Wednesday, July 8, 2020
Harmon Lingle and Mark Grosser v. State of Ohio et al., Case Nos. 2019-1247 and 2019-1309
Tenth District Court of Appeals (Franklin County)
Ohioans for Concealed Carry et al. v. City of Columbus et al., Case No. 2019-1274
Tenth District Court of Appeals (Franklin County)
A.J.R. et al. v. Board of Education of Toledo City School District et al., Case No. 2019-1355
Sixth District Court of Appeals (Lucas County)
C.J. Bode et al. v. Wayne L. West et al., Case No. 2019-1494
Seventh District Court of Appeals (Monroe County)
What Is Correct Classification for Out-of-State Sex Offenders?
Harmon Lingle and Mark Grosser v. State of Ohio et al., Case Nos. 2019-1247 and 2019-1309
Tenth District Court of Appeals (Franklin County)
ISSUES:
- Is a person with an out-of-state sex-offense conviction not required to register in Ohio as a “sexual predator” if the person can show that the home-state registration requirement isn’t substantially similar to Ohio law because that requirement doesn’t fit the definition of “sexual predator” in former R.C. 2950.01(E)?
- Does former R.C. 2950.01(F) provide an out-of-state sex offender who challenges the automatic classification in Ohio as a “sexual predator” with the right to a hearing to determine whether the offender is likely to commit a sex offense in the future?
BACKGROUND:
Harmon Lingle was indicted in 1990 in Florida for a lewd and lascivious act and sentenced to probation . Lingle violated the terms of his probation, and served time in prison. After his release, he registered as a sex offender in Florida. In 2008, he moved to Ohio. The Delaware County Sheriff’s Office classified him as a sexually oriented offender. When he moved to Franklin County, the sheriff’s office informed him he must register as a sexual predator.
Mark Grosser was convicted in Florida of solicitation of a child over the internet and transmission of material harmful to minors for offenses that took place in 2006 and 2007. Grosser served six months in jail and was classified as a sexual offender. He moved to Ohio after his release in November 2008 and registered as a Tier I sex offender. In 2012, the Ohio Attorney General’s Office changed his classification to sexual predator.
Florida Offenders Request Adjustment to Classifications
In February and March 2016, Lingle and Grosser filed separate complaints in Franklin County Common Pleas Court against the state attorney general and the Franklin County sheriff. The men asked the court to reclassify them as sexually oriented offenders in Ohio or to order hearings where they could present evidence that they are unlikely to re-offend and shouldn’t be designated as sexual predators.
The parties agreed to combine the cases. The court determined that their classifications as sexual predators were lawful, but they were entitled to hearings about whether they were likely to re-offend.
The attorney general appealed to the Tenth District Court of Appeals, which reversed the trial court’s decision. The Tenth District stated that Ohio’s version of the federal Megan’s Law applied to Lingle and Grosser. The law, which the state legislature enacted in 1996, determined the registration requirements for sex offenders living in Ohio. The Tenth District ruled, though, that Megan’s Law didn’t provide hearings for out-of-state offenders about their likelihood to re-offend.
The Tenth District also determined that its ruling conflicts with decisions from the state appellate courts in the First, Fifth, and Eighth districts. The Ohio Supreme Court agreed to review the conflicts and also accepted an appeal from Lingle and Grosser. The Supreme Court combined the certified conflicts and the appeal for briefing and oral argument.
To comply with state directives during the COVID-19 pandemic, the Court will hear the cases via videoconference.
Meaning of ‘Sexual Predator’ Different in Florida and Ohio, Offenders Argue
Lingle and Grosser’s brief explains that Florida classifies individuals convicted of sex offenses as either sexual offenders or predators. Both types are subject to lifetime registration requirements, but sexual offenders – such as Lingle and Grosser – can ask to be removed from the registry after 25 years.
Under Ohio’s version of Megan’s Law, there were three classifications – sexually oriented offender, habitual sex offender, or sexual predator. Sexually oriented offenders had to register their addresses for 10 years, while sexual predators were required to register their addresses for life. A “sexual predator” is defined as someone who has been convicted of a sexually oriented offense and who is likely to re-offend.
