Tuesday Aug. 4, 2020
State of Ohio v. Randy Jones et al., Case No. 2018-0444
Eighth District Court of Appeals (Cuyahoga County)
Richard Binder et al. and Gerald Butterfield et al. v. Cuyahoga County, Case No. 2019-1232
Eighth District Court of Appeals (Cuyahoga County)
Columbia Gas Transmission LLC v. The Ohio Valley Coal Company et al., Case No. 2019-0838
Tenth District Court of Appeals (Franklin County)
State of Ohio v. James A. Gideon, Case No. 2019-1104
Third District Court of Appeals (Allen County)
Is 10-Year Sentence Imposed on Parents for Child’s Death Contrary to Law?
State of Ohio v. Randy Jones et al., Case No. 2018-0444
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Does R.C. 2953.08(G)(2) allow a court of appeals to review the trial court’s findings made pursuant to R.C. 2929.11, which explains the purposes of felony sentences, and R.C. 2929.12, which lists the factors trial courts must consider when sentencing a defendant?
BACKGROUND:
A 12-year-old girl, identified in court documents as T.J., died in February 2013 in Richmond Heights, a city east of Cleveland. Her parents, Randy and Carissa Jones, adopted T.J. in 2002 when she was an infant. The family relocated from Florida to Richmond Heights four years later.
Soon after relocating, T.J. was diagnosed with autism, attention deficit hyperactivity disorder, and mild mental retardation. Her parents initially gave T.J. medication as treatment for the conditions, but they stopped because they didn’t think the medication was working.
In February 2013, Carissa called 911, reporting that T.J. wasn’t breathing. Paramedics took the child to the Richmond Heights Medical Center. The doctor who treated T.J. said she had wounds on her neck and chest and was noticeably malnourished. She had dying tissue on her toes and abscesses on her ankles and legs. T.J. died that afternoon.
The county medical examiner’s office concluded that an abscess near one of T.J.’s ankles had become infected. That staph infection traveled into her bloodstream leading to severe pneumonia. T.J. had injuries on her neck, head, torso, arms, and legs, and she had bedsores. The medical examiner ruled the child’s death a homicide, based on her parents not seeking medical attention to care for her.
At the parents’ trial, Randy testified he was trained in first aid in the military and he treated T.J. with a homemade antibiotic.
Parents Receive 10-Year Prison Sentences
The jury convicted the parents of involuntary manslaughter, permitting child abuse, and endangering a child. The parents were sentenced on the involuntary manslaughter count, which permits a prison term from three to 11 years. The court sentenced each parent to 10 years.
The Joneses appealed separately, and the Eighth District Court of Appeals consolidated the cases. In September 2016, the Eighth District upheld the convictions but overturned the sentences. The court ruled the sentences weren’t contrary to law. But it returned the cases to the trial court to make certain findings to develop the record to make appellate review possible.
At the request of one of the parents, the Eighth District reconsidered its decision. In December 2016, the court made a different determination – that the sentences were contrary to law – and again remanded the case for resentencing. The Cuyahoga County prosecutor requested review of the decision en banc – by all of the Eighth District judges. In a divided February 2018 opinion, the full court concluded that the 10-year sentence for the parents wasn’t supported by the main purposes of felony sentencing (stated in R.C. 2929.11) – to protect the public from the offenders and to punish offenders with the minimum sanctions possible.
The Cuyahoga County prosecutor appealed to the Ohio Supreme Court, which agreed to review the issue. Because of the COVID-19 pandemic, the Court will hear the appeal by videoconference.
Statutes Explain Appeals of Felony Sentences
R.C. 2953.08 governs the appeals of sentences for felonies. Under R.C. 2953.08(A), a defendant may appeal based on five grounds – one of which is if the “sentence is contrary to law.”
When hearing an appeal of a felony sentence, the appellate court, under R.C. 2953.08(G)(2), “may increase, reduce, or otherwise modify” a sentence or “vacate the sentence and remand the matter for resentencing” if the court clearly and convincingly finds: 1) that the record doesn’t support the sentencing court’s findings for five categories of offenses; or 2) that “the sentence is otherwise contrary to law.”
