Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, April 13, 2021

State ex rel. Ohio History Connection v. The Moundbuilders Country Club Company and Park National Bank, Case no. 2020-0191
Fifth District Court of Appeals (Licking County)

State of Ohio v. Samuel Glenn, Case no. 2020-0338
Second District Court of Appeals (Montgomery County)

AKC, Inc., dba Cleantech v. United Specialty Insurance Company, et al., Case no. 2020-0405
Ninth District Court of Appeals (Summit County)

State of Ohio v. Marshall Williams, Case no. 2020-0658 & 2020-0991
Eigth District Court of Appeals (Cuyahoga County)

Can Ancient Mounds Be Taken from Country Club Golfers?

State ex rel. Ohio History Connection v. Moundbuilders Country Club Company and Park National Bank, Case No. 2020-0191
Fifth District Court of Appeals (Licking County)


  • Does an authority that is appropriating property meet its burden to make a “good-faith offer” by presenting evidence that it didn’t act in bad faith?
  • To conclude that the taking of property is necessary for a public purpose, must a court weigh all considerations that impact the public, including weighing competing public interests?

Built roughly 2,000 years ago, the Newark Earthworks are a 4.5-square-mile complex of interconnected and geometric earthen embankments constructed by the Hopewell Culture. Described as “part cathedral, part cemetery, and part astronomical observatory,” the Newark Earthworks are considered the largest and best-preserved examples of geometric earthworks in the world. They encompass the Octagon Earthworks, which were structured to align with the moon’s movements during its 18.6-year cycle. Also massive, the 50-acre Octagon Earthworks would house four Roman Colosseums.

The Octagon Earthworks sat on privately owned land until 1892, when the property was acquired by the Newark Board of Trade for the state to preserve the earthworks. Funds for the purchase were generated from bonds issued by the city of Newark and Licking County. The property deeds stated the land was to be used by the Ohio National Guard as a permanent camping ground, and the National Guard remained until 1908.

In 1910, the property owners – Newark Board of Trade, city of Newark, and Licking County – leased the property to Licking Country Club Company, which changed its name to Moundbuilders Country Club Company the next year and developed a golf course on the property. The parties agreed that the public would be given access to the property and its historic earthworks.

In 1933, the property’s ownership transferred to the Ohio State Archeological and Historical Society, now known as the Ohio History Connection. The History Connection has renewed the lease with Moundbuilders Country Club over the ensuing decades, and a lease is currently in effect.

Under a 2003 agreement, the public has complete access to the Octagon Earthworks for four days each year. From Nov. 1 to March 31 during daylight hours, the public can fully access all of the grounds on Mondays. From April through October, the public can visit the earthworks on Monday mornings, unless the country club has a scheduled golf activity. At any other time, the public can view a portion of the Octagon Earthworks from a designated visitation area and observation platform.

State History Group Moves to Make Public Park of Earthworks Site
The History Connection wants to utilize the site as a park for the public to offer unrestricted access and tours for visitors, educate visitors about the earthworks and their importance, restore and preserve the site, and conduct research. In 2018, the federal government also invited the History Connection and the National Park Service to apply jointly to designate a group of eight Ohio earthworks sites, called the Hopewell Ceremonial Earthworks, as a World Heritage Site. The Hopewell Ceremonial Earthworks include the Octagon Earthworks and another Newark earthwork called the Great Circle. To obtain the international designation, the Octagon Earthworks site cannot be under the control of the private golf club.

The History Connection contacted Moundbuilders Country Club in August 2018 to negotiate a deal for the club’s release of the remaining time on the lease. When the attempt was unsuccessful, the History Connection took steps through its eminent domain power provided in state law to acquire the remaining term on the lease. As an initial step, the History Connection obtained two appraisals. Based on one appraisal, the History Connection formally notified the country club of its intent to acquire the “leasehold interest,” offering $800,000 to compensate the club for the remaining part of the lease and attaching a copy of the appraisal.

The country club didn’t respond to the offer within 90 days, so the History Connection filed a petition in Licking County Common Pleas Court to end the lease and take back the property. The country club and Park National Bank were named in the petition, but the bank was removed from the case because it wasn’t involved in the lease.

