Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, May 12, 2021

State of Ohio v. James O'Malley, Case no. 2020-0859
Ninth District Court of Appeals (Medina County)

State of Ohio v. Kelly A. Foreman, Case no. 2020-0866
Third District Court of Appeals (Seneca County)

Julia M. Ostanek v. Gregory F. Ostanek, Case no. 2020-1037
Eleventh District Court of Appeals (Lake County)

Cleveland Metropolitan Bar Association v. John Alex Morton, Case no. 2020-1520

Was Court-Ordered Forfeiture of Truck an Excessive Fine for OVI Offense?

State of Ohio v. James O’Malley, Case No. 2020-0859
Ninth District Court of Appeals (Medina County)


  • Was the forfeiture of appellant’s vehicle an unconstitutionally excessive fine in violation of the U.S. Constitution’s Eighth Amendment?
  • Is Ohio’s forfeiture statute regarding operating a vehicle while under the influence of alcohol – R.C. 4511.19 (G)(1)(c)(v) – unconstitutional under the equal protection clause of the U.S. Constitution’s Fourteenth Amendment or Article I, Section 2 of the Ohio Constitution?

In July 2018, an Ohio State Highway Patrol trooper stopped James O’Malley for a marked-lanes violation. Following the trooper’s investigation, O’Malley was arrested for operating a vehicle while under the influence of alcohol (OVI). He was charged with a marked-lanes violation, OVI, and OVI with two prior OVI convictions. His 2014 pickup truck was seized.

O’Malley agreed to plead no contest to OVI in Medina Municipal Court. However, he objected to the mandatory forfeiture of his vehicle under state law. The 31-year-old stated he had been employed for 10 months, but lost his job when his truck was seized. He was unable to find work without transportation and had to depend on his grandmother, with whom he was living, for financial support. He noted that his grandparents gave him the truck in exchange for a $5,000 down payment, and it was his only asset. He estimated the truck was worth between $36,000 and $38,000.

Man’s Sentence for OVI Requires Surrendering His Truck
In March 2019, the court found O’Malley guilty. He was sentenced to an $850 fine, $796.50 in court costs, 30 days in jail, probation with mandatory alcohol treatment, a five-year license suspension, a five-year vehicle registration ban, and forfeiture of the truck, which the court valued at $31,000.

O’Malley appealed to the Ninth District Court of Appeals, challenging the constitutionality of the vehicle forfeiture law. He argued the trial court didn’t consider his limited financial means, and he raised an equal protection claim because those who don’t own the vehicle they are driving when committing OVI aren’t subject to the forfeiture of the vehicle. In a split decision with a concurrence and a dissent, the Ninth District upheld the forfeiture of the truck.

O’Malley appealed to the Ohio Supreme Court, which agreed to review the issues. Because of social distancing guidelines during the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Excessive Fines Can’t Be Levied as Punishment for Crimes
The Eighth Amendment to the U.S. Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Quoting a 1998 U.S. Supreme Court opinion (United States v. Bajakajian) about the phrase “nor excessive fines imposed,” O’Malley’s brief explains that the constitution’s prohibition “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’” The excessive fines clause dates back to 1215’s Magna Carta, which guaranteed certain rights and liberties and was a model for the U.S. Constitution and Bill of Rights.

In the 1998 ruling, the U.S. Supreme Court concluded a forfeiture that is punitive violates the Eighth Amendment if the forfeiture is grossly disproportionate to the gravity of the defendant’s offense. Various federal and state courts began considering whether forfeitures would deprive offenders of their livelihoods or cause undue hardship as part of deciding the proportionality of the forfeiture to the offense, O’Malley’s brief states.

Taking of Truck Out of Proportion to Offense, Man Argues
O’Malley maintains that forfeiting a $31,000 vehicle for a misdemeanor offense far exceeds the $850 to $2,750 range of possible fines for his conviction. The vehicle forfeiture is in addition to his fine and nearly 12 times the maximum fine allowed by law for his offense, he notes. He adds that the maximum fine for a first-degree felony, such as murder or kidnapping, is $20,000 and the highest fine for a felony OVI is $10,500.