Trial Court Did Nothing Contrary to Law, Prosecutor Argues
The Cuyahoga County Prosecutor’s Office notes that “contrary to law” isn’t defined in the Revised Code. The office describes, though, how the trial court followed the law by taking all of the required steps – it considered the factors in three statutes, properly imposed five years of postrelease control, and sentenced the Joneses to prison terms within the 3-to-11-year range.
The prosecutor also maintains that if a person convicted of a felony had a right to appeal all felony sentences, then the state legislature had no need to list the five specific offense categories in R.C. 2953.08(G)(2)(a). The prosecutor notes that division (G)(2) doesn’t mention R.C. 2929.11, which explains the purposes of felony sentences, or R.C. 2929.12, which lists the factors trial courts must consider during sentencing. The prosecutor argues appellate courts have no jurisdiction to review how a trial court considered R.C. 2929.11 or R.C. 2929.12, but that’s what the Eighth District did in this case.
The prosecutor also addresses the Ohio Supreme Court’s decision in State v. Marcum (2016), which states:
“We note that some sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court.”
The prosecutor notes this paragraph has been the subject of much litigation. However, the prosecutor contends, Marcum doesn’t mean an appellate court can review how the trial court weighed the factors in R.C. 2929.11 and R.C. 2929.12 if the trial court stated on the record that it considered those statutes. If a trial court doesn’t consider those statutes, the sentence is contrary to law, but if the trial court considered them, then the sentence cannot be contrary to law, the prosecutor argues.
In the Joneses’ case, the Eighth District determined that their sentences were too long by improperly reweighing whether the public needs protection from the parents and whether the punishment was too great, the prosecutor maintains.
Trial Courts Don’t Get to Duck Appellate Review, Parents Maintain
Carissa and Randy Jones are represented by different attorneys, but have submitted the same brief to the Court. They ask the Court to reject the prosecutor’s attempt “to hide [R.C. 2929.11 and 2929.12] behind a curtain that is off limits to the courts of appeals.” They counter that appellate review of felony sentences must be meaningful.
“If the General Assembly intended for [R.C. 2929.11 and 2929.12] to guide a trial court’s discretion, it stands to reason that, in order to engage in meaningful appellate review of a sentence, the appeals court must look to the same statutes to ensure that the trial court did indeed follow the statutes’ prescriptions,” their briefs state. “If there is no meaningful appellate review, the trial court is left with unfettered discretion to ignore them.”
The Joneses also contend that the prosecutor’s view of Marcum can’t be the law. Acknowledging the amicus curiae brief filed by the Ohio Attorney General’s Office, the Joneses state that the attorney general and the prosecutor advocate “a radical step” by asking the Court to rule that appellate courts cannot review whether a sentence has conformed to R.C. 2929.11 and R.C. 2929.12. The Joneses argue that would mean an appellate court “is powerless to intervene” even if a sentence is contrary to the purposes of sentencing in R.C. 2929.11 and the record shows a failure to consider the factors in R.C. 2929.12.
They maintain that’s not what the legislature intended, pointing to Senate Bill 2, which implemented extensive, mandatory sentencing guidelines in the 1990s. One way S.B. 2 gave trial judges discretion, but not too much discretion, was to allow sentences to be monitored through appellate review, the Joneses contend. They conclude the appellate courts still can be deferential to the trial courts while ensuring that felony sentences aren’t contrary to law.
Attorney General and Prosecutor to Argue Together
The Ohio Attorney General's Office, which filed an amicus brief supporting Cuyahoga County prosecutor, will share the 15 minutes of time allotted to the prosecutor during oral argument.
– 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 Cuyahoga County Prosecutor’s Office: Anthony Miranda, 216.443.7416
Representing Carissa Jones from the Cuyahoga County Public Defender’s Office: John Martin, 216.443.3675
Representing Randy Jones: James Hofelich, 440.655.2275
Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Could Hundreds of Cuyahoga County Employees Fight Pay Adjustments in Court?