The country club requested a court hearing. The club argued the History Connection couldn’t acquire the property through eminent domain, the offer was less than the fair market value, and taking the property wasn’t necessary. After a hearing held over four days, the trial court approved the History Connection’s petition. The court noted the approval was the beginning of eminent domain proceedings and, because the parties disagree, would be followed by a valuation stage. Each side would present evidence of the lease’s value, and a jury would weigh the competing information and determine the compensation owed to the country club.

Before the process moved forward, however, Moundbuilders appealed to the Fifth District Court of Appeals, which upheld the trial court’s decision. The country club appealed to the Ohio Supreme Court, which accepted the case. Because of social distancing guidelines during the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

History Group Lowballed Offer for Country Club Lease, Moundbuilders Asserts
R.C. 163.04 describes the process for a public or private agency to notify a property owner of the intent to acquire a property before seeking the acquisition through the courts. The law states that “an agency shall provide an owner with a written good faith offer to purchase the property.” A “good faith offer” is defined as “the written offer that an agency that is appropriating property must make to the owner of the property … before commencing an appropriation proceeding.”

The country club explains that the History Connection obtained two appraisals of the Octagon Earthworks lease and based its $800,000 offer on an appraisal from Samuel D. Koon & Associates. Burt Logan, the History Connection’s executive director and CEO, testified that he believed the other appraisal, from the Robert Weiler Company, valued the lease at $500,000 and he based his offer on what he thought was the higher appraisal for the lease’s value. The country club maintains, however, that the Weiler appraisal valued the lease at $1.75 million.

Noting that Logan testified he wasn’t an appraiser and didn’t understand terms such as “leased fee value” that appeared in the appraisal, Moundbuilders argues the History Connection’s offer wasn’t made in good faith because it wasn’t rationally evaluated or made by someone reasonably informed about the offer. “Rationally evaluated” is a reference to a 1986 Ohio Supreme Court ruling that devised a four-part test to interpret whether negotiations in prejudgment interest assessments were conducted in good faith. Moundbuilders contends that the History Connection didn’t disclose the Weiler appraisal at the time of the offer and didn’t notify the country club that the property was being appraised. The case shows the compelling need for the Court to define “good faith” in the context of a legal action that affects property rights, one of the most revered in the law, Moundbuilders maintains.

The country club also argues that the state may take property only for “the common good,” referencing Norwood v. Horney, a 2006 Ohio Supreme Court eminent domain decision. Moundbuilders contends that many of the History Connection’s plans for the property – more research, education services, public access, preservation – could be done without ending the club’s lease. It adds that the club employs 100 people, pays $1 million annually in salaries, spends $1 million each year in local goods and services, has longstanding relationships in the community, and has cared for the earthworks for more than 100 years. The legal analysis should involve more than whether returning the property to the History Connection is for the public use – specifically, whether it promotes the public’s best interests, Moundbuilders concludes.

State Law Allows Acquisition of Property for Park, History Connection Argues
The History Connection was chartered by the state as a not-for-profit corporation with certain responsibilities defined by the state legislature – including to create and maintain state memorials; to acquire historic and archeological sites; and to reconstruct, protect, or restore earthworks and other sites it owns. Ohio lawmakers also authorized the History Connection to exercise eminent domain to acquire property that contains earthworks and any historic or prehistoric mound.

As required by state law, the History Connection notes, it presented the country club with a written offer for the lease’s value and included an appraisal. The history group, which is being represented by the Ohio Attorney General’s Office, points out that the presented appraisal was conducted by Koon, an independent and qualified appraiser. If an offer is supported by an appraisal from an independent, qualified appraiser, then it qualifies as a good faith offer under R.C. 163.04, the History Connection argues.

Although the country club alleges that the History Connection withheld the Weiler appraisal because it appraised the lease at a higher amount, the History Connection responds that the lower courts found no evidence demonstrating that the History Connection acted with dishonest purpose or an intent to mislead or deceive the country club. Instead, the trial court reviewed the Weiler appraisal firsthand and determined that the executive director’s explanation for his misinterpretation of the appraisal was “completely reasonable.” The entity notes that the Weiler appraisal assessed the property’s value but not the value of the lease by itself, which is what the History Connection was purchasing.

The History Connection’s brief adds that another appraisal was obtained later and the History Connection offered $1.66 million in 2020 to buy the lease, but the country club also declined this offer. The brief maintains that the country club’s rejection of the recent offer demonstrates that it wouldn’t have accepted a higher offer even if one had been made earlier.