He argues the trial court didn’t give the appropriate weight to his financial situation and the monetary punishment that resulted from the forfeiture. Although the trial court acknowledged the forfeiture would cause a hardship, it dismissed that fact and ignored the effect that losing his vehicle would have on his ability to find another job and keep it with no transportation nor the means to purchase another vehicle, O’Malley contends. He states that he is paying a high price for his offense, even without the forfeiture, and fortunately no one was injured by his actions. Based on all of the circumstances and considering the harshness of his sentence, the severity of the offense, and his culpability, the forfeiture of his truck is an excessive fine that is grossly disproportionate to his offense, he concludes.

Repeated Offenses Warrant Forfeiture of Vehicle, City Maintains
The City of Brunswick Law Department contends that the forfeiture is a proportionate punishment for O’Malley’s third OVI offense. O’Malley was significantly impaired and put the public at risk by driving, the city states. It argues that forfeiting the truck used to commit his offense isn’t grossly disproportionate to the seriousness of his repeated misconduct, adding that seizing the vehicle of an OVI offender achieves the forfeiture law’s primary purpose, which is to protect the public.

The city notes that $31,000 is about 11 times greater than the maximum fine of $2,750 for O’Malley’s offense. The city contends that cases in which a forfeiture was found to be unconstitutional involved items valued far greater than 11 times a maximum fine.

Citing a 1995 decision from the First District Court of Appeals, the city states the trial court must consider these factors at the hearing evaluating the constitutionality of a forfeiture: the vehicle’s value; the circumstances of the individual case; the harm caused or potentially caused; the connection between the vehicle and the crime; and any other relevant factors. After reviewing these factors, the law, and O’Malley’s arguments, the court concluded he hadn’t proved that the forfeiture of his truck was unconstitutionally excessive or a disproportionate penalty, the city maintains.

City and Offender Debate Equal Protection Claim
The equal protection clause of the U.S. Constitution’s Fourteenth Amendment states, “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” The Ohio Constitution contains a parallel provision in Article I, Section 2: “All political power is inherent in the people. Government is instituted for their equal protection and benefit ….”

O’Malley notes that state law requires the forfeiture of a vehicle registered in the offender’s name for a third OVI offense in 10 years. For an offender convicted of the same offense but who was driving a vehicle not registered in the offender’s name, there is no mandatory vehicle forfeiture, he states. Those offenders essentially have immunity from the forfeiture punishment if they drive someone else’s car, he adds. He argues this distinction isn’t rationally related to the state’s interest in deterring people from driving under the influence of alcohol or drugs.

Brunswick counters that the distinction is rationally related to the goal of deterring drunk driving.
“One group of offenders owns the instrumentality of their offense and the other does not,” the city’s brief states. “The trial court found the forfeiture penalty was rationally placed on offenders who repeatedly violate Ohio's drunk driving laws using their own vehicles.”

The city also maintains that O’Malley focuses on owners versus non-owners, but the statute imposes forfeitures of vehicles based on the person named on the vehicle registration, not who owns the vehicle, so his argument is off base. Ultimately, the city concludes, O’Malley’s contention that the law violates equal protection does not overcome the legal presumption that a statute is valid.

Local Revenue Boosted by Forfeitures, but They Harm Poor, Amicus Brief Asserts
The American Civil Liberties Union of Ohio Foundation has filed an amicus curiae brief supporting O’Malley’s positions. The ACLU of Ohio points out that local government funding in the state budget has been slashed in the past decade, making local governments more dependent on fines and fees for revenue. Revenue from forfeitures incentivizes the taking of property, the group contends. It asks the Court to create a uniform rule, as other states have, that requires trial courts to consider financial hardship when determining whether a forfeiture is so excessive that it violates the Eighth Amendment.

“[T]he same forfeiture that would not cause a rich man to blink has rendered Mr. O’Malley without any object of value to his name, as a sentence for the same offense,” its brief states. “This result is out of step with the Excessive Fines Clause’s history and purpose, and with responsive trends in state and federal law, and it is causing manifest injustice in Ohio.”

Kathleen Maloney

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

Representing James O’Malley: Ronald Annotico, 440.759.4655

Representing the State of Ohio from the City of Brunswick Law Department: Kenneth Fisher, 216.696.7661

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Do Positive Drug Tests from Infant and Umbilical Cord Support Mother’s Cocaine Possession Conviction?

State of Ohio v. Kelly A. Foreman, Case No. 2020-0866
Third District Court of Appeals (Seneca County)

ISSUE: Does the mere presence of drug metabolites in a defendant’s body suffice to establish venue in the charging county?