Richard Binder et al. and Gerald Butterfield et al. v. Cuyahoga County, Case No. 2019-1232
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Must classified civil service employees challenge an alleged reduction in pay through the administrative review procedure in R.C. 124.34 rather than filing a lawsuit for declaratory judgment in common pleas court?
- Do class-action plaintiffs who fail to exhaust available administrative appeals lack standing to pursue their claims in court?
- Do classified civil service employees have an independent cause of action under R.C. 124.34?
- May a trial court alter the proposed definition of those to be included in the class?
BACKGROUND:
In November 2009, Cuyahoga County voters approved a charter form of government, which eliminated multiple elected positions and replaced them with a county executive. The new charter became effective in 2010.
Before the charter’s approval, the county had several independent government entities, such as the auditor, board of county commissioners, clerk of court, coroner, county prosecutor, treasurer, recorder, and sheriff. Each office hired and fired its own staff and had separate job classifications and pay scales for their employees.
Before the charter change, some employees logged their hours as 8:30 a.m. to 4:30 p.m. and subtracted their one-hour lunch break, resulting in a 35-hour workweek. Other employees had the same hours but received a paid lunch break, so their workweek was shown as 40 hours. After the charter’s approval, the county adopted an ordinance, effective in May 2012, to implement a uniform timekeeping system for all employees reporting to the county executive. Employees’ hours under the new system were 8:30 a.m. to 4:30 p.m. with a daily one-hour paid lunch break – 40 hours of work.
Employees Sue County in Four Class Actions
The briefs submitted to the Ohio Supreme Court describe four class-action lawsuits that current and former county employees have filed regarding the changes in their job reclassifications, the adjusted timekeeping methods, and other claims. The first was filed in 2013. The Cuyahoga County Common Pleas Court declined to certify that class in August 2015, determining it would be difficult to combine all the expected plaintiffs into one class. The court dismissed two counts, and two remained.
In September 2015, a group of employees filed Richard Binder et al. v. Cuyahoga County, alleging that the unified timekeeping policy lengthened employees’ workweek without increasing their compensation to prevent a decrease in their hourly rates. They requested a declaratory judgment and compensatory damages. In its dismissal of the lawsuit in April 2016, the trial court stated the change in the lunch-break policy wasn’t a change in their workweek or a reduction in pay. On appeal, the Eighth District Court of Appeals reversed and returned the case to the trial court to consider certain claims from each side.
A third lawsuit was filed in May 2016, and a fourth – Gerald Butterfield et al. v. Cuyahoga County – in July 2017. The trial court consolidated the four cases and, in November 2017, certified a class. The decision described the class as all county employees subject to the alteration of their workweek with the addition of the paid lunch hour and the change from a 35- to 40-hour workweek. The court stated that the plaintiffs requested a declaration on whether the change had an impact on their pay rate.
County Appeals 2017 Decision Certifying Class
The county appealed the class certification. The Eighth District recused itself, and a three-judge panel from the Seventh District Court of Appeals heard the case and upheld the class certification. The appeals court added that the class includes those employees who are non-salaried, full-time employees.
The county appealed to the Supreme Court, which agreed to review the issues. Because of the COVID-19 pandemic, the Court will hear the case by videoconference.
Employees Must Dispute Pay Change through Administrative Body, County Argues
The new charter established a civil service commission, now called the Personnel Review Commission. The county, which is represented by the Cuyahoga County Prosecutor’s Office, states that the commission serves in the place of the State Personnel Board of Review and hears county employee appeals. The county argues the commission had exclusive jurisdiction over the employees’ claims. Because the employees didn’t appeal the changes to their workweek and hourly pay to the commission, the trial court had no authority to consider the claims, the county contends.
