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State of Ohio v. Delano Hale, Case no. 2005-1678
Cuyahoga County
Episcopal School of Cincinnati v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2007-0126
State Board of Tax Appeals
City of Columbus v. Rebecca Kim, Case no. 2007-0391
10th District Court of Appeals (Franklin County)
Board of Education of the Dublin City Schools v. Franklin County Board of Revision, Franklin County Auditor, and UA Professional Center, Case no. 2007-0550
Disciplinary Counsel and Mahoning County Bar Association v. Richard A. Olivito, Case no. 2007-1582
State of Ohio v. Delano Hale, Case no. 2005-1678
Cuyahoga County
Delano Hale of Cleveland has appealed his conviction and death sentence for the aggravated murder of Douglas Green in June 2004.
Green was shot in the head four times after coming to Hale's room in a residential motel. Hale subsequently wrapped Green's body in plastic bags and moved it to a storage room at the motel, then disposed of Green's clothes and the gun and checked out of the motel, taking Green's credit card and Ford Explorer SUV. Several days later, after the body was discovered, police reviewed Green's phone records and found that several calls had been made to his cell phone from Hale's motel room. Officers were sent to Hale's place of employment, where they found Green's car in a parking lot with Hale inside the vehicle.
After being arrested, Hale made a statement to police admitting that he shot Green but claiming that he had acted in self defense after Green, who was much taller and heavier than Hale, had made unwanted sexual advances and physically assaulted him. Hale was charged with aggravated murder, aggravated robbery, tampering with evidence, having a firearm while on parole and escape. Following a jury trial, he was convicted on all counts and sentenced to death.
Attorneys for Hale have advanced 22 allegations of legal and procedural error by the trial court as grounds for the Supreme Court to vacate Hale's convictions or reduce his sentence to a term of life imprisonment. These include claims that:
The state responds that defense counsel were provided with copies of witness statements and raised no affirmative claims of inconsistencies in trial testimony. They also assert that, even if the alleged differences now raised by Hale's appellate lawyers had been raised during the court's in camera review, they clearly would not have been sufficient to overcome the overwhelming evidence of his guilt.
Contacts
John W. Oebker, 216.443.8146, for
the State of Ohio and Cuyahoga County prosecutor's office.
Kelly L. Culshaw, 614.466.5394, for Delano Hale.
Episcopal School of Cincinnati v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio,
Case no. 2007-0126
State Board of Tax Appeals
ISSUE: Is a property owner entitled to an exemption from state property tax for a given tax year based on the owner's plans and demonstrated efforts to develop the property for an exempt purpose as of the tax lien date for that year, even though the owner subsequently abandoned its plans and never actually used the property for the exempt purpose stated in the application for exemption?
BACKGROUND: In this case, a non-profit corporation formed by the Episcopal Diocese of Southern Ohio applied for exemption from 2001 property tax liability for land and a building the corporation acquired in 2000 and, as of Jan. 1, 2001, was actively attempting to convert from a museum to a church-affiliated school. In ensuing months, the owners received much higher than anticipated cost estimates for renovating the building and staffing the planned school, and eventually they abandoned their plans. In November 2002, the corporation sold the property to a for-profit buyer, which demolished the building and constructed a television broadcast facility on the site.
In a 2003 decision, the state tax commissioner denied the corporation's application for exemption from property tax liability for 2001 on the basis that the property had never actually been used for the claimed exempt purpose of operating a school, and would never be used for that purpose because it had since been sold to another owner and redeveloped. The school corporation appealed the commissioner's determination to the State Board of Tax Appeals (BTA), which reversed the commissioner's ruling and granted the requested exemption. In its opinion, the BTA cited a 1961 decision, Holy Trinity Protestant Episcopal Church v. Bowers, in which the Supreme Court of Ohio held that a property owner was entitled to a tax exemption for a tax year in which the subject property was not actually being used for the stated exempt purpose, because there was evidence that the owner was actively engaged in preparing the property for the claimed exempt purpose on the tax lien date that determined the tax status of the property for the year for which exemption was sought.
The commissioner has appealed the BTA's ruling to the Supreme Court.
