Wednesday, Feb. 9, 2022
Portage County Educators Association for Developmental Disabilities - Unit B, OEA/NEA v. State Employment Relations Board
, Case nos. 2021-0190 and 2021-0191
Eleventh District Court of Appeals (Portage County)
State of Ohio v. Ernie E. Haynes
, Case no. 2021-0215
Sixth District Court of Appeals (Wood County)
Village of Newburgh Heights, et al. v. State of Ohio, Case no. 2021-0247
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Gerry L. Moore, Sr., Case no. 2021-0266
Sixth District Court of Appeals (Erie County)
Is Picketing Prohibition Law Unconstitutional?
Portage County Educators Association for Developmental Disabilities - Unit B, OEA/NEA v. State Employment Relations Board, Case Nos. 2021-0190 and 2021-0191
Eleventh District Court of Appeals (Portage County)
ISSUES:
- Is R.C. 4117.11(B)(7), which prohibits public employee organizations from picketing at certain locations, constitutional under the U.S. Constitution’s First Amendment?
- Is the provision in the law that bars picketing at “any place of private employment of any public official or representative of the public employer” constitutional as a reasonable time, place, or manner restriction on speech?
BACKGROUND:
Seven volunteers – five appointed by the county commissioners and two appointed by the senior county probate court judge – make up the Portage County Board of Developmental Disabilities (DD board). The Portage County Educators Association for Developmental Disabilities represents the employees who help individuals with disabilities and their families to locate services. The three-year collective bargaining agreement between the DD board and employees expired on Aug. 31, 2016.
After a year of negotiations, they had not reached an agreement. In September 2017, the association notified the State Employment Relations Board (SERB) of its intent to strike or picket. During the strike, the association encouraged members to picket on the sidewalk outside of Off the Wagon, a local giftshop in Kent. One DD board member owned the store. The association also encouraged members to picket outside of board member homes in October. The employees picketed at six board member residences in Kent, Rootstown, and Streetsboro.
The DD board filed charges with SERB accusing the association of unfair labor practices. In May 2018, SERB concluded that the association violated R.C. 4117.11(B)(7) by “inducing or encouraging” its members to picket the private residences of six DD board members and one member’s place of private employment. SERB noted it had no authority as an administrative agency to determine the constitutionality of the statute.
Employees Take SERB Ruling to Court
The association appealed to the Portage County Common Pleas Court, which upheld the SERB ruling and found that R.C. 4117.11(B)(7) was constitutional. The association appealed to the Eleventh District Court of Appeals, which reversed the trial court, finding the statute to be unconstitutional because it restricted the association’s and employees’ speech.
The Eleventh District determined that its decision conflicted with one from the Seventh District Court of Appeals on this issue and certified the conflict to the Supreme Court of Ohio to review. The DD board and SERB each appealed to the Supreme Court, which accepted the cases. The Court consolidated the certified conflict and the appeals.
Picketing Restriction Doesn’t Impede Content of Employees’ Speech, Boards Maintain
SERB argues that R.C. 4117.11(B)(7) doesn’t violate the right to freedom of speech guaranteed by the U.S. Constitution’s First Amendment. Any limits on “speech” in the statute don’t restrict the content of the speech, but only its time, place, and manner, SERB maintains. Specifically, the group argues, the law bars the employee organization from engaging in picketing, which is a “manner” of expression, during the “time” of an ongoing labor dispute and at certain “places” – the residences and private employers of board officials.
SERB also contends the law is constitutional because the state has a “significant interest” in imposing the restriction, which is narrowly tailored. The law is designed to deter union intimidation tactics to force board members to bend to their demands, SERB maintains. It argues the state’s significant interest is to protect the privacy rights of public officials at their homes and places of employment. Also, as the Seventh District ruled, it is constitutional to bar “secondary picketing” – labor picketing at a business not connected to the labor dispute, the group notes.
The law is narrowly tailored because, in SERB’s view, it is limited only to board members’ residences or private employers at the time of ongoing labor disputes. SERB states that employees can picket at many other locations and communicate through alternative channels, such as advertising, campaigning, and social media.
Even if the Court found the law restricts the content of speech, there are “compelling interests” – such as encouraging citizens to serve in these public roles – for the state to protect the privacy rights of public officials, SERB states. Also, the law meets these compelling interests in the least restrictive way possible, the group maintains. If a content-based law meets these standards, it is constitutional under a type of legal review called “strict scrutiny.”
The DD board’s brief makes similar arguments, maintaining that the law doesn’t reference the content of the speech, the restriction applies only at the homes and employers of seven board members, and all other channels of communication remain open to the employees and their association.