The trial court rejected this argument, stating in part that it would be “a futile and useless act” for more than 400 employees to individually appeal the workweek change to the administrative body. The court added that it would take years for all of the individual claims to be scheduled, heard, and decided, putting an undue burden on the employees and the system. The county disputes that view. It maintains that the “futility exception” for bypassing administrative remedies focuses on the power of the administrative entity to offer relief rather than the number of cases involved or the length of time to process those cases. The Personnel Review Commission had the authority to grant the relief the employees wanted and was created to address these claims, the county argues.
The county maintains that because the employees failed to exhaust the remedies available through the administrative process, they had no standing to file lawsuits in the courts. In addition, R.C. Chapter 124, which addresses civil service personnel, doesn’t allow employees to file a civil case to recover damages for alleged violations of R.C. 124.34, the county contends.
The county also argues that both the trial court and the Eighth District disregarded the employees’ proposed definitions of the class and adopted new definitions. Among the county’s problems with the trial court ruling, it maintains that the court described the class improperly by creating a “fail-safe” definition, which means the court ruled on the merits of the claims through the definition it adopted. The county also believes the Eighth District lacked authority to clarify the class as those who are “hourly full-time” and “non-salaried full-time.” Only the trial court can formulate the class, and an appellate court cannot define the class or the issue, the county states.
The county asks the Court to “bring this litigation to an end” by ruling that the trial court had no jurisdiction over the claims.
Reduction in Hourly Rates Led to Overall Loss in Pay, Employees Maintain
The Cuyahoga County employees argue the new “paid lunch” paid nothing at all because their pay didn’t increase. Typically an employee receives an economic benefit from a paid lunch, but they obtained no benefit because their hourly wages were cut to spread across the paid lunch hours and to keep their annual salaries the same, the employees note. They point out that hourly rates are used to calculate the value of accrued sick and vacation time paid when an employee retires. While the county adjusted the balances employees had up through 2012 to prevent losses, the sick and vacation time they accrue after the hourly-rate change will be paid at the reduced hourly rate, they state.
The employees maintain that prior court decisions make clear that trial courts are permitted to modify a class definition for clarity. As for the trial court’s alleged certification of a fail-safe class, the employees explain that members in such a class either win if they are part of the class or essentially win if they are excluded from the class because they can seek legal recourse another way. However, they argue, the certified class definition isn’t fail-safe because it doesn’t make a finding whether liability arises in the circumstances of the case. In addition, the Eighth District didn’t propose its own class definition, but instead offered minor adjustments to the trial court’s definition, which is allowed, the employees state.
The employees also reject the county’s argument that employees had to use the administrative process, contending that’s not relevant to whether they had standing to file a class-action suit. Instead, the argument is a defense the county can make to speak to the merits of the claims, the employees maintain. They note the amicus groups argue the personnel commission has institutional expertise that judges lack. The employees counter that judges are uniquely qualified to handle these types of legal questions and the administrative process doesn’t promote judicial efficiency because it would result in more than 400 rulings, and each could be appealed in court.
The employees assert that the county process doesn’t actually allow employees to go through the personnel commission to challenge this pay cut. The relevant provision states that the commission “may affirm, disaffirm, or modify the judgment of the appointing authority.” The pay cut resulted from the enactment of an ordinance, not the judgment of an appointing authority, the employees stress, maintaining the commission isn’t authorized to review or vacate the ordinance. As the trial court indicated, it would have been futile to proceed down the administrative path, the employees argue. They conclude that without the right to file their cases in court, they will lack a remedy to right this wrong.
State and County Groups Contend Employees Must Use Administrative Process
The County Commissioners Association of Ohio, Ohio Job and Family Services Directors’ Association, Ohio Municipal League, and Ohio Public Employer Labor Relations Association have filed a joint amicus curiae brief supporting Cuyahoga County. They argue that allowing these employees to pursue their class action bypasses the administrative procedure spelled out in state law and expands the jurisdiction of trial courts across the state, contrary to well established processes established in Ohio’s civil service system.– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Richard Binder et al. and Gerald Butterfield et al.: Joshua Cohen, 216.815.9500
Representing Cuyahoga County from the Cuyahoga County Prosecutor’s Office: David Lambert, 216.443.7829
Can Gas Company Claim Payment for Preventative Measures to Protect Pipeline?