Kelly Foreman gave birth in March 2018 at a Tiffin hospital. Within a day, Foreman’s infant son was showing symptoms of neonatal abstinence syndrome, which occurs as the result of withdrawal from certain substances. Tests were conducted, and the infant’s urine tested positive for cocaine, as did the umbilical cord and the meconium, which is the first stool that a newborn passes.

Seneca County Job and Family Services was contacted, and a caseworker visited Foreman at her residence in the county. The caseworker later testified that Foreman said she had used cocaine six to 12 times during her pregnancy and every two to three weeks during the pregnancy, and that Foreman stated she took the drug 10 to 14 days before she gave birth. Foreman said she never used drugs in front of her other children or her fiancé, and didn’t take cocaine while in her home. She declined to take a drug test during the caseworker’s visit.

Mother Charged with Drug Possession
A Seneca County grand jury indicted Foreman in July 2018 on one felony count of cocaine possession. Following a bench trial, the court found Foreman guilty of cocaine possession and, in January 2019, sentenced her to three years of community control. She was ordered to attend a treatment program, submit to random drug tests twice a week, and wear a GPS monitoring device for six months with permission to leave her house for limited purposes.

Foreman appealed to the Third District Court of Appeals, arguing in part that the evidence didn’t prove that she obtained, possessed, or used drugs in Seneca County. The Third District upheld her conviction and sentence.

Foreman appealed to the Ohio Supreme Court, which agreed to review the issue. Because of the coronavirus health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Evidence of Drug in Body Not Enough for Possession Offense, Mother Asserts
Foreman argues that to be convicted of drug possession in Seneca County, the prosecutors had to prove beyond a reasonable doubt that she obtained, possessed, or used drugs in Seneca County. “Possession” is defined in R.C. 2925.01(K) as “having control over a thing or substance.” She contends that the venue for a prosecution in Seneca County can’t be established by evidence indicating that a controlled substance was assimilated into a person’s body. Based on the statute’s language, the presence of an assimilated drug in her system didn’t meet the definition of drug possession for a conviction, Foreman maintains.

She points out that, in contrast to Ohio, the Utah legislature has defined “possession” to include “consumption” of a controlled substance, and “consumption” is defined as “having any measurable amount of a controlled substance in a person’s body.” She argues Ohio’s law doesn’t include this language, and that absence reflects the General Assembly’s intent to punish only the possession of drugs before they have entered one’s body.

She also cites the U.S. Supreme Court’s decision in Robinson v. California (1962). In Robinson, the Supreme Court ruled that criminalizing a person’s addiction to narcotics was a cruel and unusual punishment that violated the U.S. Constitution’s Eighth and Fourteenth Amendments. The Court stated that a person can’t be convicted for drug possession when there is no evidence the individual touched a drug in the location where the charges are filed, Foreman indicates. She concludes that testing positive for drugs in a county doesn’t constitute possession of drugs in that county.

Drug Tests on Infant and Mother’s Admissions Support Prosecution, State Argues
The Seneca County Prosecutor’s Office counters that testimony from the infant’s doctor and the caseworker supported Seneca County as the proper venue for this case. Venue is proven by considering all the facts and circumstances, the prosecutor maintains. The office notes that Foreman admitted to the caseworker she had used cocaine repeatedly during her pregnancy; she lived in the county while pregnant; and her baby was born in a Tiffin hospital, which is in Seneca County. Also, Foreman’s cocaine use during the pregnancy was determined by the drug tests of her newborn’s urine and meconium, and of the umbilical cord. The prosecutor contends the evidence of cocaine in the umbilical cord, in particular, demonstrates that Foreman knowingly possessed cocaine because the umbilical cord was part of her body.

Robinson concluded that people shouldn’t be convicted for their status as a drug user or for having an addiction, the prosecutor states. Foreman’s case, though, didn’t involve a random drug user, but instead arose from the hospital complying with its mandatory duty to report finding drugs in a newborn in order to protect the child, the prosecutor maintains.

The prosecutor notes that rather than being sent to prison, Foreman was able to keep working, obtain treatment and counseling, and visit with her children while on community control. None of her sentence was cruel and unusual punishment, the prosecutor maintains.

“[H]er criminal act was met with a thoughtful resolution that fit the crime and further would foster her growth as a mother,” states the prosecutor’s brief.

