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State of Ohio v. James Were, Case no. 2006-1578
1st District Court of Appeals (Hamilton County)
John K. O'Toole, Administrator, etc. v. William Denihan et al., Case no. 2007-0056
8th District Court of Appeals (Cuyahoga County)
Ohio Civil Rights Commission et al. v. Akron Metropolitan Housing Authority et al., Case no. 2007-0254
9th District Court of Appeals (Summit County)
Allstate Insurance Company v. Cleveland Electric Illuminating Company, Case no. 2007-0452
8th District Court of Appeals (Cuyahoga County)
State of Ohio v. James Were, Case no. 2006-1578
1st District Court of Appeals (Hamilton County)
James Were of Cincinnati appeals his convictions and death sentence for the kidnapping and aggravated murder of Corrections Officer Robert Vanlandingham during the 1993 riots at the Southern Ohio Correctional Facility in Lucasville.
Were was originally convicted for his role in the killing of Vanlandingham and sentenced to death by the Hamilton County Court of Common Pleas in 1995. His convictions and sentence were affirmed by the 1st District Court of Appeals in 1998, but were subsequently overturned in February 2002 by the Supreme Court of Ohio, which remanded the case for a new trial because the trial court failed to conduct a required hearing to determine whether Were was mentally competent to stand trial.
Following a hearing at which the trial court found him competent to face charges, Were was retried and again found guilty and sentenced to death. On review, his convictions and sentence were again affirmed by the 1st District in July 2006. Were now advances 33 allegations of legal and procedural error by the lower courts as grounds for the Supreme Court to reverse his convictions or reduce his death sentence to a term of life imprisonment.
Among those assignments of error, Were’s attorneys point to Atkins v. Virginia, a 2002 U.S. Supreme Court decision holding that it is unconstitutional to execute a mentally retarded defendant. They argue that the trial judge erred by (1) disregarding what they say was probative evidence that Were is retarded; and (2) personally reviewing evidence and expert testimony addressing Were’s claim of retardation and ruling from the bench on that issue, rather than having jurors make that determination.
They assert that the trial and appellate courts failed to follow a line of recent U.S. Supreme Court cases including Apprendi v. New Jersey (2000), Ring v. Arizona (2002) and Blakeley v. Washington (2004), which have held that any factual findings required to support the enhancement of a criminal sentence must be made by a jury rather than by a judge. In this case, they argue, because a finding that Were was mentally retarded would have absolutely precluded imposition of the death penalty, the trial court’s findings on that issue should have been made by the jury, and not by the judge. They also assert that, because the state could only seek a death sentence by overcoming Were’s claim to be retarded, Apprendi and its progeny impose an affirmative burden on the state – a burden they say it did not meet – to prove beyond a reasonable doubt that Were was not retarded.
Special prosecutors arguing on behalf of the state respond that the trial judge in this case followed guidelines established by the Supreme Court of Ohio in State v. Lott (2002) for ruling on post-Atkins claims of retardation by persons who were already under death sentences or who were facing the potential of a death sentence in pending murder cases. Under the Lott guidelines, they note, trial judges are specifically instructed that they, and not jurors, must evaluate the evidence of retardation presented by the parties and issue bench rulings on those claims.
They also argue that the U.S. Supreme Court’s rulings in Apprendi, Ring and Blakely are inapplicable to Were’s case because each of those decisions dealt with factual findings necessary to enhance a defendant’s sentence beyond the minimum penalty supported by a jury’s verdict. In this case, they note, the issue is whether Were is entitled to a reduction from the maximum sentence supported by a jury verdict that included two death penalty specifications. They also contend that nothing in the Apprendi line of cases converts the defendant’s burden of affirmatively proving his mental retardation into a requirement that the state must “prove a negative,” i.e. that the defendant is not retarded.
Contacts
Mark E. Piepmeier, 513.733.8276, for
the State of Ohio and Hamilton County prosecutor’s office.