Restriction Based on Who’s Speaking and What’s Said, Employees Counter
The employee association counters that R.C. 4117.11(B)(7) is content based, so it is unconstitutional. The law limits expression based on the speaker’s identity – only public employees and associations – and the subject matter of the speech – only labor disputes. Picketing at the same locations on any topic other than a labor dispute is permitted under this law, the association states.
“If the signs carried promoted political candidates, social causes, religion, sports teams, or Girl Scout cookies, the inducement to picketing would be entirely lawful,” its brief argues. “And, if the inducement to picketing were conducted by anyone but public employees and their associations and representatives, it would not be prohibited even if related to a labor dispute during a
work stoppage.”
The association points to the U.S. Supreme Court’s 2010 decision in Citizens United v. Fed. Election Commission, which stated:
“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects of viewpoints. … Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. … As instruments to censor, these categories are interrelated: speech restrictions based on the identity of the speaker are all too often simply a means to control content.”
The association asserts that the law also is an unconstitutional content-based restriction because it bars picketing during the entire period of a labor dispute – at the time the speech is most relevant.
If a law limits the content of speech, it must serve a compelling state interest with the least restrictive means possible to be constitutional. SERB and the board don’t establish, however, that an actual problem exists or that this law is necessary when content-neutral laws already exist to protect individual privacy, the association argues.
If the Court rules, though, the statute is content neutral, the association maintains the law still is unconstitutional because the restrictions don’t serve any significant government interest and aren’t narrowly tailored. This lower legal standard is called “intermediate scrutiny.” The association contends that the law infringes on even peaceful and non-intrusive picketing at these locations – infringing on more speech than needed to meet the government’s interest. The law also prohibits public employees from expressing their views on public property near the places where their intended audience of board members could likely be found, the association states.
County Boards Lend Support to Portage County Positions
The Ohio Association of County Boards Serving People with Developmental Disabilities filed an amicus curiae brief supporting the Portage County DD board. The group, whose members are the state’s 88 county boards of developmental disabilities, argues in part that labor picketing isn’t protected by the First Amendment.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket. (Also 2021-0191.)
Contacts
Representing the State Employment Relations Board: Erik Clark, 614.481.0908
Representing the Portage County Board of Developmental Disabilities: Ronald Habowski, 330.802.5473
Representing the Portage County Educators Association for Developmental Disabilities - Unit B, OEA/NEA: Richard Bush, 330.743.5101
Must Prosecutor Provide Bill of Particulars When Requested?
State of Ohio v. Ernie Haynes, Case No. 2021-0215
Sixth District Court of Appeals (Wood County)
ISSUES:
- Under the Ohio Rules of Criminal Procedure, must a prosecutor provide a document, known as a bill of particulars, detailing the basis for criminal charges, if it is properly requested?
- Can the requirement to provide a bill of particulars to a criminal defendant be satisfied by providing open-file discovery, which allows the defendant to see almost all the information in the prosecutor’s case file?
BACKGROUND:
Ernie Haynes is the grandfather of three boys, ages 2 to 5, who are the children of his daughter, Jennifer, and James Hill-Hernandez. Jennifer died of a heroin overdose in December 2017 in Fostoria. After her funeral, Haynes and his wife took the boys to their home in Wood County about eight miles from Fostoria. Hill-Hernandez tried to retrieve the boys, but the Haynes refused. The next morning, the father requested that the Seneca County Juvenile Court grant him temporary legal custody of his children. A magistrate granted the request and a set a hearing for January 2018.
Hill-Hernandez called the Hayneses and told them he wanted his children, sending them a photo of the magistrate’s order. On Dec. 19, 2017, Haynes visited the Fostoria Police Department to talk about his daughter’s death. Haynes indicated he was going to leave the police station to pick up the two younger boys, who were at a family friend’s house, and that he intended to go to juvenile court to seek custody orders.
Haynes picked up the boys, buckled them into car seats, and drove them to his home. The grandmother picked up the other child from school and took him to the Haynes home.
That night Hill-Hernandez, accompanied by a police escort, went to the Haynes home, but the couple refused to answer. Over the next six days, the father texted the grandparents seeking the return of his children and contacted police, who went to the home several more times, but were unable to get the grandparents to answer. The police obtained a search warrant and found the home empty.
On Dec. 27, 2017, the police located the Hayneses and the children at a home in Hancock County. Haynes was arrested. The juvenile court granted an order that day directing the children to be returned to Hill-Hernandez.
