Wednesday, April 14, 2021
State of Ohio v. Miquan D. Hubbard, Case nos. 2020-0544 & 2020-0625
Twelfth District Court of Appeals (Butler County)
State of Ohio v. Albert Jarvis, Case no. 2020-0549
Fifth District Court of Appeals (Muskingum County)
State of Ohio v. Manson M. Bryant, Case no. 2020-0599
Eleventh District Court of Appeals (Lake County)
Rancho Cincinnati Rivers, LLC v. Warren County Board of Revision, et al., Case no. 2020-0643
Twelfth District Court of Appeals (Warren County)
Are the Violent-Offender Registry and Requirements in Sierah’s Law Constitutional?
State of Ohio v. Miquan Hubbard, Case Nos. 2020-0544 and 2020-0625
Twelfth District Court of Appeals (Butler County)
ISSUE: Does retroactively applying the registration mandates in Sierah’s Law (R.C. 2903.41 to R.C. 2903.44) violate the Ohio Constitution?
OVERVIEW:
This case and the next, State v. Jarvis, challenge the constitutionality of Sierah’s Law, which establishes a statewide violent-offender database of those convicted of aggravated murder, murder, voluntary manslaughter, kidnapping, or abduction. The law was named for Sierah Joughin, a woman killed in Fulton County in 2016. The man convicted for her murder had served prison time in the early 1990s for an attempted abduction that had similarities to Joughin’s later kidnapping.
The law, which took effect in March 2019, requires violent offenders to register with their local sheriff annually for 10 years after their release from prison. Sheriffs must forward the information to the state Bureau of Criminal Identification (BCI), which houses and maintains the database for use by law enforcement officers.
The Ohio Justice and Policy Center, Advocating Opportunities, the Ohio Domestic Violence Network, and the Ohio Association of Reentry Coalitions oppose the law’s retroactive application, especially to those already incarcerated before the proposal was introduced in the state legislature. The Ohio Attorney General’s Office, however, has filed an amicus brief arguing that the database and registration requirements are constitutional.
BACKGROUND:
Miquan Hubbard shot into a crowd on a street in Hamilton, Ohio, in August 2018, killing a young teen and injuring several others. Hubbard was indicted in September on two counts of murder, four counts of felonious assault, and one count of discharging a firearm on or near prohibited premises. All counts included potential enhancements that would impose longer prison time for using a firearm.
On March 7, 2019, Hubbard, 19, pleaded guilty to one count of murder and a one-year firearm specification. On March 20, Sierah’s Law went into effect. Before imposing a sentence at an April 30 hearing, the trial judge informed Hubbard that, once released from prison, he would be required under the new law to register as a violent offender annually for 10 years. The court sentenced him to a prison term of 16 years to life. Hubbard objected to being subjected to the violent-offender registration mandate.
He appealed to the Twelfth District Court of Appeals, arguing the new law wasn’t in effect at the time of his crime and was being applied to him retroactively, which was unconstitutional. The Twelfth District, however, upheld Hubbard’s requirements to register as a violent offender. Hubbard appealed to the Ohio Supreme Court, which accepted his case.
In addition, the Twelfth District certified that a conflict exists between its decision and one from the Fifth District Court of Appeals. In State v. Jarvis, the Fifth District ruled that the requirements are punitive and unconstitutional.
The Ohio Supreme Court agreed there is a conflict on this issue. 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.
Basics of New Law and Constitution’s Prohibition on Retroactive Statutes
Sierah’s Law, R.C. 2903.41 to R.C. 2903.44, mandates that violent offenders must enroll in the state’s violent-offender database within 10 days of their release from prison. The law defines a violent offender as a person who – on or after March 20, 2019 – “is convicted of or pleads guilty to” aggravated murder, murder, voluntary manslaughter, kidnapping, or abduction. The law also defines a violent offender as a person who on March 20, 2019, “has been convicted of or pleaded guilty to [one of those offenses] and is confined in a jail, workhouse, state correctional institution, or other institution, serving a prison term, term of imprisonment, or other term of confinement for the offense.”
