Supreme Court of Ohio Decides Eminent Domain Case

In a 58-page unanimous opinion, the Supreme Court of Ohio has decided against eminent domain for purely economic benefit absent another public benefit.

Cite as Norwood v. Horney, ___ Ohio St.3d ___, 2006-Ohio-3799.]
(Nos. 2005-0227 and 2005-0228 — Submitted September 28, 2005 — Decided
July 26, 2006.)
(Nos. 2005-1210 and 2005-1211 — Submitted January 11, 2006 — Decided July
26, 2006.)
APPEALS from the Court of Appeals for Hamilton County,
Nos. C-040683 and C-040783 (January 19, 2005).
APPEALS from the Court of Appeals for Hamilton County, Nos. C-040683 and C-
040783 (May 20, 2005), 161 Ohio App.3d 316, 2005-Ohio-2448.
In the absence of other public benefit, the fact that an appropriation of property
will provide an economic benefit to the community does not satisfy the
public-use requirement of Section 19, Article I of the Ohio Constitution —
The void-for-vagueness doctrine applies to statutes that regulate the use of
eminent-domain powers — Courts shall apply heightened scrutiny when
reviewing statutes that regulate the use of eminent-domain powers — The
term “deteriorating area” as a standard for an appropriation of property
is unconstitutional — R.C. 163.19 is unconstitutional in part.

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Ohio Law Blog to Change Focus

Because of the Supreme Court of Ohio's new RSS feeds, this blog will no longer post all case decision links and other case or administrative matters that are the purview of those feeds. Instead, this Blog will point out major decisions released by the court, and offer pointers to new resources and documents that are posted or released that concern the state and citizens of Ohio.

Thanks for your support.

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Supreme Court of Ohio Announces RSS Feed

The Supreme Court of Ohio announced yesterday that RSS feeds for Court news and opinion summaries are now available on its Web site, www.supremecourtofohio.gov. The new RSS feature is part of an ongoing effort by the Supreme Court and Chief Justice Thomas J. Moyer to use information technology to increase public understanding of the judiciary.

To subscribe to Supreme Court RSS feeds, visit www.supremecourtofohio.gov, and click on the RSS Feed link on the right-hand side of the page, which features step-by-step instructions. A guide for using Google and Yahoo RSS readers is available on the Web site as well.

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6/22/2006 - Supreme Court of Ohio Case Announcements

MOTION AND PROCEDURAL RULINGS

2003-2036. State v. Barton.
Warren App. No. 03CR20526. This cause came on for further consideration of
appellant's motion to schedule a competency evaluation to determine whether the
defendant is competent to waive further appeals and his request for a stay of
execution so that the competency evaluation can be completed. Upon
consideration thereof,
IT IS ORDERED by the court that this cause is remanded to the Court of
Common Pleas of Warren County for the following limited purpose:
The court of common pleas is directed to promptly hold an evidentiary
hearing to determine whether the defendant's competency to waive further appeals
should be psychiatrically evaluated. The court shall further determine whether
such decision was voluntarily, knowingly, and intelligently made. The trial court
should consider any matters reflecting on the defendant's competency submitted by
the defense counsel or the state.
IT IS FURTHER ORDERED by the court that, as soon as the court of
common pleas has conducted this evidentiary hearing and made the appropriate
findings of fact, the court of common pleas should announce its ruling. Should the
trial court rule that a competency evaluation ought to be conducted, R.C. 2945.371,
Section (B) should be followed for appointing an examiner to conduct the
evaluation; Section (F) should be followed in directing the examiner to consider
"all relevant evidence" in completing the evaluation; and Section (G) should be
followed for the format and timeframe for the completion of the examiner's report.
Any examiner appointed by the trial court should apply the test set forth in State v.
Berry (1995), 74 Ohio St.3d 1504, 659 N.E.2d 796, in conducting the psychiatric
evaluation. At all times during this limited remand, this court shall retain
jurisdiction of this cause.
IT IS FURTHER ORDERED that the appellant's motion for a stay of
execution is denied.
O'Donnell, J., would deny the motion to schedule a competency evaluation.

