Wednesday, September 13, 2023
State of Ohio v. Aunrico W. Baker Beatty, Case No. 2022-1290
Twelfth District Court of Appeals (Clermont County)
Epcon Community Franchising LLC v. Wilcox Development Group LLC et al., Case No. 2022-1404
Tenth District Court of Appeals (Franklin County)
State of Ohio v. Damon L. Taylor, Case No. 2022-1069
Tenth District Court of Appeals (Franklin County)
Kelley D. Kyser v. Summit County Children Services, Case Nos. 2022-1419 and 2023-0126
Ninth District Court of Appeals (Summit County)
Can Courts Authorize Four Consecutive Prison Terms for Using Firearms?
State of Ohio v. Aunrico W. Baker Beatty, Case No. 2022-1290
Twelfth District Court of Appeals (Clermont County)
ISSUE: Does Ohio law limit the number of consecutive prison terms for firearm specifications to two terms, making any other remaining specifications concurrent prison terms?
BACKGROUND:
In December 2020, Aunrico Baker Beatty and a group of friends drove to the Eastgate area of Clermont County to the home of Trevor and Victor Thompson. The Thompson brothers were talking in their driveway to Rashid and Omar Daoud. When in front of the Thompson house, Beatty got out of the car and started shooting at the four men in the driveway. No one was injured.
Beatty was charged with four counts of felonious assault, each carrying a firearm specification. He was found guilty of the charges as well as other related offenses. For sentencing purposes, the trial court merged the assault charges and related crimes and imposed an indefinite four-to-six-year prison sentence. The trial court sentenced Beatty to three years in prison for each of the four firearm specifications and ordered those sentences to run consecutively and before the felony sentence. Beatty’s prison sentence totaled 16 to 18 years.
Beatty appealed his sentence, arguing that the trial court wrongly relied on R.C. 2929.14(B)(1)(g) to impose four consecutive firearm specification prison terms. A three-judge panel of the Twelfth District Court of Appeals stated Beatty’s sentence was based on that court’s 2012 State v. Israel decision. The Twelfth District panel concluded that Israel was wrongly decided and that a different provision in state law, R.C. 2929.14(C)(1)(a), stated that only two mandatory firearm specifications could be imposed to run consecutively. However, the three-member panel ruled that if a trial court issued the appropriate findings under R.C. 2929.14(C)(4) and considered it necessary to increase the prison term, then additional prison terms based on firearm specifications could be added. The appeals court affirmed the trial court’s decision to impose a 12-year prison term on Beatty for all four firearm specifications.
The Clermont County Prosecutor’s Office contested the panel’s decision and asked for an en banc decision by the entire membership of the Twelfth District. The full Twelfth District affirmed its Israel decision and found that a trial court could issue consecutive firearm specifications without making any other findings. The decision upheld Beatty’s sentence.
Beatty appealed the decision to the Supreme Court of Ohio, which agreed to hear the case.
Provision Limits Prison Terms for Firearms Use, Offender Argues
Beatty explains that the central issue of this case is which provision of the Revised Code controls the imposition of consecutive prison terms for firearm specifications. Beatty argues the Twelfth District panel was correct when it found that R.C. 2929.14(C)(1)(a) dictates how many prison terms an offender may receive for committing multiple gun-related felonies during the same act or transaction. This law states that any prison term, must be served consecutively to and after serving any mandatory firearm specification prison term.
Beatty explains that under Ohio sentencing law, multiple sentences by default are to be served concurrently. Prison sentences are imposed to be served consecutively only when a state law allows it. He maintains that R.C. 2929.14(C)(1)(a) indicates that only “mandatory” firearm prison terms are to be served consecutively.
