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Joseph Hegedus

State of Ohio v. Brown and Rudlaff v. Gillispie

I recently reviewed two cases decided this summer by Federal and State Courts with jurisdiction in Ohio that I found to be informative and somewhat interesting.

The first case was decided by the Ohio Supreme Court on June 23, 2015, and is likely only relevant to a very specific segment of our membership.

This case, State of Ohio v. Brown, 2015-Ohio-2438 (2015), concerned a Motion to Suppress evidence that was granted by the Sixth District Court of Appeals after having been denied previously by the trial court.

Specifically, the facts of the case detailed that a township police officer made a traffic stop on an interstate highway for a marked lane violation.

After the officer walked her canine around the stopped vehicle, she discovered 120 oxycodone tablets and a bag of marijuana.

The driver was indicted for aggravated possession of drugs.  The trial court denied the driver’s Motion to Suppress finding that the police officer had probable cause to stop the driver for the marked lane violation.  The driver subsequently pled no contest and was sentenced to a mandatory three years in prison.

On appeal, the driver asserted that because the township police officer lacked statutory authority to stop him on an interstate highway, pursuant to Ohio Revised Code (“R.C.”), Section 4513.39(A), the stop and the subsequent arrest and search were illegal under the federal and state constitutions.

The Appeals Court held that the stop did not violate the Fourth Amendment to the U.S. Constitution, but, the court found that the stop was unreasonable and violated the Ohio Constitution because the marked lane violation occurred outside the officer’s jurisdiction and there were no extenuating circumstances that would have permitted the officer to engage in the stop. As a result, the Appeals Court suppressed the drug evidence and reversed the conviction.

The Ohio Supreme Court accepted jurisdiction of the case to decide the issue of “whether a traffic stop made without statutory jurisdiction or authority violates the protection against unreasonable searches and seizures afforded by Article I, Section 14 of the Ohio Constitution.”

The Ohio Supreme Court then affirmed the Court of Appeals by concluding:

A traffic stop for a minor misdemeanor made outside a police officer’s statutory jurisdiction or authority violates the guarantee against unreasonable searches and seizures established by Article I, Section 14 of the Ohio Constitution.   Here, the appellate court correctly determined that the township police officer lacked authority to enforce a marked lane violation on an interstate highway and that the traffic stop and ensuing search of the vehicle were unreasonable, and it properly ordered suppression of the evidence obtained from that search.

The second case of interest was decided by the federal Sixth Circuit Court of Appeals on July 1, 2015.

This case, Rudlaff v. Gillispie, No. 14-1712 (recommended for full-text publication) (6th Cir. 2015), concerns a lawsuit alleging excessive use of force by two police officers during an arrest that was completely captured by the dash-cam videos of both officers.

Before getting to the facts of the case, it is important to note that the Court changed its standard for reviewing the facts in this type of case, due to the reality that the entire incident was captured on video.

Specifically, in summary judgment appeals involving qualified immunity, the Court typically views the facts in the light most favorable to the Plaintiff.  In this case, however, the Court asserted that “where the police dash-cam video[s]. . . depict all of the genuinely disputed facts,” [citation omitted], we “view the facts in the light depicted by the videotape[s].”  [Citation omitted].[1]

The facts, as recorded on video, demonstrate that the Plaintiff was stopped by an officer on routine patrol who recognized him and knew from three previous encounters that the Plaintiff was driving with a suspended license.  Moreover, the Plaintiff had fled from the same officer during their last encounter and had a history of driving while intoxicated, as well as resisting arrest.

The officer initiated a traffic stop and called for back-up.  Upon arrival of his back-up, the officer approached the Plaintiff who appeared “highly agitated” and cussed at the officer upon exiting his vehicle.  The Plaintiff was non-compliant, refused to be handcuffed and was eventually tased after a knee strike was ineffective in gaining Plaintiff’s cooperation.

The Plaintiff sued the officers claiming that they used excessive force during the arrest.

The officers raised the defense of qualified immunity in the trial court, but, their Motion for Summary Judgment was denied by the district court for the reason that “disputed issues of material fact” were in existence.

