” under R.C. Chapter 3319 and entitled to the protections and benefits of a regular employee even if the school lists the worker as a “substitute” who doesn’t have a written contract?

BACKGROUND:
Kurt Singer was hired by the Fairland Local School District in Lawrence County as a custodian in 2006. He has been employed by the district every successive year, including summers, and performs all the same duties as the regular custodians. For nine consecutive years, Singer has been labeled a “substitute” by Fairland, which means he doesn’t have a written contract, is excluded from the nonteaching employee union, earns about half the hourly wage of the full-time custodians, and doesn’t receive benefits or cost-of-living salary adjustments. He also lacks the job security granted to school district employees embedded in R.C. Chapter 3319.

Singer charges the district uses him as a “regular” employee so that the district can avoid hiring more regular employees. In some instances a full-time custodian will spend half a work day acting as a bus driver and Singer spends a half day doing the work of the full-time custodian who is driving the bus. This allows the district to avoid hiring more regular bus drivers, he asserts. He also considers his work full-time because on timesheets he is assigned to work alongside regular custodians, and while labeled a “substitute” on the district records, he isn’t substituting for anyone.

Singer asked the board of education to provide him with a written contract, and declare that he worked more than three consecutive years as a regular employee. Having worked regularly for three years, Singer insists he is eligible for a continuing contract with the district that should provide him with the full benefits of all other long-standing district employees.

The school board rejected Singer’s argument, and he asks the Supreme Court Sing. The Court agreed to hear his case.

Law Unclear on Regular Nonteaching Status, Singer Argues
While R.C. Chapter 3319 doesn’t define “regular nonteaching school employee” or “substitute,” Singer maintains the law would place a person with his experience into the regular nonteaching school employee category. He wrote the Supreme Court hasn’t defined the terms in past decisions and only a few lower courts have touched on the topic. He notes that he doesn’t typically work a 40-hour work week, but adds that through leave or other circumstances most Fairland custodians don’t work 40-hour weeks.

He also maintains that prior court rulings have considered part-time workers as regular employees, and cites portions of the state law that reference regular part-time workers. One such provision is R.C. 3319.41, which grants sick leave to teachers and nonteaching school employees who provide “regular part-time, per diem, or hourly service” to a school district. Singer notes that the Court’s 1983 Ohio Association of Public School Employees Chapter No. 672 v. Twin Valley Local School District Board of Education decision found school bus drivers were considered regular nonteaching school employees regardless of whether they worked 40 hours a week.

The law governing school employees is less-focused on the work week and more dependent on “work year,” Singer suggests, noting that R.C. 3319.09 defines “year” as not less than 120 days during the school year. He argues that he has worked more than 120 days during each school year for his first seven years with the district.

He contends that Fairland’s designation of him as a substitute is improper, and if the practice became widespread, it would “wreak havoc” because others could follow the district’s lead in using the cheaper labor provided by substitutes to fill vacancies created by understaffing. This would “signal to districts that they can maintain a permanent class of career substitutes who lack the job security and economic benefits the General Assembly intended to provide for long-term school employees,” Singer’s brief stated.

“In fact, if Mr. Singer is a substitute, any school employee could be called a substitute and denied the rights granted by Chapter 3319,” the brief states.

Board Maintains Singer is Substitute
The Fairland school board notes that Singer has never been permanently assigned to any one of its four district school buildings and has never been assigned to work 8-hours days on a long-term basis. He is called to work by school officials on an “as-needed” basis, and the board notes it has no say in who gets invited to join the employee union representing nonteaching employees.

The board explains the union limits membership of custodial, custodial maintenance, and maintenance workers to those working year-round, eight hours per day. The board also argues that collective bargaining agreements for school employees supersede state law in some cases, such as this, where the union offers membership only to those working 8-hour work days for 12 months of the year. The board argues that Singer working a “school year” of more than 120 days doesn’t qualify him to join the union and doesn’t obligate the board to classify him as a regular employee.

The board points to the Supreme Court’s 1967 Gates v. Board of Ed. of River Local School Dist. in which two former nonteaching maintenance employees without written contracts were found not to be regular employees despite each having worked five years, and both in their first two years were offered sick leave and vacation time. Fairland notes that both were excluded from the regular classification because neither had been provided a yearly salary nor were they expected to work year-around. Fairland maintains Singer has a weaker argument for being classified as a regular employee than the two employees the Court rejected in Gates.

