Charles A. Summers v. Matthew Fox, Prosecuting Attorney, Mercer County, Ohio, and Jeff Grey, Sheriff, Mercer County, Ohio, Case no. 2018-0959

Wildcat Drilling, LLC v. Discovery Oil and Gas, LLC, Case no. 2019-0222
Seventh District Court of Appeals (Mahoning County)

Total Quality Logistics, LLC v. JK & R Express, LLC, Case no. 2019-0267
Twelfth District Court of Appeals (Clermont County)

Disciplinary Counsel v. Marilyn Abrienne Cramer, Case no. 2019-1739

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Is Father of Incarcerated Teacher Entitled to Records Related to Son’s Case?

Charles A. Summers v. Matthew Fox, prosecuting attorney, Mercer County, and Jeff Grey, sheriff, Mercer County, Case No. 2018-0959
Writ of Mandamus

ISSUES:

• Can a public official base a refusal to produce public records on the requestor’s intended use?
• Does a familial relationship between a public records requestor and an incarcerated individual create a presumption that the requestor is acting as the inmate’s designee, subjecting the request to R.C. 149.43(B)(8)?
• Do exceptions in R.C. 149.43, Ohio’s Public Record Act, for confidential law enforcement investigatory techniques, confidential law enforcement work product, and trial preparation records apply in this case?
• Is a crime victim’s right to prevent the disclosure of public records limited to the exceptions in the Ohio Public Record Act?

OVERVIEW:
Sexual assault and domestic violence advocacy groups, the state sheriff’s association, and the state association of prosecutors have submitted amicus curiae briefs in this public records case. All of the organizations object to the release of an extensive list of records related to the prosecution and conviction of a high school teacher for sexual battery stemming from a relationship with one of his students. The teacher’s father, Charles Summers, requested the records.

BACKGROUND:
Summers’ son, Christopher Summers, was a teacher and athletics coach at Fort Recovery High School in Mercer County. He was indicted on charges related to a 26-month sexual relationship he had with a student. The 2013 indictment included 47 counts, including rape, sexual battery, felonious assault, and other sex offenses. The student, identified as J.K., had classes with Christopher Summers and played sports on teams he coached. Their relationship began the summer between her sophomore and junior years.

Before the trial, the Mercer County prosecutors dropped the two rape counts. The victim testified at the trial. Before she completed her testimony, the teacher entered into a plea agreement with the prosecutors, agreeing to plead guilty to eight counts of sexual battery. In October 2013, the trial court imposed a 20-year prison sentence. Christopher Summers’ state and federal appeals have been unsuccessful.

Charles Summers and his wife have a Facebook page called “Justice for Chris,” which states that the page’s purpose is for everyone who knows them to “learn the whole truth behind what happened to our son.”

Father Requests Case-Related Records
In February 2017, Charles Summers submitted a public records request to the Mercer County Prosecutor’s Office. In a detailed response, the county prosecutor, Matthew Fox, denied the requests. Summers submitted nearly the same request to the Mercer County sheriff, Jeff Grey, in March. On the sheriff’s behalf, the prosecutor responded to Summers and denied the requests. The April 2017 correspondence stated in part that Summers was acting improperly as a designee for his son.

Summers’ requests for records included:

• Video recordings of interviews with the accuser and other witnesses
• Audio recordings of interviews or telephone calls made with the accuser or potential witnesses
• Notes made by the prosecutors or sheriff’s detectives during the relevant interviews
• Police reports
• Recordings of phone calls made to the sheriff’s office or 911 from the accused’s mother and other recordings of phone calls about the case
• Letters sent by the prosecutors to potential defense witnesses
• Pictures or notes taken during the search of his son’s home
• Correspondence between the prosecutor and the defense lawyers
• Statements made by the accuser to the sheriff’s department
• Statements made by the accuser’s mother or her family members
• Correspondence between the sheriff’s department and the prosecutor’s office.

Father Wants Order to Force Release of Records
In July 2018, Charles Summers sued the prosecutor and the sheriff in the Ohio Supreme Court, seeking a writ of mandamus ordering the government offices to produce the records. The Supreme Court initially referred the case to mediation, which resulted in the offices fulfilling some of the requests in November 2018. According to court filings by the prosecutor, the released records included the police reports, the phone calls, and pictures or notes from the house search. In December 2018, the Court returned the case to its regular docket.