Location of Possible Earlier Drug Offense Must Be Shown, ACLU of Ohio Maintains
An amicus curiae brief supporting Foreman’s position has been submitted by the American Civil Liberties Union of Ohio Foundation. The ACLU of Ohio argues that although the presence of cocaine, as found in the newborn and the umbilical cord, may have been evidence of an earlier offense, venue wasn’t established because the alleged offense was committed in an unknown location. Instead, indications of past cocaine use were found while Foreman was in the hospital and were presented as the offense itself – which would be an unconstitutional offense based on Foreman’s status as a drug user and on some unspecified prior drug use, the group contends.

The Court has granted a request for the ACLU of Ohio to share the 15 minutes allotted to Foreman for oral argument.

Positive Drug Test Plus Other Evidence Prove Possession, Prosecutors Group Argues
The Ohio Prosecuting Attorneys Association has filed an amicus brief supporting the Seneca County prosecutor. The association maintains that Foreman possessed cocaine in Seneca County when she gave birth to her son because the tests showed evidence of cocaine metabolites. The group asks the Court to confirm that drug-possession prosecutions can be based on a positive drug test of bodily substances that is reinforced by other evidence showing the defendant knowingly possessed the drug that was used in the recent past.

The association and the Seneca County prosecutor will divide the prosecutor’s oral argument time before the Court.
Kathleen Maloney

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

Representing Kelly A. Foreman from the Ohio Public Defender’s Office: Craig Jaquith, 614.644.1568

Representing the State of Ohio from the Seneca County Prosecutor's Office: Rebeka Beresh, 419.448.4444

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Can Ex-Husband Challenge Split of Pension Five Years after Court Approved Its Division?

Julia M. Ostanek v. Gregory F. Ostanek, Case No. 2020-1037
Eleventh District Court of Appeals (Lake County)

ISSUE: If a trial court violates R.C. 3105.171(I) by improperly modifying the property division in a domestic relations matter, is the court’s order void, allowing for the order to be appealed at any time?

Julia and Gregory Ostanek were married in 1978 and divorced in Lake County in 2001. As part of the divorce, Julia was awarded half of the federal pension Gregory would receive when he retired from the U.S. Postal Service. The agreed-upon divorce decree listed the pension’s 2001 value at approximately $58,461. The order listed the wife as receiving half of the pension “by QDRO,” which is a qualified domestic relations order, and stated the value as approximately $29,230. The order stated the husband would receive the other half of the pension. The court ordered the pension divided by QDRO and stated: “Both parties shall cooperate and execute any and all documents necessary to effectuate the division of this asset.”

Also, as part of the divorce, the couple agreed to sell their home in Madison and split the proceeds. Julia then moved to another home in Madison. Gregory listed his mother’s residence in Wickliffe as his home for the court’s purposes. At the time, he was transitioning to a new home in Washington, D.C., and then moved there.

Pension Split Disputed
Gregory retired in 2013. Julia sought a “Court Order Acceptable for Processing Under the Federal Employees Retirement System” (COAP) with the Lake County Domestic Relations Court. The COAP is deemed as the appropriate form of QDRO for administering federal pensions. The COAP was prepared by a consultant from the QDRO Group, a private firm specializing in preparing pension documents, at the direction of Julia’s lawyer. A copy of the COAP was not signed by Gregory but he was listed as being “served per attached.” The service certificate listed the address where the document was mailed to Gregory as the Madison home the couple sold in 2001.

The QDRO Group representative indicated that without more specific detail in the trial court’s 2001 order, he used the default methods adopted by the federal pension plan to divide the pension. That method provided Julia with half the value of the pension at the time her ex-husband retired and included a former spouse survivor annuity. The Court adopted the COAP in 2013.

Gregory stated he was never notified of the preparation of the COAP or the court’s approval of it. He received notice in 2013 from the federal Office of Personnel Management (OPM) that Julia would receive $2,065 a month from his pension, which was about 45% of the value. Gregory made three inquiries with OPM about the amount his ex-wife received, and maintained that she shouldn’t receive any of his pension, or at the most, half the amount it was valued at in 2001 when they divorced. He estimated her share would be about $725 a month. OPM made no changes to the distribution after the 2013 communications, and Gregory stopped engaging the agency in order to have it change the distribution.

Husband Seeks to Modify Pension Payments
In 2018, Gregory obtained a new attorney, who filed a motion with the trial court to vacate the COAP. The attorney also contacted Gregory’s congressman, who was able to open an inquiry with OPM.

