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The Ohio Government Risk Management Plan v. David L. Harrison, Sr., et al., Case no. 2005-1461
3rd District Court of Appeals (Auglaize County)
City of Shaker Heights v. Erin B. Mosely, Jr., Case no. 2005-2411
8th District Court of Appeals (Cuyahoga County)
State of Ohio v. Roger L. Tooley, Jr., Case nos. 2006-0105 and 2006-0216
11th District Court of Appeals (Portage County)
Douglas S. Caldwell et ux. v. Petersburg Stone Company et al., Case no. 2006-0184
7th District Court of Appeals (Mahoning County)
Andrea A. Barth v. Jeffrey Barth, Case no. 2006-0896
8th District Court of Appeals (Cuyahoga County)
Disciplinary Counsel v. Mark Michael Simonelli, Case no. 2006-1190
Lake County
The Ohio Government Risk Management Plan v. David L. Harrison, Sr., et al., Case no. 2005-1461
3rd District Court of Appeals (Auglaize County)
ISSUE: When a government self-insurance plan includes an endorsement stating that it will defend law enforcement officials against claims for alleged discrimination and civil rights violations that arise “in the course of their employment,” does a trial court err in holding that the insurer has no duty to defend a police chief against sexual harassment claims brought by a former police department employee?
BACKGROUND: This case involves a federal civil rights lawsuit brought by a female police dispatcher, Denise Kohler, against the City of Wapakoneta and the city's former Chief of Police, David L. Harrison.
Among multiple claims, Kohler's suit alleged that Harrison sexually harassed her over a period of several years by storing and circulating pornographic materials on the department's computer network, using the city's e-mail system to transmit altered photos of Kohler and other employees and using electronic surveillance equipment to record and monitor the actions of female employees including Kohler while they were using the women's restroom and locker room.
Harrison sought insurance coverage for his legal defense against Kohler's suit from the Ohio Government Risk Management Plan, a self-insurance pool through which Wapakoneta and other local government entities across Ohio are insured for civil liability arising from the actions of city offices and employees. The insurer sought a judgment from the Auglaize County Court of Common Pleas declaring that it had no duty to defend Harrison or to pay for any damages that Kohler might be awarded based on Harrison's actions because its policy only covered the actions of a city official in the regular course of his or her employment. The trial court agreed with the insurer's argument that Harrison's actions were deliberate wrongful acts unrelated to his performance of his law enforcement duties, and granted summary judgment stating that the insurer had no duty to defend Harrison.
On review, the 3rd District Court of Appeals reversed the trial court's award of summary judgment and remanded the case for further proceedings. The appellate court held that not all of Kohler's claims against Harrison involved criminal acts that were clearly barred from coverage under the policy, and pointed to policy language promising to defend an insured party for “wrongful acts” that included alleged civil rights violations and discrimination claims. While Harrison's wrongful actions toward Kohler may not have been in furtherance of any governmental interest of the city, the court of appeals noted that it was only by virtue of Harrison's position as chief of police that he was able to violate Kohler's rights, and held that this causal relationship raised sufficient legal questions about his eligibility for insurance coverage to preclude summary judgment.
The Risk Management Plan appealed the 3rd District's decision, and the Supreme Court agreed to hear arguments in the case.
Attorneys for the insurance plan argue that the applicable language in their policy extends coverage for “wrongful acts” such as civil rights violations only if such acts are committed by a law enforcement officer in the performance of his or her official duties, such as pursuing a crime suspect or making an arrest. They assert that Harrison's deviant acts of disseminating pornography in a workplace and spying on women employees in their locker room are clearly not covered under their policy because those acts were clearly unrelated to his duties as a police official and did nothing to advance the interests of his employer. They also cite multiple court decisions holding that Ohio public policy forbids the extension of insurance coverage to indemnify individuals for their own intentional tortious acts.
Attorneys for Harrison and Kohler argue that the 3rd District acted correctly in remanding the case to the trial court to hear evidence and arguments regarding whether Harrison's use of his position as chief of police to violate Kohler's civil rights invoked the “wrongful acts” coverage in the city's insurance policy.
