Wednesday, April 5, 2023
Ohio Patrolmen’s Benevolent Association v. City of Cleveland, Case No. 2022-0724
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Miguel L. Mills, Case No. 2022-0779
Sixth District Court of Appeals (Lucas County)
State of Ohio v. Michael Schilling, Case No. 2022-0782
First District Court of Appeals (Hamilton County)
Must Union Present Appeal to City’s Private Attorney Handling Arbitration?
Ohio Patrolmen’s Benevolent Association v. City of Cleveland, Case No. 2022-0724
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- When appealing an arbitration award to a common pleas court, must the appealing party provide notice to the attorney who represented the opposing party during the arbitration proceedings?
- Can an application to vacate an arbitration award be filed in some form other than a motion if the documentation required by R.C. 2711.14 is provided to the trial court?
BACKGROUND:
The Ohio Patrolmen’s Benevolent Association is a union representing law enforcement and is the exclusive collective bargaining representative for the chief radio dispatchers for the city of Cleveland. The union filed a grievance against the city in 2019 concerning the practice of offering overtime shifts to non-bargaining unit members before the union dispatchers. The matter went to arbitration, and in June 2020 the arbitrator issued a decision in favor of the city.
In September 2020, the union filed an application to vacate the arbitrator’s decision using the method prescribed in R.C. 2711.10. The day after filing the application in Cuyahoga County Common Pleas Court, the union had the clerk of court's office serve a copy of the complaint to the city by presenting it to the city law department. By serving the law department, the union maintained it met the requirement in R.C. 2711.13 to notify the city within three months of the arbitrator’s award.
In October 2020, the city filed a motion with the court to confirm the arbitrator’s award and a motion to dismiss the union’s complaint. The city argued that the union missed the deadline for contesting the arbitrator’s decision for two reasons. First, rather than serving the city’s law department, the union was required to provide the notice to the private attorney representing the city in the arbitration, and the union didn’t do that within three months of the arbitrator’s decision. Second, the union fashioned its application to vacate the arbitrator’s award as a complaint and not as a motion. The city maintains a motion requires more detail than a complaint and what the union filed was insufficient.
In 2021, the trial court ruled in favor of the union, finding what it filed at the time was sufficient, and scheduled further proceedings in the case. Two months later, the city asked the judge to reconsider the decision based on a new ruling by the Eighth District Court of Appeals. Citing the Eighth District’s 2021 Cleveland Police Patrolmen’s Assn. v. City of Clevelanddecision, the trial court dismissed the case. The trial court stated the appeals court decision required the private attorney representing the city to be notified, not the law department.
The union appealed the decision to the Eighth District, which affirmed the trial court’s decision to dismiss the case, leaving the arbitrator’s award in place.
The union appealed to the Supreme Court of Ohio, which agreed to hear the case.
Service to City Proper, Union Maintains
The union notes that the application to vacate must follow Rule 5(B) of the Ohio Rules of Civil Procedure, which states that when a party isn’t represented by an attorney, the party may be served with the notice of the lawsuit. The rule has been further clarified to state that if an attorney represents a party, then the attorney must be served, the union maintains, but only if the attorney is the “attorney of record” in the trial court. The application to vacate the arbitrator’s decision was the first action taken in the trial court, so there was no listing of an opposing party attorney at the time, the union asserts, and it was proper to serve the city.
The union notes in the trial court’s initial ruling in its favor, the city conceded that the attorney who represented the city in the arbitration was under no guarantee that he would represent the city in the challenge to the arbitrator’s decision. The union argues the city at that time could choose to represent itself, retain the attorney used in the arbitration, or hire someone else. Because no attorney would have been listed at the time of filing, and there is the possibility that the city would represent itself, it was appropriate to serve the city’s law department with notice of the application, the union maintains.