The board also asserts that Singer’s claim to be ruled a regular employee has been filed too late. Fairland argues that R.C. 2305.07 sets a six-year statute of limitations for unwritten contracts, and that if Singer wanted to accuse the board of breaching an unwritten contract, he needed to file within six years of the date he was hired, and not wait nine years.

- Dan Trevas

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

Contacts
Representing Kurt Singer: Richard Lewis, 740.286.0071

Representing Fairland Local School District Board of Education: Lawrence Barbiere, 513.583.4200

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Did Company Violate State Law When It Stopped Natural Gas Service to Toledo Neighborhood?

In the Matter of the Complaints of Katherine Lycourt-Donovan, Seneca Builders LLC, and Ryan Roth et al. v. Columbia Gas of Ohio Inc., Case no. 2016-0080
Public Utilities Commission of Ohio

ISSUES:

• Did the Public Utilities Commission of Ohio misinterpret R.C. 4905.20 and R.C. 4905.21 and authorize a natural gas utility to unilaterally terminate service to a Toledo neighborhood without commission oversight and customer due process?
• Was the PUCO’s determination that the natural gas utility didn’t provide inadequate service improper under the statutes?

BACKGROUND:
Megan Simmons, a resident in a Toledo subdivision called Graystone Woods, contacted Columbia Gas on May 24, 2012, about dead vegetation in her yard. After detecting natural gas in the yard and near the home’s foundation, Columbia Gas shut off service to Simmons’ house. A few days later, Simmons reported an odor inside her home. Following further testing, Columbia Gas stopped natural gas service to 13 homes on the street on May 31. On Aug. 23, 2012, Columbia Gas dug up the main gas line feeding into Graystone Woods and capped it.

Graystone Woods property owners Katherine M. Lycourt-Donovan, Seneca Builders, Ryan Roth, and R&P Investments filed complaints with the Public Utilities Commission of Ohio (PUCO). After conducting hearings in 2013 and 2015, the PUCO determined that Columbia Gas found explosive levels of gas in the neighborhood and disconnected service to prevent a possible explosion. Stating that pipeline pressure and chemical tests showed that its gas lines weren’t the source of the gas leaks, Columbia Gas reported that service was discontinued for safety reasons. The PUCO agreed, ruling the stray gas was a safety hazard; the gas lines were temporarily disconnected, not abandoned; and the company’s actions didn’t constitute inadequate service. Columbia Gas has refused to restore service until the property owners fix the gas hazard, which the PUCO decided was justified and reasonable.

The property owners appealed the PUCO’s decision to the Ohio Supreme Court, which must review appeals from the state regulatory agency.

Gas Service Was Abandoned, Residents Contend
The property owners argue that R.C. 4905.20 and R.C. 4905.21, referred to as the Miller Act, prohibit a public utility from abandoning, withdrawing, or closing service without filing an application to abandon with the PUCO. While the PUCO concluded that the statutes address only permanent abandonment, the property owners contend the law doesn’t make that distinction and includes within its scope the withdrawal of service and closure of lines.

In the owners’ view, the PUCO’s ruling permits public utilities to unilaterally terminate service to customers without PUCO oversight and without the due process provided by the application requirement in the law. Stressing the purpose of the law, they quote the Ohio Supreme Court’s decision in Grafton v. Ohio Edison Co. (1996): “The Miller Act focuses upon protecting existing utility customers from having their service terminated without commission approval.”

The property owners’ brief to the Court states, “Under the PUCO’s interpretation, as long as a utility is willing to provide service at some point in the future, even if that point is undefined, then the utility has not really ‘abandoned’ and does not need to file an application. The policy implications of such an interpretation are severe and are completely contrary to this Court’s stated purpose of the statutes.”

They note that, five years later, the street still has no service from Columbia Gas, and the company removed the residents from their rolls in 2012. When Columbia Gas turned off service in May 2012, it eliminated any potential safety hazard, the property owners argue. Seneca Builders then hired a firm recommended by the company to investigate the problem. The owners contend that Columbia Gas rejected recommendations for combustible gas alarms and ongoing monitoring unless a liability waiver was signed. Based on Columbia Gas policy, Seneca Builders also installed a radon migration system in one of the homes to deal with the problem, they maintain.

