Tuesday, April 7, 2020
State of Ohio ex rel., AWMS Water Solutions, LLC, et al. v. James Zehringer [Mary Mertz], Director Ohio Department of Natural Resources, et al., Case no. 2019-0493
Eleventh District Court of Appeals (Trumbull County)
State of Ohio v. Eric Reed, Case no. 2019-0631
Sixth District Court of Appeals (Erie County)
Kayleigh Bruns v. Marcus Green, Case no. 2019-1028 and 2019-1178
Tenth District Court of Appeals (Franklin County)
Erie-Huron County Bar Association v. Kenneth Ronald Bailey and Kenneth Richard Bailey, Case no. 2019-1363
Huron County
Does Closing Disposal Well that Triggers Earthquakes Constitute a Taking?
State of Ohio ex rel., AWMS Water Solutions, LLC, et al. v. James Zehringer [Mary Mertz], Director Ohio Department of Natural Resources, et al., Case No. 2019-0493
Eleventh District Court of Appeals (Trumbull County)
ISSUE: Even if a government’s action is lawful and reasonable, is it a “taking” if the property owner is deprived of all economically viable use of the property?
BACKGROUND:
In December 2011, a 4.0 magnitude earthquake near Youngstown was felt by the community. The quake was attributed to the deep-well injection of fluid used in hydraulic fracturing, known as fracking. The Northstar #1 well was closed, and the Ohio Department of Natural Resources (ODNR) placed a statewide one-year moratorium on permitsfor injection well facilities, where waste from fracking operations is disposed.
Around this time, American Water Management Services began seeking permission to drill two wells on property along State Route 169 in Trumbull County, near the city of Niles. American Water leased 5.2 acres to drill saltwater disposal wells, and invested nearly $7 million into two wells and the infrastructure to operate them. Well #1 was a shallow well, which could receive up to 100 barrels of wastewater per day, while well #2 was deeper and had much greater capacity. Both wells received permission to operate and were operating in mid-2014.
American Water installed seismic-monitoring equipment at the site. In July 2014, seismic activity of 1.7 magnitude registered near the site. In August, a 2.1 magnitude event occurred, and the company indicated the activity was not strong enough to make the ground in the vicinity shake and there was no “felt earthquake.” The company noted the United States Geological Survey states that damage to homes and other buildings do not occur unless the seismic activity reaches between 4.0 and 5.0 magnitude.
ODNR had suspended American Water’s operations in September 2014. The agency required American Water to submit a plan to address the seismic concerns with the deeper well. The company was allowed to continue to operate the shallower well. ODNR stated it intended to develop a statewide plan for “induced seismicity” and would respond to American Water’s proposal once the plan was complete. After considerable research, the state declined to develop a statewide plan and agreed to return to its traditional practice of regulating wells on a case-by-case basis. American Water maintains that ODNR has refused to address its operations.
Company Challenges Suspsension
American Water appealed the suspension order and the conditions proposed by ODNR director James Zehringer (now Mary Mertz) to reopen the deep well to the Ohio Oil and Gas Commission. The commission ruled the agency’s decision wasn’t unreasonable or unlawful.
The company appealed to the Franklin County Common Pleas Court, which ruled the agency’s plan was unreasonable. The state appealed to the Tenth District Court of Appeals, which reversed the trial court and found ODNR’s actions were permitted. The company appealed the Tenth District’s order to the Ohio Supreme Court, which declined to review the case.
As the appeal process was pending, American Water sought a writ of mandamus from the Eleventh District Court of Appeals, claiming ODNR’s long-delayed assessment of the company’s proposal to restart the deeper well amounted to a “taking,” which required the state to compensate the company for loss of use of its property. The company produced economic data indicating that for the few months when both wells were operating, the company was profitable. But operating only the shallower well did not generate enough income to sustain the facility, the company noted, and American Water closed both wells. It then sought compensation from the state for depriving it of an economically viable use of the property.