2004-0892. Fostoria v. Ohio Patrolmen's Benevolent Assn.
Seneca App. No. 13-03-26, 2004-Ohio-1945. This cause came on for further
consideration of appellee's response to this court's March 29, 2006, show cause
order. Upon consideration thereof,
IT IS ORDERED by the court that the appellee, the City of Fostoria, is
hereby found in contempt of this court for failing to fully comply with this court's
September 14, 2005, judgment entry and opinion and November 23, 2005, entry on
reconsideration.
IT IS FURTHER ORDERED that appellee may purge itself of contempt by
making payment to each employee affected by this court's prior decisions in this
case within thirty days of the date of this order. Failure to comply will result in the
imposition of additional sanctions.

MISCELLANEOUS DISMISSALS

2005-1106. Campbell v. TES Franchising, LLC.
Butler App. No. CA2004-06-151, 2005-Ohio-2271. This cause is pending before
the court as an appeal from the Court of Appeals for Butler County. Upon
consideration of appellant's application for dismissal,
IT IS ORDERED by the court that the application for dismissal is granted.
Accordingly, this cause is dismissed.

2005-1357. Campbell v. TES Franchising, LLC.
Butler App. No. CA2004-06-151, 2005-Ohio-2271. This cause is pending before
the court on the certification of a conflict by the Court of Appeals for Butler
County. Upon consideration of appellant's application for dismissal,
IT IS ORDERED by the court that the application for dismissal is granted.
Accordingly, this cause is dismissed.

2006-0989. State ex rel. Brown v. Bernard.
In Mandamus and Prohibition. This cause originated in this court on the filing of a
complaint for a writ of mandamus and prohibition. Upon consideration of relator's
application for dismissal,
IT IS ORDERED by the court that the application for dismissal is granted.
Accordingly, this cause is dismissed.

MEDIATION REFERRALS

The following cases have been returned to the regular docket pursuant to
S.Ct.Prac.R. XIV(6)(E):

2006-0168. State ex rel. Carr v. Akron.
In Mandamus.

2006-0778. State ex rel. Roddy v. Indus. Comm.
Franklin App. No. 04AP-930, 2006-Ohio-1185.

ADMINISTRATIVE ACTIONS

This list is being published pursuant to Gov.Bar R. I(15). The following persons
have applied to take the July 2006 Ohio Bar Examination:
Click here for the list (starts on page 3).

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6/21/2006 - Supreme Court of Ohio Case Announcements

Wednesday, June 21, 2006

2003-1964. State v. Conway , 2006-Ohio-2815.
Franklin C.P. No. 02CR-3117. Judgment affirmed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-2815.pdf
Summary: Court Affirms Death Sentence of Columbus Killer

2005-2054. Cuyahoga Cty. Bar Assn. v. Marosan, 2006-Ohio-2816.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 05-035. Joseph E. Marosan, Attorney Registration No. 0025849, is suspended from the practice of law in Ohio for six months, such suspension to run consecutively to respondent's present suspension.
Moyer, C.J., Resnick, Lundberg Stratton, O'Connor and Lanzinger, JJ., concur.
Pfeifer and O'Donnell, JJ., dissent and would impose a six-month suspension to run concurrently with respondent's present suspension.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-2816.pdf
Summary: Court Extends Lawyer’s License Suspension

2005-2394. Toledo Bar Assn. v. Burkholder, 2006-Ohio-2817.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 05-038. Fred Joseph Burkholder, Attorney Registration No. 0014094, is suspended from the practice of law in Ohio for six months, stayed on condition.
Moyer, C.J., Resnick, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Pfeifer, J., dissents and would publicly reprimand respondent.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-2817.pdf

2006-0096. Columbus Bar Assn. v. Stubbs, 2006-Ohio-2818.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 04-083. SaKeya MonCheree Stubbs, Attorney Registration No. 0071309, is suspended from the practice of law in Ohio for six months, stayed on conditions, and placed on probation for one year.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-2818.pdf

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6/19/2006 - Supreme Court of Ohio Case Announcements

DISCIPLINARY CASES

2004-2144. Cuyahoga Cty. Bar Assn. v. Jurczenko.
On August 24, 2005, this court suspended respondent, Alexander Jurczenko, for a
period of two years with one year stayed on conditions. On February 14, 2006,
relator, Cuyahoga County Bar Association, filed a motion for order to appear and
show cause, requesting the court to issue an order directing respondent to appear
and show cause why he should not be found in contempt for his failure to comply
with this court's August 24, 2005, order. On March 27, 2006, this court granted
that motion and advised respondent to file a written response. Respondent did not
file a response to the show cause order. Accordingly,
IT IS ORDERED by the court, sua sponte, that respondent appear in person
before this court on July 18, 2006, at 9:00 a.m.