The constitutional issue centers on the retroactivity of the law. The Ohio Constitution states, “The General Assembly shall have no power to pass retroactive laws.” To interpret whether a statute is unconstitutionally retroactive, the Ohio Supreme Court has ruled that courts must consider whether the legislature expressly made the law retroactive – which it did with Sierah’s Law – and whether the law affects a substantial right. If a statute is determined to be only remedial, it is constitutional. But, if the law is substantive and punitive, it is unconstitutional. According to the briefs, one way a retroactive statute is punitive is if the law imposes new or additional burdens, duties, obligations, or liabilities related to past conduct.
Registry Imposes New Duties and Punishes, Offender Contends
Hubbard notes that the Court found the state’s Adam Walsh Act, which instituted a tiered classification structure with registration requirements for convicted sex offenders, unconstitutional because the system was largely punitive. Hubbard, represented by the Ohio Public Defender’s Office, argues the new violent-offender registry is similarly unconstitutional because it imposes new burdens, duties, obligations, and liabilities.
For example, Hubbard notes, the law presumes that a person convicted of the listed violent offenses must be placed on the registry and allows that presumption to be challenged, but only if the defendant proves he or she wasn’t the principal offender. Otherwise, if the person was the principal offender, the placement in the violent-offender database is automatic, Hubbard argues.
The offender also must provide extensive personal information to the local sheriff for the registry: name; Social Security number; driver’s license number, commercial driver’s license number, or state identification number; home address; work address; school address; license plate number, vehicle identification number, and vehicle description for any vehicle owned, operated, or registered; description of scars, tattoos, or distinguishing marks; a photograph; fingerprints; and palm prints.
Although the violent-offender database isn’t a public record, all the personal information – except for the license, state identification, and Social Security numbers – collected by sheriffs are public records, Hubbard states. The only exception is if the offender can demonstrate a fear for safety if the information is disclosed publicly. Beyond that, no safeguard exists in the law to prevent widespread dissemination of the offender’s personal information by public officials, private citizens, or the news media, he contends.
In addition, if the offender fails to register, that is a new fifth-degree felony offense, violates the terms and conditions of any supervised release, and permits the prosecutor to ask the trial court to extend the registrant’s duties indefinitely. Hubbard argues that the violent-offender registry is the only offender registry that allows the timeframe to be extended after sentencing. He states that the law makes it difficult, and in some circumstances impossible, for a registrant to remove an indefinite duty to report once imposed.
These are substantial burdens that affect an individual’s substantive rights and result “in real consequences and restrictions of liberties,” Hubbard’s brief states. As a whole, the registration requirements are punishments that , Hubbard concludes.
Sierah’s Law Less Burdensome than Sex-Offender Requirements, Prosecutor Argues
The Butler County Prosecutor’s Office argues Hubbard hasn’t identified the substantive right that Sierah’s Law impairs. The prosecutor argues that a person, such as Hubbard, convicted of one of the violent offenses couldn’t expect that certain other duties wouldn’t be imposed after a conviction. The requirements of Sierah’s Law for violent offenders don’t infringe on substantive rights and aren’t new obligations, the prosecutor maintains. The law is remedial, rather than substantive, so it doesn’t violate the constitution, the prosecutor states.
To analyze the constitutionality of Sierah’s Law, the prosecutor’s office compares it to the two sex-offender registration systems. When Megan’s Law was in effect, the Court ruled it was remedial and, thus, constitutional. The Adam Walsh Act, the subsequent sex-offender registry system, was structured in a way that the Court found unconstitutional. Noting that both sex-offender registries included automatic classifications, the prosecutor argues Sierah’s Law is less onerous because it has no automatic classification. Instead, the office states, the offender can contest the presumption of placement on the registry. Although Megan’s Law allowed a sex offender to contest the specific classification, the offender still was classified as some type of sex offender once convicted, the office explains.
Under the sex-offender registration laws, offenders may have to register in multiple counties, in some cases more frequently than annually. They must also report changes in residential, employer, and school addresses, and can’t live close to schools. While Sierah’s Law also requires offenders to report address changes, it only mandates that offenders enroll on the registry in their residential county once each year for 10 years, the prosecutor notes, adding that they also have no residential restrictions.