Columbia Gas Transmission LLC v. The Ohio Valley Coal Company et al., Case No. 2019-0838
Tenth District Court of Appeals (Franklin County)
ISSUES:
- Did the Ohio Surface Mining Control and Reclamation Act eliminate the validity of surface damage waivers in mineral rights agreements?
- If a state regulation provides a specific remedy for a violation, may a harmed entity seek damages not specified in the regulation?
- Does Ohio law permit the recovery of “preventative damages” if no damage actually occurs?
BACKGROUND:
In the early 1900s, eastern Ohio landowners sold their interest in the coal underlying their land to coal-mining companies using “coal severance deeds.” Consolidated Land Company acquired several of those deeds, and authorized Ohio Valley Coal Company (OVC) to mine the land. OVC acquired an Ohio Department of Natural Resources (ODNR) permit to conduct “longwall mining” underneath the surface.
Longwall mining by its nature causes inevitable subsidence, which can cause surface land to collapse. On a portion of land OVC intended to mine, Columbia Gas Transmission had an 8-inch, high-powered natural gas transmission line, which was buried 3-feet under the surface. Columbia determined that a 2-mile stretch of the pipeline was along the pathway of OVC’s planned longwall mining.
Columbia notified OVC that the line was in danger of being damaged if the land subsided and requested that the company pay the cost of mitigation efforts to prevent damage. OVC indicated that under the authority of its coal severance deeds, it had no obligation to pay for any damages to commercial property on the surface, which included Columbia’s pipeline. The company argued that under the federal and Ohio Surface Mining Control and Reclamation Act (SMCRA), there was no obligation to pay for the harm if it mined the coal in the way it was permitted by ODNR.
Columbia determined it needed to excavate the pipeline before the longwall mining started. It filed a lawsuit in 2012 seeking a declaratory judgment requiring OVC to pay “damages” to Columbia, including the costs of excavation to prevent any actual damage to the pipeline.
The trial court ruled Columbia would be entitled to compensation for any actual damage resulting from subsidence, but that OVC wasn’t responsible for the costs Columbia incurred to prevent the damage.
Both sides appealed to the Tenth District Court of Appeals. The Tenth District determined the issue of whether Columbia was entitled to compensation for “preventative measures” to protect against inevitable subsidence the first time the issue had been considered by Ohio courts. It ruled that under the Ohio surface mining control act, OVC was obligated to pay for Columbia’s preventative measures.
OVC appealed the decision to the Supreme Court, which agreed to hear the case. Because of the coronavirus pandemic, the Court will hear the appeal by videoconference.
Deeds and Law Make Gas Company Responsible for Pipeline, Mining Company Argues
In 1977, the federal Surface Mining Control and Reclamation Act was enacted to ensure that surface landowners and others were protected from the consequences of mining. States were permitted to adopt the federal law and its standards, or adopt their own version of the law as long as it was as stringent as the federal law. Ohio adopted the Ohio SMCRA in 1978.
OVC objects to the Tenth District’s position that the Ohio SMCRA abolished the rights established by the coal severance deeds and its ruling that all provisions regarding the protection of surface land are governed by the Ohio SMCRA, unless the parties agree otherwise. OVC argues that it received the authority to mine the land and those deeds included valid waivers by the property owners of the right to receive any support from the mining company for subsidence caused by mining. The mining company maintains that while it has a century-old property right to the coal, which includes valid waivers of the surface owners’ right to be compensated for subsidence, Columbia only owns relatively recent “right-of-way” access from the landowners to build a pipeline across their properties.
OVC argues its older and superior rights to the land outweigh Columbia’s newer and inferior property rights.
OVC also maintains that the Ohio SMCRA only overruled damage waivers in deeds to the extent that the law requires mining companies pay for damages to residential and “non-commercial” properties. The company asserts Columbia’s pipeline is “commercial” property and the owners of commercial property are responsible to pay for their own damages caused by subsidence.