Grandfather Tried for Abduction
Haynes was indicted in Wood County in February 2018 on six counts of abduction, two counts for each grandson. For each child, Haynes was charged under both R.C. 2905.02(A)(1) and (2). R.C. 2905.02 states:
“(A) No person, without privilege to do so, shall knowingly do any of the following:(1) By force or threat, remove another from the place where the other person is found;
(2) By force or threat, restrain the liberty of another person under circumstances that create a risk of physical harm to the victim or place the other person in fear.”
After his indictment, Haynes asked the Wood County Prosecutor’s Office to provide him a bill of particulars. A bill of particulars is a written statement of specific details of the offenses charged. In this case, Haynes wanted to know what constituted “force.” Haynes maintained that the prosecutor hadn’t informed him what act between Dec. 19 and Dec. 27 constituted abduction and what “force or threat” he used when he picked up his grandchildren and kept them. The prosecutor didn’t respond.
The trial court refused to order the bill of particulars because the prosecutor indicated Ohio has “open file” discovery, which allows Haynes to review nearly all the information about the investigation into his case.
Prior to the trial, the prosecutor dropped the charges under (A)(2) but pointed out in closing arguments that Haynes “restrained” the children when he placed them in child safety seats in his truck. The prosecution maintained the act of driving the truck away satisfied the “force” requirement in R.C. 2905.02(A)(1). Haynes was convicted of the abduction charges. The trial court sentenced him to one year of community control.
Haynes appealed to the Sixth District Court of Appeals, making several legal arguments. The Sixth District affirmed his conviction.
Haynes appealed to the Supreme Court of Ohio, which agreed to consider his claim that his constitutional due process rights were violated when he wasn’t given a bill of particulars.
Bill Required to Prepare Defense, Grandfather Argues
Haynes argues the lower courts have minimized his request for a bill of particulars because of confusion between the Federal Rules of Criminal Procedure and the Ohio Rules of Criminal Procedure. Under Ohio’s Crim.R. 7(E), when a defendant makes a written request for a bill of particulars, “the prosecuting attorney shall furnish” the defendant with a bill that specifically states “the nature of the offense charged, and the conduct alleged to constitute the offense.”
Haynes explains that Ohio has moved to “short form” indictments, which just include a short statement of the statutes the defendant is alleged to have violated. The bill of particulars can be obtained upon request to receive more details, he notes. Under federal rules, responding to a request for a bill of particulars is optional, he explains.
The prosecutor had no right to deny the bill of particulars under states rules, Haynes argues. Denying the request compromised his ability to prepare a defense or consider a plea agreement, he asserts. The prosecutor’s offer to review the entire case file didn’t substitute or assist Haynes in knowing that the state was alleging he used “force” on Dec. 19 when he drove the children away from the friend’s home. It was also unclear to Haynes, until closing arguments, that the prosecutor intended to use the buckling of the children into the restraint seats as the force or threat to “restrain the liberty of another person,” he notes.
Without specific notice of how he violated the law, Haynes argues he was denied his due process rights under the Ohio and U.S. constitutions.
Open-File Discovery Complies with Rule, Prosecutor Asserts
The prosecutor’s office maintains that open-file discovery complies with Crim.R. 7(E) and there is no need to file a “physical piece of paper” captioned as a bill of particulars to satisfy the requirement. The prosecutor states that by opening the file, Haynes could discover the information sought, such as the time he picked up the children from the friend’s home.
The office notes the Sixth District and several appellate courts have recognized for decades that bills of particulars aren’t required when information is provided to the defendant through discovery. What Haynes sought, and isn’t entitled to, is to learn the legal theory of the prosecution’s case, the office maintains. A bill of particulars isn’t necessary because all the information Haynes was entitled to was provided through discovery. The case file allowed Haynes to determine what actions the police said he took and what charges they sought to file against him, the prosecutor explains. The bill of particulars wouldn’t provide any further information and wasn’t necessary, the office concludes.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting Haynes’ position was submitted by the National Child Abuse Resource & Defense Center.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Ernie Haynes: Michael Stahl, 419.214.0573
Representing the State of Ohio from the Wood County Prosecutor’s Office: David Harold, 419.354.9250
Is State’s Elimination of Funding to Localities with Traffic Cameras Unconstitutional?
Village of Newburgh Heights et al. v. State of Ohio, Case No. 2021-0247
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Does the state law that reduces a municipality’s state funding by the amount of income generated by its traffic-camera program exceed the General Assembly’s discretionary spending power?
- Do the General Assembly’s traffic-camera laws violate the Ohio Constitution’s Home Rule Amendment?