ODNR requested that the Eleventh District grant the state summary judgment, noting that since it granted American Water operating permits, both sides discovered the wells are within 1,000 feet of a fault line. The state considers opening the well without a significant revision of its operating plan to be a public nuisance. American Water urged the Eleventh District to consider all the evidence before reaching a conclusion and to realize the state’s proposed plan requires excessive operating expenses that wouldn’t do much to reduce seismic activity from the wells. The Eleventh District granted ODNR summary judgment.
American Water appealed to the Supreme Court, which is required to hear the case.
Shutting Well Is a Taking, Company Argues
American Water faults the Eleventh District for granting ODNR summary judgment without considering all the evidence, including its expert witness’ testimony about the economic loss from the state’s order. The company maintains that shutting the deep well led to the overall operation becoming unviable, which is why it shut down. The company’s expert stated the indefinite “temporary” suspension, which has gone on for more than five years, has cost the company $20 million. An ODNR expert estimated the company has lost between $116,00 and $359,000 from the closure of the deeper well.
The company argues ODNR has suggested that other income-generating wastewater operations can take place on the property, and it's not a taking because American Water isn’t deprived of property’s economic use. The company counters that none of the activity suggested by the state has been proven to be profitable when considering the operating costs for the facilities. Forcing the company to operate at a loss is a taking, the company maintains, and American Water is entitled to compensation from the state for not allowing the deep well to reopen.
The company notes that the reasons for suspending the well operations aren’t relevant for the determination if the action was a taking. It points to several court decisions, which found the government can act with good intentions in the name of public safety and still deprive an owner of all economically viable uses. Even if it is for good reasons, the government must compensate the property owner when it deprives the owner of a viable use, the company notes.
American Water argues if the Eleventh District were ordered to consider all the evidence, it would demonstrate that none of ODNR’s suggestions to the company would be economically viable. The company concludes its claim is “rooted in the well-accepted” notion that the state must pay just compensation for regulatory actions that deprive a private owner of all its economically beneficial uses of its property.
State Not Obligated to Compensate for Risky Decision, Agency Counters
ODNR notes that American Water was informing investors of the risks of deep-well injection and that it knew the Northstar well, located seven miles away, was closed for causing an earthquake. The agency maintains it took reasonable steps to protect the area surrounding American Water, which included a school 850 feet from the site, by suspending the deep well’s operation and placing additional conditions on its reopening. The agency notes it successfully withstood a challenge from American Water to its suspension order and the company has never filed an acceptable plan to restart the deep well.
ODNR maintains the Eleventh District rejected American Water’s argument that the value of its property had been reduced to zero, and the appellate court correctly concluded the company still has revenue-generating activities on its property. The agency also notes that its order is temporary, and that courts have recognized that temporary closures aren’t takings of private property that require compensation by the government.
ODNR suggests that operating the wells as American Water proposes presents a nuisance and could lead to high-magnitude earthquakes that will shake nearby properties. The agency asserts that since the proximity to the fault line was discovered after the initial permits were proposed, the company is obligated to submit plans that would reduce its risks. The agency maintains the only plan American Water submitted was rejected for being too generic and lacking in scientific evidence.
ODNR argues the economic impact on the property is largely the result of American Water’s inaction. The agency asserts that the company’s lack of effort to mitigate its losses through other wastewater processing activity and its inability to submit a new comprehensive plan to open the deep well have led to its financial decline. ODNR argues the government isn’t obligated to use taxpayer dollars to compensate a private company’s risky business ventures, especially when the courts have ruled the suspension of the well’s use was lawful.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing AWMS Water Solutions LLC et al.: Matthew Vansuch, 330.533.6195
Representing James Zehringer (Mary Mertz), director of Ohio Department of Natural Resources et al. from the Ohio Attorney General’s Office: Samuel Peterson, 614.466.8980
Do Days in House Arrest Count toward Detention-Time Credit?