Law Not Violated, Mining Company Asserts
Columbia’s complaint asserted that OVC violated section 1501:13-12-03(F) of the Ohio Administrative Code when it refused to compensate Columbia for its efforts to mitigate any damage from the eventual subsidence caused by OVC’s mining. OVC counters the rule requires OVC pay for damages if it violates the law or its permit. OVC maintains ODNR neither ruled nor indicated that OVC was in violation of its permit or a law when Columbia performed the preventative measures. The mining company argues that the rule only allows for payment of damages if there is a violation. Because there was no violation, OVC is under no obligation to pay for Columbia’s work.
OVC argues that the Tenth District concluded the pipeline was a structure under R.C. 1513.15(H) of the Ohio SMCRA, and found that Ohio Adm. Code 1501:13-12-03(F) was part of the rules adopted to enforce R.C. 1513.15(H). By finding that the pipeline was a structure, any damage the pipeline incurred would be a violation of the mining permit, the Tenth District ruled. And because longwall mining inevitably caused subsidence, it was reasonable for Columbia to excavate it in advance of subsidence, the appeals court stated. Waiting for the pipeline to be damaged before Columbia could be compensated would lead to an “absurd result,” the Tenth District concluded, finding it reasonable to bill OVC for pre-mining mitigation expenses.
OVC argues the result is “absurd” only under the Tenth District and Columbia’s contention that the pipeline is covered by the rule. If it isn’t covered because commercial structures aren’t part of the rule, as OVC maintains, then the rule operates in a reasonable fashion, the company asserts. But the rule makes Columbia responsible for its own mitigation costs, the miner concludes.
OVC argues the Tenth District is attempting to invent an entirely new theory of “tort” recovery that allows a company to recover for damages even though Columbia’s pipeline was never actually damaged by OVC.
OVC also dismisses Columbia’s warning of disastrous consequences if the law only allows the gas company to react after the pipeline breaks. OVC argues the ODNR permit always would protect the pipeline. The permit stated that OVC had to ensure its expected subsidence wouldn’t damage a pipeline, and that ODNR would stop the mining if OVC got too close to the pipeline. The mining company maintains the law prevents it from damaging the pipeline, but the law places the responsibility on the gas company to pay for and take steps to protect its pipeline.
Mining Company Responsible for Damage Prevention Costs, Gas Company Argues
Columbia Gas rejects OVC’s argument that the deeds are still valid. OVC noted that when lawmakers adopted the Ohio SMCRA, the law stated it would “meet” the standards set by the federal law. The federal law didn’t require miners to compensate commercial landowners for damages. Columbia notes Ohio was authorized to exceed the federal provisions, and in 1990, ODNR adopted rule changes to the Ohio SMCRA. One of those eliminated the distinction between commercial and non-commercial property. The rules supersede the deeds, the gas company argues, and makes OVC responsible for its damages.
Columbia also maintains the Tenth District’s decision is well-founded because OVC’s refusal to mitigate the damage in advance of the subsidence violated OVC’s permit. R.C. 1513.15(H) allows for Columbia to be compensated broadly for its “damages,” not just for the damages articulated in the administrative rule, the company argues.
While not raised in the context of a dispute between a coal mining company and an Ohio landowner, the concept of recouping “damages” by preventing certain damage has been resolved by Ohio courts, Columbia asserts. The company maintains the Tenth District made a logical determination that the intent of the Ohio SMCRA was to prevent damages from subsidence, and that it would make sense for a company to takes steps to prevent foreseeable damage from longwall mining. The preventative measures are recoverable as damages even though the pipeline wasn’t actually damaged because Columbia removed the pipeline before the land could subside, the gas company concludes.