BACKGROUND:
The village of Newburgh Heights in Cuyahoga County began using cameras to enforce speed limits in 2014. The village operates cameras in two locations. In 2006, East Cleveland began using traffic cameras to catch speeding and red-light violations. Its program uses 10 cameras.
In its 2019-2021 transportation budget (House Bill 62), the General Assembly included laws governing traffic cameras. Each year municipalities that operate traffic-camera programs must file a report with the state tax commissioner disclosing the preceding year’s revenue from fines collected through traffic-camera citations. The state then reduces the amount the municipality receives from the state’s local government fund by that amount. Those retracted funds are reallocated to the transportation district where that municipality is located to enhance public safety on public roads and highways.
The traffic-camera laws also require municipalities operating these programs to pay advance deposits to local municipal or county courts to cover court costs and fees for civil cases regarding traffic-camera tickets.
Local Governments Go to Court Over New Mandates, Funding Cuts
In June 2019, Newburgh Heights sued the state, asserting that the funding reduction, court deposits, and other provisions of the traffic-camera laws violated the Home Rule Amendment in the Ohio Constitution. Under home rule, Ohio municipalities are authorized to exercise “all powers of local self-government” and can adopt local police, sanitary, and other similar regulations as long as they’re not in conflict with general laws. East Cleveland intervened in the lawsuit, raising similar arguments. The Cuyahoga County Common Pleas Court declined to impose a preliminary injunction to block the provisions.
Newburgh Heights and East Cleveland appealed. The Eighth District Court of Appeals ruled in January 2021 that the funding reduction, except for the annual reporting aspect, and the court deposit mandate were unconstitutional because they violated home rule.
The Ohio attorney general appealed to the Supreme Court of Ohio, which agreed to review the issues. The brief from the city and village states that challenges to these laws also were filed in Huron, Lucas, Montgomery, and Summit counties.
State Asserts That Legislature Decides How State Money Is Spent
The Ohio Attorney General’s Office argues the state legislature has broad discretion to determine how to fund municipalities.
“[N]either [the Home Rule] Amendment nor anything else bars the General Assembly from exercising its exclusive power to appropriate funds in a manner that encourages municipalities to exercise their home-rule powers in a particular way,” the state’s brief argues.
The attorney general contends that home rule doesn’t entitle local governments to funding, it only empowers them to govern themselves. Because the legislature had the authority to enact a law that eliminates funding for local governments that run traffic-camera programs, the funding reduction in the law is constitutional, the attorney general argues.
The state notes that the court-deposit provision addresses judicial proceedings. Municipalities can’t regulate state court proceedings, the attorney general notes. Given that limitation, the deposit requirement also doesn’t interfere with the home-rule powers of local governments and is constitutional, the attorney general maintains.
Local Governments Maintain Legislature Can’t De-Fund Legal Programs
Newburgh Heights and East Cleveland respond that the attorney general casts the money the General Assembly allocates as “the state’s” money. The city and village counter that the money in the local government fund instead belongs to taxpayers statewide, including the people of Newburgh Heights and East Cleveland. They contend that the state’s power to spend citizen funds isn’t unlimited.
They agree with the Eighth District, which reasoned that the General Assembly’s power over spending dollars doesn’t give it the authority to penalize local governments that have traffic-camera programs. The Supreme Court of Ohio already has ruled that municipalities have the authority under home rule to operate these programs, the city and village maintain.
They also point to Article XII, Section 9 of the state constitution, which requires that no less than 50% of certain taxes collected by the state must be returned to the locality where that tax originated.
Slashing local government funding and requiring deposits to courts relates directly to the traffic-camera programs, and the state law essentially prohibits traffic cameras by making the programs financially and logistically impossible to operate, the local governments argue.
“It is a concerted and deceitful effort by the Ohio Legislature to ignore binding legal jurisprudence and further limit Home Rule,” their brief concludes.
Cities and Municipal Organizations Present Arguments
A joint amicus curiae brief supporting Newburgh Heights and East Cleveland was submitted by the cities of Dayton and Toledo, the Ohio Municipal Attorneys Association, and the Ohio Municipal League.
– 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 from the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Representing the village of Newburgh Heights: Michael Cicero, 216.621.7227
Representing the city of East Cleveland: Willa Hemmons, 216.681.2169Could Husband Who Schemed in Prison to Kill Wife Be Tried in Erie County?
State of Ohio v. Gerry L. Moore Sr., Case No. 2021-0266
Sixth District Court of Appeals (Erie County)
ISSUE: Does the offense of retaliation occur in the place where the defendant made a threat, where the victim is located, or where the original crime is prosecuted?