Contacts
Michael G. Sanderson, 419.241.9000, for
Ohio Government Risk Management Plan.
Jeffrey M. Silverstein, 937.228.3731, for David Harrison.
Grant D. Shoub, 614.442.5626, for Denise Kohler.
City of Shaker Heights v. Erin B. Mosely, Jr., Case no. 2005-2411
8th District Court of Appeals (Cuyahoga County)
ISSUE: Is disorderly conduct a lesser included offense under the “threat” provision in Ohio's domestic violence statute?
BACKGROUND: Ervin Mosely of Cleveland was charged with domestic violence for allegedly making telephone threats of bodily harm against the mother of his child, Ayanna Al-Jaleel, after Mosely discovered that Al-Jaleel had caused welts on the back and legs of the couple's preschool-aged son while administering corporal punishment.
The Shaker Heights Municipal Court found that Mosely had not committed domestic violence, but found him guilty of the lesser included offense of persistent disorderly conduct, a fourth-degree misdemeanor. He was sentenced to a suspended 30-day jail sentence, a $250 fine and three years' probation. Mosely appealed, and the 8th District Court of Appeals modified his conviction to a minor misdemeanor count of simple disorderly conduct. Mosely sought Supreme Court review of his modified conviction, and the
Court has agreed to hear arguments in the case.
Attorneys for Mosely argue that the trial and appellate courts erred in finding him guilty of either persistent or simple disorderly conduct as a lesser included offense under the original charge of domestic violence. They cite a three-part test established by the Supreme Court's 1988 decision in State v. Deem for determining when a criminal charge constitutes a ‘lesser included offense.' Under the Deem test, they say, a crime is a lesser included offense if (1) it carries a lesser penalty than the original charged offense; (2) the greater offense cannot ever be committed without also committing the lesser offense; and (3) some element of the greater offense is not required to prove the lesser offense.
Mosely argues that in his case the second prong of the Deem test was not met because it is possible to commit the statutory elements of domestic violence (i.e. “cause or attempt to cause physical harm to a family or household member”) without ever committing some of the statutory elements of disorderly conduct, i.e., the elements that an offender “recklessly cause annoyance, inconvenience or alarm.” Mosely argues that the trial court should simply have acquitted him on the domestic violence charge, and asks the court to vacate his conviction and sentence for disorderly conduct.
Attorneys for Shaker Heights respond that a majority of the state's 12 court of appeals districts have held that disorderly conduct is a lesser included offense under a provision of the domestic violence statute the prohibits threats of force that “cause a family or household member to believe that the offender will cause (that person) imminent physical harm.” They point out that Mosely, who had a history of hostile confrontations with Al-Jaleel, called her on the phone, insulted her and threatened violence against her for allegedly abusing the couple's son. They urge the Court to concur with the appellate districts which have found that, even if such conduct does not constitute domestic violence, it does meet the statutory element of “causing alarm” necessary to support conviction on the lesser included offense of disorderly conduct.
Contacts
C. Randolph Keller, 216.491.1443, for
the City of Shaker Heights.
Christopher R. Fortunato, 216.228.1166, for Ervin Mosely.
State of Ohio v. Roger L. Tooley, Jr., Case nos. 2006-0105 and 2006-0216
11th District Court of Appeals (Portage County)
ISSUES: In light of the U.S. Supreme Court's 2002 decision in Ashcroft v. The Free Speech Coalition, are provisions of Ohio's statutes banning possession and transmission of child pornography unconstitutionally vague or overbroad by failing to require the state to prove (1) that pornographic computer images depict real children rather than computer–generated virtual images, and (2) that a defendant knew pictures in his possession depicted real children rather than computer-generated virtual images?
BACKGROUND: After Roger Tooley of Portage County was implicated in a hacking incident in which he obtained confidential student information from the Kent State University computer system, police obtained a warrant to seize and search the hard drive of Tooley's computer. During that search, they discovered hundreds of files containing pornographic images, including some that appeared to depict children in the nude and/or engaged in sexual activity. Tooley was charged with 16 counts of illegal use of a minor in nudity-oriented material or performance, and nine counts of pandering sexually oriented material involving a minor.