Attorneys for the Ohio Department of Taxation point out that in the Holy Trinity case, the church applying for a tax exemption subsequently completed its preparations and actually used the property at issue for the exempt purpose stated in its application. In this case, they assert, the evidence shows that while the school corporation was working to develop the property as a school site on the Jan. 1, 2001, tax lien date, it had abandoned those plans by the date in December 2001 when the application for tax exemption was actually filed. Because there was never any actual use of the property for the exempt purpose set forth in the application, and no actual prospect for such use on the date the application was filed, they argue, the commissioner was correct in holding that the owners were not entitled to a tax exemption based on its “prospective use” of the property.
Attorneys for the school corporation urge the Court to affirm the BTA's ruling that they were entitled to a tax exemption for 2001 based on their extensive and continuing efforts to develop the property into a school not only on the Jan 1, 2001, tax lien date, but throughout most of the remainder of that year. They argue that, under the precedent of Holy Trinity, the eventual forced abandonment of their plans and sale of the property to another owner at the end of 2002 is not a legal basis to deny a tax exemption for 2001 based on their clear intent and demonstrated efforts throughout that year to develop the property for a tax-exempt purpose.
Contacts
Janyce C. Katz, 614.466.5967, for
the State Tax Commissioner.
Joseph J. Dehner, 513.651.6800, for the Episcopal School of Cincinnati.
City of Columbus v. Rebecca Kim, Case no. 2007-0391
10th District Court of Appeals (Franklin County)
ISSUE: Is a Columbus ordinance that prohibits and imposes penalties on city residents who keep an animal that “howls, barks or emits audible sounds that are unreasonably loud or disturbing or are of such character, intensity or duration as to disturb the peace and quiet of the neighborhood or be detrimental to the life or health of any individual,” unconstitutionally vague and therefore unenforceable?
BACKGROUND: Columbus resident Rebecca Kim was cited and found guilty of violating the city's “barking dog” ordinance, Columbus City Code 2327.14, based on a complaint filed by a neighbor, Joseph Berardi. Berardi and two other witnesses testified that on the date of his complaint Kim's dog, named Lucky, had engaged in approximately 90 minutes of non-stop barking loud enough to be heard inside Berardi's home over the sound of normal conversation with the windows closed and the air-conditioner running.
Kim appealed her conviction to the 10th District Court of Appeals. Among other assignments of error, she argued that the language of the Columbus ordinance (see above) is unconstitutionally vague and therefore unenforceable. In support of that argument, Kim cited a 2000 decision of the 11th District, State v. Ferraiolo, holding that an identically worded Warren city ordinance was unconstitutional because it was not specific enough to allow a person of ordinary intelligence to distinguish between barking that is permissible under the ordinance and barking that constitutes a violation. The 10th District rejected Kim's constitutional argument and affirmed her conviction based its own 1985 decision upholding a similarly-worded Whitehall ordinance as constitutional. The 10th District subsequently certified that its holding in this case was in conflict with the 11th District's holding in Ferraiolo, and the Supreme Court agreed to hear arguments to resolve the conflict between appellate districts.
Attorneys for Kim argue that the language of the Columbus ordinance is unconstitutionally vague because it does not provide objective, measurable standards regarding the volume, intensity or duration of noise upon which an animal owner can rely to avoid committing a violation. They argue that all dogs bark on occasion, and that a level or duration of noise that is “unreasonably loud or disturbing” or “detrimental to the life” of one resident of a neighborhood may be completely inoffensive to another. They point to court decisions in several other states that have struck down noise ordinances that are more specific than the Columbus ordinance at issue here, and they urge the Court to affirm the 11th District's reasoning in Ferraiolo that the subjective standards set forth in the Warren and Columbus ordinances are unconstitutionally vague.
Attorneys for Columbus point out that a court reviewing a state statute or local ordinance is required to begin with a strong presumption that it is constitutional, and may overturn a contested law as unconstitutionally vague only if it finds no reasonable construction that would meet constitutional requirements. In this case, they argue, the 10th District followed the Supreme Court of Ohio's 1983 holding in State v. Dorso that a local ordinance prohibiting “unreasonably loud” music was not unconstitutionally vague by interpreting that standard to bar noise so loud that a “reasonable person” would find it disruptive of basic life activities such as conversation or sleeping. They assert that the 11th District erred in Ferraiolo by failing to read the Warren ordinance as imposing a constitutionally acceptable “reasonable person” standard, and argue that the Columbus ordinance provides sufficiently objective categories for evaluating the reasonableness of a disruption caused by a barking dog in terms of its “character, intensity or duration.”