The prosecutor contends that Sierah’s Law overall differs in substance and is less onerous than both the Adam Walsh Act and Megan’s Law. If Sierah’s Law is less onerous than Megan’s Law, which the Court found to be remedial and constitutional, then Sierah’s Law also must be a remedial statute and constitutional, the prosecutor argues.
Law Sweeps in Many Without Regard to Rehabilitation and Specifics, State Groups Maintain
In their joint amicus brief supporting Hubbard’s positions, the Ohio Justice and Policy Center, Advocating Opportunities, Ohio Domestic Violence Network, and Ohio Association of Reentry Coalitions describe three women’s cases to illustrate the consequences of the retroactive scope of Sierah’s Law. In July 2019, after 15 years in prison, one woman was granted clemency because of the extent of the physical and sexual abuse she suffered by the man she killed. Another woman who served six years for murdering her trafficker when she was a teenager was granted clemency in April 2020. The third – who was a teenager addicted to drugs when convicted and spent 25 years in prison – was paroled in 2020. The women are required to register on the violent-offender database even though they committed their offenses, were sentenced, and served years in prison before Sierah’s Law became law. And each was told about their registration duties within only two days of their release, the groups note.
They also state that the attorney general has indicated in the news media that the office is reviewing what database information could be made public. In addition, sheriffs have told journalists of their desire to make some of the violent-offender information available on websites, the groups note.
“In many cases, registration occurs regardless of rehabilitation, years of law-abiding life, and completion of lengthy incarceration,” their brief states. “Ohio’s [violent-offender database] scheme adds punishment, does not protect Ohio’s communities from violent crime, and should never be applied retroactively.”
Requirements Are Future Obligations and Simply Administrative, State Asserts
The attorney general’s office, which will share the time allotted for oral argument with the Butler County prosecutor, maintains in its amicus brief that it advocates respect for the “democratic will of the people as reflected in the acts of their elected representatives,” such as enacting Sierah’s Law.
The attorney general argues that instead of unconstitutionally imposing new burdens, duties, obligations, or liabilities on past conduct, Sierah’s Law imposes a future obligation to register and punishes those who don’t comply. A law is considered to be retroactively punitive – which is unconstitutional – only if the offender could reasonably expect at the time of the crime to be free of the requirements of the later law, the attorney general states. But “criminals have no reasonable expectation that they will be forever free of future registration obligations like those at issue here,” its brief states.
The attorney general’s office notes that the Court has upheld various registry requirements for sex offenders and described the registration requirements as administrative obligations, similar to renewing a driver’s license. The Court has stated that only retroactive laws that increase punishment are unconstitutional. When the Court found certain sex-offender registration requirements unconstitutional, it was because the Court determined the mandates reflected a desire to punish the offender, rather than to protect the public, the office states. But, it argues, the requirements for violent offenders aren’t punitive.
While some of the information gathered is public at the county level, the extra steps that must be taken to obtain those records make the violent-offender database less public than the sex-offender registries currently in place, the attorney general maintains.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket. (Also 2020-0625.)
Contacts
Representing Miquan Hubbard from the Ohio Public Defender’s Office: Victoria Bader, 614.728.0153
Representing the State of Ohio from the Butler County Prosecutor’s Office: John Greer, 513.887.3474
Representing the Ohio Justice and Policy Center et al.: Alexandra Naiman, 513.421.1108
Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Are the Violent-Offender Registry and Requirements in Sierah’s Law Constitutional?
State of Ohio v. Albert Jarvis, Case No. 2020-0549
Fifth District Court of Appeals (Muskingum County)
ISSUE: Does Sierah’s Law violate the Ohio Constitution’s prohibition on retroactive statutes when retroactively applied to an offense that occurred before March 20, 2019?
OVERVIEW:
This case and the prior one, State v. Hubbard, challenge the constitutionality of Sierah’s Law, which establishes a statewide violent-offender database of those convicted of aggravated murder, murder, voluntary manslaughter, kidnapping, or abduction. The law was named for Sierah Joughin, a woman killed in Fulton County in 2016. The man convicted for her murder had served prison time in the early 1990s for an attempted abduction that had similarities to Joughin’s later kidnapping.
The law, which took effect in March 2019, requires violent offenders to register with their local sheriff annually for 10 years. Sheriffs must forward the information to the state Bureau of Criminal Identification (BCI), which houses and maintains the database for use by law enforcement officers.