The Court granted a July 2019 request from J.K. to intervene in the case, and in September, all parties asked for oral argument. The Court agreed to hold oral argument.

Father Says Family Relationship and Intended Use Not Relevant
Summers maintains that the prosecutor and sheriff refused to release the records because they made a presumption about how he intended to use the materials, and specifically mentioned the Facebook page. His brief describes the refusal as a “thin-skinned concern about their conjectured intended use and potential public criticism.” He argues that the Ohio Public Records Act, in R.C. 149.43(B)(4), prohibits state agencies from requiring information about the requestor’s intended use of public records.

Summers states that the act is designed to prevent government officials from suppressing information that might be embarrassing or might uncover injustices. If Summers intends to publish the materials on his Facebook page, then his purpose for requesting the records is consistent with the act – to provide the public with information about the inner workings of government, his brief argues.

He asserts that concerned parents, just like any other citizen, should be able to obtain public records about investigations and convictions. The requirements of R.C. 149.43(B)(8) for inmates or their designees requesting records involve obtaining a judge’s approval and would be an “extraordinary burden,” Summers argues.

Prosecutor Argues Father Must Follow Special Process for Inmate Designees
The Mercer County prosecutor asked to seal the evidence it filed with the Court, as well as the county’s merit brief in this case, and the Supreme Court agreed. In an earlier motion to the Court for a judgment on the pleadings, the prosecutor notes that inmates must follow a specific process before making a public records request. The office maintains that a third party, or a surrogate acting on the inmate’s behalf, cannot do indirectly what the inmate isn’t permitted to do directly. Summers clearly is acting as his son’s designee, as shown by the Facebook page’s purpose of “learn[ing] the whole truth” about the prosecution of his son and because the request was for records from his son’s criminal case, the office states.

Noting that a case against Christopher Summers also was filed in Darke County for similar conduct with J.K., the prosecutor adds that Charles Summers already has obtained, or has access to, many of the requested records because Darke County released much of its file to a private investigation company. In an affidavit, the prosecutor states that the company requested the records on behalf of Jeffrey Rasawehr. Rasawehr runs a website that includes posts about the Summers case.

Victim Contends Records Request Violates State and Federal Law
The brief from J.K., who is represented by the Ohio Crime Victim Justice Center, focuses on R.C. 149.43(A)(1)(v). That provision prohibits the release of records if the release would violate a state or federal law. The brief notes the intimate details of the sexual assaults contained in the requested records, and asserts J.K.’s privacy rights in the materials.

Various U.S. Supreme Court and other federal court rulings have established that the right to privacy is rooted in the U.S. Constitution’s Fourteenth Amendment, J.K. states. In the Ohio Constitution, Marsy’s Law, a constitutional amendment passed by voters in November 2017, mandates certain rights for crime victims, including the right “to be treated with fairness and respect for the victim’s safety, dignity, and privacy.” Marsy’s Law’s purpose is to protect victims, encourage crime reporting, and prevent crimes. And, in 1956, the Ohio Supreme Court accepted a general, constitutional right to privacy in Housh v. Peth, J.K’s brief maintains.

J.K. contends the release of the records would violate these federal and state laws, so their release is barred by the (A)(1)(v) exception in the Public Records Act. She also states that she didn’t waive her constitutional rights by testifying at the trial. That interpretation would contradict the intent of Marsy’s Law, J.K. argues, adding that she was subpoenaed to testify. She states that members of the Summers family have harassed and attacked her on Facebook, and Summers’ purpose in obtaining the records is to further humiliate and harass her. 

Father Maintains No Public Records Exceptions Apply
Summers counters that the state legislature spelled out exceptions within the Public Records Act specifically for crime victims – for certain images and videos, and if it would endanger the victim’s life or physical safety – and none apply in this case. He rejects J.K.’s reference to a federal circuit court decision that concluded victims have a right to stop government officials from unnecessarily releasing details of rapes when it serves no penological purposes. Summers maintains that by publicly testifying against Christopher Summers, she waived any alleged privacy rights.

Nor does Marsy’s Law prevent the release of the records, Summers asserts, again because J.K. testified publicly at the trial. He argues her rights were protected by the specific Public Record Act’s exceptions for crime victims.