Stating that Columbia Gas documentation lists the gas line as “retired, ” the property owners assert their service is no longer “temporarily” interrupted, but has been withdrawn, and the gas line is closed for service. They have taken steps to fix the problem, but Columbia Gas has rejected those efforts and is mandating an impossible zero percent stray gas reading to restore service. They argue that the PUCO should have found that this situation constitutes inadequate service. 

They ask the Court to reverse the PUCO’s decision and rule that Columbia Gas has violated the Miller Act, allowing the residents to pursue other legal remedies.

Safety Issue Required Service Disconnection, PUCO States
The PUCO maintains that the Miller Act doesn’t apply to this case. The meanings of the terms “abandon,” “withdraw,” and “close” are left to the PUCO because they aren’t defined in the statutes, and the PUCO has interpreted them to mean a utility company’s intention to permanently abandon gas service. A temporary or indefinite stoppage of service based on a customer’s failure to address a hazard doesn’t demonstrate that the utility has abandoned, withdrawn, or closed service, the PUCO argues. 

A PUCO rule in the Ohio Administrative Code allows a gas company to disconnect service when a safety hazard exists and states that the utility “shall not restore service until the hazardous condition(s) has been corrected.” This rule doesn’t require the gas company to file an application to abandon, which makes the regulation an exemption from the Miller Act, the PUCO asserts. The possibility that gas was accumulating in the soil and could seep into basements of the Graystone Woods homes created a risk of explosion if the gas were exposed to an ignition source, the PUCO found. The commission ruled that Columbia Gas must restore service to the neighborhood once the problem is fixed, but the utility can’t fix the dangerous safety hazard and the property owners have been unwilling to resolve the issue.

Service Not Abandoned or Inadequate, Gas Company Argues
The Supreme Court allowed Columbia Gas to intervene in the case, and the company filed a brief offering its positions.

Stressing the safety hazard at Graystone Woods, Columbia Gas views the situation as a termination of residential service, which is governed by a different section of state law than the Miller Act. R.C. 4933.122 only mandates reasonable prior notice and a reasonable opportunity to contest a termination, the company notes, adding that these requirements don’t apply, though, when service is stopped for safety reasons, as in this case. Pointing to federal regulations, Columbia Gas also describes the Graystone Woods gas line as temporarily deactivated or inactive, not abandoned.

On the claim of inadequate service, the company explains that the PUCO considers the number, severity, and duration of service problems and whether the service could have been corrected. The company supports the PUCO’s determination that service to the subdivision wasn’t inadequate.

The company argues that the property owners haven’t suffered any prejudice or harm that justifies a reversal of the PUCO’s decision. In addition, the property owners aren’t entitled to any remedies based on the Miller Act because the service disruption wasn’t an abandonment and no application to abandon was filed, Columbia Gas concludes.

- Kathleen Maloney

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

Contacts
Representing Katherine M. Lycourt-Donovan, Seneca Builders LLC, Ryan Roth, and R&P Investments Inc.: Robert Dove, 614.286.4183

Representing the Public Utilities Commission of Ohio: Robert Eubanks, 614.466.4397

Representing Columbia Gas of Ohio Inc.: Eric Gallon, 614.227.2190

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Is Ohio’s Gross Sexual Imposition Law Unconstitutional When Applied to Two Minors Engaged in Sexual Contact?

In re: D.S., Case no. 2016-0907
Tenth District Court of Appeals (Franklin County)

ISSUES:

• Is Ohio’s gross sexual imposition statute, R.C. 2907.05(A)(4), unconstitutional as applied to a child under the age of 13 who allegedly engaged in sexual contact with another child under 13?
• Did a juvenile court abuse its discretion when it directed the use of non-judicial community resources in lieu of prosecution for a 12-year-old boy facing three complaints of gross sexual imposition?

BACKGROUND:
In 2013, D.S. was charged in Franklin County Juvenile Court with three counts of gross sexual imposition, R.C. 2907.05(A)(4). The charges are based on an encounter between D.S and D.M. who live in the same household along with the father of D.S. and the mother of D.M.  At the time of the alleged incident, D.S. was 12 years and three months old, and D.M was 9 years and 10 months old. The complaint alleged D.S. touched D.M.’s penis and that D.S. engaged in anal and oral intercourse with D.M. There was no allegation of use of force by D.S. or physical resistance by D.M.