At trial, the state produced an expert witness who identified by name and date of birth specific minors pictured in three of the images on Tooley's computer from a national database of child victim information. Tooley introduced expert testimony demonstrating that new technologies have made it possible to “morph” and merge digital images of actual persons and computer-created virtual images so effectively that it is virtually impossible for a viewer of such images to determine whether they are viewing actual persons, or computer-generated virtual images, or some combination of the two.
At the close of the state's case, Tooley moved for dismissal of all charges on the basis that the Ohio statutes under which he was charged were unconstitutional under the U.S. Supreme Court's 2002 Ashcroft decision. In Ashcroft, the Court struck down federal statutes that criminalized possession of virtual computer images that appeared or claimed to depict pornographic images of children even when it was established that no real children were actually depicted in those images.
The trial court dismissed several counts of the indictment and subsequently acquitted Tooley on others, but found him guilty on two counts of illegal use of a minor in nudity-oriented material and three counts of pandering sexually oriented material involving a minor. All of the counts on which convictions were returned involved the three images that the state's expert had identified as portraying specific real children.
Tooley appealed, and the 11th District Court of Appeals vacated his convictions and sentence. The appellate panel held that the Ohio child pornography statutes under which Tooley was charged were unconstitutionally vague and overbroad in light of Ashcroft because the Ohio laws did not require actual proof that pornographic pictures depicted real children (as opposed to virtual images), but rather allowed trial courts to infer that images were depictions of real children based on promotional claims, labels or titles representing those images to be depictions of actual children. The 11th District certified that its holding in this case was in conflict with rulings by several other Ohio court of appeals districts that had affirmed the constitutionality of the same child pornography statutes. The Supreme Court accepted the case in order to resolve the conflict among appellate districts.
Appearing for the state, the Portage County prosecutor's office argues that the 11th District's ruling in this case is contrary to holdings in every other appellate district that has reviewed the Ohio pornography statutes in the aftermath of the Ashcroft decision. They assert that Ashcroft did not endorse the claim asserted by Tooley that technology has made it impossible for a judge or jury to distinguish between actual and virtual child pornography simply by viewing it. They argue that the provision of Ohio law allowing trial courts to “infer” actual child pornography based on labels or claims of such content is not the same as the federal statute struck down by Ashcroft, which criminalized any images which “appeared to depict” minors in the nude or engaging in sexual conduct.
The state asserts that if the 11th District's reading of the law is affirmed, it will become virtually impossible for prosecutors to enforce state child pornography laws because defendants will be able to claim that they believed pornographic materials in their possession were virtual rather than real and lacked the expertise to distinguish between actual images of children and manufactured or “morphed” images that were created without victimizing or exploiting real children.
Attorneys for Tooley respond that in Ashcroft the U.S. Supreme Court identified virtual child pornography (i.e., images created entirely by computer technology that do not depict actual children) as protected free speech under the First Amendment, and barred states from criminalizing possession or viewing of such material. Because the Ohio statutes under which Tooley was convicted allow courts to presume that any material labeled as child pornography depicts actual children rather than computer-generated images, they say, those statutes unconstitutionally force a defendant to prove his innocence rather than requiring the state to prove that the accused knowingly obtained and viewed material depicting real children. They assert that reversal of the 11th District's holding in this case would render Ashcroft meaningless in Ohio by allowing the state to presumptively arrest and charge anyone who possesses legal and privileged virtua l pornography, and allowing those persons to exercise their free speech rights only at the risk of being charged with a felony and required to prove their innocence.
Contacts
Pamela J. Holder, 330.287.3850, for
the State of Ohio and Portage County prosecutor's office.
Timothy J. Hart, 330.673.4181, for Roger Tooley.