Lingle and Grosser argue that a conviction alone in Florida categorizes an offender as a sexual predator, but in Ohio there must be a conviction as well as a likelihood of re-offending. Florida’s offense-based system isn’t substantially similar to Ohio’s risk-based approach, they contend. But under the Tenth District’s ruling, they will be labeled as sexual predators even if they don’t meet both parts of the definition of that term in Ohio, they state.
Consequently, Lingle and Grosser maintain, Ohio’s law enforcement must use their limited resources to enforce lifetime registration requirements on individuals from a majority of states – which don’t determine whether the individuals are at risk for re-offending.
“Labeling people for the most intensive supervision with no finding of dangerousness serves only to punish, not to protect the public,” their brief states.
They also point to one of the cases in conflict with the Tenth District’s decision. In State v. Pasqua (2004), the First District Court of Appeals ruled that before a person can be designated as a sexual predator under Megan’s Law, a hearing on the likelihood of re-offending is required under the due process clauses of the U.S. and Ohio constitutions.
Adam Walsh Act Applies to Offenders Arriving in Ohio in 2008 and Later, State Asserts
The attorney general contends that the Adam Walsh Act (AWA), rather than Megan’s Law, applies to Lingle and Grosser because they moved to Ohio after the AWA took effect. Ohio’s version of the federal AWA became effective on Jan. 1, 2008, repealing Megan’s Law. It created new sex-offender classification categories – Tier I, Tier II, and Tier III.
The state acknowledges it didn’t argue in the lower courts that the AWA applied to Lingle and Grosser. Getting the law right is more important than limiting the parties to the exact arguments made in the trial and appellate courts, the state maintains. It asserts that courts can’t ignore the relevant law, and this new argument that the AWA applies supports the position the state advanced in the lower courts.
The attorney general argues that the applicable sex-offender registration law isn’t determined based on when the offenses occurred in another state, but rather when the offenders became subject to Ohio’s registration law. Lingle’s and Grosser’s moves to Ohio in 2008 triggered the state law in effect at that time – the AWA, the attorney general maintains. The office indicates that high court opinions from Indiana, Maryland, and Oklahoma support this view.
Noting the Ohio Supreme Court ruled in State v. Williams (2011) that new registration requirements in the AWA couldn’t be imposed on offenders whose offenses predated the act’s effective date, the attorney general states that the Court ruled that the AWA’s substantive requirements can’t be applied retroactively. However, the attorney general maintains, Williams didn’t address the procedural step of classifying out-of-state offenders who move to Ohio after the AWA took effect.
Even if the Court determines that Megan’s Law applies to Lingle and Grosser, they incorrectly argue that former R.C. 2950.01(F) gives them a right to a hearing to determine whether they are likely to re-offend, the state maintains. It counters that the law simply allowed a court to determine that an offender isn’t a sexual predator if the offender proves that the other state’s registration requirement isn’t substantially similar to Ohio’s. This provision doesn’t entitle out-of-state sex offenders to hearings in Ohio on their likelihood to re-offend, the state argues.
The state also rejects the offenders’ constitutional due process arguments that a separate hearing must be held about the risks of re-offending. The state maintains that two other state courts, three federal appeals courts, and the U.S. Supreme Court have ruled otherwise.
Groups Advocating for Rational Sex Offense Laws Submits Brief
The National Association for Rational Sexual Offense Laws and its Ohio affiliate have filed a joint amicus curiae brief supporting neither side. They offer another perspective, maintaining that the Ohio appellate court rulings aren’t consistent with the complete text of the relevant law.
County Sheriff Waives Oral Arguments
The Franklin County Sheriff’s Office didn’t file a brief in the case, so it isn’t permitted to participate in the Court’s oral arguments.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2019-1247 and 2019-1309).