The union also disputes the city’s claim that the filing also needed to be in the form of a motion. The union argues the city fails to note that, according to R.C. 2711.13, the initial filing that must be made within three months of the arbitrator’s decision is a “notice of a motion” to vacate, and not a motion. If the action had to be a motion, then the words “notice of” would be meaningless, the union asserts. The notice, it argues, only needs to include the information required in the next section of the law, R.C. 2711.14. That section requires the disputed award to be included in the application along with a few other items, all of which was included in its filing, the union states. The union maintains once it provided the notice and accompanying material, the trial court could direct the parties on how to proceed. Once the case was before the trial court, the union would have to file a motion to vacate, which requires a detailed memorandum explaining why the court should overturn the arbitrator’s decision, the union asserts. This process is routinely used by other courts, and until the recent Eighth District decision, the process wasn’t disputed, the union notes. Because it sufficiently complied with the law, its challenge to the arbitrator’s decision should proceed, the union concludes.
Wrong Attorney Notified, City Asserts
Cleveland notes that lawmakers adopted arbitration as an alternative means to resolving disputes to avoid litigation. The state instituted limited special proceedings to involve the courts, and those procedures are intended to resolve the issues in a timely and less expensive manner than traditional litigation. The city maintains the appeal to the trial court is a continuation of the arbitration proceedings. R.C. 2711.13 requires the attorney to be notified if the party is represented by an attorney, and the union knew of the city’s private attorney in the arbitration. The city argues the Eighth District correctly analyzed the situation and determined the attorney, not the city, must be notified in these types of arbitration appeals within three months of the arbitrator’s decision.
The city also notes the requirement of filing a motion rather than a complaint to challenge the arbitration isn’t an issue of style, but rather of substance. Complaints and motions have different response deadlines, different methods of service, and different substantive content, the city maintains. The city argues that without filing a motion, the union failed to provide any of the legal analysis supporting its argument for vacating the arbitration award.
What the union is attempting to accomplish is to file a “placeholder” motion to initiate its appeal, and then await the trial court’s instructions to begin filing briefs, the city says. The city argues this is a tactic used by the union to learn about the city’s legal arguments when the city submits its opposition to the appeal. Then the union will develop its legal arguments based on the city’s showing its “proverbial cards,” the city argues. This isn’t what lawmakers intended when enacting the arbitration laws, and the Supreme Court should affirm the decision to dismiss the union’s case, the city 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 the Ohio Patrolmen’s Benevolent Association: Danielle Chaffin, dchaffin@opba.com
Representing the City of Cleveland: George Crisci, gsc@zrlaw.com
When Should Appeals Court Order Hearing of Defendant’s Competency?
State of Ohio v. Miguel L. Mills, Case No. 2022-0779
Sixth District Court of Appeals (Lucas County)
ISSUES:
- When an appeals court reviews a claim that a criminal defendant wasn’t competent to stand trial, should the court order the trial court to hold a hearing if there is a reasonable doubt of the defendant’s competency?
- Does a criminal defendant waive the right to claim incompetence by refusing to submit to a competency evaluation?
BACKGROUND:
In May 2019, Miguel Mills ran out of a Toledo building to an intersection where a driver of an SUV was stopped at a stop sign. Mills fired three shots at the vehicle. In July 2019, Mills was indicted for felonious assault, with a mandatory three-year firearm specification, and discharge of a firearm near a prohibited premises. He was appointed an attorney on the day he was arraigned. At the arraignment, Mills displayed erratic and skeptical behavior, telling the court the felt “bamboozled,” “really lost,” and “ railroaded.”
Mill would appear in trial court six times before his December 2019 trial. He raised questions about his speedy trial rights and whether he could be held in jail for more than 90 days. His appointed attorney told the court that it was becoming increasingly difficult to communicate with Mills. The Lucas County Prosecutor’s Office offered the attorney a plea deal to convey to Mills that would result in a two to three-year sentence. The trial judge asked Mills’ attorney about the status of the plea negotiation, and the attorney responded that Mills didn’t want to discuss the plea with him and was adamant about going to trial.