2006-0948. In re Lockhart.
On May 15, 2006, and pursuant to Gov.Bar R. V(5)(A)(3), the Secretary of the
Board of Commissioners on Grievances and Discipline of the Supreme Court of
Ohio certified to the Supreme Court a certified copy of a judgment entry of a
felony conviction against John Dallas Lockhart, an attorney licensed to practice
law in the state of Ohio.
Upon consideration thereof and pursuant to Gov.Bar R. V(5)(A)(4), it is
ordered and decreed that John Dallas Lockhart, Attorney Registration No.
0073401, last known business address in Akron, Ohio, be, and hereby is,
suspended from the practice of law for an interim period, effective as of the date of
this entry.
IT IS FURTHER ORDERED that this matter be, and is hereby, referred to
the Ohio State Bar Association for investigation and commencement of
disciplinary proceedings.
IT IS FURTHER ORDERED that respondent immediately cease and desist
from the practice of law in any form and is hereby forbidden to appear on behalf of
another before any court, judge, commission, board, administrative agency or other
public authority.
IT IS FURTHER ORDERED that, effective immediately, respondent be
forbidden to counsel or advise, or prepare legal instruments for others or in any
manner perform legal services for others.
IT IS FURTHER ORDERED that respondent is hereby divested of each, any
and all of the rights, privileges and prerogatives customarily accorded to a member
in good standing of the legal profession of Ohio.
IT IS FURTHER ORDERED that, pursuant to Gov.Bar R. X(3)(G),
respondent shall complete one credit hour of continuing legal education for each
month, or portion of a month of the suspension. As part of the total credit hours of
continuing legal education required by Gov.Bar R. X(3)(G), respondent shall
complete one credit hour of instruction related to professional conduct required by
Gov.Bar R. X(3)(A)(1) for each six months, or portion of six months, of the
suspension.
IT IS FURTHER ORDERED that respondent shall not be reinstated to the
practice of law in Ohio until (1) respondent complies with the requirements for
reinstatement set forth in the Supreme Court Rules for the Government of the Bar
of Ohio; (2) respondent complies with this and all other orders issued by this court;
(3) respondent complies with the Supreme Court Rules for the Government of the
Bar of Ohio; and (4) this court orders respondent reinstated.
IT IS FURTHER ORDERED, sua sponte, by the court that within 90 days of
the date of this order, respondent shall reimburse any amounts that have been
awarded by the Clients' Security Fund pursuant to Gov.Bar R. VIII(7)(F). It is
further ordered, sua sponte, by the court that if, after the date of this order, the
Clients' Security Fund awards any amount against the respondent pursuant to
Gov.Bar R. VIII(7)(F), the respondent shall reimburse that amount to the Clients'
Security Fund within 90 days of the notice of such award.
IT IS FURTHER ORDERED that on or before 30 days from the date of this
order, respondent shall:
1. Notify all clients being represented in pending matters and any cocounsel
of respondent's suspension and consequent disqualification to act as
an attorney after the effective date of this order and, in the absence of cocounsel,
also notify the clients to seek legal service elsewhere, calling
attention to any urgency in seeking the substitution of another attorney in
respondent's place;
2. Regardless of any fees or expenses due respondent, deliver to all clients
being represented in pending matters any papers or other property pertaining
to the client, or notify the clients or co-counsel, if any, of a suitable time and
place where the papers or other property may be obtained, calling attention
to any urgency for obtaining such papers or other property;
3. Refund any part of any fees or expenses paid in advance that are
unearned or not paid, and account for any trust money or property in
respondent's possession or control;
4. Notify opposing counsel in pending litigation or, in the absence of
counsel, the adverse parties of respondent's disqualification to act as an
attorney after the effective date of this order, and file a notice of
disqualification of respondent with the court or agency before which the
litigation is pending for inclusion in the respective file or files;
5. Send all such notices required by this order by certified mail with a return
address where communications may thereafter be directed to respondent;
6. File with the Clerk of this court and the Disciplinary Counsel of the
Supreme Court an affidavit showing compliance with this order, showing
proof of service of notices required herein, and setting forth the address
where the affiant may receive communications; and
7. Retain and maintain a record of the various steps taken by respondent
pursuant to this order.
IT IS FURTHER ORDERED that respondent shall keep the Clerk and the
Disciplinary Counsel advised of any change of address where respondent may
receive communications.
IT IS FURTHER ORDERED, sua sponte, that all documents filed with this
court in this case shall meet the filing requirements set forth in the Rules of
Practice of the Supreme Court of Ohio, including requirements as to form, number,
and timeliness of filings.
IT IS FURTHER ORDERED, sua sponte, that service shall be deemed made
on respondent by sending this order, and all other orders in this case, by certified
mail to the most recent address respondent has given to the Attorney Registration
Section.
IT IS FURTHER ORDERED that the Clerk of this court issue certified
copies of this order as provided for in Gov.Bar R. V(8)(D)(1), that publication be
made as provided for in Gov.Bar R. V(8)(D)(2), and that respondent bear the costs
of publication.