Prosecutor and Father Debate Other Public Records Exceptions
Summers also disputes that exceptions to the release of records for confidential law enforcement investigatory techniques, investigatory work product, and trial preparation records apply to his requests. He contends that techniques for interviewing sexual assault victims are available online to the public, so the interviews of the accuser should be public. He states that the prosecutor’s mention of an “attorney work product” exception doesn’t appear in the Public Records Act.  If attorney work product falls under the act’s exception for investigatory work product, Summers points to the Ohio Supreme Court’s ruling in State ex rel. Caster v. City of Columbus (2016). The Court stated that the exception ends after a trial’s conclusion, and his son’s trial is complete, Summers notes. He also points out that the Court in a separate case concluded that not every record in a prosecutor’s file is exempt from release as a trial preparation record.

Like J.K., the prosecutor notes the Public Records Act bars the release of records that are prohibited from release by state or federal law. The office also indicates in its motion for judgment that records that reflect attorney work product or that are protected under attorney-client privilege are exceptions to the Public Records Act. The office additionally maintains that some of the records in its files are only copies of materials from other investigating agencies and aren’t subject to release. In the prosecutor’s view, the remaining materials, including the requested correspondence, fall under the investigatory work-product or trial-preparation exceptions. The prosecutor argues Summers is attempting to broaden the Caster ruling. However, the prosecutor adds, the Court stated that Caster applied only to the exception for investigatory work product.

Crime Victim and Law Enforcement Groups State Records Shouldn’t Be Released
The National Crime Victim Law Institute, Ohio Domestic Violence Network, and Ohio Alliance to End Sexual Violence have filed an amicus brief supporting the Mercer County prosecutor and sheriff. The groups maintain that privacy protections endure after a criminal case ends. If Summers receives the requested records, he has used the Public Records Act to ignore privacy protections and destroy Marsy’s Law, and will force crime victims to choose between their privacy and justice.

The Buckeye State Sheriffs’ Association and the Ohio Prosecuting Attorneys Association filed briefs separately, and also in support of Mercer County’s positions. The prosecutors’ association argues the requested records fall under exceptions for trial preparation records and records prohibited from release by state or federal law. The sheriffs’ association asks the Court to protect the confidentiality of law enforcement investigatory techniques and attorney-client communications and to protect the safety and dignity of victims of sexual crimes.

– Kathleen Maloney

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

Contacts
Representing Charles A. Summers: Henry Sirkin, 513.721.4450

Representing Matthew Fox, Mercer County prosecuting attorney, and Jeff Grey, Mercer County sheriff: Drew Piersall, 614.224.4411

Representing J.K. from the Ohio Crime Victim Justice Center: Elizabeth Well, 614.398.0204

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Do Court Rules for Settlement Reimbursements Apply When Businesses Have Contractual Payment Provisions?

Wildcat Drilling, LLC v. Discovery Oil and Gas, LLC, Case No. 2019-0222
Seventh District Court of Appeals (Mahoning County)

ISSUE: When a business settles an injury claim — and the business has a contract with an indemnification clause that allows it to collect reimbursement from a wrongdoer to pay the claim — can the factors in the Ohio Supreme Court’s Globe Indem. Co. v. Schmitt decision be used to determine if indemnification is required?

OVERVIEW:
The Ohio Supreme Court will hear two cases back-to-back addressing the issue of indemnity
in contracts between businesses and contractors. In this case and in Total Quality Logistics v. JK & R Express, the business operators negotiated settlements for damages caused by their contractors and then sought reimbursement for those payments through indemnity clauses in their written contracts with the contractors. The contractors balked at the payments, noting they had been left out of the discussions, and maintained that the businesses overpaid without giving the contractors the chance to weigh in.

In both cases, the Supreme Court has asked the parties to address whether three factors required for receiving reimbursement set out in its 1944 Globe Indem. Co. v. Schmitt ruling apply. The businesses argue Globe applies only to situations where there is no written contract requiring indemnification. The contractors counter that recent Ohio appeals courts have applied the factors even when there are written contracts with indemnification clauses.