State of Ohio v. Eric Reed, Case No. 2019-0631
Sixth District Court of Appeals (Erie County)
ISSUE: Is a criminal defendant entitled to detention-time credit for time spent on house arrest after a conviction?
BACKGROUND:
A December 2014 indictment against Eric Reed alleged that he participated in an October 2014 assault of a person working at a McDonald’s in Sandusky. Reed was charged with criminal gang participation, aggravated rioting, and assault.
At a hearing in Erie County Common Pleas Court, the county prosecutors and Reed agreed that he would plead guilty to participating in a criminal gang. The court found him guilty and sentenced him in September 2015 to five years of community control.
Reed subsequently violated his community-control conditions, including allegedly committing new crimes. From early December 2015 to the end of May 2016, he was placed on standard house arrest, then electronically monitored house arrest. In July 2017, the court revoked his community control and sentenced him to five years in prison, with 316 days of detention-time credit.
He appealed to the Sixth District Court of Appeals, arguing he should receive 171 additional days of detention-time credit for the time he was under house arrest. The Sixth District agreed, reversing the trial court’s decision. The Erie County Prosecuting Attorney’s Office appealed to the Ohio Supreme Court, which accepted the case.
Laws Reduce Sentences for Confinement
The briefs filed with the Supreme Court in this case mention two statutes involving credits for time served in confinement. R.C. 2949.08 reduces jail sentences by the “total number of days the person was confined for any reason arising out of the offense for which the person was convicted and sentenced.” R.C. 2967.191 states that “the department of rehabilitation and correction shall reduce the stated prison term of a prisoner … by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced.”
House Arrest Doesn’t Qualify for Credits, State Maintains
The prosecutor argues the credits don’t apply to a person’s time under house arrest. The brief cites a 2011 Tenth District Court of Appeals ruling (State v. Blankenship). At that time, the office states, “house arrest” was defined as “a period of confinement of an offender that is in the offender's home or in other premises specified by the sentencing court” during which the offender must remain in the home, except when authorized to leave for employment or other specified purposes. The Tenth District concluded that house arrest doesn’t impose such a restraint on the freedom of a person’s movement that the person can’t leave official custody. The court decided that the use of the word “confinement” in the definition of “house arrest” doesn’t necessarily mean that house arrest qualifies for time-served credit. The prosecutor maintains that the Tenth District and at least three other state appellate courts have ruled that no credit is earned for days under house arrest.
At trial, Reed’s probation officer testified that Reed was permitted to leave the house for some activities and wasn’t on lockdown, the prosecutor notes. Reed also left his house to commit the additional crimes, the office adds. The prosecutor concludes that Reed’s time under house arrest doesn’t qualify for detention-time credit.
The prosecutor notes that the Sixth District relied on R.C. 2921.01(E). R.C. Chapter 2921 – which governs offenses such as bribery, perjury, and escape – defines “detention,” in part, as “confinement in any public or private facility for custody of persons charged with or convicted of crime in this state….” The prosecutor argues a defendant’s home is a residence, not “a private facility” for “custody of persons charged with or convicted” of a crime. As a result, the definition of detention doesn’t apply to house arrest, the office maintains.
Defendants on House Arrest Entitled to Credits, Man Argues
Reed responds that because the jail-time credit described in R.C. 2949.08 doesn’t define “confinement,” the Sixth District properly looked beyond that statute for guidance elsewhere in for defining the term. It was acceptable for the appeals court to rely on R.C. 2921.01(E)’s definition of “detention,” which uses the word “confinement,” when it concluded that house arrest counts toward detention-time credit, Reed maintains.
Reed contends that his house-arrest restrictions in essence made his home a “private facility for custody of persons charged or convicted of crime in this state,” and that means he was under detention as defined in R.C. 2921.01(E). He wasn’t free to come and go from the house. Instead, he was granted privileges to leave the house only for work, for going to the bank once a week, and for visiting his probation officer, his brief notes. He concludes that this detention entitles him to credit for the days he spent under house arrest.