Contacts
Representing Harmon Lingle and Mark Grosser from the Ohio Public Defender’s Office: Stephen Hardwick, 614.466.5394
Representing the State of Ohio from the Ohio Attorney General’s Office: Benjamin Flowers, 614.644.7233
Representing Dallas Baldwin, the Franklin County sheriff, from the Franklin County Prosecutor’s Office: Bryan Lee, 614.525.3555
Do Nonprofit Firearms-Rights Groups Have Standing to Challenge City Gun Laws?
Ohioans for Concealed Carry et al. v. City of Columbus et al., Case No. 2019-1274
Tenth District Court of Appeals (Franklin County)
ISSUE: Does a nonprofit firearms-rights organization have standing to challenge the constitutionality of a municipal ordinance when filing an action for a declaratory judgment and an injunction?
BACKGROUND:
In the wake of mass shootings across the nation, the city of Columbus enacted a series of ordinances in May 2018 to further regulate firearm use. Twelve years earlier, the Ohio General Assembly had enacted R.C. 9.68, which stated the need to provide “uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition.”
A month after the passage of the Columbus ordinances, Ohioans for Concealed Carry (OFCC), the Buckeye Firearms Foundation (BFF), and Gary Witt, a Columbus resident and OFCC member, filed a lawsuit in Franklin County Common Pleas Court challenging two of the city’s new ordinances. One of the ordinances was known as the “rate-of-fire” ordinance, which banned possession of devices such as “bump stocks,” which accelerate the rate of fire of a semi-automatic firearm without converting it to a true automatic firearm. The second ordinance, known as the “weapons under disability” ordinance, prohibited firearm possession for those with prior convictions , or subject to court orders, regarding domestic violence.
Witt and the gun groups sought a declaratory judgment, asking the trial court to rule the ordinances unconstitutional and in conflict with R.C. 9.68. They also sought a permanent injunction to prevent the city from enforcing the laws.
The city asked the trial court to dismiss the case, asserting that Witt and the gun groups lack standing to bring the challenge because they haven’t been personally impacted by the laws. The trial court denied the request and allowed the case to proceed. After hearing the case, the trial court issued a permanent injunction preventing the city from enforcing the rate-of-fire ordinance, but found the city was allowed to enforce the weapons under disability law.
Both sides appealed to the Tenth District Court of Appeals, which ruled in August 2019 that Witt had standing to seek an injunction but not a declaratory judgment. The appeals court ruled OFCC and BFF didn’t have standing under any of the four theories they used to challenge the ordinances. The two groups appealed the decision to the Ohio Supreme Court, where the groups proposed that three separate sections of state law give them standing to sue.
The Court agreed to hear the case. To comply with state directives during the COVID-19 pandemic, the Court will hear the cases via videoconference.
NonProfits Have Right to Challenge Ordinances, Gun Groups Assert
Prior to the Tenth District’s decision, bump stocks were banned by federal policy, and the city’s rate-of-fire ordinance was repealed. As the parties argue before the Supreme Court, only the weapons under disability ordinance remains in effect.
The gun groups warn that Columbus had previously enacted and repealed firearms ordinances when they were challenged in court. They asked the Supreme Court to consider the challenge to the rate-of-fire ordinance not only because the city may bring it back in the future, but also because it may impact an award of attorney fees to the groups should they ultimately prevail.
R.C. 9.68 itself gives OFCC and BFF standing, the groups maintain. R.C. 9.68(B) states that a court “shall award attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section.” The groups maintain the Supreme Court has “implicitly recognized” the OFCC’s standing in its 2008 Ohioans for Concealed Carry v. Clyde decision and that several lower courts have followed suit.
The Tenth District ruled Witt had standing to challenge the ordinances under R.C. 733.59, which allows a “taxpayer” lawsuit to challenge a municipal ordinance. However, the appeals court ruled that even under the Ohio Supreme Court’s expanded definition of “taxpayer,” the groups didn’t qualify. The groups counter that they have “associational standing” to sue on behalf of their members, which include individuals living in Columbus. The groups note that associational standing is permitted without an express citation in a statute when: 1) its members would have standing to sue; 2) the interests it seeks to protect are “germane to the organization’s purpose”; and 3) neither the claim asserted nor the relief requested requires participation of individual members in the lawsuit.