OPM determined Julia was overpaid, and agreed to pay $58,000 to Gregory for the five years of overpayments to Julia that had been deducted from his share of the pension. But the OPM also noted the COAP awarded a survivor annuity to Julia, and Gregory had to pay $18,000 for the cost of the annuity from 2013 to 2018. To pay the benefit, OPM was going to deduct $515 per month from his pension for 36 months. Then, he and Julia would both have $140 deducted monthly from their pension benefits to pay for the annuity.

A Lake County magistrate ruled that Gregory waited too long to object to the court’s approval of the COAP. The domestic relations court adopted the magistrate’s decision, and denied Gregory’s request to overrule the decision.

Gregory appealed to the Eleventh District Court of Appeals. The Eleventh District ruled the trial court was permitted to adopt the pension split that gave Julia more money, but found the survivor benefit was an enlargement of the property division, which made the COAP void ab initio. Because the order was void, Gregory could challenge it an any time, the appellate court ruled.

Julia appealed the decision 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.

Challenge Too Late, Wife Argues
Julia explains that her ex-husband invoked Ohio Rule of Civil Procedure 60(B)(5), which allows for a judgment to be appealed for “any other reason justifying relief from the judgment.” The rule states the “motion shall be made within a reasonable time.” She argues the five-year delay is not reasonable.

Julia contends the appeals court incorrectly decided that the trial court violated R.C. 3105.171(I),which states that a property division in a final decree of divorce isn’t modifiable “except upon the express written consent or agreement to the modification by both parties.” She explains the Ohio Supreme Court has ruled trial courts can modify property divisions when it is to “clarify and construe” the division of pension orders.

Julia maintains the court merely clarified, but did not improperly modify, the pension decree when it adopted the survivor annuity, noting that is the default position of the federal government. She maintains that even if the decision to award the annuity is wrong, the trial court’s decision is “voidable,” not void. When a decision is voidable, the court’s decision can only be challenged on direct appeal. When Gregory didn’t challenge the order in 2013, he lost his right to appeal it, she concludes.

Ex-Wife Caused Delay, Husband Argues
Gregory notes the divorce decree required the couple to cooperate when selling the house and splitting the pension. The two cooperated in selling the home, and Julia was well aware that Gregory didn’t live there and had been living in Washington for several years. Gregory accuses his ex-wife of not cooperating as required by the court order because her lawyer mailed the COAP to the former home. He maintains his delays in filing his appeal are justified because it took him years to discover the COAP and position himself to challenge the OPM’s improper calculations.

He argues the COAP doesn’t reflect the intentions of the parties because it grants Julia too large of a share of the pension than the amount agreed to in 2001, and that he is bearing the expense of an annuity that was never discussed in the pension allocation. He argues that the court violated R.C. 3105.171(I) when it approved the COAP and that decision is void. Because it is void, he can use Civ.R. 60(B)(5) to appeal the court’s decision at any time, he concludes.

Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Representing Julia M. Ostanek: Russell Kubyn, 440.350.1900

Representing Gregory F. Ostanek: Kenneth Cahill, 440.352.3391

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Lawyer Faces Suspension for Disparaging Judges and Justices in Court Document

Cleveland Metropolitan Bar Association v. John A. Morton, Case No. 2020-1520
Cuyahoga County

The Board of Professional Conduct recommends a seasoned Cleveland-area attorney receive a fully stayed one-year suspension for alleging in court documents that the decisions by Ohio Supreme Court justices and Cuyahoga County appellate judges in two of his cases were guided by politics and not the law.

J. Alex Morton, who was admitted to practice law in 1975, argues his comments about the jurists are constitutionally protected free speech and are accurate. He maintains the board has no right to sanction him.

The Cleveland Metropolitan Bar Association, which brought the complaint against Morton, objects to the proposed fully stayed suspension. The bar association maintains Morton’s ethical rule violations damage public confidence in the judicial system and that he should be barred from practicing law for at least six months.

Property Tax Case Decisions Prompt Terse Remarks
Morton represented a property owner in the case of Moskowitz v. Cuyahoga Cty. Bd. of Revision. In 2017, the Ohio Supreme Court rejected Morton’s arguments regarding the property’s valuation.

Morton also represented Fred Schwartz, who purchased property in Cleveland Heights in 2011 for $5,000 and was holding the property as a trustee. The county assessed the value at $126,800 for the 2011 tax year. Morton filed an objection on Schwartz’s behalf to seek a property tax reduction.