The trial court wrongly applied R.C. 2929.14(B)(1)(g), Beatty argues. Under that law, if an offender is convicted of multiple firearm specifications, then only the two specifications carrying the most prison time are mandatory prison terms. The law permits a trial court “in its discretion” to impose additional prison terms for any remaining specifications. Beatty asserts that nowhere in R.C. 2929.14(B)(1)(g) does the law indicate that the trial court can run the discretionary prison terms consecutive to the mandatory terms. When reading R.C. 2929.14(B)(1)(g) and R.C. 2929.14(C)(1)(a) together, he maintains that two of his four firearm prison terms are mandatory and can be run consecutively for a total of six years. He argues that the third and fourth firearm prison terms must run concurrently with the first two, reducing his prison time by six years.
Beatty’s briefs don’t address the Twelfth District’s point that by following another section of the law – R.C. 2929.14(C)(4) – the trial court can impose the third and fourth firearm prison terms if it makes specific findings that justify a longer prison term. Beatty maintains that only R.C. 2929.14(C)(1)(a) controls the process and limits firearm specification prison terms to a total of two that can be served concurrently.
Trial Court Decides Number of Firearm Prison Sentences to Issue, Prosecutor Maintains
The Clermont County prosecutor maintains the Israel decision is correct and that under R.C. 2929.14(B)(1)(g), the trial court has the discretion to sentence an offender to as many consecutive firearms prison sentences as it chooses. The prosecutor explains that the law must be read in context with three other provisions of the sentencing statutes, including R.C. 2929.14(C)(1)(a).
The prosecutor explains that R.C. 2929.14(B)(1)(a) defines the six types of firearm specification prison sentences a trial court can impose. R.C. 2929.14(B)(1)(g) then authorizes imposing multiple firearm prison terms if multiple offenses were committed during a single act or transaction. R.C. 2929.14(C)(1)(a) explains that multiple firearm specification sentences are to run consecutively. Finally, the prosecutor argues that all firearm specifications are mandatory sentences under R.C. 2929.01(X).
When read together, the prosecutor explains that the law requires a trial court to impose prison sentences for at least the two most serious firearm specifications, giving the court discretion to issue additional sentences. The prosecutor maintains there is no reason for a trial court to impose the additional sentences if all of the remaining sentences have to run concurrently with the first two. The office argues that would be contrary to the legislature's intent, which was to ensure there are multiple required prison sentences when an offender uses a gun in a crime spree involving multiple offenses. The prosecutor asserts that the law infers the right of the trial court to impose multiple sentences to run consecutively.
The prosecutor also disagrees that a trial court must use R.C. 2929.14(C)(4) and make certain findings to impose additional consecutive sentences. The office contends that the law applies to offenses and doesn’t apply to firearm specifications.
– 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 State of Ohio from the Clermont County Prosecutor’s Office: Nick Horton, nhorton@clermontcountyohio.gov
Representing Aunrico W. Baker Beatty from the Clermont County Public Defender’s Office: Robert Benintendi, rbenintendi@clermontcountyohio.gov
Can Homebuilders Be Sued in State Court to Pay Part of Federal Settlement?
Epcon Community Franchising LLC v. Wilcox Development Group LLC et al., Case No. 2022-1404
Tenth District Court of Appeals (Franklin County)
ISSUE: Does the federal Fair Housing Act preempt R.C. 2307.25, a state law explaining the possibility of shared liability for civil wrongs?
BACKGROUND:
A franchiser has a business model and licenses franchisees to operate a business using the model.
Epcon Communities Franchising authorizes its franchisees to build ranch-style housing developments. The company licenses its model architectural plans to a franchisee, and the franchisee builds the community.
Wilcox Development Group, Charleston Lake II, and Streetsboro Investment Partners were Epcon franchisees that developed three Ohio condominium communities. The franchisees built Villas at Charleston Lake in Franklin County, Quarry Lakes in Lorain County, and Fairways at Boulder Creek in Portage County. The franchisees were required to develop the properties according to Epcon’s system based on a “unique architectural design” that included specifications for two- and four-unit buildings, a clubhouse, and site planning. The plans also offered recommendations for outdoor features such as streets, curbs, sidewalks, patios, and landscaping. Epcon states that each franchisee then works with its own professional consultants to design and construct the community to fit the location and to comply with applicable laws and regulations.