At subsequent pretrial appearances, Mills was disruptive, and the court made a referral for a competency evaluation. On the day of the evaluation, Mills refused to leave his jail cell and the evaluation was cancelled. The court conducted a two-day trial in which there was no further mention of the competency evaluation or of Mills’ competence to stand trial.
Mills was convicted of the crimes and sentenced to eight to 10.5 years in prison.
Mills appealed his conviction to the Sixth District Court of Appeals, asserting that the trial court failed to conduct a competency hearing. The Sixth District affirmed the trial court’s ruling.
Mills appealed to the Supreme Court of Ohio, which agreed to hear the case.
Appeals Court Used Wrong Standard to Deny Hearing, Offender Asserts
In the Supreme Court’s 2002 State v. Were decision, the Court stated that an evidentiary hearing is constitutionally required whenever there is “sufficient indicia of incompetency” to call into doubt the defendant’s competency to stand trial. Mills argues that his attorney raised questions of his competency to stand trial, yet no hearing took place before the trial proceeded. The appeals court ruled that the trial court didn’t need to conduct a hearing because there was not sufficient indicia of incompetency.
Mills argues that the Sixth District is using the wrong standard to determine “indicia of incompetence,” and that the appeals court relied on the court’s transcripts and the opinion of lawyers and the judge involved in the case. Mills suggests the Supreme Court clarify what standard a court should use to determine if the defendant shows signs of incompetence and when to vacate a conviction.
Mills notes that the law places the burden on the defendant to prove a lack of competency to stand trial. What is unclear in the law is the quantity of evidence needed to prove incompetency, he states. He notes there are well-known levels of burdens of persuasion, including reasonable doubt, preponderance of evidence, clear and convincing evidence, and proof beyond a reasonable doubt.
Mills asserts the Sixth District is using a standard of at least a preponderance of the evidence or higher to determine if enough evidence has been provided to prove competency, and it is basing its decisions on a scant amount of material gleaned from the trial court record. Because he didn’t complete a competency evaluation, there is no evidence from a mental health professional assisting the court in determining his competence, Mills notes. Because of the limited information available to the appeals court, Mills is suggesting that a reviewing court use the lowest standard of proof – reasonable doubt – to determine if there is enough proof of incompetence to warrant a hearing. He cites a U.S. Supreme Court case which defined reasonable doubt as “the kind of doubt that would make a person hesitate to act.”
Mills argues that the lower standard is proper because any time a trial court or appeals court senses that a mental health issue may have played a role in the outcome of the case, then a competency hearing should be ordered. He recognizes that in his case and others, this does require vacating a conviction, and potentially retrying the case if he is found competent. However, he notes, this standard is an incentive for trial courts to ensure competency hearings are conducted when the defendant’s competency is raised before the trial starts. In his case, his attorney raised the issue repeatedly and the trial court scheduled a hearing. His refusal to cooperate shouldn’t have ended the attempt to conduct a hearing, and his refusal should have been considered a sign that his competency was an issue, Mills maintains.
Mills is also contesting the ruling that he waived his right to challenge his competency when he refused to be evaluated. Mills maintains that the record is “silent” on his competency, and the appeals court inferred from the record that Mills didn’t contest his competency before he went to trial. Mills argues that without any testimony from jail officials, or the mental health staff that would have conducted the evaluation, there is no way to know why he refused. Without an affirmative statement that he waived the right to challenge his competency, the Sixth District didn’t have the evidence to conclude that he waived his rights to a competency hearing, Mills concludes.
Defendant Upset, Not Incompetent, Prosecutor Argues
The prosecutor asserts the trial record indicates that Mills was competent to stand trial and had a very clear and definite trial strategy that he expected his trial attorney to pursue. The office says Mills was attempting to manipulate the trial court and his attorney to obtain a trial date as soon as possible in hopes that the victim and witnesses wouldn’t appear. The prosecutor maintains that Mills engaged in selectively-timed and deliberate misbehavior when the trial judge indicated there would be delays in bringing the case to trial.