In 2014, attorneys for D.S. sought to dismiss the charges based on the Ohio Supreme Court’s 2011 In re D.B. decision, which found that Ohio’s statutory rape law is unconstitutional as applied to a child under 13 who engaged in sexual conduct with another child under 13. The Franklin County Prosecuting Attorney’s Office objected to the motion to dismiss the charges, which was considered by a juvenile court magistrate. The magistrate refused to dismiss the charges.

The juvenile court judge reviewing the magistrate’s decision noted that the closeness in age made it difficult to determine if one boy should be charged with a crime and not the other boy. The judge noted that the two complaints involving intercourse could have been charged as rape, but that would violate the Supreme Court’s In re D.B. decision. The juvenile court stated it was unwilling to conclude that the gross sexual imposition law is unconstitutional in all cases involving children under 13, but in this case it would be unconstitutional. The court decided to invoke Juvenile Rule 9, which allowed the court to dismiss the case and use alternative methods of treatment rather than prosecution. The court then ordered treatment for both children.

But prosecutors appealed and the Tenth District Court of Appeals decided 2-1 to reverse the juvenile court, finding that it wasn’t a violation of D.S.’s constitutional rights to charge him with gross sexual imposition and should have allowed the prosecution to present more evidence. The dissenting appellate judge found that under Juv. R. 9(A), the trial court didn’t abuse its discretion when it dismissed the complaint.

D.S. appealed to the Supreme Court, which agreed to hear the case.

Logic of Statutory Rape Law Applies to Gross Sexual Imposition, D.S. Asserts
D.S. argues that the Ohio Supreme Court invalidated R.C. 2907.02(A)(1)(b), the statutory rape law, when applied to children under age 13. Applying it at that age violates the due process clauses of the U.S. and Ohio constitutions. The Court reasoned that the law criminalizes two members of a protected class without providing more specific guidelines for law enforcement on how to designate the victim and the offender. This leads to the arbitrary prosecution of one child and not the other, and the determination of the offender could be based on the prosecutor’s personal biases, D.S.’s brief explains.

D.S. argues the same logic should apply to gross sexual imposition, and that the court of appeals improperly rejected that argument by finding a meaningful difference between “sexual conduct,” which is an element of statutory rape, and “sexual contact,” which is an element of gross sexual imposition. “Sexual conduct” requires engaging in a sex act “without privilege to do so,” while sexual contact includes any touching “for the purpose of sexually arousing or gratifying either person.” The Tenth District found D.S. could have been found to be acting with the “purpose” of sexual gratification while D.M. wasn’t. Since purpose isn’t an element of statutory rape, the two charges are significantly different, the appellate court found when ruling In re D.B. didn’t apply.

D.S. argues that Ohio legislators concluded that those under the age of 13 are incapable of consenting to sexual conduct. The law was enacted with the intent of preventing adults from having sex with minors under age 13, he maintains. He asserts the definition of “sexual conduct” implies that the adult is engaging in sex with a minor for sexual gratification and the law simply doesn’t require that a prosecutor has to prove intent, but rather just prove the victim was under age 13. He maintains the different definitions of the crimes doesn’t change the fact that the law is unconstitutional when both participants are under 13.

“When an adult engages in sexual conduct with a child under the age of 13, it is clear which party is the offender and which is the victim,” the D.S. brief states. “But when two children under the age of 13 engage in sexual conduct with each other, each child is both an offender and a victim, and the distinction between those two terms breaks down. Similarly, when two children under the age of 13 engage in sexual contact, the same analysis applies—particularly where, as here, the activity alleged as sexual contact is actually sexual conduct (intercourse).”

Judge Has Discretion to Dismiss Case, D.S. Adds
D.S. also argues the juvenile justice system recognizes that not all unwise juvenile behavior should be treated as a crime, and Ohio has granted juvenile courts with the power to reject formal prosecution when the court believes that other resources could be used to treat the child. D.S. notes the juvenile judge relied on the authority of Juvenile Rule 9 to divert D.S. from juvenile delinquency proceedings and directed the parents to use counseling, education, or other means to treat D.S. and D.M. He notes the judge went further and warned the parents that if they didn’t seek treatment, the court could use a dependency proceeding that would put the children under government care in order to receive services.