The Ohio Justice and Policy Center, Advocating Opportunities, the Ohio Domestic Violence Network, and the Ohio Association of Reentry Coalitions oppose the law’s retroactive application, especially to those already incarcerated before the proposal was introduced in the state legislature. The Ohio Attorney General’s Office, however, has filed an amicus brief arguing that the database and registration requirements are constitutional.
BACKGROUND:
Based on events in November 2018, Albert Jarvis pled guilty on March 4, 2019, to kidnapping with a firearm specification, disrupting public service, and improper handling of a loaded firearm in a motor vehicle. On March 20, Sierah’s Law went into effect. Jarvis was sentenced on April 1 that year to seven years in prison. The trial judge informed Jarvis that he would be required under the new law to register as a violent offender annually for 10 years. Jarvis objected to being subjected to the violent-offender registration requirements.
He appealed to the Fifth District Court of Appeals, arguing the new law couldn’t be applied to his offenses, which occurred in November 2018. The Fifth District agreed, vacating Jarvis’ duty to register and concluding that applying Sierah’s Law to offenders who committed crimes before March 20, 2019, was unconstitutional. A few weeks earlier, the Twelfth District Court of Appeals in State v. Hubbard ruled the opposite – that the requirements are remedial and constitutional.
Both courts certified that a conflict exists between them on this topic. The Ohio Supreme Court agreed there is a conflict and to review the issue. 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.
Basics of New Law and Constitution’s Prohibition on Retroactive Statutes
Sierah’s Law, R.C. 2903.41 to R.C. 2903.44, mandates that violent offenders must enroll in the state’s violent-offender database within 10 days of their release from prison. The law defines a violent offender as a person who – on or after March 20, 2019 – “is convicted of or pleads guilty to” aggravated murder, murder, voluntary manslaughter, kidnapping, or abduction. The law also defines a violent offender as a person who on March 20, 2019, “has been convicted of or pleaded guilty to [one of those offenses] and is confined in a jail, workhouse, state correctional institution, or other institution, serving a prison term, term of imprisonment, or other term of confinement for the offense.”
The constitutional issue centers on the retroactivity of the law. The Ohio Constitution states, “The General Assembly shall have no power to pass retroactive laws.” To interpret whether a statute is unconstitutionally retroactive, the Ohio Supreme Court has ruled that courts must consider whether the legislature expressly made the law retroactive – which it did with Sierah’s Law – and whether the law affects a substantial right. If a retroactive statute is determined to be only remedial, it is constitutional. But, if the law is substantive and punitive, it is unconstitutional. According to the briefs, one way a retroactive statute is punitive is if the law imposes new or additional burdens, duties, obligations, or liabilities related to past conduct.
Sierah’s Law Parallels Arson-Offender Registry, Prosecutor Maintains
The Muskingum County Prosecutor’s Office compares Sierah’s Law to the state arson-offender registry statutes. Arson offenders must register annually with the sheriff in the county where they live and provide personal information similar to the information required by Sierah’s Law. It’s a lifetime registry that can be shortened to 10 years if the prosecutor and law enforcement request the shorter timeframe. The arson registry is available to law enforcement and isn’t a public record.
The First District Court of Appeals upheld the arson-offender registry as not substantive and not so punitive that it was unconstitutional. The Muskingum County prosecutor argues the violent-offender registry is less like the state’s unconstitutional sex-offender registry under the Adam Walsh Act and more like the arson registry because the obligations don’t increase the punishment for the crimes.
Registry Imposes New Duties and Punishes, Offender Contends
Jarvis, who is represented by the Ohio Public Defender’s Office, makes arguments similar to those presented in Hubbard’s case. Jarvis notes that the Court found the state’s Adam Walsh Act, which instituted a tiered classification structure with registration requirements for convicted sex offenders, unconstitutional because the system was largely punitive. Jarvis argues the new violent-offender registry is similarly unconstitutional because it imposes new burdens, duties, obligations, and liabilities.
For example, Jarvis states, the law presumes that a person convicted of the listed violent offenses must be placed on the registry and allows that presumption to be challenged, but only if the defendant proves he or she wasn’t the principal offender. Otherwise, if the person was the principal offender, the placement in the violent-offender database is automatic, Jarvis argues.