The prosecutor notes the appeals court refused to overrule the trial court’s competency determination because the record indicates there was credible, reliable evidence that Mills was lucid and competent. The prosecutor’s brief argues that the standard suggested by Mills would be so low that “malingering defendants such as Mills, who deliberately refuse to follow their own attorneys’ legal advice in order to pursue their own misguided view of the law, would essentially be presumed incompetent.” The office argues the preponderance of the evidence standard used by the Sixth District was consistent with the standards imposed by the U.S. Supreme Court in its 1992 Medina v. California decision.
The standard for incompetence is the inability of the defendant to understand the nature and the objectives of the proceedings or assisting in the defendant’s defense, the prosecutor notes. That wasn’t the case with Mills, who may have had a lack of understanding and some questions about trial procedures, the office argues, but that isn’t the same as a lack of competence. His anger with his attorney didn’t indicate he was unable to assist in preparing his defense, the prosecutor maintains, but rather an attempt to follow his own misguided trial strategy.
The prosecutor also disputes the contention that the Sixth District found that Mills waived his right to challenge his competency. The office notes the appeals court’s opinion never uses the word “waiver” and only notes that Mills didn’t pursue his competency claim in the trial court. The office contends Mills did waive his right to challenge his competency by his behavior. He refused to participate in the competency evaluation scheduled by the trial court and the issue of competency wasn’t raised again in his trial proceedings after his refusal to undergo the evaluation. The office notes the refusal to be evaluated may be a sign of mental illness, but mental illness isn’t the equivalent of incompetency. The appeals court concluded that even if the trial court made a mistake by not conducting a hearing, the error was harmless and didn’t affect the outcome of the proceedings. The prosecutor agrees with the Sixth District’s position because Mills’ behavior during his prosecution doesn’t indicate that he was incompetent.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting the prosecutor’s position was submitted by the Ohio Prosecuting Attorneys Association.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Miguel L. Mills from the Ohio Public Defender’s Office: Kimberly Burroughs, kimberly.burroughs@opd.ohio.gov
Representing the State of Ohio from the Lucas County Prosecutor’s Office: Brenda Majdalani, bmajdal@co.lucas.oh.us
Must Trial Court Mistake on Sex Offender Requirements Be Appealed to Fix?
State of Ohio v. Michael Schilling, Case No. 2022-0782
First District Court of Appeals (Hamilton County)
ISSUES:
- When a trial court gives the wrong registration requirements to a sex offender and the mistake isn’t appealed, does the Supreme Court of Ohio ruling in State v. Henderson (2020) apply, which disallowed the correction of a sentencing error outside of a direct appeal?
- Can a sex offender convicted in Ohio receive credit toward the registration obligations when the offender lives in another state and registered there?
BACKGROUND:
Michael Schilling was charged with voyeurism for an incident that occurred in September 2007. He pled guilty in June 2008 to a lesser charge, attempted voyeurism, in Hamilton County Municipal Court. Schilling’s sentence included 90 days in jail with 80 days suspended, a stay-away order, sex offender treatment, three years of community control, a partially suspended $750 fines, and $2,800 in restitution to the victim.
He was classified as a Tier I sex offender, based on Ohio’s version of the federal Adam Walsh Act, which took effect on Jan. 1, 2008. Under this classification, Schilling had to register for 15 years with law enforcement.
After completing his jail term, Schilling returned to Kentucky, where he lived. He registered as a sex offender with Kentucky law enforcement.
Offender Asks to End Registration Duties
In September 2019, Schilling filed a motion asking the municipal court to terminate his registration requirements under a state law, R.C. 2950.15, which permits eligible offenders to make the request after registering for a certain number of years. The prosecutor argued Schilling had been incorrectly classified as a Tier I offender under the Walsh Act, but his offenses were committed before the Jan. 1, 2008, effective date of that law. The prosecutor maintained Schilling was instead a sexually oriented offender under the prior law, which is called Megan’s Law.