In October 2012, the U.S. Department of Housing and Urban Development (HUD) initiated an administrative complaint against Epcon. The allegations were that five of Epcon’s communities in Ohio didn’t meet the federal Fair Housing Act (FHA) accessibility requirements for disabled persons. In 2014, HUD amended its complaint to allege violations at 32 Epcon developments, including the Wilcox, Charleston, and Streetsboro projects. The federal complaints didn’t name the franchisees or raise claims against them.
Complaint Against Franchiser Filed in Federal Court
The negotiations between HUD and Epcon continued for several years. In October 2019, a complaint was filed in the U.S. District Court for the Southern District of Ohio against Epcon regarding alleged violations in the 32 communities. Among the allegations related to the Wilcox, Charleston, and Streetsboro projects, HUD maintained that the kitchen sink, counter, and built-in microwave in certain clubhouses weren’t low enough, that toilets weren’t accessible, that pedestrian walkways and curb ramps to clubhouses were inaccessible, and that mailboxes were mounted too high.
In March 2020, the federal court approved a consent order between the federal government and Epcon. In the settlement, the company agreed to pay more than $2.5 million, with $2.2 million allotted for a retrofit fund to fix the deficiencies at the communities.
Franchiser Sues Franchisees in State Court
In January 2021, Epcon filed a lawsuit in Franklin County Common Pleas Court against Wilcox, Charleston, and Streetsboro. The franchiser argued that it had paid more than its share to settle the FHA violations and that the franchisees were liable for a portion of the amount owed. The franchisees asked the trial court to dismiss the case, which the trial court did in December 2021. The court found that the FHA includes no right for a violator to sue under Ohio law for “contribution” – seeking to recover part of its liability from another party.
Epcon appealed to the Tenth District Court of Appeals, which upheld the trial court decision. The Tenth District determined that the FHA preempts claims for contribution under state laws. The company appealed to the Supreme Court of Ohio, which agreed to hear the case.
Allowing Suit in State Court Holds All Those Involved Responsible, Franchiser Argues
Epcon made its claim against the franchisees based on an Ohio law, R.C. 2307.25. The statute reads, “… if one or more persons are jointly and severally liable in tort for the same injury or loss to person or property or for the same wrongful death, there may be a right of contribution even though judgment has not been recovered against all or any of them.”
Epcon maintains that both the trial court and the Tenth District incorrectly concluded that the FHA preempts, or supersedes, R.C. 2307.25. Epcon disagrees, contending that Congress expressed no clear purpose when enacting the FHA to preempt state laws that allow lawsuits seeking contribution toward liability.
The company asserts that federal preemption of a state law can occur only in specific circumstances. In this case, it must be found that the federal and state laws conflict due to the state law creating a barrier to executing and accomplishing Congress’ purpose and objective in the federal housing law, Epcon explains. The FHA’s purpose is to provide fair housing throughout the United States. When the law was extended in 1988 to persons with handicaps, Congress made it illegal to “discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of that buyer or renter.” Epcon contends that R.C. 2307.25 supports the federal law’s objective. The Ohio law ensures that all those who commit a tort are liable for their proportionate share of a court judgment, the company maintains.
“Allowing state contribution claims furthers the purpose of the FHA by holding everyone (not just one person) accountable for alleged violations,” its brief states.
The company argues that it sought contribution from the franchisees because it was ordered to pay more than its proportionate part of a shared liability for the alleged housing violations. Epcon notes that the franchisees didn’t even argue the FHA preempted the claim under R.C. 2307.25, yet the lower courts made this conclusion without support from the record, case law, or the FHA.