The History Connection also explains that the creation of a public park is presumed under state law to be a public use. The group rejects Moundbuilders’ claims that the plans can be pursued while the club leases the property and operates the golf course. The History Connection tees up examples of the difficulties: spraying of pesticides and herbicides have impaired public visits and research, golf outings have prevented the public from visiting the site, and golfers and flying golf balls have defeated research endeavors. The History Connection also argues the Court has rejected weighing the benefits of competing public uses as the correct legal analysis in these types of cases.

The group maintains it took every step required by state law – attempting to negotiate, obtaining an appraisal, securing a resolution from its board of trustees, filing the petition in court, and more – to start the process to lawfully purchase the lease in order to make the Octagon Earthworks a public park.

Kathleen Maloney

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

Representing Moundbuilders Country Club Company: Joseph Fraley, 614.224.4114

Representing the Ohio History Connection from the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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Can Order to Create Summaries of Witness Testimony Be Appealed Before Trial Proceeds?

State of Ohio v. Samuel Glenn, Case No. 2020-0338
Second District Court of Appeals (Montgomery County)


  • May a court require a criminal defendant’s attorney to create written summaries of statements of potential trial witnesses in order to comply with reciprocal discovery requirements?
  • If a criminal defendant’s attorney invokes the attorney work-product doctrine when refusing to create written summaries of potential witness statements, is this a final appealable order?

In January 2019, Samuel Glenn, a high school teacher, was indicted on one count of sexual battery based on an allegation he engaged in sexual conduct with a student. The Montgomery County Prosecutor’s Office provided Glenn with a complete discovery packet as required by the Ohio Rules of Criminal Procedure.

Through email and conversations with Glenn’s defense attorney, the prosecutor became aware of Glenn’s intention to call several character and alibi witnesses who hadn’t been interviewed or refused to be interviewed by law enforcement. Glenn’s lawyer gave the prosecutors an oral overview of what the witnesses had told Glenn’s defense team. The prosecutor filed a motion with the trial court to compel Glenn’s attorney to provide “any written or recorded statements” of the witnesses and to create written summaries of the conversations if no reports existed.

The trial judge ruled that under the procedural rules, Glenn’s attorney had a duty to provide the prosecution with summaries. The trial court stated that if Glenn’s attorney didn’t provide the statements, Glenn’s witnesses might be excluded from testifying in his trial. Glenn’s attorney objected to this requirement, and filed an appeal with the Second District Court of Appeals, asking to pause the common pleas court proceedings until the appellate court decided whether the attorney had to create written summaries.

The Second District determined the defense lawyer was invoking the attorney work-product doctrine to claim he couldn’t be compelled to create and provide summaries. The Second District ruled claims under the work-product theory aren’t final appealable orders, and Glenn would have the right to appeal the trial court’s directive after the trial concluded.

Glenn’s attorney appealed the Second District’s decision to the Ohio Supreme Court, arguing that forcing Glenn to wait to file the appeal only if he loses wouldn’t adequately address the issue. The Court agreed to hear his case. Because of social distancing guidelines during the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Order to Draft Summaries Created Unexplored Legal Question, Defense Maintains
While the issue on appeal is the jurisdictional question of whether the trial court’s order was a final appealable order and could be heard by the Second District, Glenn argues the validity of the underlying request to draft summaries of the witness statements must first be addressed. Glenn maintains the Second District reached a simple distinction that a claim to not turn over materials under the attorney-client privilege are final orders, while a claim to produce materials under the work-product rule are not necessarily final orders. The problem with the decision, he argues, is that the precedents cited by the appellate court are all cases where written reports existed.

Glenn asserts that the only way to have complied with the trial court’s order was for his attorney to use his own memory, notes, recall, and mental processes to develop the summaries, and the U.S. Supreme Court’s 1947 Hickman v. Taylor decision prohibited mandating the disclosures of this information. The task intertwines activity protected by the attorney-client privilege and the work-product rule, and involves a mix of the privileges, Glenn asserts. That requirement to create summaries implies the attorney might be called to testify in the trial being conducted on behalf the client, forcing lawyers to determine if they were violating the rules of professional conduct.