BACKGROUND:
In December 2014, Discovery Oil and Gas contracted with Wildcat Drilling to drill a well in Stark County. The drilling began in late December and was completed in February 2015. In January 2015, an Ohio Department of Natural Resources (ODNR) inspector visited the drilling site and tested water wells nearby. The inspector determined that Wildcat was illegally using brine water in its operation. Under Ohio law, the permit owner, Discovery, not the driller, receives notification of the drilling violations. ODNR issued a violation order to Discovery and indicated that Wildcat violated three laws and two administrative regulations. Discovery negotiated a settlement with ODNR to pay a $50,000 fine in March 2015.

When Wildcat completed the drilling in February, it sent Discovery a bill for $190,350 for its services. Discovery didn’t pay, but rather notified Wildcat in April that ODNR found Wildcat violated the law, and that Discovery was forced to pay a $50,000 fine. Citing an indemnification clause in the contract between the two parties, Discovery indicated it would deduct the fine amount and its legal expenses from the total it owed Wildcat. Wildcat claimed it did not violate the law, and even if so, the penalty should be no more than $10,000.

Both parties sued each other for breach of contract in the Mahoning County Common Pleas Court. In 2017, the trial court ruled that Discovery could deduct the fine and $14,150 for expenses, and ordered it to pay $126,200 plus interest to Wildcat. Both parties appealed to the Seventh District Court of Appeals.

The Seventh District ruled that under Globe, Discovery failed to notify Wildcat of the negotiations, and that it was attempting to reach a settlement with ODNR. Because Discovery didn’t notify Wildcat, Discovery was not entitled to any indemnification, the Seventh District decided.

Discovery appealed the decision to the Supreme Court on multiple grounds. The Court agreed to consider only Discovery’s argument that Globe doesn’t apply when parties have a written contract with an indemnification clause.

Contract Requires Indemnification, Well Owner Maintains
Discovery notes that Wildcat wrote the contract the two signed and described it as a standard contract in the oil and gas industry. Discovery explains the contract is lengthy and goes into great detail about which party is liable for the risks associated with the complex business of oil and gas drilling.  It notes Wildcat included several provisions where Discovery was required to notify Wildcat in advance of some actions, but the indemnification clause had no such advance notice requirement. The contract’s indemnification clause stated that Wildcat shall “assume full responsibility for and defend, indemnify, and hold Operator and joint owners harmless from and against any loss, damage, expense, claim, fine and penalty, demand, or liability for pollution or contamination….”

Under this contract, Discovery can choose, but is not obligated, to have Wildcat defend Discovery from a claim that it polluted the nearby property by illegally using brine, the well owner argues. A Discovery executive testified the company made the choice not to involve Wildcat because of past citations against the driller by the ODNR and that Wildcat’s involvement could make the matter worse. Even if Discovery waived the right to have Wildcat defend the company, that doesn’t mean the company waived the right to have Wildcat indemnify it, the well owner argues. Under terms of the contract, Wildcat is obligated to pay the fine, and the Court should uphold the terms of the contract, Discovery argues.

Globe Not Applicable to Disputes with Written Contracts, Well Owner Asserts
Discovery explains the Globe factors were established to deal with the unfairness of a situation where a person who commits a tort escapes payment while a company that contracted with the wrongdoer is made to pay the damages.

In Globe, a Cincinnati department store had underground access through large openings in the public sidewalk in front of the store. The openings were covered by metal grates. A contractor was hired to clean the openings. The contractor removed the grates, and a women [typo] fell into the opening and was severely injured. The woman sued the department store and cleaning contractor for the injuries. The cleaner didn’t respond to the lawsuit. Globe Indemnity Company, which represented the department store, notified the cleaner that it intended to settle the case with the woman, and that the cleaner would be responsible for reimbursing Globe for the amount paid on the department store’s behalf . The department store and the cleaner didn’t have a contract that included an indemnity provision.

The Supreme Court developed a three-part common-law test to determine whether the cleaner needed to indemnify the department store. The Court required the cleaner to be notified of the settlement negotiations; declared that the department store had a legal obligation to pay the woman; and ruled that the settlement was reasonable and fair.

Discovery argues this test is a common law principle used when parties haven’t entered into their own indemnification contracts. The company maintains that a common law principle can’t supersede a written contract. Under the contract written by Wildcat, Discovery contends it isn’t obligated to notify Wildcat of a settlement, and isn’t obligated to involve Wildcat in order to be indemnified. It argues that Wildcat is obligated to pay back Discovery for the fine and its legal expenses.