Because the children were close in age and there were no allegations of force or threat of force, the juvenile court didn’t abuse its discretion when it dismissed the charges against him, D.S. concludes.

Record Too Thin to Dismiss Charges, Prosecutor Argues
The Franklin County prosecutor argues that dismissal of the complaint at this point in the proceeding is unwarranted, and D.S. has provided no evidence that his constitutional rights were violated.

The prosecutor notes the Tenth District found the “purpose” provision of the gross sexual imposition law to be an important element that distinguishes the crime from statutory rape. The prosecutor argues that given the chance to present more evidence in the case, the court could determine that D.S. was the perpetrator and D.M. was a victim.  The prosecutor maintains that when objecting to the dismissal request, it informed the court that its investigation found D.S. was the “aggressor” and D.M. indicated the sexual contact was “unwanted.” The prosecutor asks the Supreme Court to overturn its ruling in In re D.B. that the statutory rape law is unconstitutional when applied to two minors under age 13, and also announce that In re D.B. doesn’t apply to charges of gross sexual imposition.

The prosecutor argues that the juvenile court worked with only the most basic information about the case and wasn’t in a position to find the law was unconstitutionally applied to D.S. or that invoking its Juv. R. 9(A) authority was appropriate.

“To be clear, the State does not seek to deprive juvenile courts of flexibility to enter appropriate dispositions. But any disposition must comply with R.C. 2152.01 and any other applicable statutes and procedural rules. While the juvenile court abused its discretion in dismissing the complaint under Juv.R. 9, the issue boils down to timing. The dismissal was simply too soon,” the prosecutor’s brief states.

The prosecutor explains that the magistrate found that “after a trial,” the facts may be appropriate for the court to dismiss the case and order alternative treatment for the children. The magistrate noted that D.S. alleged he was just “playing doctor.” The magistrate wrote that if the evidence proved what D.S. claimed, D.S. wouldn’t have acted with a sexual purpose, and the court would have to dismiss the complaint because the state failed to prove an element of its case.

Law is Constitutional, Prosecutor Maintains
The prosecutor argues both the gross sexual imposition and statutory rape statutes are constitutional because their plain language makes it clear what constitutes a violation. Just because the children are close in age and under 13 doesn’t mean the prosecutor was unable to determine that one or both of the children met all the elements of committing a crime.

“Prosecutors have broad discretion in making their charging decisions and need not charge every known offender. Conscious selectivity is allowed,” the prosecutor’s brief states. “There is no proof in the present case that both D.S. and D.M. violated R.C. 2907.05(A)(4). But even in circumstances when two juveniles under 13 both satisfy the elements of the statute, law enforcement’s decision to charge one and not the other does not make R.C. 2907.05(A)(4) unconstitutionally vague.”

Friend-of-the-Court Brief
An amicus curiae brief supporting D.S.’s position has been submitted by the Philadelphia-based Juvenile Law Center. The law center maintains the Tenth District ruling distorts the intent of Juvenile Rule 9. The group cites the Ohio Supreme Court’s 1988 In re M.D. decision, which suggests the rule works best at the initial intake of a case by the juvenile court. The center charges the Tenth District would require the juvenile court to conduct formal actions and then, if it finds the complaint is inappropriate, it case can be diverted. The organization argues the Supreme Court has never limited the use of the rule until after formal court action begins, and concludes that “cabining the trial court’s authority” fails to serve the diversion goals of the rule.

- Dan Trevas

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

Contacts
Representing D.S. from the Franklin County Public Defender’s Office: David Strait, 614.525.3960

Representing the State of Ohio from the Franklin County Prosecuting Attorney’s Office: Seth Gilbert, 614.525.3555

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Does Law Requiring Person with HIV to Disclose Status to Sexual Partners Infringe on Equal-Protection and Free-Speech Rights?

State of Ohio v. Orlando Batista, Case no. 2016-0903
First District Court of Appeals (Hamilton County)

ISSUES:

• Does R.C. 2903.11(B) violate the equal protection clauses of the Ohio and U.S. constitutions because:
• there is no rational basis for a distinction between HIV­positive individuals and individuals with other infectious diseases, such as Hepatitis C?
• there is no rational basis for a distinction between the methods of transmission of HIV?
• the statute is not rationally related to the government’s purpose?
• Is R.C. 2903.11(B) a content-based regulation on speech that, under a strict-scrutiny standard, unconstitutionally compels speech and usurps the constitutional right to refrain from speaking?