He disputes the number of state appellate courts that align with Blankenship’s conclusion and draws distinctions between those cases and his. He also argues the court in Blankenship, and the other courts that found house arrest doesn’t count for detention-time credit, have effectively increased the penalty for defendants who serve time on house arrest.
– 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 Erie County Prosecuting Attorney’s Office: Anthony Battista III, 330.569.3236
Representing Eric Reed: Brian Smith, 330.701.1750
Must Court Find Change in Circumstances Prior to Terminating Parenting Decree?
Kayleigh Bruns v. Marcus Green, Case No. 2019-1028 and 2019-1178
Tenth District Court of Appeals (Franklin County)
ISSUE: Does the termination of a shared parenting plan and decree, and the subsequent modification of parental rights and responsibilities, first require a court’s finding of a change in circumstances?
BACKGROUND:
Kayleigh Bruns (now Kayleigh Paul) and Marcus Green are the parents of a daughter born in December 2012. The family lived in Westerville, in Franklin County. Bruns and Green separated in March 2014, and they filed an agreed shared parenting plan in October 2014. Both parents were designated as residential parents and legal custodians of their daughter, and they agreed to divide the time with her equally. Green was named the residential parent for school purposes as long as he remained in the Westerville school district.
Bruns soon submitted a notice that she was moving to Heath, in Licking County, where her mother lives. In June 2015, Green submitted a request to the Franklin County Juvenile Court for a change to the parental rights to give him full custody of the child. In late August, Bruns filed a motion to terminate or modify the shared parenting plan and decree, also asking for sole legal custody. Within a month, Green also filed a motion to terminate or modify the plan and decree, again asking for custody.
A guardian ad litem for their daughter submitted a report recommending that Bruns be named the child’s sole residential parent and legal custodian. The court held several hearings in 2017, and terminated the original shared parenting plan and decree in March 2018. The court designated Bruns as the girl’s sole legal custodian and residential parent, and ordered Green to pay child support. The court found Green hadn’t complied fully with the parenting plan and decree, had previously threatened to physically harm Bruns, had acted inappropriately and aggressively, and hadn’t presented credible evidence that Bruns had been uncooperative. The court established parenting time for Green.
Green appealed, arguing in part that a state law requires the court to make a finding of changed circumstances before terminating the parenting plan and decree. The Tenth District Court of Appeals rejected Green’s argument and upheld the juvenile court’s determinations.
He appealed to the Ohio Supreme Court, which accepted the case. The Tenth District determined that its ruling and other state appellate court decisions conflict with Wright v. Wright (2012), a Fifth District Court of Appeals opinion. The Supreme Court agreed that a conflict exists and will review the issue.
Father Argues Juvenile Court Must Make Findings before Terminating Decree
Green focuses on R.C. 3019.04(E)(1)(a), which begins, “The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child.”
He maintains that a modification encompasses the termination of a parenting decree and, applying this statutory provision, the court must make a finding of a change in circumstances before terminating a parenting decree. He cites a 2007 Ohio Supreme Court decision, Fisher v. Hasenjager, arguing the issue was exactly the same as the issue in this case. The trial court in Fisher stated it was terminating a shared parenting agreement, although the court of appeals concluded that the case involved a modification of a parenting agreement. Green’s brief argues that “this is a distinction without a difference.”
Fisher explained that the intent of subdivision (E)(1)(a) is “to spare children from a constant tug of war between their parents” and to provide stability for the child, Green notes. The Court concluded that subdivision (E)(1)(a) requires a trial court to make a finding of a change in circumstances when modifying a parenting decree.
Green endorses the Fifth District’s ruling in Wright and subsequent cases. In its cases, the Fifth District required trial courts to make a determination both that circumstances had changed and that a modification was in the child’s best interest, as required in R.C. 3019.04(E)(1)(a). Green contends that the cases involved terminations of shared parenting decrees.
Green asks the Court to reverse the Tenth District’s decision and to clarify Fisher by stating “unequivocally” that subdivision (E)(1)(a) applies to terminations of shared parenting plans.