In the alternative, Discovery argues that if there is a dispute about the amount of the fine, the Supreme Court should remand the case to the trial court to consider the amount of reimbursement.

Driller Argues Notification Essential
Wildcat questions the thoroughness and timing of the ODNR test and maintains that the brine water violation may have occurred when another Discovery contractor was in control of the well. Wildcat also asserts that Discovery mischaracterizes its compliance history and that the driller has paid nothing more than a small fine for past ONDR violations. Had Discovery notified Wildcat of the ODNR order, Wildcat could have produced the legal research indicating the fine should have been no more than $10,000. Wildcat argues Discovery overpaid to preserve a good relationship with ODNR at the expense of the driller.

Wildcat maintains that the duty-to-defend provision in the contract required Discovery to notify Wildcat of the proposed fine so that it could fulfill its contractual duty. The Seventh District decision sided with Wildcat by citing the Fourth District Court of Appeals’ 2013 Brown v. Gallagher decision. In that case, two men had a contract with an indemnity clause. The Fourth District applied Globe to the contract and found the man seeking indemnification had to notify the other that he had negotiated a settlement.

Wildcat cites Brown as well as Total Quality Logistics v. JK & R Express, and other court decisions where the Globe factors were considered when determining if indemnification clauses in contracts applied. Wildcat argues the Globe factors aren’t triggered by whether parties have contracts with indemnification clauses, but rather they are triggered when the parties seeking reimbursement enter into settlement negotiations. It’s at that point when, under Globe, the party seeking a settlement must be legally obligated to pay, and must notify the wrongdoer that it expects to be reimbursed for the settlement, Wildcat concludes.

– Dan Trevas

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

Contacts
Representing Discovery Oil and Gas LLC: Thomas Hull, 330.743.1171

Representing Wildcat Drilling LLC: Molly Johnson, 330.533.1921

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Do Court Rules for Damage Settlements Supplant Business Contract’s Reimbursement Provisions?

Total Quality Logistics LLC v. JK & R Express LLC, Case No. 2019-0267
Twelfth District Court of Appeals (Clermont County)

ISSUE: Regardless of whether two business have an indemnification clause in a contract, must the business seeking reimbursement from the other comply with the factors in the Ohio Supreme Court’s Globe Indem. Co. v. Schmitt decision to be indemnified?

OVERVIEW:
The Ohio Supreme Court will hear two cases back-to-back addressing the issue of indemnity
in contracts between businesses and contractors. In this case and in Wildcat Drilling, LLC v. Discovery Oil and Gas, LLC, the business operators negotiated settlements for damages caused by their contractors and then sought reimbursement for those payments through indemnity clauses in their written contracts with the contractors. The contractors balked at the payments, noting they had been left out of the discussions. In both cases, the Supreme Court has asked the parties to address whether three factors required for receiving reimbursement set out in its 1944 Globe Indem. Co. v. Schmitt ruling apply.

BACKGROUND:
Total Quality Logistics (TQL) is a freight broker. It arranges for transportation of customers’ cargo from one location to another for a price. It contracts with independent trucking companies to carry the customer’s cargo for a fee. JK & R Express is an independent trucking company, which regularly contracted with TQL to carry cargo.

In June 2016, TQL negotiated an agreement with JK & R to transport a load of organic apples owned by ConTel Fresh from Washington state to Missouri and New Jersey. A day after picking up the apples, JK & R’s truck trailer caught on fire in Montana and destroyed all the apples.

ConTel submitted an invoice to TQL for $86,240, demanding payment for the full value of the lost load. TQL then notified JK & R through a standard form it used for damage claims. ConTel owed TQL money for previous transports. TQL proceeded to reimburse ConTel for the loss of the apples by providing credits against the amount ConTel owed for other transports. It also reimbursed ConTel for the $5,900 charged to pay JK & R to transport the apples and TQL’s $600 fee. ConTel then assigned all it rights to collect payment from JK & R to TQL.

Carrier Refuses to Pay for Damage
JK & R refused to pay TQL, and TQL sued for breach of contract in Clermont County Common Pleas Court. TQL cited the indemnification clause in its contract with JK & R requiring the carrier to “defend, indemnify, and hold broker and customers harmless” from liability related to claims such as cargo loss, damage, theft, delay, and bodily injuries.