Friend-of-Court Brief Submitted
An amicus curiae brief supporting one of OVC’s positions has been submitted by the Ohio Attorney General’s Office. The office contends that the Tenth District’s ruling requires applying the use of common law tort principles to interpret state law. The attorney general asserts that regardless of which party prevails, the Supreme Court shouldn’t follow the Tenth District’s logic and should base its decision on the interpretation of Ohio laws and rules without reliance on common law.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Columbia Gas Transmission LLC: Daniel Makee, 216.348.5400
Representing Ohio Valley Coal Company et al.: Douglas Feichtner, 513.977.8200
Did Medical Board Investigator Coerce Doctor into Making Incriminating Statements?
State of Ohio v. James A. Gideon, Case No. 2019-1104
Third District Court of Appeals (Allen County)
ISSUES:
Appeal –
- When a nongovernment employee gives a statement to a state administrative board/licensing agency and there isn’t a threat of loss of employment, is that employee’s statement subject to the U.S. Supreme Court’s ruling in Garrity v. New Jersey (1967)?
Cross-Appeal –
- Did licensing board investigator’s actions strongly weigh in favor of finding that the doctor had an objectively reasonable belief that asserting his constitutional right against self-incrimination would expose him to revocation of his license and loss of his livelihood?
- Does an appellate court have a duty to review claims of insufficiency of evidence or of an error that is likely to become an issue on remand?
BACKGROUND:
James Gideon, a licensed medical doctor, had a private practice specializing in rheumatology in Bluffton. Gideon’s practice focused on patients with fibromyalgia and autoimmune diseases, treating their pain with non-opioid approaches.
In May 2017, three women reported to the Bluffton Police Department that Gideon had inappropriately touched them during medical appointments. The police contacted Gideon by phone, and he voluntarily went to the police department to discuss the allegations. He denied any inappropriate conduct. When he left, he alerted an investigator with the Ohio Medical Board about the reports made to police.
The investigator, Chad Yoakam, visited the police department to discuss the accusations. Yoakam agreed to provide the police with information he obtained that might be beneficial to the criminal investigation.
Board Investigator Interviews Doctor, Secretly Records Discussion
Yoakam visited the doctor’s office on May 16, 2017. Yoakam was in the office about two hours, and he and Gideon spoke for more than an hour in between the doctor seeing patients. Yoakam recorded the conversation without informing the doctor. During the interview, Gideon stated that he inappropriately touched two of the women, but denied anything improper with the third woman. Yoakum requested a written statement, which Gideon provided. The investigator told Gideon that he should return to the police and fix his earlier statement. After the interview, Yoakam stopped at the police department and informed the police of Gideon’s admissions.
The Lima prosecutor charged Gideon with multiple counts of gross sexual imposition. Before the trial in the Lima Municipal Court, Gideon’s lawyer asked the court to suppress the doctor’s statements made to the medical board’s investigator. At the October 2017 hearing to consider the request, the doctor and the investigator testified. The court denied the request.
The investigator’s recording was played for the jury. Gideon also testified. Gideon’s brief states that the jury didn’t hear the recording of the police interview with the doctor because the police chief said he couldn’t locate the recording. The jury convicted the doctor on three counts of gross sexual imposition, and he was sentenced to 180 days in jail, fined $1,500, and classified as a Tier 1 sex offender.
Gideon appealed to the Third District Court of Appeals, which concluded that the doctor’s statements to the investigator shouldn’t have been admitted as evidence at the trial. The appeals court overturned the convictions and ordered a retrial.
The prosecutor appealed to the Ohio Supreme Court, which accepted the case. The Court will hear arguments in the appeal by videoconference because of the COVID-19 pandemic.
Individuals Not Always Required to Explicitly Claim Right against Self-Incrimination
Typically, individuals who want to invoke the protections against self-incrimination under the U.S. and Ohio constitutions must assert the right and not answer potentially incriminating questions, the prosecutor notes. People aren’t required to assert this right, however, in certain situations.