BACKGROUND:
Gerry Moore Sr. was married to a woman identified as D.M. for 21 years, and they lived in Erie County. D.M. filed for divorce in May 2015. The next month, Moore broke into D.M.’s apartment, held her at gunpoint, and forced her into her vehicle. D.M. jumped out of the vehicle and fled while Moore shot at her. After a lengthy standoff with law enforcement, Moore shot himself but didn’t die.
Moore pled guilty to felonious assault and other charges and was sentenced to prison. He was taken to a Marion County facility where he became friends with inmate Richard Kiser. Kiser said Moore devised a plan and offered him $50,000 kill D.M. when Kiser was released from prison.
In April 2017, Kiser notified D.M.’s divorce attorney about the threat. After discussion with the Erie County Sheriff’s Office, Kiser agreed to record conversations with Moore.
Husband Recorded Describing Plan for Wife’s Murder
In the recordings, Moore suggested killing D.M. by slipping her heroin and then framing her niece. He gave Kiser information about D.M.’s home, workplace, favorite bars, vehicle, and her niece’s vehicle. Kiser said Moore also drew him a map with the key locations.
An Erie County grand jury indicted Moore in August 2017 on retaliation, attempted aggravated murder, and conspiracy. The indictment alleged that the retaliation was committed in Erie County and the attempted murder and conspiracy took place in Marion County. A jury found Moore guilty of the three offenses. The trial court sentenced him to 22 years in prison – two years for retaliation and 10 years each for the other crimes.
Moore appealed to the Sixth District Court of Appeals, which reversed the trial court and vacated his convictions. The Sixth District stated the conduct that led to the charges all took place in Marion County, at the prison. Because none of the elements of the offenses happened in Erie County, the county prosecutor didn’t establish that Erie was the appropriate venue for the case, the court concluded. Determining the appropriate venue for a case is required in the judicial system to prevent the government from seeking trial locations favorable to the prosecution and because the defendant has a right to be tried in the vicinity of the alleged crimes.
The prosecutor appealed to the Supreme Court of Ohio, which agreed to hear the case.
Earlier Crimes Against Victim Made Erie County Proper Venue, State Contends
Ohio’s retaliation law states, “No person, purposely and by force or by unlawful threat of harm to any person or property, shall retaliate against the victim of a crime because the victim filed or prosecuted criminal charges.”
The Erie County Prosecutor’s Office maintains that the case could be handled in Erie County because the victim, D.M., lives in the county and she pursued criminal charges against Moore in the county after he attacked her in 2015. A criminal case can be tried in the court where any element of the offense is committed. Arguing an element of the retaliation offense occurred in Erie County given that D.M. filed charges there in the earlier case, the prosecutor concludes that the county is a proper venue for the case.
Also, the prosecutor maintains, the state didn’t manipulate its choice of venue to obtain a favorable location that seriously disadvantaged Moore for the criminal trial.
Charged Conduct Took Place in Marion County, Man Argues
Quoting the Ohio Constitution, Moore counters that the prosecutor wants to destroy the accused’s right to “a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.”
Moore’s brief argues that a retaliation charge must be heard by the court in the county where Moore made the plan to kill D.M. The place where the crime was expected to occur isn’t a location where the retaliation charge can be pursued in court, his brief maintains. In overturning Moore’s convictions, the Sixth District found that the conduct that led to the retaliation charge was committed entirely in Marion County.
Moore agrees with the Sixth District and contends that venue is determined by the defendant’s, not the victim’s, actions. Although it must be proven that the retaliation occurred “against the victim of a crime because the victim filed or prosecuted criminal charges,” the law doesn’t automatically set the venue in the case as the county of that earlier prosecution, he argues.
Attorney General and Prosecutor Group Back Erie County Prosecutor
The Ohio Attorney General’s Office and Ohio Prosecuting Attorneys Association filed separate amicus curiae briefs supporting the Erie County prosecutor. They each view the 2017 offenses as part of a “course of criminal conduct” that began in Erie County in 2015.
The attorney general also maintains that the Sixth District’s dismissal of the case based on venue isn’t an acquittal that would prevent a new trial because of double jeopardy. If the Court rules that Erie County was an improper venue for the case, the attorney general asks the Court to make clear that Moore can be re-tried in Marion County on the attempted murder and conspiracy charges.
The Court has granted the attorney general five minutes to present its positions during oral argument and extended Moore’s time from 15 to 20 minutes.
– 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 Erie County Prosecutor’s Office: Kristin Palmer, 419.627.7587
Representing Gerry L. Moore Sr.: Karin Coble, 888.268.3625
These informal previews are prepared by the Supreme Court’s Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews aren’t part of the case record, and aren’t considered by the Court during its deliberations.