The offender also must provide extensive personal information to the local sheriff for the registry: name; Social Security number; driver’s license number, commercial driver’s license number, or state identification number; home address; work address; school address; license plate number, vehicle identification number, and vehicle description for any vehicle owned, operated, or registered; description of scars, tattoos, or distinguishing marks; a photograph; fingerprints; and palm prints.
Although the violent-offender database isn’t a public record, all the personal information – except for the license, state identification, and Social Security numbers – collected by sheriffs are public records, Jarvis notes. The only exception is if the offender can demonstrate a fear for safety if the information is disclosed publicly. Beyond that, no safeguard exists in the law to prevent widespread dissemination of the offender’s personal information by public officials, private citizens, or the news media, he contends.
In addition, if the offender fails to register, that is a new fifth-degree felony offense, violates the terms and conditions of any supervised release, and permits the prosecutor to ask the trial court to extend the registrant’s duties indefinitely. Jarvis argues that the violent-offender registry is the only offender registry that allows the timeframe to be extended after sentencing. He states that the law makes it difficult, and in some circumstances impossible, for a registrant to remove an indefinite duty to report once imposed.
These are substantial burdens that affect an individual’s substantive rights and result “in real consequences and restrictions of liberties,” Jarvis’ brief states.
Appeals Court Ruling Offered No Legal Basis, State Argues
In its amicus brief, the Ohio Attorney General’s Office makes a longer version of the arguments it has made in Hubbard’s case. The attorney general also critiques the Fifth District ruling in this case, contending that the appeals court gave no justification for its ruling. The state’s brief also examines court decisions from other states upholding violent-offender registries. The attorney general will share the time allotted for oral argument with the Muskingum County prosecutor.
Law Sweeps in Many Without Regard to Rehabilitation and Specifics, Groups Maintain
The arguments made in Hubbard’s case by the Ohio Justice and Policy Center, Advocating Opportunities, the Ohio Domestic Violence Network, and the Ohio Association of Reentry Coalitions that Sierah’s Law is unconstitutional are the same arguments the groups present in their joint amicus brief in this case.
– 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 Muskingum County Prosecutor’s Office: Taylor Bennington, 740.455.7123
Representing Albert Jarvis from the Ohio Public Defender’s Office: Stephen Hardwick, 614.466.5394
Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Representing the Ohio Justice and Policy Center et al.: Alexandra Naiman, 513.421.1108Could Trial Court Increase Prison Sentence for Disrespectful Courtroom Outburst?
State of Ohio v. Manson Bryant, Case No. 2020-0599
Eleventh District Court of Appeals (Lake County)
ISSUE: When a criminal defendant expresses disrespect toward a trial court in response to a judicial ruling, is the act punishable only as contempt of court, or may it be the basis for increasing the defendant’s sentence?
BACKGROUND:
In July 2018, Jeffrey Bynes drove Lindsay Medina at 4:30 a.m. to a trailer park where her friend Arturo Gonzales-Hernandez lived. Medina entered the trailer though an unlocked window and awakened Gonzales-Hernandez. She asked him for $30, which he gave her, and she left with Bynes shortly after.
About 30 minutes later, Bynes returned to Gonzales-Hernandez’ trailer with Manson Bryant. Bynes had a loaded gun with him. They entered through the unlocked window, and in the dark, Gonzales-Hernandez said he heard the clicking sound of the gun’s trigger being activated. He then saw the gun pointed at his forehead. He was beaten and robbed.
Bynes, Bryant, and Medina were arrested and indicted for the crimes. Bynes and Bryant were charged with seven counts, including aggravated burglary with a gun specification. Bynes pleaded guilty to two aggravated burglary charges and felony robbery. He was sentenced to 12 years in prison.
Medina pleaded guilty to the sole charge of felony complicity to burglary and was sentenced to 45 days in jail, five years of community control, and was ordered to pay restitution.
Bryant went to trial, noting there was no physical evidence linking him to a firearm. A jury convicted him of all seven counts. The seven counts merged to four for sentencing purposes and Bryant’s attorney advocated for a 10-year prison sentence. The attorney noted Bryant’s role was that of an “aider and abettor” to Bynes, who was the principal actor in the crime and received 12 years in prison.