In Garrity v. New Jersey (1967), the U.S. Supreme Court ruled that individuals are protected from self-incriminating statements if they are compelled to make the statements because they fear they will suffer economic or other penalties, such as loss of employment, if they remain silent. In such cases, their “free choice to remain silent” has been foreclosed. These threats of a penalty can be direct or implied. To determine whether statements were compelled, the person must have believed they had to make the statements or suffer the penalty, and that belief must’ve been objectively reasonable. The prosecutor notes that the Ohio Supreme Court adopted this analysis in State v. Graham (2013).
Prosecutor Argues Doctor Wasn’t Coerced by Board Investigator
The City of Lima Law Department states that Gideon is well-educated, an adult, and not intellectually deficient. He knew Yoakam, and Yoakam didn’t use excessive interrogation tactics during the interview, the city maintains. The city prosecutor questions whether Gideon felt forced to meet with Yoakam based on a belief that he might lose his medical license.
The Third District pointed to R.C. 4731.22(F)(5), which governs disciplinary actions before the medical board. According to the statute, “The board may share any information it receives pursuant to an investigation or inspection, including patient records and patient record information, with law enforcement agencies, other licensing boards, and other governmental agencies that are prosecuting, adjudicating, or investigating alleged violations of statutes or administrative rules.” The prosecutor counters that Gideon’s testimony indicated, however, that he was unaware of the law and unclear about the medical board’s powers. The prosecutor adds that the loss of a license isn’t automatic because a doctor can request a medical board hearing if the board votes for a reprimand, suspension, or revocation of a medical license. The prosecutor concludes that Gideon’s belief that he could lose his license wasn’t objectively reasonable.
“The dire consequences Gideon envisions befalling him are nothing more than hypothetical demons hiding in the shadows,” the city’s brief contends. “There is no real threat to him.”
The city also argues the exchange of information between Yoakam and the police doesn’t mean he acted as an agent of law enforcement. Gideon knew about the criminal investigation before Yoakam visited his office, and Gideon informed the investigator about the complaints, the city notes. By agreeing to talk with Yoakam and providing a written statement, Gideon waived his protection against self-incrimination, the city contends.
Doctor Thought He Could Lose License if He Didn’t Talk with Investigator
Gideon’s brief states that the doctor’s testimony shows he believed he could lose his license if he didn’t cooperate with Yoakam. Gideon testified, “My understanding is that I have a legal obligation to comply with questions asked by the medical board and my understanding was that I have an obligation to comply with Mr. Yoakam’s visit subject to penalties if I didn’t, potentially even loss of licensure.”
Gideon’s brief also maintains that the doctor “does not have to show that he was tortured into submission by the interrogator.” He also dismisses the prosecutor’s discussion of whether Yoakam was an agent of law enforcement. The doctor notes that he didn’t allege he was in custody based on the U.S. Supreme Court’s ruling in Miranda v. Arizona (1966). Nor did the Third District reverse his convictions on those grounds, the doctor states.
Instead, Gideon states, he must prove “the objective reasonableness of his belief that he faced adverse economic sanctions for remaining silent.” The Third District pointed out that Yoakam referred to the investigation as a joint effort between himself and the police. Yoakam, who had prior law enforcement experience, also warned the police sergeant against participating in the investigator’s interview because the doctor was statutorily required to cooperate with the board’s investigation and, if the police weren’t there, a confession could be used in criminal proceedings, Gideon maintains. In addition, his brief states, a board investigator doesn’t have to present witness testimony before the medical board to prove allegations if a criminal conviction is obtained.
The brief argues Yoakam knew an element of gross sexual imposition is that the offender had to be seeking gratification, so he interjected the word into the interview, yet Gideon never used the term. The interview was surreptitiously recorded, Yoakam used intimidating tactics, and he insisted the doctor go back to the police station to change his statements as a way to coerce the doctor into cooperating, the brief contends. Quoting Garrity, the brief states that Gideon’s choice was “between the rock and the whirlpool.” The doctor concludes that the threat of losing his medical license was objectively reasonable when looking at all of the circumstances.
– 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 City of Lima Law Department: Anthony DiPietro, 419.221.5183
Representing James A. Gideon: Dennis Belli, 614.300.2911