State Tort Law Doesn’t Apply to Violations of Contracts or Federal Laws, Franchisees Assert
The question whether the FHA preempts R.C. 2307.25 is a constitutional question based on the U.S. Constitution’s supremacy clause. Wilcox, Charleston, and Streetsboro contend, however, that the constitutional issue doesn’t need to be decided because Epcon has no right to even make a state claim under R.C. 2307.25. The statute governs torts and those jointly responsible for committing them. Epcon has alleged that the franchisees didn’t meet certain obligations under their contracts and that they violated the federal FHA. The franchisees counter that neither a contract violation nor a violation of federal law is a tort. Without a tort, the state claim based on R.C. 2307.25 for contribution toward a judgment for a tort cannot be presented, the franchisees argue.
The franchisees add that claims based on R.C. 2307.25 involve tortfeasors whose actions combine to cause a single, indivisible injury. The franchisees assert, though, that Epcon’s allegations distinguish between its accessibility violations and those by the franchisees. The clubhouse issues, for example, were Epcon’s sole responsibility because it mandated that no changes could be made to its specifications without its approval, the franchisees maintain. With the exterior features, Epcon has pointed out that only the franchisees handled those. Even if violating the FHA was a tort, Epcon and the franchisees can’t be jointly and severally liable under R.C. 2307.25 for distinct violations, the franchisees argue.
The franchisees also contend that Congress didn’t expressly state or imply that there is right for the party responsible for FHA violations to seek contribution from other parties under state statutes. They maintain that without that authorization by Congress, the state claim isn’t permitted.
The franchisees agree with Epcon that they didn’t argue in the lower courts that the federal FHA preempts R.C. 2307.25. The franchisees dispute whether the trial court ruled on preemption but acknowledge that the Tenth District based its reasoning on preemption. However, the Supreme Court should uphold the appellate court’s correct judgment even if the reasoning was incorrect, the franchisees maintain. They suggest that the Court uphold the judgment based on the arguments they made in the lower courts and in their briefs.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Epcon Communities Franchising LLC: Tiffany Carwile, tcarwile@arnlaw.com
Representing Wilcox Development Group LLC, Charleston Lake II LLC, and Streetsboro Investment Partners LLC: Marion Little Jr., little@litohio.com
Could Police Question Teen Murder Suspect Without Notifying His Attorney?
State of Ohio v. Damon L. Taylor, Case No. 2022-1069
Tenth District Court of Appeals (Franklin County)
ISSUES:
- When a juvenile court transfers a minor’s case to adult court, having found probable cause that the juvenile committed complicity to purposeful murder, can the adult court try and convict the offender of felony murder?
- If a juvenile requests the presence of an attorney before speaking to police, and the attorney notifies the police and prosecutor that the minor is represented, can the police months later question the minor without first notifying the attorney?
BACKGROUND:
In April 2016, Damon Taylor met with his friend Damion Wade and others to drink and smoke marijuana at a Reynoldsburg apartment complex. Taylor, who was five days shy of turning 18 years old, complained to his friends that Enrique Straughter had stolen his necklace. Straughter lived in the same apartment complex. That night, Taylor’s mother called the police and told them her son either stole her car or took it without permission, and he was missing. A pistol owned by Taylor’s stepfather was in the missing vehicle.
Shortly after midnight, police were called to the apartment complex and discovered Straughter on the ground suffering from gunshot wounds. He later died. Investigators discovered several items, including a part of a gun and a key fob that matched Taylor’s mother’s car. Police later found social media posts of Taylor holding the gun used to shoot Straughter. Taylor was arrested the next afternoon as a suspect in the theft of his mother’s car and a person of interest in the homicide.
At the police station, Taylor was read his Miranda rights and indicated he wouldn’t speak to the police without an attorney. He voluntarily gave a DNA sample and submitted to a gunshot residue test. Taylor was released when his attorney arrived at the police station, and the attorney told the detective to call him if they needed anything.