Glenn argues the discovery rules clearly require turning over existing written reports and statements made by witnesses, but his attorney doesn’t possess any written statements. He argues defense lawyers do not have to create written materials that aid the prosecution in convicting their own clients. The trial court decision must be addressed by the Second District before the case proceeds or else he faces the prospect of having some of his witnesses excluded from the trial, Glenn maintains. Appealing the trial court’s decision after the proceedings concluded would be ineffective, Glenn concludes.

Court’s Order Not Appealable, Prosecution Argues
The prosecutor notes that Glenn is asking the appellate courts to consider the merits of his arguments as to why the trial court’s motion is improper, when the Second District succinctly ruled on the issue of whether the order constituted a final appealable order. The prosecutor concedes that Glenn can logically argue that the trial court’s order met the first two parts of R.C. 2505.02(B)(4), which defines final appealable orders, but fails to meet the third. The third element requires Glenn to demonstrate he “would not be afforded a meaningful or effective remedy by an appeal following final judgment.”

Citing the Court’s 1992 Nelson v. Toledo Oxygen & Equip. Co. decision, the prosecutor states the Court has ruled that claims of protection of attorney work-product are not final appealable orders because the products are produced for litigation, and the resulting harm might be the disclosure of this information during litigation. The traditional appeals process would review that type of error after the trial court proceedings occur, and can be adequately addressed then, the prosecutor states, citing Nelson.

The prosecutor argues the trial court tailored the order to protect materials covered by the attorney-client privilege and other guarantees of confidentiality. The prosecutor also notes if the attorney doesn’t comply with the order and the witnesses are excluded, Glenn can claim that is an error, if he were to appeal the trial court’s judgment once the case was completed.            

Dan Trevas

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

Representing Samuel Glenn: Anthony Comunale, 937.227.3310

Representing the State of Ohio from the Montgomery County Prosecutor’s Office: Andrew French, 937.225.4117

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Was $63,000 Sewage Cleanup Covered by Nightclub’s Insurance?

AKC Inc., dba Cleantech v. United Specialty Insurance Company et al., Case No. 2020-0405
Ninth District Court of Appeals (Summit County)

ISSUE: Does the water backup exclusion or the pollution exclusion in a first-party property insurance policy bar coverage for a loss caused by, or resulting from, raw sewage?

In 2014, the Bank Nightclub in Akron catered to University of Akron students. On Dec. 12, Bank’s owner, Jeff Melton, stopped by the nightclub, which was closed for the college break, to check on the building. He noticed a strong smell when he entered and discovered six feet of raw sewage in the subbasement.

Melton called the club’s insurer, United Specialty Insurance Company, and was told to proceed with the cleanup to prevent further damage. He contacted AKC Inc., which does business as Cleantech. Melton had used Cleantech for other repairs at the nightclub. Cleantech completed the cleanup work, which cost $63,427. The raw sewage had entered the nightclub because of a backup in the municipal sanitary sewer line. Cooking grease from nearby restaurants was disposed into a drain line used by them and the nightclub, causing the blockage and overflow.

United later denied the nightclub’s insurance claim, determining that coverage to pay for the cleanup was excluded under the nightclub’s policy. Melton signed over the rights to any insurance proceeds for the cleanup to Cleantech, which sued United in November 2016. Based on the policy, the insurance company asked for summary judgment from the Summit County Common Pleas Court, and the court agreed.

Appeals Court Rejects Claim of Sewage as Pollutant, Says Water Exclusion Ambiguous
Cleantech appealed to the Ninth District Court of Appeals, which reversed the summary judgment.

The Ninth District noted that the insurance policy excluded coverage for the “discharge, dispersal, seepage, migration, release or escape” of pollutants. Although the trial court determined that raw sewage fell within the policy’s definition of “pollutant,” the trial court also found that the backup or overflow of sewage wasn’t a “discharge, dispersal, seepage, migration, release or escape.” Because the trial court determined the pollution exclusion didn’t apply, the Ninth District stated that Cleantech won on this issue so its argument regarding the pollution exclusion was moot.

The policy also excluded from coverage “water that backs up or overflows from a sewer, drain or sump.” The Ninth District determined that the meaning of water that “backs up or overflows” is susceptible to more than one interpretation, rejecting United’s position that it clearly encompasses sewage.

United appealed to the Ohio Supreme Court, which accepted the case.

Insurer Maintains that Pollution and Water Exclusions Encompass Sewage Backup
United describes insurance claims for the entry of raw sewage into private property from municipal sanitary sewer lines or similar sources as “one of the most litigated environmental coverage issues in the country.”