BACKGROUND:
Orlando Batista didn’t inform his girlfriend, identified as R.S., that he had HIV when they began having a sexual relationship in November 2013. R.S. was subsequently diagnosed as HIV positive. Batista was indicted in Hamilton County on one count of felonious assault, a second-degree felony based on R.C. 2903.11(B)(1). The statute prohibits a person with HIV from knowingly engaging in sexual conduct without disclosing the HIV-positive status beforehand.

Batista pleaded no contest. At the sentencing hearing, R.S. said Batista had also infected another woman, with whom he was sexually involved, as well as his wife, who had passed the virus on to one of their children. The trial court found him guilty and sentenced him to eight years in prison.

Batista filed an appeal with the First District Court of Appeals, which rejected his claims, including assertions that the law violates both equal-protection and free-speech rights. He appealed to the Ohio Supreme Court, which agreed to review the issues.

Statute Is Discriminatory and Doesn’t Achieve Purpose, Batista Asserts
Batista notes that the government has a legitimate public health interest in preventing the spread of infectious diseases, such as HIV, to protect the public. However, he argues that R.C. 2903.11(B)(1) isn’t “rationally related” to that goal.

“Rational basis” is one type of review courts use to evaluate a claim that a person’s right to equal protection under the U.S. and Ohio constitutions has been violated. When a statute doesn’t involve a fundamental right or a suspect classification, such as race, the law is reviewed to determine whether it’s rationally related to a government interest, Batista states, citing four Ohio Supreme Court rulings.

Pointing to several academic journals and research, Batista discusses the stigma associated with HIV and AIDS that stems from the perceived connection between the disease and homosexuality, even though heterosexual people also contract the disease through sexual contact and the virus is transmitted through shared needle usage. According to some of the research, this stigma creates barriers to prevention, testing, and treatment. One researcher indicated in 2013 that no studies have shown that HIV criminalization laws have reduced HIV transmission, and argued the laws are more likely to increase misinformation about how the virus is transmitted. A 2015 law review article stated, “[E]mpirical studies have found that criminal laws are unlikely to increase disclosure, reduce risky behaviors, or reduce HIV transmission.” Batista therefore maintains that Ohio’s law charging felonious assault for non-disclosure of HIV doesn’t achieve the state’s goal of preventing the spread of the virus. Instead, the law discourages people from getting tested because they can’t be convicted if they don’t know whether they have HIV, and that reality undermines the state’s public-health policies, Batista argues.

Batista also contends that no rational basis exists to criminalize the conduct of those with HIV/AIDS but not those who have other infectious diseases, such as Hepatitis C and HPV. While there is no cure for AIDS, treatment of the disease advanced dramatically in the 1990s, causing substantial declines in the mortality rate. With medication, the disease is currently considered a chronic condition rather than a death sentence, Batista notes.

“HIV-positive individuals are now similarly situated to those who have other infectious diseases,” he wrote in the brief to the Court.

Like HIV, Hepatitis C can be transmitted sexually and by sharing needles, Batista states. He maintains that Hepatitis C-related deaths have climbed in the last decade while AIDS deaths have been dropping, even though a Hepatitis C cure is available. Another sexually transmitted infectious disease, HPV, causes nearly all cervical cancers in women, but the failure to disclose the disease to one’s partner isn’t criminalized, Batista argues. The distinctions Ohio has made regarding infectious diseases speaks to a prejudice against those with HIV, he asserts, adding that Ohio passed its law in 2000 – well after substantial medical advances had diminished AIDS deaths and made it a chronic, rather than lethal, disease.

Batista also takes issue with R.C. 2903.11(B)(1) because it only criminalizes non-disclosure of HIV when sexual conduct is involved, even though the virus also can be transmitted through blood or needle-sharing. The law is arbitrary given that any transmission of the virus poses possible harm to others, he contends.