JK & R requested summary judgment, arguing that TQL’ s arrangement with ConTel left TQL with no legal responsibility to ConTel for the loss of the apples. The trucking company maintained that TQL, for business reasons, didn’t even allow ConTel to know the name of the company that transported its apples, so ConTel sought reimbursement from TQL rather than directly from JK & R. Because TQL was not legally responsible for the loss, the indemnification clause did not apply, JK & R argued. The trial court agreed, finding JK &R had to pay TQL only the $600 for the lost fee.

TQL appealed the decision to the Twelfth District Court of Appeals, which affirmed the trial court’s decision. TQL then appealed to the Supreme Court, which agreed to hear the case.

Contract Terms Wrongly Supplanted by Court-Made Rules, Broker Argues
TQL argues the Twelfth District improperly supplanted the terms of the written contract between the broker and the carrier with the common-law principles for determining whether a company is entitled to indemnification. The broker argues the appellate court applied the three-part test the Ohio Supreme Court developed in its 1944 Globe Indem. Co. v. Schmitt decision.

The Court in Globe addressed the situation that occurs when two entities are sued for damages caused by an  injury, and one party agrees to pay the damages, then demands payment from the other wrongdoer for that person’s or businesses’ role in the accident. The Court ruled a party can seek reimbursement through indemnity if:
1) the wrongdoer seeking to settle the case notifies the other wrongdoer of the settlement discussion; 2) the wrongdoer seeking indemnity is legally obligated to respond to the claim; and
3) the settlement is fair and reasonable.

TQL argues this test was developed to address situation where the two parties being held responsible don’t have a contract that requires reimbursement. Because TQL and JK & R have a written contract with specific rules for indemnification, then only the contract language applies, the broker asserts. TQL maintains it is clear from the contract language that the trucking company must indemnify it for the amount paid to ConTel for the loss of the apples and the shipping charges.

The broker argues that applying the Globe factors to this situation would lead to an absurd result. Without indemnification, JK & R, which solely caused the destruction of the apples, would pay nothing, while the broker, which had no role in the accident, would fully pay for the loss. The company asserts the Court shouldn’t allow such an injustice and should direct the carrier to follow the contract provisions and pay for the loss.

Court Factors Ensure Fairness, Carrier Maintains
JK & R argues that Ohio appellate courts have been applying the Globe factors in cases both when  there is a contract between the wrongdoers, and when there isn’t one. The carrier notes the Twelfth District cited the Seventh District’s 2018 Discovery Oil and Gas v. Wildcat Drilling decision, which applied the Globe factors to a dispute between an oil well operator and a drilling contractor. The two businesses had a written contract with an indemnification clause.

JK & R argues that TQL agreed to pay the full asking price from ConTel without ever consulting with the carrier about the facts of the accident or the carrier’s assessment of the load’s value. The carrier maintains that for business tactics, TQL deliberately shielded JK & R’s identity from ConTel and prevented the two from discussing damages for the loss. The Globe factors were enacted to ensure fairness for wrongdoers who have a responsibility to indemnify the party that pays the damages, JK & R argues. Because TQL wasn’t legally responsible to ConTel, it failed to meet the standard to qualify for indemnification under Globe, the carrier asserts. TQL’s business decision to isolate the parties involved in the accident makes the company responsible for the consequences, JK & R concludes.

– Dan Trevas

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

Contacts
Representing Total Quality Logistics LLC: Jeffrey McSherry, 513.870.6686

Representing JK & R Express LLC: Chad Sizemore, 513.361.0200

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Cleveland Attorney Faces Discipline for Conduct in Franklin County Probate Matter

Disciplinary Counsel v. Marilyn A. Cramer, Case No. 2019-1739
Franklin County

The Board of Professional Conduct recommends that Cleveland attorney Marilyn Cramer be indefinitely suspended from practicing law. The recommendation results from Cramer’s actions in Franklin County Probate Court related to handling a real-estate matter after her mother’s death. The board found Cramer impugned the integrity of court officers, misrepresented her authority as an estate administrator, testified falsely before the court, and filed many repetitive and baseless pleadings in the case.

Attorney’s Mother Dies, and Estate Includes House in Columbus
Cramer’s mother died in September 2007. She wasn’t a Franklin County resident when she died, but she owned a house in Columbus. However, her estate was handled in Alabama. Because the Columbus house needed to be sold, the Franklin County Probate Court was required to appoint an administrator for that sole purpose.