Both groups note their purpose is to advocate and protect the rights of people to keep and bear arms. They note the lower courts have established their individual members have standing to sue, and the third requirement is met because there is no need for individual members of the organizations to be involved in a challenge to the constitutionality of the ordinances.
Because they meet the standards for associational standing, the groups maintain the law gives them the right to seek an injunction to prevent the enforcement of the laws.
The groups also maintain the Ohio Declaratory Judgment Act (R.C. Chapter 2721) gives them standing to have the laws declared unconstitutional. Typically, a declaratory judgment claim requires an actual action to have been taken or soon will be taken that impacts the party seeking the judgment. The gun groups maintain their members need not be charged with a criminal violation of the ordinances before they have standing to seek a declaratory judgment. They urge the Court to follow decisions by the U.S. Circuit Court of Appeals for the Sixth and Seventh Circuits that have allowed firearm-rights groups to challenge the constitutionality of gun laws even when their members haven’t been charged with a violation.
Groups Have No Right to Sue, City Maintains
The city maintains that standing to challenge the ordinances requires a party to suffer an injury that is fairly traceable to the city’s allegedly unlawful conduct, and is likely to be addressed by the requested relief -- which in this case is an injunction and a declaratory judgment. The city argues the groups fail to meet that standard because they have not shown they will suffer or be threatened with a concrete injury in any manner that is different from the public as a whole.
The city rejects the argument that R.C. 9.68(B) implies the gun groups have standing to challenge the city ordinance. The city argues that under common law, the groups wouldn’t have standing to sue and that when a statute seeks to replace a common law rule, it must explicitly state that a rule is being replaced by the law. The city notes the Court has ruled that “silence” on the issue doesn’t imply a group has standing, and just because the law allows groups to receive attorney fees if they win a challenge, doesn’t automatically give them standing in every case concerning a gun law.
The same rule of silence applies to the claim of “associational standing” under R.C. 733.59, the city asserts. The provision allows for a taxpayer to file a lawsuit, and the city notes both groups are nonprofit organizations that pay no taxes. The law doesn’t grant associational standing for groups purportedly representing taxpayers without an express statement in R.C. 733.59 allowing it, meaning the groups can’t invoke the law to sue, the city argues.
Neither Witt nor the groups have standing under the state’s declaratory judgement act, the city claims. The city notes Witt never stated that he owned a firearm, much less that he intended to purchase a bump stock or that he had a misdemeanor domestic violence conviction. The groups similarly haven’t alleged any individual harm, but only that the city would improperly spend money to enforce the law and pay public defenders to represent indigent citizens charged with violating the ordinances, the city states. Without any claim of a particular injury, there is no standing to seek a declaratory judgment, the city 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 Ohioans for Conceal Carry and member Gary Witt: David Kessler, 614.764.0681
Representing Buckeye Firearms Foundation: James Maloney, 513.463.0073
Representing the City of Columbus: Richard Coglianese, 614.645.7385
Are Educators Responsible for Injuries in Kindergartener Bullying Claim?
A.J.R. et al. v. Board of Education of Toledo City School District et al., Case No. 2019-1355
Sixth District Court of Appeals (Lucas County)
ISSUE: Are public school teachers and administrators entitled to immunity under R.C. 2744.03(A)(6) from claims of reckless conduct when one kindergartener allegedly bullies and injures another?
BACKGROUND:
After being identified as gifted, a child identified in court records as “A.R.” was 4 years old when her parents enrolled her as an early entrant in the Toledo City School District. In 2015, A.R. attended DeVeaux Elementary School. A.R.’s parents soon began reporting to school officials that other kindergarteners, including a child identified as “S,” began teasing A.R. for being 4 and called her a “baby.” Shortly after the school year began, A.R.’s father spoke with Assistant Principal Cynthia Skaff about the teasing, particularly about S’s teasing of A.R. Skaff spoke to the children about the concern, and she periodically checked on A.R. during the school year. School Principal Ralph Schade was made aware of the teasing, spoke to the children in A.R.’s classroom about it, and checked on A.R. throughout the school year.