Mother Maintains Termination Provision in State Law Doesn’t Require Court Finding
Bruns counters that R.C. 3109.04(E) describes five different ways that a parenting plan or decree can be modified or terminated. She states that R.C. 3019.04(E)(1)(a) – Green’s focus – addresses a court modification of a prior decree allocating parental rights and responsibilities, while R.C. 3019.04(E)(2)(c) governs the termination of a prior shared parenting decree that includes a shared parenting plan. These are “distinct provisions governing distinct situations,” and this case falls under subdivision (E)(2)(c), her brief argues.
Even if modifications included terminations, a law that is specific (such as the one for terminations) overrides a law that is general (such as the provision for modifications), Bruns explains. She also maintains that the language throughout R.C. 3109.04(E) makes clear that the state legislature intended for subdivisions (E)(1)(a) and (E)(2)(c) to operate independently. For example, after (E)(1)’s text, (E)(2) starts, “In addition to a modification authorized under division (E)(1) of this section: ….” That language distinguishes the terminations described in (E)(2)(c) from the modifications detailed in (E)(1), Bruns argues.
Bruns agrees with Green that Fisher is “highly relevant” in this case, but not for the reasons he suggests. She stresses that the court of appeals in Fisher first determined the shared parenting plan was modified, not terminated as the trial court had concluded. That clarification led the appellate court to find that subdivision (E)(2)(c), regarding terminations, did not apply in the Fisher case, Bruns states. As a result, when the case was appealed to the Supreme Court, its ruling involved the interpretation of two divisions in R.C. 3109.04(E) that only addressed modifications, she contends. She points out, though, that the Court made clear the different subdivisions of the law couldn’t, and shouldn’t, be applied to the same situation. That rationale applies in this case as well, she argues.
She rejects the Fifth District’s rulings, maintaining that all other state appellate courts have concluded subdivision (E)(2)(c) applies when a shared parenting decree is terminated.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Marcus D. Green: Randy Kurek, 614.578.8045
Representing Kayleigh M. Bruns: Emmett Robinson, 216.505.6900
Sanctions Recommended for Attorneys Who Refused to Participate in Trial
Erie-Huron County Bar Association v. Kenneth Ronald Bailey and Kenneth Richard Bailey, Case No. 2019-1028
(Huron County)
Father-son lawyers Kenneth Ronald (Ron) Bailey and Kenneth Richard (Ken) Bailey face disciplinary sanctions for their actions while representing a church pastor accused of raping two churchgoers under age 13.
The Board of Professional Conduct recommends that Ron Bailey be suspended for two years with one year stayed with conditions. The board recommends a public reprimand for his son based on disparaging posts about Erie County Common Pleas Court Judge Roger Binette on Facebook. Portions of those posts were reported by the Sandusky Register and Ken Bailey removed them.
Ken Bailey didn’t object to the board’s conclusion that he made a false statement regarding the qualification and integrity of Judge Binette and he isn’t participating in oral arguments. The Court is considering Ron Bailey’s objections to the board’s recommendations.
Attorney Seeks Time, Expert to Represent Client
The Erie-Huron County Bar Association charged Ron Bailey with several violations of the rules governing the conduct of Ohio lawyers based on his 2016 representation of Richard Mick. Mick was indicted in May 2014 on two counts of gross sexual imposition and two counts of rape stemming from alleged acts that took place 15 years earlier when the victims were younger than 13. Mick was first declared indigent and appointed a public defender.
The public defender represented him for the next 16 months, and the trial court agreed for the state to pay the cost to hire psychologist Terrence Campbell as an expert witness.
In 2015, Mick fired his public defender, and using funds donated by church members, hired Ron Bailey to represent him. He paid Bailey a $12,000 retainer agreed to pay $250 per hour for representation, and agreed to pay expenses associated with the cost of “investigators’ and “expert witness fees.”