E. Fred. Hoefle, 513.579.8700, for James Were.
John K. O'Toole, Administrator, etc. v. William Denihan et al., Case no. 2007-0056
8th District Court of Appeals (Cuyahoga County)
ISSUES:
BACKGROUND: Under Ohio’s “sovereign immunity” statute, Chapter 2477 of the Ohio Revised Code, the state and its political subdivisions, and employees of the state and its political subdivisions, are generally immune from civil liability for an injury or financial loss suffered by a third party if the injury results from the performance of a governmental function – even if the act or omission causing injury was negligent. The statute sets forth limited exceptions to immunity, including an exception for loss or injury caused by actions of a public employee that go beyond “negligence” and constitute “wanton or reckless” conduct. A separate statutory provision creates an exception to immunity for cases in which a state law expressly imposes liability on a public agency or employee to act in a specified manner.
This case involves a wrongful death lawsuit filed by the estate of a deceased 4-year-old Cleveland girl, Sydney Sawyer, against William Denihan, former executive director of the Cuyahoga County Department of Children & Family Services (CCDCFS), and two of the department’s employees, caseworker Kamesha Duncan and her supervisor, Tallis George-Munro. The suit alleged that CCDCFS as an institution and Denihan, Duncan and Munro personally should be held liable for alleged reckless acts and violations of their statutory duties that the plaintiff claims resulted in Sydney’s beating death at the hands of her mother.
On Mar. 29, 2000, CCDCFS received a report from a nurse at a daycare facility that she suspected Sydney had been physically abused. Duncan was sent to the daycare center, where she examined and interviewed Sydney and her mother, LaShon Sawyer, and spoke with the nurse who initiated the report and the operator of the daycare center. The following day Duncan visited Sydney’s home and had additional discussion with her mother about the circumstances of the child’s injuries, which included facial bruises, burns on both hands and abrasions on her back. Duncan and Munro discussed the findings of their preliminary investigation and decided to leave Sydney in the custody of her mother under a “safety plan” while CCDCFS completed a full investigation of the alleged abuse over the next 30 days. The safety plan included requirements that Sydney be examined at a nearby health clinic and the findings be reported to CCDFS, that Sydney continue to attend daycare and that the daycare facility monitor for any further indications of abuse, and that caseworker Duncan meet with Sydney face-to-face during the 30-day investigatory period.
On April 28, 2000, 27 days after she was left in her mother’s custody, Sydney was transported to Rainbow Babies and Children’s Hospital in Cleveland where she was pronounced dead of internal injuries that the medical examiner attributed to being beaten. LaShon Sawyer was subsequently convicted of murder in the death of her daughter, and her live-in boyfriend was convicted of involuntary manslaughter.
John O’Toole was appointed administrator of Sydney’s estate. O’Toole filed suit seeking civil damages from CCDCFS, Denihan, Duncan and Munro in the Cuyahoga County Court of Common Pleas. The defendants filed pretrial motions seeking summary judgment on all claims, arguing that they were immune from civil liability for injuries to Sydney arising from the performance of their official duties under the sovereign immunity statute. The trial court agreed and granted summary judgment. O’Toole appealed. The 8th District Court of Appeals reversed the trial court and reinstated the wrongful death claims. The appellate panel held that the pleadings submitted by the parties raised unresolved questions of fact about whether the agency, Duncan and Munro had engaged in “reckless” conduct in returning Sydney to the custody of her mother, and whether the defendants had complied with a statutory duty to report all incidents of suspected child abuse to police.
The defendants now ask the Supreme Court to overrule the 8th District and reinstate the trial court’s summary judgment in their favor.
They point out that R.C. 2151.421, the state law imposing a mandatory duty on professionals who deal with children to report suspected abuse, requires that such abuse be reported either to a county child services agency or to police, but not to both. Because CCDCFS is a county child services agency, they argue, the law requires parties outside the agency to report suspected abuse either to them or the police, but does not impose any requirement that a county child services agency receiving such reports must pass them on to law enforcement before the agency has completed its investigation.