Amanda Lute, A.R.’s classroom teacher, missed the first few months of school while on leave, but was notified about teasing. Lute described the behavior as “not that unusual in kindergarten,” but said she monitored the situation to ensure it stopped.
On March 3, 2016, when A.R. was 5 years old, she and S were at a table together in Lute’s room. S may have poked A.R. with a sharp pencil. Lute said she and a classroom aide were unaware of the incident, there was no crying or screaming after it took place, and no one reported the disturbance. Four days later, the parents reported to the school that A.R. had been injured by what they termed as a “stabbing and slashing” with a pencil, and that A.R. said S did it to her in Lute’s classroom. The parents had taken A.R. to her pediatrician for a wellness check, and the pediatrician’s records indicate A.R. was “poked” in the cheek with a pencil and that the injury would be monitored to see if the child reported facial pain.
Parents Withdraw Child from School
A.R.’s parents withdrew her from DeVeaux on March 7 and filed a lawsuit against Lute, Skaff, and Schade in Lucas County Common Pleas Court, making a number of claims, including recklessness and reckless negligence . Toledo Public Schools sought to have the case dismissed , and the trial court dismissed all claims except for recklessness. The school district then asked for summary judgment, claiming the three educators were immune from liability under R.C. 2744.03(A)(6). The trial court granted the district’s request, and the parents appealed to the Sixth District Court of Appeals.
The Sixth District assigned visiting judges from the Ninth District to hear the case, and in a 2-1 decision, the panel of judges found there was a legitimate dispute as to whether the educators had been reckless. The appeals court remanded the case to the trial court and ordered further proceedings to determine whether the educators were entitled to immunity.
Toledo Public Schools appealed the Sixth District’s decision to the Supreme Court, which agreed to consider the case. To comply with state directives during the COVID-19 pandemic, the Court will hear the case via videoconference.
Educators Not Reckless, Are Entitled to Immunity, District Asserts
The school district explains the legal theory of “recklessness” didn’t exist in traditional common law, and the Ohio Supreme Court had to define the term to allow for the claim. “Recklessness” has been defined through Court decisions as a “perverse disregard for a known risk,” the school district states. Furthermore, the school district notes, the Ohio Supreme Court has interpreted the term as reckless disregard of the safety of others when the offender knows the actions or failing to act would lead a reasonable person to consider the conduct as creating an unreasonable risk of harm.
The district notes the parents claim the educators aren’t immune because of the immunity exemption in R.C. 2744.03(A)(6)(2). The provision states there is no immunity if “the employee’s acts are done ‘with malicious purpose, in bad faith, or in a wanton or reckless manner.’” Toledo Schools argue in their brief that Ohio courts have consistently held that imperfect supervision isn’t reckless, and that the parents have failed to prove the educators displayed a “perverse disregard for a known risk.”
The district notes the trial court at this time hasn’t admitted into evidence the accounts of the incidents from the two children. Based on the record, the educators claim that S had no history of being violent, and that the educators repeatedly addressed teasing when they were made aware of it. Lute disputes the incident took place in her classroom, and the district argues that even if it did happen there, the teacher and other educators weren’t acting with a perverse disregard for a known risk when they failed to anticipate that a child with no violent history would poke another child with a pencil.
The district warns that affirming the appeals court decision would saddle even the most conscientious educators with “crippling and expensive litigation” every time they were made aware of teasing before an altercation occurred.
District Took No Preventative Steps, Parents Maintain
A.R.’s parents maintain they repeatedly informed DeVeaux employees of the teasing and bullying their daughter was receiving, especially from S. Yet several months into the school year, Lute placed S and A.R. in close proximity at the same table and supplied them with pencils and a pencil sharpener, knowing that children can be injured with sharp pencils. The parents note Ohio court decisions have placed a heightened duty on educators to protect children of “tender years” from harm because of children’s inability to appreciate risks. A.R. told her parents she cried after the incident, and that she bled from the puncture. The parents allege there is a noticeable blistering mark and slash on her face from the injury.