In January 2020, the court determined that Schilling should have been classified under Megan’s Law as a sexually oriented offender and didn’t rule on his motion to terminate his registration duties.
Schilling amended his request, arguing that his registration requirement under Megan’s Law is 10 years. He asserted that he had been registering for more than 10 years and no longer had a duty to register. The prosecutor responded that Schilling earned no credit toward the 10 years by registering in Kentucky. The court rejected Schilling’s request to end his registration duties and denied him credit for registering in Kentucky.
Schilling appealed to the First District Court of Appeals. He maintained that the trial court’s mistake imposing his Tier I classification in 2008 wasn’t appealed at the time, so the trial court couldn’t fix the error in 2020. The prosecutor countered that the trial court could make the correction.
However, the First District ruled that Schilling was a Tier I offender based on the Walsh Act. The appeals court also determined that his registration in Kentucky counts toward his duties for the conviction. Because Schilling was an eligible offender, the trial court must consider whether his registration duties should end, the First District concluded.
The Hamilton County Prosecutor’s Office appealed to the Supreme Court of Ohio, which accepted the case.
State Argues Trial Court Error Didn’t Need to Be Appealed
The Supreme Court ruled in State v. Williams (2011) that Walsh Act sex offender registration requirements can’t be applied retroactively to offenders whose crimes occurred before the act’s Jan. 1, 2008, effective date. Schilling’s offense took place in September 2007. The prosecutor asserts that after Williams, Schilling’s sex offender classification automatically reverted from a Tier I sex offender, in the Walsh Act, to a sexually oriented offender under Megan’s Law. Because Schilling was automatically reclassified, the state didn’t have to timely appeal the error in accordance with the Court’s 2020 ruling in State v. Henderson, the prosecutor argues. In Henderson, the Court ruled that a sentencing error couldn’t be corrected 18 years later and outside of a direct appeal.
The office maintains that Schilling cannot ask to terminate his registration duties under R.C. 2950.15, because that statute addresses Tier I, not sexually oriented, offender classifications.
The office also contends that R.C. 2950.07(E) prohibits an offender convicted in an Ohio court for a sexually oriented offense from receiving credit for registering by complying with registration mandates in another jurisdiction, such as Kentucky. Shilling’s duty to register in Ohio stopped when he went home to Kentucky in 2008, and didn’t resume until he returned to Ohio in 2020 and filed his request to end his registration duties, the office argues.
Offender Maintains He Is Eligible to Be Removed From Registration Requirement
Schilling and the prosecutor now agree that Megan’s Law, with its 10-year registration requirement, applies to his conviction. Schilling asks the Supreme Court to overturn the First District’s decision on this point. He argues he has completed his 10-year registration duties under Megan’s Law. But if the Court rules the Walsh Act applies, the municipal court should be ordered to consider the merits of his request to end his registration duties, he contends.
He also argues that R.C. 2950.07(E) isn’t relevant in his case. The law applies to people who are convicted in states outside Ohio who are registering as sex offenders in Ohio, Schilling maintains. The law states, “An offender … who has been or is convicted, has pleaded or pleads guilty, … in a court in another state, in a federal court, military court, or Indian tribal court, or in a court of any nation other than the United States for committing a sexually oriented offense … may apply to the sheriff of the county in which the offender … resides or temporarily is domiciled … for credit against the duty to register for the time that the offender … has complied with the sex offender … registration requirements of another jurisdiction.”
Schilling maintains that his time living in Kentucky and complying with his registration requirements all counted toward his duty to register for his Ohio conviction. It was not necessary for him to report to Ohio law enforcement when he wasn’t living in the state, Schilling argues. Under state law, nothing but a subsequent incarceration tolls the time required to register, he asserts.
– 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 Hamilton County Prosecutor’s Office: Ernest Lee Jr., ernest.lee@hcpros.org
Representing Michael Schilling from the Ohio Public Defender’s Office: Stephen Hardwick, stephen.hardwick@opd.ohio.gov