With regard to the 8th District’s holding that O’Toole had raised issues of material fact about whether Duncan and Munro acted “recklessly,” they cite prior court decisions holding that a finding of recklessness requires two elements they say were not established in this case: 1) a finding that the defendants violated a clear standard of conduct; and a 2) a subsequent finding that their violation of that standard was in disregard of a known risk to the victim. They point out that the case review protocol in place at CCDCFS in March 2000 gave case workers three options for short-term response in suspected cases of child abuse, including the option chosen by Duncan and Munro – to leave the child in her mother’s home with a safety plan in place while a full 30-day investigation was conducted. They argue that the course of action Duncan and Munro adopted was supported by their findings in the two days after the complaint was received that the mother had no prior record of criminal arrests or allegations of child abuse, had no record of drug or alcohol problems and was cooperative with the investigators. They also note that Duncan’s interviews and home visit within 48 hours of the initial report found that Sydney was clean and well-fed, denied being abused or being afraid of her mother, and found no other indication that the child was in immediate danger.
Attorneys for O’Toole argue that the severity of Sydney’s injuries and inconsistent explanations offered by the child and her mother at the time of the initial report should have triggered immediate action by CCDCFS and its employees to remove the child from her mother’s home and place her in temporary protective custody. They also point out that, after Sydney’s death, Munro was fired based on findings that he had not followed agency policies and procedures in dealing with her case, and had specifically failed to have Duncan complete required assessment forms and other paperwork or to consult with other agency personnel before returning the child to a suspected abusive home where she was ultimately killed.
Contacts
David Ross, 216.687.1311, for
CCDCFS, Director William Denihan and Kamesha Duncan.
James C. Cochran, 216. 443,7620, for Tallis George-Munro.
Joan E. Pettinelli, 216.781.7777, for John O’Toole, Administrator of the Estate of Sydney Sawyer.
Ohio Civil Rights Commission et al. v. Akron Metropolitan Housing Authority et al., Case no. 2007-0254
9th District Court of Appeals (Summit County)
ISSUE: Does the portion of Ohio’s Civil Rights Act that prohibits housing discrimination provide a basis for a civil lawsuit by a tenant of a public housing project against a municipal housing authority based on a claim that the agency failed to adequately respond to complaints of a “hostile environment” caused by alleged race-based conflict between two tenants?
BACKGROUND: This case involves a long-running feud between two families in a public housing project operated by the Akron Metropolitan Housing Authority (AMHA). From 2001 until late 2002, Fontella Harper, an African-American mother living with her two sons, and the Kaisk family, who are white, lived two doors apart in an AMHA public housing community known as Van Buren Homes. The resident manager of the project was June Davidson.
Beginning in September 2001, the two families engaged in a series of disputes and confrontations that escalated over a period of months into repeated exchanges of shouted insults, name-calling and threats. On one occasion, Ms. Harper called project manager Davidson to complain that one of the Kaisk children had repeatedly flipped his skateboard in the air, striking the back of her car. Davidson advised Harper to report the incident to Barberton police and to fill out a written AMHA resident complaint form, both of which she did. On a later occasion Ms. Harper videotaped a confrontation between members of her family and the Kaisks. During the same period, the Kaisks filed several complaints with Davidson and police against the Harpers, which were also investigated and recorded in police reports.
In August 2002, Ms. Kaisk filed a request for a “hardship transfer” of her family from their apartment in Van Buren Homes to another public housing project on the ground that Ms. Harper and her relatives had threatened Kaisk and her family with physical violence. The transfer was granted, and the Kaisks moved away in November 2002. In February 2003, Ms. Harper, with the help of an advocacy group called Fair Housing Advocacy Associates, filed a complaint with the Ohio Civil Rights Commission (OCRC) seeking damages from AMHA and Davidson based on a claim that they had violated her rights under the fair housing provision of the Ohio Civil Rights Act, R.C. 4112.01. Specifically, Harper alleged that she had repeatedly complained to AMHA and Davidson about harassment in the form of racial insults and epithets that the Kaisks had shouted at her and her sons and their black guests, but that AMHA had done nothing to respond to or remedy that harassment, thereby allowing a “hostile residential environment” to continue and depriving Harper and her family of the peaceful enjoyment of their home.