In September 2014, Cramer filed an application to administer the full estate, even though one of her sisters had been named early on as the administrator. After hearings and amended filings, the probate court appointed Cramer as the administrator only for handling the Franklin County property. Her siblings asked in April 2015 that she be removed from the role because she hadn’t listed the property for sale, as agreed. A probate court magistrate agreed.

The board’s report states that, in subsequent proceedings after the magistrate’s decision, Cramer made many disparaging statements about the court, repeatedly said the court and opposing counsel improperly discussed the case, and claimed the court appointed an attorney to handle the house sale for political reasons. Among her statements, Cramer described the proceeding as a “pseudo-hearing,” alleged the magistrate concealed facts and was trying to avoid doing the necessary work in the case, attacked the clerk’s office for its interactions with her, and accused the new local administrator of hiring someone to break into her mother’s house.

Cramer told a realtor she was the legal administrator for selling the house, and did so before her appointment was made. Cramer also claimed a former police officer helped to break into her mother’s house, but the former officer testified he refused to assist Cramer. In addition, she told the court there was a buyer for the house, but she never submitted the offer. The board also found that Cramer obstructed the subsequent administrator’s efforts, interfered with buyers and potential sales of the property, and threatened other parties and witnesses.

Attorney Criticizes Panel, Which States that Her Claims Were Unsupported
At the disciplinary hearing, Cramer continued to attack the probate court and also accused the lawyer from the Office of Disciplinary Counsel of covering for the probate court and framing her. The board panel that heard the case noted that Cramer didn’t present evidence to support her numerous claims. According to the panel, she also presented an affidavit from a supposed buyer for the house, but the individual testified he had no knowledge of the facts in the document. After the hearing, she submitted more than 100 exhibits, and 83 of them were admitted.

The board found Cramer committed multiple violations of the rules governing the conduct of Ohio lawyers. The report states that she knowingly made false statements about the integrity or qualifications of judicial officers; lied to the court; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaged in conduct prejudicial to the administration of justice, along with other rule violations.

Aggravating circumstances included Cramer’s dishonest or selfish motive, multiple offenses, and refusal to acknowledge her misconduct. The board’s sole mitigating factor was Cramer’s lack of prior discipline. During the hearings, she said she has a sleep disorder that caused her to be late for, or miss, hearings. However, she submitted no evidence to support the existence of a health condition, the report states.

Before Cramer can be reinstated to the practice of law, the board recommends an evaluation by the Ohio Lawyers’ Assistance Program; compliance with the program’s recommendations, an opinion from a qualified health-care professional stating that she can return to the competent, ethical, and professional practice of law; and payment of the $22,256 ordered by the probate court and the costs of the disciplinary proceedings.

Attorney Rejects All Findings, Alleges Board Wrongdoing
Cramer filed objections to the board’s findings, conclusions, and recommended sanction, and encourages the Court to reject it in its entirety. She alleges that the board mischaracterizes or withholds critical evidence in this case. She was never disrespectful to the magistrate or judge, but the probate court repeatedly violated state law, court evidence rules, local probate court rules, and judicial conduct rules, she maintains. Instead, she asserts, her actions were intended to protect the estate and its heirs. She also insists that she had multiple potential buyers for house, and three witnesses testified to this during the disciplinary process.

She adds that her sleep disorder isn’t a mental health issue and doesn’t warrant a mental health evaluation. She states that she offered the board panel access to her medical records, and it declined. She has practiced law for more than 40 years without any discipline, but with extensive pro bono work and many notable achievements and accolades, she notes.

Disciplinary Counsel Argues Attorney Unfit for Practicing Law
The disciplinary counsel’s office, which investigated this matter, notes in its answer that Cramer has been sanctioned by the probate court and that an appeals court upheld the judgment. Her objections now also attack the panel, the professional conduct board, and the disciplinary process, the office maintains. It contends that Cramer isn’t fit to practice law at this time. To protect the public, the disciplinary counsel requests that the Court indefinitely suspend Cramer with the recommended conditions. 

– Kathleen Maloney

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

Contacts
Marilyn A. Cramer, pro se: 216.650.2707

Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.461.0256

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