State Has Compelling Interest in Narrow Law, Prosecutor Maintains
The Hamilton County Prosecutor’s Office notes that the constitutional goal of equal protection is to ensure that similarly situated persons are treated in a similar manner. To understand the law’s purpose, the prosecutor explored the General Assembly’s steps in its enactment. During debate in 1999, the legislature heard references to three cases, one in Ohio, in which persons with HIV knowingly engaged in sexual conduct with numerous people who then became infected with the disease. The law’s sponsors explained that they focused only on HIV/AIDS because it was incurable and fatal. The prosecutor maintains the legislature showed no rush to legislate and was motivated by the importance of personal responsibility in stopping the spread of the disease. The criminal law reflected the state’s compelling interest in protecting the health of Ohioans, the prosecutor contends.

The prosecutor also examined recent statistics. In 2015, the state’s health department reported that 902 people were newly diagnosed with HIV and 22,355 Ohioans were living with the virus. The prosecutor notes that the department’s data also show “a continuous upward trend” in the number of people living with HIV in 2010 despite the medical advances Batista highlighted. The prosecutor’s brief states that no empirical data have yet established the effect of “deterring unsafe behavior out of fear of punishment, promoting a societal norm against nondisclosure, and incapacitation through imprisonment.” These facts also point to the state’s compelling interest in creating R.C. 2903.11(B)(1), according to the prosecutor.

The narrowly tailored nature of the law attempts to stop one of the methods by which the virus is transmitted, the prosecutor argues. Once a person with HIV informs a potential sexual partner of the diagnosis, consenting adults are free to decide whether and how to move forward because the law doesn’t limit sexual conduct but instead simply requires sharing the information about HIV status, the prosecutor notes. Another way the law is narrowly tailored is by not requiring the uninformed partner to actually contract HIV, the prosecutor states.

“R.C. 2903.11(B)(1) satisfies the goal of equal protection because all carriers of HIV/AIDS are treated similarly under R.C. 2903.11(B)(1) in that they all must inform potential sexual partners of their HIV/AIDS status before engaging in sexual conduct,” the prosecutor wrote.

Parties Debate Free-Speech Claim
Batista points to several First Amendment court cases that describe freedom of speech as not only the right to speak but also the right not to speak. Because he argues the statute doesn’t likely lead to increased disclosure but instead encourages misinformation, he maintains that forcing someone to share their HIV status doesn’t accomplish the government’s goal of stopping the spread of HIV. The statute’s requirement requiring speech is unconstitutional because it isn’t narrowly tailored to achieve a compelling interest of the government, he concludes.

The prosecutor disputes Batista’s First Amendment claim, maintaining that “R.C. 2903.11(B)(1) only seeks to prohibit uninformed sexual conduct; any effect this prohibition has on ‘speech’ is secondary or incidental.” Citing cases from Illinois, Michigan, Iowa, and Missouri, the prosecutor argues each court determined that similar statutes didn’t violate the First Amendment. Even if the statute affects some protected speech, it is incidental because the law is narrowly tailored to ensure informed sexual consent when one partner is HIV positive and to limit the spread of HIV and AIDS, the prosecutor concludes.

Several Groups File Additional Briefs
An amicus curiae brief defending Batista’s position was jointly submitted by the American Civil Liberties Union of Ohio Foundation Inc. and Center for Constitutional Rights. The following nine organizations, which believe that “HIV-specific criminal laws are discriminatory and violate legal and constitutional rights and human dignity,” also collectively filed an amicus brief supporting Batista:

• American Academy of HIV Medicine
• Center for HIV Law and Policy
• GLBTQ Legal Advocates and Defenders
• GLMA: Health Professionals Advancing LGBT Equality
• Human Rights Campaign
• National Association of Criminal Defense Lawyers
• National Center for Lesbian Rights
• Office of the Ohio Public Defender
• Treatment Action Group

The Ohio Attorney General’s Office submitted an amicus brief in support of the county prosecutor.

Parties Ask to Share Oral Argument Time
Batista and the lawyer for the Center for HIV Law and Policy, on behalf of the group of nine organizations that filed a joint amicus brief, asked the Supreme Court to allow them to divide Batista’s oral argument time, and the Court granted the request on May 10.

The Court also agreed to split the time allotted to the county prosecutor for oral argument with the attorney general.

– 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 from the Hamilton County Prosecutor’s Office: Paula Adams, 513.946.3228

Representing Orlando Batista from the Hamilton County Public Defender’s Office: Demetra Stamatakos, 513.946.3713

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