The insurer stresses that the nightclub’s insurance policy excluded “water that backs up or overflows from a sewer, drain or sump.” The sewage found in the nightclub was caused by water backing up in the city’s sanitary sewer line outside the nightclub, meaning the insurance policy barred coverage for the sewage overflow, United maintains. The insurer states that the water was part of the raw sewage.

United contends that the policy’s pollution exclusion also prevented coverage for the sewage overflow. The policy defined “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.” United argues sewage is a pollutant because it’s an irritant, a contaminant, and waste. And, the insurer maintains, those pollutants were discharged, dispersed, migrated, released, or escaped from the municipal sanitary sewer into the nightclub.

The insurer also reviews a 2001 Ohio Supreme Court decision. In Anderson v. Highland House Co., the Court ruled that a third-party liability insurance policy that didn’t cover pollution did not prevent coverage for carbon monoxide emitted from a residential heater. The Court held that pollution exclusions don’t “apply … to situations which do not remotely resemble traditional environmental contamination.”

United argues, however, that Anderson doesn’t apply in this case. For one, this case involves a first-party policy that bars coverage for losses from pollutants to the insured’s own property, while Anderson addressed a third-party liability policy, which protects the insured from legal liability for harm it caused. If Anderson did apply, United maintains that the sewage overflow at the nightclub would qualify as a traditional environmental contamination because sewage would be seen as environmental contamination elsewhere – such as if it entered the state’s waterways. The insurer asks the Court to eliminate the confusion Anderson has caused over the meaning of “traditional environmental contamination” by limiting Anderson to its facts.

Cleanup Company Argues Water Doesn’t Mean Sewage, and Pollution Is More than Sewage
Cleantech counters that “nowhere in its briefs before the lower courts did United expend a single drop of ink to explain, e.g., the proper interpretation of the water-damage exclusion, the scope of that exclusion, or why that exclusion applied on these facts.” Because the insurance company failed to argue that the water exclusion applied, the issue isn’t properly before the Court and the case should be dismissed as improvidently accepted, the company asserts.

However, if the Court reviews this issue, it should find that the exclusion for water backup or overflow doesn’t mean a sewage backup isn’t covered, Cleantech maintains. The company contends that water means water, and it doesn’t include sewage, and any ambiguity in the language must be resolved in Cleantech’s favor. Because some courts have ruled that water doesn’t include sewage, other insurance companies – State Farm, Travelers, Erie, and others – have updated their policies to explicitly include sewage, creating a water and sewage exclusion, Cleantech points out. The company contends that if United doesn’t want to cover sanitary sewage backups, then all it needs to do is state that in its policies.

Cleantech also asserts that, like the water exclusion, the policy’s pollution exclusion isn’t properly before the Court because the Ninth District said the issue was moot. As for the pollution exclusion language, sewage isn’t an irritant or a contaminant, Cleantech argues. Nor did the sewage backup qualify as “discharge, dispersal, seepage, migration, release or escape,” which are “terms of art” in environmental law generally referring to improper disposal of hazardous waste into the environment, the company states.

Contrary to United’s arguments, Anderson requires that insurers draft exclusions to coverage with precision, Cleantech maintains. Just as a carbon-monoxide release in a non-industrial setting wasn’t within the pollution exclusion in Anderson, a sewage backup in one nightclub doesn’t fall within United’s pollution exclusion, Cleantech argues. In Anderson, the company points out, the Court reiterated, “It is not the responsibility of the insured to guess whether certain occurrences will or will not be covered based on nonspecific and generic words or phrases that could be construed in a variety of ways.”

Insurance Groups, Trial Attorney Association Support Insurer
The Ohio Insurance Institute and American Property Casualty Insurance Association have filed a joint amicus curiae brief supporting United, as has the Ohio Association of Civil Trial Attorneys.

Kathleen Maloney

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

Representing United Specialty Insurance Company: Richard Garner, 614.901.9600

Representing AKC Inc., doing business as Cleantech: Emmett Robinson, 216.505.6900

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Must Court Inform Defendant of Attorney’s Potential Conflict of Interest?

State of Ohio v. Marshall Williams, Case Nos. 2020-0658 & 2020-0991
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: When accepting a plea from a defendant whose attorney represents codefendants in a case, must a trial court judge who knows of the multiple representation inform the defendant that a possible conflict of interest may exist?