Douglas S. Caldwell et ux. v. Petersburg Stone Company et al., Case no. 2006-0184
7th District Court of Appeals (Mahoning County)
ISSUE: When an employee of an independent contractor performs work that is “inherently dangerous” at the site of a client company's business, and the client business actively participates in the performance of the contractor's work, is a workplace condition that enhances the danger of the contractor's job a “critical variable” that imposes a duty of care on the business owner to protect the contract employee from injury?
BACKGROUND: This case involves a negligence claim asserted by Douglas Caldwell, a blasting technician employed by Senex, a Pennsylvania-based contractor that places and detonates explosives in mines and quarries owned by client companies. In 1997, Caldwell was working for Senex at an Ohio limestone quarry owned by the Petersburg Stone Company when a charge that he had set on a high wall partially misfired, allowing undetonated explosives to fall into a “muck pit” of large dislodged rocks at the base of the high wall.
With the assistance of the quarry's vice-president, Caldwell later went into the muck pit to retrieve and dispose of the undetonated explosives. While he was in an exposed position at the bottom of the high quarry wall, a large rock dislodged from the face and fell on Caldwell, ultimately requiring amputation of one leg. In addition to obtaining workers' compensation benefits for his injuries from the State of Pennsylvania, Caldwell filed suit to recover additional “intentional tort” damages from Petersburg Stone. Caldwell claimed that Petersburg was obliged by federal mining regulations to maintain a safe work environment at its quarry by regularly “trimming” loose rock from the face of the high wall, and was aware prior to his injury of the hazard posed by the specific rock that fell on him, but had not taken action to eliminate that hazard by trimming the face wall before allowing Caldwell to work beneath it.
The Portage County Court of Common Pleas granted summary judgment dismissing Caldwell's claims against Petersburg. The trial court based its decision on Ohio case law holding that a property owner who hires an independent contractor to do work on the owner's premises ordinarily owes no duty of protection to the contractor's employees if the employees are aware that the work is “inherently dangerous.” The trial judge acknowledged that exceptions to the “inherently dangerous” work rule have been recognized when a property owner “actively participates” in the work of a contractor's employee by (1) directing or exercising control over the employee's work; or (2) retaining control over a “critical variable” in the workplace. The judge found that neither of these exceptions applied to the facts of Caldwell's case, and therefore granted summary judgment in favor of Petersburg.
On review, the 7th District Court of Appeals agreed with the trial court's reasoning that Petersburg had neither directed Caldwell's actions on the day of his injury nor controlled a “critical variable” that determined the manner or mode in which Caldwell did his job, but reversed the summary judgment order and remanded the case to the trial court to rule on the limited issue of whether negligent acts by the quarry official who was assisting Caldwell in retrieving the misfired explosives had been the proximate cause of Caldwell's injuries. Both parties sought Supreme Court review of the portions of the 7th District's decision unfavorable to them, and the Court has agreed to hear arguments.
Attorneys for Caldwell argue that the lower courts erred by failing to recognize that the unsafe condition of the high wall of Petersburg's quarry was a “critical variable” in Caldwell's work environment that was completely under the control of Petersburg; and that it was the quarry owners' failure to maintain its premises in a safe condition that directly caused Caldwell's injuries. They assert that the “inherently dangerous” work Caldwell understood and was hired to perform was using explosives on the face of a quarry wall, and that when he was asked to work in the unfamiliar environment of a muck pit he depended on the expertise and hazard recognition of the quarry vice-president assigned to assist him.
Attorneys for Petersburg Stone respond that at the time of his injury Caldwell was working in the muck pit at the direction and under the supervision of his employer, Senex, and had complete control of the manner in which he carried out his employer's order to retrieve undetonated blasting material from the base of the high wall. They urge the Court to affirm the lower court rulings holding that neither of the recognized exceptions to the “inherently dangerous” work rule applied in this case, and that Petersburg therefore had no duty to protect Caldwell from the foreseeable danger of working at the base of a high wall with the accompanying threat of injury from sliding or falling rock.
Contacts
Frank X. Duff, 304.233.3390, for
Douglas Caldwell.
James P. Hanratty, 330.255.0605, for Petersburg Stone Company.