The parents also note that Principal Schade investigated and drafted a report in handwritten notes. According to the notes, while S initially denied the incident, she eventually told the principal she stabbed A.R. with the pencil and that A.R. told the teacher. S said the teacher told S to tell A.R. she was sorry. The parents state the incident was never reported to them, and the notes establish that Lute was aware that A.R. was injured in the classroom.
The parents maintain there is enough evidence for the Court to return the case to the trial court where a jury can decide if the educators were reckless in their failure to protect their daughter from a physical attack.
Friend-of-the Court Briefs Submitted on Behalf of Educators
An amicus curiae brief supporting the school district’s position has been submitted jointly by Buckeye Association of School Administrators, Ohio Association of School Business Officials, Ohio School Boards Association, and Toledo Association of Administrative Personnel. Another joint brief supporting the school district was filed by Ohio Education Association and Ohio Federation of Teachers. Also submitting briefs in support of the district were the city of Toledo, and Toledo Federation of Teachers Local 250.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Board of Education of Toledo City School District et al.: Jennifer Dawson, 419.249.7100
Representing A.J.R. et al.: Anthony Richardson, 937.830.3692
Can Ohio Marketable Title Act Be Used to Terminate Oil and Gas Royalty Rights?
C.J. Bode et al. v. Wayne L. West et al., Case No. 2019-1494
Seventh District Court of Appeals (Monroe County)
ISSUES:
- Is the Ohio Dormant Mineral Act a specific statute that supersedes the Ohio Marketable Title Act?
- For mineral interests, are the Dormant Mineral Act and Marketable Title Act in conflict, leaving only the use of Dormant Mineral Act provisions to terminate a mineral interest?
BACKGROUND:
In 1996 Wayne West acquired about 68 acres of land in Monroe County’s Bethel Township. In 2002, he transferred five acres of land to Rusty West. In 2017, Wayne and Rusty West filed a lawsuit in Monroe County Common Pleas Court to extinguish any severed oil and gas royalty interests from their land that may have been previously owned. The Wests didn’t know the identities of any potential mineral rights owners.
Katherine Haselberger, Charlotte McCoy, and John Christman asked the court for permission to join the proceedings. They maintained they are the heirs of Nova A. Christman, who acquired title to one half of the oil and gas royalty interests to the land below the Wests’ surface property in 1944. Nova Christman filed a “notice of claim” with the Monroe County Recorder’s Office in 1977, indicating he owned the mineral royalty rights.
The Christman heirs maintained that under the Ohio Dormant Mineral Act (DMA), R.C. 5301.56, their royalty rights were properly preserved, and they asked the court to reject the Wests’ effort to merge the surface and mineral rights. The Wests maintained that under the Ohio Marketable Title Act (MTA), R.C. 5301.47 through 5301.56, Nova Christman’s royalty rights extinguished in 1999 because he failed to record anything in the surface chain of title documented at the county recorder’s office.
Both sides requested summary judgment, and the trial court sided with the Christman heirs as royalty owners. The court stated that only the DMA applied to the termination of oil and gas rights. The Wests appealed to the Seventh District Court of Appeals.
The Seventh District ruled the MTA applies to the “extinguishment” of mineral rights, and the DMA applies to the “abandonment” of mineral rights, noting the Ohio Supreme Court explained the difference in its 2016 Corban v. Chesapeake Exploration LLCdecision. The Seventh District ruled the MTA and the DMA weren’t in conflict. Rather than determining ownership of the royalty rights, the appeals court remanded the case to the trial court for analysis using the MTA.
The Christman heirs appealed the Seventh District’s decision to the Ohio Supreme Court, which agreed to hear the case. To comply with state directives during the COVID-19 pandemic, the Court will hear the case via videoconference.
Parties Dispute Existence of Royalty Right
The Wests claim that the royalty rights that the Christman heirs are claiming expired in 1999 under the provisions of the MTA. By the time the royalty owners responded to their legal action in 2017, the royalty rights no longer existed, the Wests maintain.