Sentence Leads to Outburst
At his sentencing hearing, Bryant apologized for a “lifetime of bad decisions,” which “caused pain to a lot of people.” He said the decisions were mostly triggered by a drug addiction and that he would take accountability for his actions. Bryant was 32 at the time of sentencing, and asked the trial court to give him an opportunity to make something of his life. He expressed that he didn’t want to “die in prison.”
In the trial court’s sentencing statement, the judge noted that Bryant had a long history of juvenile and adult criminal offenses and had appeared in Lake County Common Pleas Court nine times, including eight times before the judge. The judge noted Bryant had already been to prison three times, and committed the offenses against Gonzales-Hernandez only eight months after being released from prison for another armed robbery conviction and was on postrelease control when he committed the crimes.
Two of the counts carried maximum 11-year prison sentences with three-year mandatory sentences for the gun specifications. The judge sentenced Bryant to consecutive eight-year prison terms on each of the two counts, with three years each for the gun specifications. He received 56 months for the other two charges, which ran concurrently to the aggregated 22-year sentence. The judge noted Bryant didn’t receive the maximum term because he had expressed remorse for the crimes.
Immediately after hearing the sentence, Bryant burst into an expletive-filled rant against the judge, accusing the judge of being racist and not giving him a chance. After repeatedly swearing at the judge, the judge stated he was mistaken in believing Bryant showed any remorse. The judge then imposed the maximum sentence for the two charges as Bryant, who demanded to leave the courtroom, was escorted out.
Bryant appealed his conviction and sentence to the Eleventh District Court of Appeals, claiming the judge had no right to punish him for his outburst by imposing an additional six years in prison. The Eleventh District affirmed the conviction, and Bryant appealed to the Supreme Court.
The Court agreed to consider his claim that the six-year additional sentence was illegally imposed. 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.
Contempt of Court Appropriate Punishment, Defendant Argues
Bryant argues that trial courts can only fashion felony sentences by considering the factors in R.C. 2929.11 and R.C. 2929.12. In-court misbehavior does not create a legal basis for an increase in a defendant’s sentence unless it is associated with the seriousness of the offense, the offender’s likelihood of recidivism, or related to an offender’s military-service record. In-court misbehavior is punishable by contempt of court, which carries a maximum 30-day jail sentence, Bryant states.
Bryant argues the trial court conflated his lack of respect for the court with a lack of genuine remorse for the criminal actions for which he was convicted. Because his behavior demonstrated anger only toward the court as he reacted to what he believed was a disproportionate and unfair sentence, the trial court acted unlawfully by increasing his prison sentence, Bryant argues. The trial court had the authority to issue contempt-of-court punishments in 30-day jail sentence increments, but wasn’t authorized to increase the prison sentence, he concludes.
Judge’s Sentencing Appropriate, Prosecutor Maintains
While finding Bryant in contempt of court was an option for the trial court, the increased sentence didn’t violate the law, the Lake County Prosecutor’s Office argues. The prosecutor maintains the trial court properly concluded Bryant’s statements of remorse and contrition weren’t genuine, but instead were made to receive leniency from the court.
The prosecutor cites R.C. 2929.19(B)(1), which requires the trial court during sentencing to “consider the record, any information presented at the hearing by any person,” along with any presentence investigation and a victim impact statement. The trial court considered Bryant’s expression of remorse and his outburst at the hearing and concluded his remorse was disingenuous, the office notes. The judge indicated that remorse factored into reducing the sentence to less than its maximum, but reconsidered after he concluded that Bryant had no true remorse for his actions, the prosecutor explains. Because the court was required to consider the statements made at sentencing, the increased sentence was appropriately imposed, the prosecutor 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 Manson Bryant from the Ohio Public Defender’s Office: Max Hersch, 614.466.5394
Representing the State of Ohio from the Lake County Prosecutor’s Office: Jennifer McGee, 440.350.2683
Can Market Value of Lease Factor into Tax Assessment of Big Box Store?