Andrea A. Barth v. Jeffrey Barth, Case no. 2006-0896
8th District Court of Appeals (Cuyahoga County)
ISSUE: Is Ohio's statutory six-month residency requirement prior to filing for divorce a “strict test,” or may a court examine one party's intent and another party's alleged fraudulent inducement of a spouse to abandon Ohio as their domicile?
BACKGROUND: This case asks the Court to resolve a conflict between Ohio courts of appeals. The issue is whether the statutory requirement that a person must have resided in the state for at least six months immediately prior to filing for divorce is an absolute precondition for an Ohio court to have jurisdiction over a divorce case, or whether a court has discretion to consider one party's claim of intent regarding a change of domicile and allegation that they were fraudulently induced by the other party to leave the state under false pretenses.
Andrea and Jeffrey Barth lived together in the Cleveland suburb of Westlake from 1994 until February 2004, when Jeffrey accepted a new job and moved to California while his wife and their two children remained in Ohio. According to her later court pleadings, Andrea agreed to sell the couple's home and seek her own new career in California based on her husband's assurances that they would buy a new home and start a new life as a family. A few days after Andrea and the children arrived in California in July 2004, Jeffrey spent most of the following four weeks on extended overseas business trips. Upon his return, five days after establishing legal residence in California, Jeffrey admitted that he had been having an affair with another woman and Andrea found a folder of information regarding California divorce laws in his car.
Andrea immediately took the children and returned to Ohio, where she filed for divorce. Jeffrey, who had filed for divorce in California a few days earlier, filed a motion in Cuyahoga County Domestic Relations Court seeking dismissal of Andrea's divorce petition on the ground that she had not resided in Ohio for the six months immediately preceding the filing date, and therefore the Ohio court had no jurisdiction to hear the case. The domestic relations court held an evidentiary hearing on the motion to dismiss at which Andrea argued that her brief and temporary move to California had been premised on her husband's fraudulent representations of an ongoing shared household and married relationship; that she would never have sold her home or left Ohio except for those fraudulent representations; and that in any case she had never actually ended her legal domicile in Ohio by establishing a domicile in California.
The trial court ruled that, under the circumstances, Andrea's sojourn in California had not interrupted her residency in Ohio for purposes of the divorce statute, and therefore she was eligible to file for divorce in Ohio. On review, the 8th District Court of Appeals voted 2-1 to affirm the trial court's ruling, but certified that its holding was in conflict with decisions in similar cases in other Ohio appellate districts.
In urging the Supreme Court to overrule the lower court decisions, attorneys for Jeffrey Barth argue that the statute establishing Ohio's six-month residency requirement, R.C. 3105.03, imposes a “strict test” that must be met before any Ohio court has jurisdiction to hear or decide a divorce proceeding. They assert that the domestic relations court should have granted their motion to dismiss on jurisdictional grounds without ever reaching Andrea's arguments regarding her intent or Jeffrey's alleged fraudulent representations. They also argue that, if the 8th District's holding in this case is affirmed, domestic relations courts across the state will be left without a “bright line” rule that recognizes a strict and uniform residency requirement applicable to all persons seeking to file divorce actions.
Attorneys for Andrea Barth respond that the other appellate decisions cited by the 8th District in its notice of certification are not actually “in conflict” with the lower court rulings in this case. They assert that in each of the other cases, even where Ohio jurisdiction was denied based on the six-month residency requirement, the reviewing court in each case did review proffered evidence regarding a divorce petitioner's intent and allegations of fraud regarding a change of residency, and did not hold that a divorce petition must be summarily dismissed on “continuous residency” grounds without first considering such evidence.
If the Court does find a legal conflict between Barth's case and the others cited by the 8th District, Mrs. Barth argues that the unique facts of her case, including the length and permanence of her domicile in Ohio, her stay of less than five weeks and immediate return from California upon learning of her husband's plans to end their marriage, and the apparent calculation of her spouse's efforts get her to leave Ohio justify the trial court's holding that she acted under fraud and duress and did not freely or intentionally terminate her Ohio residence prior to filing for divorce.