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Board of Commissioners on Grievances and Discipline Issues Two Opinions

OPINION 2006-5
Issued June 9, 2006

SYLLABUS: The DR 7-104(A)(1) restraint on communication with represented persons and parties applies to an attorney who is appointed to serve in a dual role as guardian ad litem and attorney for a minor child. Thus, it is improper for an attorney, appointed to serve in a dual role as a child’s attorney and guardian ad litem, to communicate on the subject of the representation with a represented person or party unless there is consent by counsel or authorization by law, such as through a court rule or court order. Communication that is administrative in nature, such as scheduling appointments or meetings, is not communication on the subject of the representation.

OPINION 2006-6
Issued June 9, 2006

SYLLABUS: A CSEA staff attorney may not represent the state in a contempt action filed against a party for failure to abide by a court order involving a CSEA matter in which that staff attorney issued administrative orders as a CSEA administrative hearing officer. A CSEA staff attorney may not represent the state in any other action involving a CSEA matter in which that staff attorney participated as the CSEA hearing officer making determinations or issuing administrative orders. A CSEA staff attorney is not barred from representing the state in an action solely because a party in the action is a person who once appeared before that staff attorney who served as the administrative hearing officer.

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PUCO Introduces Business Information Center

The Public Utilities Commission of Ohio (PUCO) today introduced a
new Business Information Center section of its Web site. This new
Web page contains information designed to help Ohio businesses
understand and manage their utility needs.

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6/15/2006 - Supreme Court of Ohio Case Announcements

MOTION AND PROCEDURAL RULINGS

2005-0150. Lewis v. J. E. Wiggins & Co.
Franklin App. No. 04AP-469, 04AP-544, and 04AP-668, 2004-Ohio-6724. This
cause came on for further consideration of appellant's motion for leave to file a
motion to vacate judgment for attorney fees and the motion to vacate judgment for
attorney fees. Upon consideration thereof,
IT IS ORDERED by the court that that the motions are denied.

DISCIPLINARY CASES

2000-0760. Disciplinary Counsel v. Braun.
On application for reinstatement of Gary L. Braun, Attorney Registration No.
0021431. Application granted and respondent reinstated to the practice of law in
Ohio.

MISCELLANEOUS DISMISSALS

2006-0109. State ex rel. Glasgow v. Columbus Pub. Schools.
In Mandamus. This cause originated in this court on the filing of a complaint for a
writ of mandamus. Upon consideration of relator's application for dismissal,
IT IS ORDERED by the court that the application for dismissal is granted.
Accordingly, this cause is dismissed.

2006-0311. State ex rel. Bailey v. Indus. Comm.
Franklin App. No. 05AP-316. This cause is pending before the court as an appeal
from the Court of Appeals for Franklin County. Upon consideration of appellant's
application for dismissal,
IT IS ORDERED by the court that the application for dismissal is granted.
Accordingly, this cause is dismissed.

2006-0589. State v. Trouten.
Jefferson App. No. 04JE18, 2005-Ohio-6592. This cause is pending before the
court as a discretionary appeal and claimed appeal of right. It appears from the
records of the court that the appellant has not filed a memorandum in support of
jurisdiction, due June 9, 2006 in compliance with the Rules of Practice of the
Supreme Court and therefore has failed to prosecute this cause with the requisite
diligence. Upon consideration thereof,
IT IS ORDERED by the court that this cause is dismissed sua sponte.

MEDIATION REFERRALS

The following case has been referred to mediation pursuant to S.Ct.Prac.R.
XIV(6):
2006-0910. State ex rel. PFC Lamont Hill Memorial v. Petro.
In Mandamus.

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