Attorney Not Notified of Second Arrest
In December 2016, the Reynoldsburg detective informed a county prosecutor that he intended to arrest and charge Taylor with Straughter’s murder. The detective arrested Taylor on the morning of Dec. 16, and at the time, Taylor was an adult. The detective reminded Taylor that he could choose not to answer his questions and had a right to an attorney. Despite being in contact with Taylor’s attorney on a few occasions between April and December 2016, the detective didn’t contact the attorney to inform him of Taylor’s arrest. Taylor waived his Miranda rights and spoke to the detective that morning. In the afternoon, he was booked at the county juvenile detention center, and his mother was called to let her know he was detained. The time stamp on the formal charge was 9:21 p.m. on Dec. 16.
Because he was a juvenile at the time of the crime, a complaint was filed against Taylor in juvenile court, and proceedings to bind him over to adult court began. At a probable cause hearing to determine whether to transfer the case to adult court, the juvenile judge stated there was conflicting evidence as to whether Taylor or his friend, Damion Wade, was the person who actually shot Straughter. The juvenile judge ruled there was probable cause to find Taylor committed complicity to purposeful murder with a firearm specification.
The case was transferred to adult court, where Taylor was charged with aggravated murder, purposeful murder, and felony murder based on felony assault. In 2019, a jury found Taylor not guilty of aggravated or purposeful murder but guilty of felony murder. He was sentenced to 15 years to life in prison plus three years for the gun specification.
Taylor appealed his conviction, raising several arguments. The Tenth District Court of Appeals judges were split in part and unanimous in part of their decision. By a 2-1 vote, the Tenth District vacated Taylor’s conviction based on how the case was transferred to adult court. The Tenth District found the charge of felony murder isn’t based on the charge of complicity to purposeful murder and that under the Supreme Court of Ohio’s 2022 State v. Smith decision, the adult court couldn’t charge Taylor with a crime when the juvenile court didn’t find probable cause for it.
In a unanimous decision, the Tenth District found that the detective violated Taylor’s constitutional rights to an attorney when he initiated criminal proceedings in December 2016 without notifying Taylor’s attorney.
The Franklin County Prosecutor’s Office appealed the decision to the Supreme Court, which agreed to hear the case.
Adult Conviction Based on Charge Supported in Juvenile Court, Prosecutor Asserts
The prosecutor asserts that the Tenth District wrongly overlooked a portion of the Smith decision that allows for adult offenses to be charged for any offense “rooted in” the offense for which the juvenile court found probable cause. The juvenile court’s decision on transferring Taylor to adult court came after the Supreme Court ruled in Smith but before the Court’s December 2022 Burns v. State decision. The prosecutor maintains that under Burns, the Court bolstered the Smith decision regarding the authority under R.C. 2151.23(H) for adult courts to proceed on different charges as long as they are “rooted in” the offense that authorized the juvenile court transfer. The office maintains that under this case law, Taylor was properly convicted of felony murder because it is in the same classification of offenses as complicity to purposeful murder.
The prosecutor maintains that whether Taylor was complicit in the murder of Straughter by providing Wade the gun or Taylor actually shot Straughter, the acts both relate to the adult charge of felony murder and were “rooted in” the complicity charge transferred from the juvenile court. The Tenth District’s decision to vacate the conviction was influenced by the fact that the jury didn’t indicate whether it found Taylor to be the shooter or just an accomplice, the prosecutor explains. The office argues the distinction doesn’t matter under the Smith and Burns decisions, and the adult court could convict Taylor for felony murder once he was transferred from juvenile court.
The prosecutor also argues that Taylor’s rights under the Sixth Amendment to the U.S. Constitution weren’t violated when the detective arrested and interviewed Taylor in December. The office maintains that the Sixth Amendment right to an attorney takes effect only when an “adversary judicial process has been initiated.” The office asserts that the judicial process didn’t start until the detective filed a complaint with the juvenile court at 9:21 p.m. on the night of the arrest. The detective interviewed Taylor that morning before the judicial process started, and Taylor, as an adult, waived his right to remain silent and to have an attorney, the prosecutor maintains.
Because Taylor voluntarily agreed to speak with police before charges were filed against him, his constitutional rights weren’t violated, the prosecutor concludes.