Marshall Williams and his wife, Shawnte, were arrested in November 2018 on drug charges. Marshall Williams was charged with six counts, including first-degree felony drug possession and drug trafficking. His wife was charged with three lesser drug offenses, including permitting drug abuse.

Williams first received a public defender to represent him, while his wife hired a private attorney to represent her. A few days later, Williams hired the lawyer representing his wife so that the private attorney represented the couple. A month later, the two entered into a plea-agreement package with the Cuyahoga County Prosecutor’s Office.

The couple participated in a “cattle call” plea hearing in which the trial judge arranged to have five defendants appear at the same time to enter their pleas. The three other participants were involved in cases not related to the charges against the Williamses.

During the proceeding, Williams agreed to plead to two counts, including one that was amended to reduce the potential maximum prison time that could be imposed. His wife pleaded guilty to one count of possessing criminal tools. Williams received a nine-year prison sentence. His wife was placed on probation for five years.

Williams appealed his conviction and sentence to the Eighth District Court of Appeals, arguing his constitutional rights to a fair trial were violated when the trial court didn’t inform him that he might have been the victim of a conflict of interest because his attorney represented him and his wife.

The Eighth District affirmed the trial court’s decision. Williams appealed to the Supreme Court, which agreed to hear the case. Because of social distancing guidelines during the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Court’s Instruction Important to Assure Valid Plea, Defendant Argues
Williams notes the right to unconflicted counsel has been considered by the Ohio Supreme Court to be “of paramount importance” because, in a criminal case, it concerns the most fundamental constitutional rights of the accused. Even though a defendant’s criminal attorney presumably explains the potential conflicts that arise when multiple codefendants have the same attorney, it is important that the trial court independently explains the rights, Williams asserts.

In this case, one attorney was representing a couple charged with drug offenses at the same time, but who were facing significantly different consequences if convicted of the crimes. The potential to seek leniency for Williams’ wife could have presented a conflict for Williams’ attorney and the ability to represent Williams to his fullest, the offender maintains. While the couple may have discussed this with the attorney, the importance of this potential conflict might not have occurred to Williams when he agreed to plead to the more significant charges, his brief notes.

Williams cites the Court’s 1992 State v. Gallard decision, in which the Court stated that if a trial court “knows or reasonably should know of an attorney’s possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists.” To ensure the proceedings are fair, the trial court should take a moment to check that everyone understands the risks involved in multiple representation and the right to sole representation, he asserts.

In this case, the judge told the defendants they would be asked a series of questions and they were to answer one at a time. This process didn’t present Williams with an opportunity to raise the possibility of a conflict of interest with the trial judge, and the trial judge didn’t raise the issue, even though the court was aware of the dual representation of the couple, he concludes.

Mandatory Inquiry Unnecessary, Prosecution Argues
The prosecutor asserts that Williams advocates for a rule change in which a trial court must always ask defendants about their comfort with joint representation even if the defendants don’t object to joint representation, or when there is no indication of a possible conflict of interest. The office cites the Ohio Supreme Court’s 1988 State v. Manross decision, which found it is reasonable to assume a lawyer is not conflicted by multiple representation and the clients knowingly accepted the risk of conflict. The Court ruled that unless a trial court knows or reasonably should know a particular conflict exists, the trial court doesn’t need to inquire about the propriety of the representation, the prosecutor maintains.

Williams noted that several surrounding states have adopted a requirement that a trial court must independently discuss the potential conflict with a defendant who agreed to joint representation, the prosecutor observes. But none of those jurisdictions found the inquiry was constitutionally mandated, the office notes. The prosecutor argues that the Court can consider a change to the Rules of Criminal Procedure to provide the requirement Williams seeks, and that would be a better process for change than overturning Williams’ conviction.

The prosecutor also argues that Williams didn’t object to joint representation, and in his appeal, he hasn’t explained how he was harmed by the representation. The office maintains that if the Court were to remand the case, it should instruct the trial court to conduct an “after the fact” hearing to determine if an actual conflict existed and if Williams could demonstrate actual harm from the representation.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket. (Also 2020-0991.)

Representing Marshall Williams from the Cuyahoga County Public Defender’s Office: Robert McCaleb, 216.698.3207

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Frank Zeleznikar, 216.430.7800

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