Contacts
Timothy J. Fitzgerald, 216.241.5310, for
Jeffrey Barth.
Deborah Akers-Parry, 216.623.9999, for Andrea Barth.
Disciplinary Counsel v. Mark Michael Simonelli, Case no. 2006-1190
Lake County
The Board of Commissioners on Grievances & Discipline has recommended that the Supreme Court suspend the license of Painesville attorney Mark M. Simonelli for one year, with six months of that term stayed on conditions, for multiple violations of state attorney discipline rules arising from his negligent representation of personal bankruptcy clients who were referred to him by a non-attorney with whom Simonelli shared legal fees.
Simonelli has filed objections to the board's findings and recommendation, and has been granted oral argument to challenge the board's report and defend his objections.
The board found that Simonelli entered into a referral agreement with an organization called WJW Enterprises that purported to assist individuals whose homes were in foreclosure. If WJW was unable to prevent foreclosure on a client's home, it offered to provide the professional services of an attorney who would assist the client in obtaining a release of debts through either a Chapter 13 or Chapter 7 personal bankruptcy action.
Beginning in August 2002 and continuing for approximately five months, Simonelli accepted referrals from WJW, whose president, James Warsing, was not an attorney. WJW collected fees from its clients and passed on $600 of the client's fee to Simonelli to handle their bankruptcy cases. In three specific cases, the board found that, although he lived and practiced in Painesville, northeast of Cleveland, Simonelli accepted fees from WJW to represent Dayton-area bankruptcy clients. The board found that Simonelli never met with these clients in person, and never discussed with them their individual financial circumstances or explained to them the relative benefits and detriments of pursuing various legal alternatives under federal bankruptcy statutes. Instead, after he filed “skeletal” Chapter 13 applications on these clients' behalf, the board found that Simonelli sent non-attorney “runners” to obtain the
signature on bankruptcy petitions that the clients testified they did not understand, and subsequently sent other attorneys with whom the clients had no prior contact to represent them at court-required meetings with their creditors.
In each of the three cases, the board also found that Simonelli falsely attested in signed court documents that he had explained the differences between Chapter 7 and Chapter 13 bankruptcy proceedings to his clients and had received his fees from the client rather than from WJW. Based on his failure to make proper filings, failure to appear at meetings and other errors, Simonelli was ultimately forced to withdraw from representation of each of the three clients, requiring them to obtain other counsel or proceed pro se and delaying the resolution of their bankruptcy cases.
The board found that this conduct violated the state disciplinary rules that prohibit an attorney from neglecting an entrusted client legal matter, sharing legal fees with a non-lawyer, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. In recommending a sanction for his misconduct, the board noted the mitigating factors that Simonelli had no prior disciplinary violations, cooperated during disciplinary proceedings, did not act from a dishonest motive and produced references to his good character. It also noted the aggravating factors that he had engaged in a pattern of misconduct involving multiple clients, failed to acknowledge the wrongful nature of his actions and caused harm to vulnerable individuals who had relied on his services.
In his objections to the board's findings and recommendations, Simonelli argues that he provided significant legal assistance to the clients in question and notes that they did not suffer financial harm because all three were ultimately able to obtain relief in bankruptcy. He asserts that he did provide background information on the various forms of bankruptcy over the phone either to his clients or in conversations he had with family members when clients' had difficulty understanding, and says he was unable to attend out-of-town meetings because of health problems, but in each case sent a competent attorney to represent his client.
Simonelli states that he recognized potential problems in serving WJW's clients and ended his relationship with the company within a few months after it began. He urges the Court to find that any omissions or misstatements he may have made in these cases were inadvertent and not intentional. If the Court should find that these errors rose to the level of disciplinary violations, Simonelli urges the justices to impose a public reprimand rather than a license suspension as the appropriate penalty.
Contacts
Stacy Solochek Beckman, 614.461.0256, for the
Office of Disciplinary Counsel.
Timothy T. Brick, 216.241.5310, for Mark. M. Simonelli.
These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.