Transfer to Adult Court Improper, Teen Argues
Taylor maintains that at the time of his appeal, the Tenth District only had the benefit of the Smith decision to determine if his case was properly transferred to adult court. He questions the Burns decision and whether state law allows a case to transfer if it is “rooted in” a charge in juvenile court. He notes that R.C. 2152.12(H) allows an adult court to convict a transferred juvenile of an offense for the same or lesser degree than the offense charged, for a lesser-included offense, or for another offense different from the offense charged if the offense of conviction “was the basis of the transfer of the case for criminal prosecution.” Taylor argues that nothing in the complicity to purposeful murder charge can serve as the basis for the three charges the prosecution sought in adult court. He maintains that the Burns decision doesn’t reference any state statutes that define what “rooted in” means and that the prosecutor isn’t free to choose any adult offense it wants that isn’t clearly related to the juvenile charge. Taylor agrees with the Tenth District’s assessment that the case needs further review to determine if the felony murder charge was proper.
Taylor also argues that the state violated his right to an attorney when the detective arrested and interviewed him in December. While the prosecutor argues Taylor became entitled to an attorney at 9:21 p.m. when the complaint was officially filed with the clerk of courts, Taylor maintains it occurred before he was questioned. Both the prosecutor’s office and the detective had been in contact with Taylor’s attorney in the months before his arrest, and the detective made no effort to contact the attorney to inform him of his intent to arrest and charge Taylor with murder, he notes.
The detective requested permission from the prosecutor’s office to file murder charges against Taylor before arresting him, Taylor notes. Those efforts to arrest him triggered his Sixth Amendment rights to an attorney, and it was improper for the police to question him and ask him to waive his rights without his attorney present, Taylor concludes.
Court Permits Attorney General to Split Time With Prosecutor
The Ohio Attorney General’s office submitted an amicus curiae brief supporting the Franklin County prosecutor’s position. The Court also granted a request by the attorney general to share oral argument time with the prosecutor.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Damon L. Taylor: Kort Gatterdam, gatterdam@carpenterlipps.com
Representing the Ohio Attorney General’s Office: Benjamin Flowers, benjamin.flowers@OhioAGO.org
When Does 30-Day Timeframe Begin for Appeals of Agency Decisions?
Kelley D. Kyser v. Summit County Children Services, Case Nos. 2022-1419 and 2023-0126
Ninth District Court of Appeals (Summit County)
ISSUES:
- Does the 30-day deadline for filing a notice of an appeal of an administrative agency’s order begin when the aggrieved party receives notice of the order or when the agency mails it?
- Does Rule 14(C) of the Ohio Rules for Appellate Procedure apply to the deadline for filing a notice of appeal from administrative agency decisions?
BACKGROUND:
Kelly Kyser and her husband became foster parents to a 9-year-old. In November 2020, the child was directed to help with family chores, including picking up yard and dog waste outside. Kyser said she forgot to give the child gloves for the chore. The next day when picking up the child at school, Kaiser was told the child was being removed from their home because not giving the child a glove to do the chore was “an intentional punishment.”
Summit County Children Services investigated the incident. On March 16, 2021, the agency issued a decision that the evidence supported a finding of child abuse against Kyser. An agency employee testified that the agency decision was sent to Kyser’s attorney by certified mail on March 16. Kyser’s attorney received the notice on March 18. Thirty days after it was received fell on an April weekend. On Monday, April 19, Kyser’s attorney filed a notice in Summit County Common Pleas Court to appeal the order.
Trial Court Considers Whether Filing Was Late
The children services agency argued the appeal was filed too late and asked the trial court to dismiss the case. The court agreed, concluding that state law requires a party to file an appeal of the agency decision within 30 days of the date the agency mailed the order, not the date the party received notice of the order. The court dismissed the appeal.