In October 2015, Bailey took over the case and asked for several continuances. By that time, Campbell had died and Bailey requested he be replaced by Jolie Bram at the state’s expense. A third expert witness, Eric Ostrov was also expected to testify.
Dispute about Experts Arises
Prosecutors notified Bailey that Mick had previously been charged with sexual abuse in 2012 in a case involving his daughter. Ostov issued a report in the daughter’s case questioning the validity her testimony based on “repressed memory.” Bailey was provided the report and indicated that Ostrov asked Bailey to pay his travel expenses from Chicago to testify in the new Mick trial, as he shared the same view of repressed memory testimony as the deceased Campbell. Mick was acquitted in the 2012 case.
Prosecutors objected to Bailey’s request that the state pay for Bram, noting the presence of Ostrov and the fact that Mick shouldn’t be considered indigent because he was able to pay Bailey. The court denied the request to pay for Bram.
The trial was set for October 2016, and Bailey continued to insist that he was unable to prepare properly to represent Mick if he was denied the expertise of Bram.
Attorney Refuses to Participate in Trial
On the eve of the trial, Bailey, after consulting with his son, other lawyers, and Mick, developed the strategy that he wouldn’t participate in the trial and would force a mistrial. He would argue the denial of funds to hire Bram was of such constitutional magnitude that it would prevent a fair trial. He notified Ostrov not to travel to Ohio to testify.
When Judge Binette instructed the attorneys to begin jury selection, Bailey announced he “cannot and will not be able nor willing to proceed today.” Judge Binette called the lawyers to the bench and Bailey repeatedly requested that the judge continue the case and provide funding for Bram. The judge denied the motion and on three occasions requested that Bailey step back from the bench. Bailey refused and continued to argue his case. The judge notified Bailey he was going to cite him for contempt of court.
Bailey refused to participate in the trial and no witnesses were called on Mick’s behalf. Mick was convicted of the charges and sentenced to life in prison for the two rapes. Bailey was held in contempt, and ordered to pay a $250 fine and serve 30 days in jail.
The Sixth District Court of Appeals reversed Mick’s conviction based on ineffective counsel, and he was released from prison after 18 months. He was retried in 2019, which ended in a mistrial. A third judge was assigned in late 2019 to hear Mick’s case.
Board Finds Attorney Misconduct
While the bar association charged Bailey with several rule violations, a three-member hearing panel concluded that Bailey broke three rules. The panel found he disrupted a court case, acted in an undignified and discourteous manner toward the trial judge, and engaged in conduct that prejudiced the administration of justice.
The panel recommended a one-year suspension with six months stayed. The Board’s recommendation increased the sanction to a two-year suspension with one year stayed with the condition that he commit no further misconduct.
Attorney Denies Violations
Bailey objects to the recommended suspension, noting that he has no prior disciplinary violations in his more than 30 years as a practicing lawyer. He notes the 2019 mistrial of Mick’s second trial provides further evidence that he was correct in his position not to participate in a trial that would violate his client’s constitutional rights. Bailey acknowledges his actions disrupted the proceedings, but noted the panel found no evidence he acted in a dishonest manner and that his actions were sincere and in good faith.
Bailey notes that during his disciplinary hearing an expert witness supported his theory that he would have little success of winning an appeal had he allowed the trial to go forward then raised his objection to the lack of funding an expert witness.
He also notes that he didn’t intend to act discourteously toward the judge. He said he took the judge’s statements that he “may step back from the bench” to be advisory and not an order that he was disobeying. He asks the Court to find no violations of the rules.
Bar Association Support Sanction
The bar association maintains the board correctly found that Bailey’s fee agreement with Mick provided for funds to pay for the expert witnesses and he had no justification for disrupting after the trial court repeatedly denied his requests for funds. The association argues that Bailey engaged in a risky strategy to prevent his client from going to prison that backfired and his actions justify the suspension.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Erie-Huron County Bar Association: Joseph Galea, 419.624.3000
Representing Kenneth Ronald Bailey: Jay Milano, 440.356.2828