Contacts
Mark J. Miller, 614.227.0007, for
Rebecca Kim.
Matthew A. Kanai, 614.645.7483, for the City of Columbus.
Board of Education of the Dublin City Schools v. Franklin County Board of Revision, Franklin County Auditor, and UA Professional Center, Case no. 2007-0550
ISSUE: When a recent sale of a parcel of real property included the buyer's acceptance of pre-existing easements or restrictions on future use of that property, is the price paid by the buyer to the seller presumed to be the true value of the property for tax purposes?
BACKGROUND: In this case, the Dublin City School District is challenging rulings by the Franklin County Board of Revision (BOR) and the State Board of Tax Appeals (BTA) that significantly reduced the tax valuation of a 2.4 acre parcel of land near the intersection of Sawmill and Bethel Roads in Columbus .
The property in question, which is immediately adjacent to a Giant Eagle supermarket, was purchased from the previous owner in October 1999 by Continental/Eagle II LLC for $700,000. Shortly after obtaining ownership to the property, Continental/Eagle voluntarily added easements and restrictions to the deed that limited use of most of the parcel to parking for Giant Eagle customers. The Franklin County Auditor valued the property for the 2002 tax year at $631,100.
In September 2002, Continental/Eagle sold the property, subject to the existing easements and parking restrictions, to UA Professional Center LLC for $200,000. The new owners filed a petition with the Franklin County Board of Revision (BOR) seeking to have the taxable value of the parcel for the 2002 tax year reduced from the auditor's prior valuation to the $200,000 they had paid for the property. The BOR granted the proposed reduction, citing recent Supreme Court of Ohio decisions which have held that when real property has been subject to a recent arm's-length sale, the price paid by a willing buyer to a willing seller is presumed to be the true value of the property. The Dublin City School District, within which the disputed property lies, appealed the BOR's ruling to the BTA, which affirmed the decision of the BOR. The school district has exercised its right to appeal the ruling of the BTA to the Supreme Court.
Attorneys for Dublin Schools argue that the BOR and BTA erred in reducing the valuation of the property to the purchase price paid by UA Professional Center, because that price did not reflect the full value of the property. They cite the Supreme Court of Ohio 's 1995 decision in Muirfield Assn. Inc. v. Franklin County Bd. of Revision , in which this Court held that real property must be valued for tax purposes “as a fee simple estate, unencumbered by the voluntarily undertaken restrictions contained in the warranty deed.” In this case, they argue, the easements and parking restrictions voluntarily imposed on the property by Continental/Eagle and retained in its sale agreement with UA Professional Center significantly reduced the price the buyer was willing to pay because they greatly restricted the buyer's right and ability to use the property for its own purposes.
Under prior Ohio court decisions, they assert, taxing authorities are authorized to assess tax liability for the full value of a parcel of property against the owner, and are not required to assign separate values and make separate tax assessments against non-owners who have been granted leases, easements and other rights to use a piece of property that may make up a significant portion of its value. In this case, they say, the ongoing easement to use most of the subject property that was voluntarily granted to Giant Eagle has significant value that was not included in the discounted sale price of the parcel, and that value must be included in the tax valuation of the property that is assessed against the current owner.Neither UA Professional Center nor the Franklin County Board of Revision filed a merit brief in the case, and they will therefore not take part in oral argument before the Court.
Contacts
Mark H. Gillis, 614.228.5822, for
the Dublin City Schools Board of Education.
Kerry T. Boyle, 614.221.5216, for UA Professional Center LLC.
Disciplinary Counsel and Mahoning County Bar Association v. Richard A. Olivito, Case no. 2007-1582
The Court has ordered Youngstown attorney Richard A. Olivito to appear before the Justices to show cause why he should not be found in contempt for failure to comply with three orders issued by a hearing panel of the Board of Commissioners on Grievances & Discipline. The orders were issued in connection with a professional misconduct complaint currently pending against Olivito.
Contacts
Lori J. Brown, 461.0256, for
the Office of Disciplinary Counsel.
Richard A. Olivito, pro se, 740.264.0718.
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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.