The Akron Regional Office of the OCRC made an initial finding that there was no probable cause to pursue a housing discrimination claim. Ms. Harper asked for reconsideration of that ruling, and the state civil rights commission overruled the regional office, finding that there was probable cause of a fair housing violation. Harper and FHAA elected to file a civil action against AMHA and Davidson in the Summit County Court of Common Pleas. AMHA and Davidson filed a motion for summary judgment, asserting that Ohio law does not recognize housing discrimination violations based on a claim of “hostile environment.” The trial court agreed and entered summary judgment in favor of the defendants.
On review, the 9th District Court of Appeals voted 2-1 to reverse the trial court and allow Harper’s lawsuit to proceed. The appellate majority noted that while there was no prior case law in Ohio recognizing the type of claim advanced by Harper, federal courts had granted several housing discrimination claims based on a property owner’s failure to remedy a “hostile environment.” The appeals court ruled that – if proved in court – the claims advanced by Harper could support a finding that she had been the subject of illegal housing discrimination.
Attorneys for AMHA and Davidson have appealed the 9th District’s ruling to the Supreme Court. They point out that neither the resident complaint form and police report filed by Harper at the time of the skateboard incident nor the videotape she made of a later incident mentioned racial epithets or indicated that threats or verbal intimidation by the Kaisks were based on the Harpers’ minority status. They assert that the conflict between the Harper and Kaisk families was simply a feud between neighbors who didn’t get along, and argue that in any case Davidson treated the complaints she received from both families exactly the same by referring them to the police who provided security for the project and allowing officers to determine if any violations of law had taken place and take appropriate action if violations were found.
The defendants point out that, to date, Ohio courts have recognized “hostile environment” claims only in the context of sexual harassment in a workplace where an employer, who has control over the workplace and sets work rules for its employees, knew about but failed to remedy such conduct. In this case, they say, it is improper and unworkable to extend similar liability to a public housing agency that has no comparable authority to “police” the speech and interactions between individuals or families who reside in its units. They also argue that, even if racial remarks were made, AMHA does not have legal authority to evict or forcibly relocate a family from public housing based on nothing more than speech that is protected by the First Amendment, even though that speech may be offensive to another resident.
Attorneys for the Harpers urge the Court to affirm the 9th District’s ruling and allow their suit to go forward. They assert that Ms. Harper made additional verbal and written reports to Davidson alleging race-related epithets directed toward her family and black visitors to their apartment by the Kaisks, but that Davidson denied receiving them and AMHA failed to produce records of those complaints in earlier proceedings. They argue that the housing agency and its employee did nothing to remedy race-based harassment that deprived them of the right to peacefully occupy and enjoy their apartment for an extended period of time. They urge the Court to extend the “hostile environment” rationale recognized in sexual harassment cases to cases like this one in which a public agency had the ability and duty to evict or relocate tenants who created a hostile environment, but failed to do so.
Contacts
Michelle Morris, 330.253.7100, for
the Akron Metropolitan Housing Authority and June Davidson.
Elise W. Porter, 614.466.2872, for the Ohio Civil Rights Division.
Andrew Margolius, 216.621.6214, for Fontella Harper & Fair Housing Advocates Assn.
Allstate Insurance Company v. Cleveland Electric Illuminating Company, Case no. 2007-0452
8th District Court of Appeals (Cuyahoga County)
ISSUE: Does an Ohio common pleas court have jurisdiction to hear a tort claim by a customer against an electric company based on fire damage to the customer’s home resulting from the utility’s failure to promptly respond to an emergency call regarding a downed power line?
BACKGROUND: R.C. 4905.26 provides that the Public Utilities Commission of Ohio (PUCO), rather than the state’s trial courts, has exclusive jurisdiction to hear and decide complaints by customers against regulated utility companies that involve a dispute over 1) “any rate, fare, charge, toll, rental, schedule, classification or service” provided by the utility company,” or 2) “any practice affecting or relating to any service furnished by the public utility.”