Rancho Cincinnati Rivers LLC v. Warren County Board of Revisions et al., Case No. 2020-0643
Twelfth District Court of Appeals (Warren County)
ISSUE: Under R.C. 5713.03, for the purposes of valuing property for taxation, must a property be valued without presuming the presence of a lease at the time of sale?
BACKGROUND:
Rancho Cincinnati Rivers owns a 141,000-square-foot “big box” retail property in South Lebanon. Lowe’s Home Centers leases the property from Rancho to operate a retail store. The Warren County auditor assessed the property’s market value at $8.48 million for the 2016 tax year.
Rancho filed a complaint with the Warren County Board of Revision asking to decrease the value. The Kings Local School District Board of Education sought to retain the auditor’s valuation. In November 2017, the board of revision retained the valuation, and Rancho appealed to the Warren County Common Pleas Court.
A magistrate hearing the matter considered the evidence presented to the board of revision, including competing assessments from appraisers hired by Rancho and the Kings school district. Rancho’s appraiser concluded the property should be valued at $5.8 million. The school district’s appraiser concluded the property should be valued at $8.48 million. Before the magistrate, Rancho argued that under a newly revised version of R.C. 5713.03, the property should be valued “as if unencumbered” by a lease. Rancho argued its valuation followed the law, while the school district’s valuation considered Lowe’s lease of the property when determining its value. The magistrate ruled the law “constrained” him to adopt Rancho’s valuation.
The presiding trial judge reviewed the magistrate’s decision, and determined that Rancho was misconstruing the change to R.C. 5713.03. He ruled that while Rancho’s appraisal was grounded on sound judgment, Kings’ appraiser made the stronger case. In June 2019, the trial court retained the original $8.48 million approved by the board of revision. Rancho appealed to the Twelfth District Court of Appeals, which affirmed the trial court’s decision.
Rancho 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.
Value Free of Lease Proper, Property Owner Asserts
Rancho argues its appraiser applied the plain language of R.C. 5713.03 as required. He appraised the value of the property as if it were not encumbered by the lease to Lowe’s. He made similar comparisons to other properties sold without leases or adjusted the values of other property sales to account for a lease, and arrived at the $5.8 million value. Rancho argues state lawmakers revised R.C. 5713.03 in 2012 to require land to be valued as “if unencumbered,” based on Ohio Supreme Court decisions.
Rancho maintains that the appellate court wrongly considered Rancho’s interpretation to mean the company was valuing the property as if it were vacant, and improperly ruled the appraiser didn’t follow Supreme Court precedent. Rancho argues its position was to value the property as if it were available to lease, which is of greater value than vacant property.
Rancho maintains the county auditor and other tax assessors across the state have adopted a “leased fee” theory in reaction to the change in the law. The property owner says the school board appraiser valued the property as if Lowe’s wasn’t leasing it. The appraiser then determined what the average area lease rate was for a property, and added that leased fee to inflate the value from $5.8 million to nearly $8.5 million. The company argues that is just a different way of valuing the property as if it was encumbered by a lease and directly conflicts with the language of R.C. 5713.03.
Property Valued Correctly, District and Auditor Maintain
The school district submitted a brief in the case, and a joint brief was submitted by the county auditor and board of revision. Both parties make similar arguments, defending the school district’s appraisal and the reliance on it by the board and lower courts.
The local governments argue Rancho is mistaken about how to interpret the revised legislation, and Ohio courts have since interpreted it to mean that buildings with actual leases can be valued as if they are leased. The local governments maintain the purpose of the change is to ensure the property is valued as if it were being leased at market rates, regardless of the arrangement the property owner had with the current occupant.
The appraiser examined sales of leased buildings and leases paid by other Lowe’s stores in the area and developed a range of per-foot lease rates. The appraiser used a $60 per-square-foot rate, which was he reported to be on the low end of the scale. He reported the $8.48 million value would include the property with a current market rate lease. This method treats the property as “if unencumbered” but reflects its current market value, the local governments argue, which is why the trial and appellate court accepted the original appraised value, the local governments conclude.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Rancho Cincinnati Rivers LLC: Ryan Gibbs, 513.381.3890
Representing Warren County Auditor and Warren County Board of Revision: Christopher Watkins, 513.695.1921
Representing Kings Local District Board of Education: David DiMuzio, 513.338.1990