Kyser appealed to the Ninth District Court of Appeals, which upheld the trial court decision. Kyser appealed to the Supreme Court of Ohio, arguing that a state appellate court rule allowed the filing deadline to be extended by three days. The Ninth District also certified a conflict between its ruling on the 30-day deadline and decisions in four other Ohio appeals courts. The Supreme Court agreed to review the conflict and accepted Kyser’s appeal. The cases were consolidated.
Clock for These Appeals Starts When Order Received, Foster Parent Contends
Kyser agrees that state law gives an aggrieved party – someone who had a right denied by an administrative agency order – 30 days to file an appeal of the decision. R.C. 2505.07 states, “After the entry of a final order of an administrative officer, agency, board, department, tribunal, commission, or other instrumentality, the period of time within which the appeal shall be perfected, unless otherwise provided by law, is thirty days.”
Kyser maintains that the statute doesn’t answer whether the 30-day clock starts at the time the order is mailed or the date the aggrieved party receives it. However, Court precedent supports her view that the clock begins when the party receives notice of the decision, she argues. She points to the opinion in Dudukovich v. Lorain Metropolitan Housing Authority (1979), which states that “the act of depositing the notice in the mail, in itself, does not constitute a ‘filing,’ at least where the notice is not received until after the expiration of the prescribed time limit.” The opinion then quotes a 1936 Court decision that says “[t]he term ‘filed’ … requires actual delivery ….”
She also notes that a different statute that sets deadlines for appeals from state agencies requires notices of appeal to be filed “within fifteen days after the mailing of the notice of the agency’s order.” That wording makes clear that the General Assembly knows how to draft a law mandating a time period based on the date of mailing, Kyser argues. But the legislature didn’t use that language in R.C. 2505.07, she maintains.
“[I]t scarcely comports with the due process’ core guarantee of an opportunity to be heard to start the clock on an appellant at a time when they are unaware that an adverse decision even exists,” her brief states.
Kyser also argues that even if the Court disagrees on the statutory question, Rule 14(C) of the Rules for Appellate Procedure adds three days when a party is required to do something after a notice is served by mail or commercial carrier. If the calculation must start on March 16, the date the agency mailed it, 30 days would be April 15. Adding three days, based on the rule, would make her filing deadline for the appeal notice April 18, which was a Sunday. Given that, the April 19 filing was timely, she concludes.
Timeframe Needs Concrete Date, Begins When Order Sent, Agency Argues
The children services agency responds that Kyser didn’t serve notice of her appeal to the court and the agency within 30 days, as required by R.C. 2505.07. The agency order was entered on March 16. The agency contends that the statute doesn’t mention mailing an order, only its entry.
If Kyser’s argument were adopted, the dates that notices are received could be questioned and appeals could be filed months after decisions are made, the agency maintains. Kyser’s view of when the clock for appeals starts would only create more confusion “as there would be no hard and fast or necessarily easily discernible date from which to decipher the appeal time,” the agency brief states.
The agency rejects the decisions from the other appeals courts that conflict with the Ninth District ruling in this case. The other decisions are factually unique, are decades old, and shouldn’t be applied to this issue, the agency argues. The Ninth District concluded that when calculating appeals deadlines, an agency enters its final order when it sends written notification of its decision to the party. That date in this case was March 16, the agency maintains.
The agency argues that starting the clock on the date the order is sent doesn’t violate the constitutional right to due process. The agency maintains that statutes are strongly presumed to be constitutional and R.C. 2505.07 is clear. Nothing indicates that Kyser was entitled to have the order in her possession for a full 30 days, the agency asserts.
The agency also contends that App.R. 14(C) doesn’t apply. When an appeal is a right given through a statute, an appeal can only be perfected as spelled out in the statute, the agency maintains. Because the statute already describes the deadline for these appeals, App.R. 14(C) can’t be used to extend the 30-day deadline by three days, the agency concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2022-1419 and 2023-0126).
Contacts
Representing Kelly D. Kyser: Rick Brunner, rlb@brunnerlaw.com
Representing Summit County Children Services from the Summit County Prosecutor’s Office: Marrett Hanna, mhanna@prosecutor.summitoh.net