This case asks the Court to decide whether a lawsuit against the Cleveland Electric Illuminating Company (CEI) was properly heard and decided by the Cuyahoga County Court of Common Pleas, or if the trial court’s judgment should be set aside because the dispute was subject to the sole jurisdiction of the PUCO.
On the morning of July 20, 2003, Margaret Harris of Euclid and her daughter arrived at Harris’ duplex to discover that a tree limb had fallen onto the CEI power line that connected the house to an adjacent utility pole, and that the weight of the limb was causing the line to be severely stretched, partially pulling the electric service mast away from the house. At 11:42 a.m., Harris’ daughter called a CEI emergency phone number she located on her mother’s utility bill. After responding to a series of automated prompts, she responded “yes” as to whether she was calling to report an emergency, and was connected to a CEI customer service representative, to whom she reported that the weight of the tree limb on the fallen line was pulling the power mast away from the house and that the line appeared ready to snap at any time.
The service representative advised that someone would “be out shortly” to remedy the problem. Mrs. Harris called back some time later and reentered information in the automated call answering system to be certain the company had her proper address and understood that the situation was an emergency. When no one from CEI had responded to the first two calls after approximately five hours, Harris made another call at 4:36 p.m. and spoke to the same customer representative her daughter had spoken with in the morning. She was advised that the company was trying to locate a lineman to fix the problem. Shortly after hanging up from this call, Harris looked out her back door and discovered that the stretched electric line had pulled the mast completely off the back wall of her home, starting a fire that was consuming the rear of the house and leaving an exposed “live” wire sparking and jumping on the ground.
Harris and the owner of the adjacent duplex, which was also damaged by the fire, were both insured by Allstate. The insurance company paid a total of $149,357 to repair the damage to Harris’ home and furnishings and another $12,435 for damage to the neighbor’s unit. Allstate subsequently filed a tort lawsuit against CEI in common pleas court, asserting that the fire was a result of negligence by CEI in responding to the emergency calls and seeking to recover from the electric company for the claims Allstate had paid to its insureds. CEI filed a motion to dismiss and a motion for summary judgment, both arguing that the common pleas court did not have jurisdiction over the case and that any claim against it must be pursued through the PUCO.
The trial court denied both motions and proceeded to hear the case. A jury found the CEI’s negligence was the proximate cause of the fire, and awarded Allstate recovery of $161,798, the full amount of its claim. AEI appealed, and the 8th District Court of Appeals vacated the trial court judgment. The appellate panel held that Allstate’s claim was a “service-related” dispute and therefore was subject to the exclusive jurisdiction of the PUCO. Allstate sought and was granted Supreme Court review of the 8th District’s ruling.
Attorneys for the insurance company cite as precedent a 1993 decision of the 2nd District Court of Appeals, Mid-American Fire & Casualty Co. v. Gray, which held that a common pleas court was the appropriate body to hear an insurer’s subrogation claim against an electric company arising from fire damage to a customer that resulted from the utility’s failure to promptly respond to a reported emergency. They urge the Court to follow the reasoning of the 2nd District in Mid-American and hold that this case involves a straightforward negligence claim against a business entity based on an isolated incident that had nothing to do with the quality, rates or continuity of electrical service to a customer, and thus was neither a “service related” dispute nor a complaint based on any “practice” followed by AEI in providing electric service to its customers.
Attorneys for CEI urge the Court to affirm the holding of the 8th District that any damage claim based on the fire on Harris’ property is a dispute arising from a “service” provided by AEI to its customers, namely, the service of repairing downed or damaged power lines that come in contact with tree limbs.
They also assert that PUCO had exclusive jurisdiction over the case because the customer service representative who fielded the calls from Harris and her daughter on the day of the fire was following a standard company “practice” or policy that assigns a low priority to reports of tree limbs coming in contact with power lines when there is no interruption of power to the customer, because the vast majority of such reports do not involve any immediate threat of injury or property damage.
Contacts
Lynn K. Weaver, 312.551.0200, for
Allstate Insurance Company.
Thomas I. Michaels, 216.622.8200, for Cleveland Electric Illuminating Company.
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.