The reduction was denied by the county and then again by the state Board of Tax Appeals. However, the Supreme Court in 2015 reversed the decision and ordered the property tax to be assessed based on the $5,000 sales price. Afterward, the county again began increasing the property value. Morton filed a second lawsuit for Schwartz, arguing the process used by the board of revision to deny his appeal was incorrect. Schwartz appealed to the Eighth District Court of Appeals, which affirmed the county’s assessment process.

The Eighth District cited the Supreme Court’s Moskowitz decision, stating Schwartz was making the same argument that had been rejected in Moskowitz.

Morton sought to appeal Schwartz v. Cuyahoga Cty. Bd. of Revision to the Supreme Court. He submitted a required memorandum in support of jurisdiction in January 2019, urging the Supreme Court to hear the appeal.

In the memo, he derided the Eighth District judge for relying on the Moskowitz opinion. He wrote the Moskowitz decision was based “upon politics, not law,” and stated the “political goal of the Moskowitz Court was to maximize government revenue, at the expense of the taxpayer, and his or her Constitutional right to limited taxation.” He made additional comments about justices and asserted that Moskowitz was wrongly decided by the Supreme Court.

The memo further chided the Eighth District judges for citing another Board of Tax Appeals decision, stating, “Only politicians committed to maximizing the revenue of their political cronies could reach the same conclusion.”

The Supreme Court ruled in March 2019 not to accept the Schwartz appeal.

Lawyer Disputes Misconduct Claims
The Cleveland bar association filed a complaint with the Board of Professional Conduct based on Morton’s Supreme Court submission. The association claimed Morton violated three rules governing the ethical conduct of Ohio lawyers, including making statements concerning the integrity of judicial officers with reckless disregard as to their truth.

In August 2020, prior to a hearing by a three-member board panel, Morton sought to dismiss the complaint, arguing that the board lacked jurisdiction to consider the matter. Morton maintained that no “grievant” filed a grievance against him, and since none of the judges or justices he allegedly disparaged made the complaint, the bar association couldn’t file a complaint with the board.

The board rejected his claim and found Morton voiced “undignified and discourteous statements about judges and justices who did nothing more than rule contrary to his client’s position.” The panel concluded he violated three rules. However, the board noted that the comments were restricted to one pleading in one case, and that it is unlikely the comments would be seen by the general public. Because Morton had an otherwise “unblemished” legal career, the board suggests that a fully stayed one-year suspension would serve as a warning to him, and remind him of his “obligation to protect the integrity of the judicial system.”

Parties Object to Sanction
Both Morton and the bar association submitted objections to the Supreme Court regarding the proposed sanction. Morton reiterates his contention that the bar association has no right to bring the case against him, and it should be dismissed. The bar association counters that Court rules empower it to “investigate any matter filed with it or that comes to its attention,” and to file a complaint. The bar association states the Office of Disciplinary Counsel brought Morton’s Supreme Court filing to its attention, and the referral was based on a grievance made to the disciplinary counsel.

Morton maintains the bar association wasn’t “injured” by his memo and has no basis to pursue disciplinary action. The bar association maintains it and all members of the legal profession are harmed when a lawyer violates the rules by making false claims about the integrity of judges and justices. The bar association notes that Morton admits he never asked the jurists if their decisions were motivated by politics, and so the comments were made with reckless disregard for the truth.

Morton rejects the board’s conclusions, stating the board authored a report with “very little substance.” He argues the board’s report is short because it didn’t properly review his explanation of the cases and the clear evidence that showed the judges and justices didn’t follow the law when deciding the property tax cases. He maintains his detailed explanation about the cases provide ample circumstantial evidence of the truth of his statements.

Morton also notes that Ohio judges are elected officials and knowingly subject themselves to public scrutiny. If they can’t tolerate public criticism, they shouldn’t serve as government officials, he states. He concludes that his memo included his opinions, which are protected free speech by the Ohio and U.S. constitutions.

The bar association maintains prior Court rulings indicate lawyers have no constitutional protection to make reckless statements about the integrity of judicial officers without any factual basis. The bar association asserts that Morton’s violations and confrontational conduct during the disciplinary proceedings merit a six-month actual suspension rather than a fully stayed suspension.

Dan Trevas

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

Representing the Cleveland Metropolitan Bar Association: Frank DeSantis, 216.566.5500

J. Alex Morton, representing himself: 440.488.0333

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