The royalty owners claim that after 2006, Ohio lawmakers made the DMA the sole remedy to claim an unused oil and gas rights. They argue the Wests couldn’t rely on the MTA in their 2017 lawsuit to claim the royalty right. Even if the MTA could be used, the royalty owners maintain their prior owner, Nova Christman, did enough under the MTA to prevent the royalty right from being extinguished.
Mineral Rights Preserved, Christman Heirs Argue
The Christman heirs note the MTA was passed in 1961 to simplify the transfer of clean titles that were free of older and unknown interests in the land, such as easements. In 1973, the law was amended to include a method to extinguish mineral rights, except for coal. The law provided six ways a mineral rights owner could preserve their rights and keep them from being extinguished. The law gave mineral rights owners three years to either identify an act they had taken to preserve a right or take an act to preserve a right before the MTA could be used to extinguish a right.
Lawmakers were alerted to a problem after the MTA revision. In some instances, the chain of the title to the mineral rights would be split from the chain of title of the surface rights. The royalty owners claim that is what happened to the Wests’ property. The legislature adopted the DMA in 1989 in part to address the situation when mineral rights and surface rights are split. The DMA was amended in 2006 to require a surface property owner to notify a mineral rights holder of their intention to have the mineral right declared “abandoned” and merged with the surface rights, the heirs note.
The royalty owners side with the trial court’s decision that the DMA is the only process now in use that can terminate a mineral right, citing the Court’s 2018 Blackstone v. Moore decision. The royalty owners point to former Justice Mary DeGenaro’s concurring opinion in that case, in which she states the legislature’s adoption of the DMA after passage of the MTA “strongly suggests that the Dormant Mineral Act should be the controlling law and the exclusive remedy for this discrete class of real-property interests.”
The royalty owners note that under R.C. 1.51, a more specific statute controls over a general statute when the two conflict. They argue the DMA and MTA are in conflict because some of the ways one can preserve a mineral right under the DMA aren’t applicable under the MTA. They note that even actively drilling for oil and gas on the land isn’t sufficient under the MTA to preserve the mineral right while it would be under the DMA. Because the two are in conflict, the DMA should control and the trial court was correct to ignore the provisions of the MTA, they conclude.
Acts Don’t Conflict, Surface Owners Assert
The Wests maintain the MTA and DMA don’t conflict and address two different scenarios when a mineral right can be terminated. The MTA applies to extinguishing a mineral right by indicating the right ceases to exist for at least 40 years either because oil and gas wasn’t being explored or the mineral rights owner didn’t place anything on the surface’s owner title records in the county recorder’s office stating an intent to preserve the mineral rights. The DMA, they argue, is a separate proceeding designed to have the right declared abandoned because someone had claimed the mineral right but had taken no action in 20 years to use it or preserve it.
The Wests claim the provisions of the MTA wiped out the royalty owners’ mineral rights in 1999 because the “root” of the Wests’ title begins in 1959. At that time, there was no mention in the deed of an existing mineral rights owner. The Wests note that somewhere between 1916 and 1944 the mineral rights ownership under their land was abandoned by the owners. Nova Christman acquired those rights in 1944. Those rights were recorded on separate books in the county recorder’s office from the Wests’ rights. If at any time between 1959 and 1999 Christman or his heirs placed anything in the Wests’ title records, the royalty owners’ rights would have been preserved under the MTA, the Wests maintain. Because they weren’t, the mineral rights were extinguished and merged with the surface owner rights, they argue. The Wests maintain the trial court was wrong to ignore the MTA and should use the provisions of the law to conclude they own the mineral rights.
Multiple Friend-of-the Court Briefs Submitted
An amicus curiae brief supporting the royalty owners’ position has been jointly submitted by Ascent Resources-Utica and Gulfport Energy Corporation.
The Wests’ position was supported by a brief from Eric Petroleum Corporation. Additionally, two multi-party joint briefs supporting the Wests’ position were submitted. One joint brief was filed by Allen B. Miller and 39 other individuals. A second joint brief was submitted by:
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing C.J. Bode et al.: Charles Bean, 740.695.0532
Representing Wayne L. West et al.: Ryan Regel, 740.472.0707