The Appeals Court reversed the Court below and found in favor of the officers, concerning the issue of qualified immunity, indicating both that the “officers did not violate” Plaintiff’s “constitutional rights when they used force to subdue him” and that there was no clearly established constitutional violation committed by the officers, by stating as follows:

Carpenter conceded that he resisted arrest.  The videos show the same.  And the law says that when someone resists arrest, the police may constitutionally use force to ensure their compliance.  A jury has nothing left to decide.  Because the officers acted constitutionally – and because even if they didn’t, by all accounts they didn’t clearly act unconstitutionally – they are protected by qualified immunity.  We reverse.

While the result of this case is obviously significant, especially to the two officers involved, it is further compelling that the Sixth Circuit has slightly altered its standard for reviewing the facts, in this type of case, in light of the evolving and prevalent utilization of technology such as the dash-cam videos employed by the officers here.

[1] This is obviously significant as so many of your encounters with suspects are either recorded          now or likely will be at some point in the future.

Last Updated (Tuesday, 20 October 2015 06:03)


24/7 VIDEO COVERAGE - The Use of Body Cameras –

The inexorable march toward 24/7 video coverage of the average patrol officer's work shift continues with the latest innovation --the body worn camera.

The utilization of body cameras in the police profession is certainly a prevalent topic of conversation in the industry.

While it will be some time before any conclusions can be reached as to whether these cameras result in an overall positive or negative experience for police officers and/or the public, it is important that the commencement of the utilization of the cameras is preceded by proper training and a comprehensive policy governing their use,

No one will benefit from a premature rush to employ this new technology without a carefully crafted and flexible policy which provides clear guidelines concerning many aspects of its utilization.   Also, it is important to note that utilization of cameras does not obviate the need for officers to continue to provide complete and accurate written documentation of every critical incident.

Any decent policy concerning the use of these cameras should contain, at minimum, provisions detailing:

  1. The amount, the substance and the frequency of training required prior to and during their use;
  2. The location(s) on the body that are acceptable for the camera to be worn;
  3. The types of encounters and/or contacts with citizens to be recorded;
  4. The permissible timing for the conclusion of the recording or the deactivation or non-use of the device;
  5. A prohibition against editing or altering the content of a recording without permission from a supervisor;
  6. The universe of persons permitted and, the times and locations when it is permissible to review the recorded information;
  7. The storage of the recorded information and the length of time that the recordings are required to be maintained; and,
  8. The handling of public records requests related to the recorded information and the distribution of the information subject to such request


Obviously, the foregoing list is not meant to be exhaustive. But, it does highlight broad categories of information that should be included in a policy governing the utilization of body cameras.

While there is no question that the cameras may be very useful tools for documenting evidence, corroborating the content of encounters with third parties and providing fodder for future training exercises, it is important to recognize that these devices are just another tool which, when properly employed, will, hopefully, enhance the officer's effectiveness and assist in protecting the user from false claims or improper allegations of misconduct.

However, like any new technology or tool, it will not be surprising if their utilization is accompanied by some bumps in the road before the true value of the cameras are realized and/or optimized.


Two Federal Cases Revisited

Two recent federal court cases caught my eye, so, I thought I would share them.

Each of the cases revisits a topic that I have written to you about previously.

First, on July 16, 2014, the Sixth Circuit Court of Appeals, which is the federal appeals court with jurisdiction in the State of Ohio, reversed a case that had been decided in favor of a Sheriff’s Office employee, in southwestern Ohio, concerning an excessive use of force claim in a county jail.

In this case, which is captioned Cordell v. McKinney, Case No. 13-4203 (6th Cir. 2014); an inmate claimed that he was slammed headfirst into a wall while handcuffed, allegedly in violation of the Eighth Amendment to the U.S. Constitution.

After considering the evidence, the United States District Court for the Southern District of Ohio at Dayton had granted summary judgment in favor of the Deputy Sheriff, finding that: 1. The allegations of excessive force were uncorroborated, 2. The deputy was justified in utilizing the level of force that was exerted, and 3. The deputy was entitled to qualified immunity.

The Sixth Circuit Court of Appeals completely reversed the findings of District Court, after finding that some level of force was appropriate because the prisoner tensed up and turned toward the deputy while being escorted.

However, in determining that a genuine issue of material fact existed as to whether the amount of force utilized was excessive, the court stated, “we conclude that a reasonable jury could find that Deputy McKinney lacked a good-faith reason to use Cordell as a human battering ram.”  The Court based its decision on the severity of the prisoner’s injuries, the threat that the deputy actually faced, in light of the fact that the inmate’s hands were cuffed behind his back and the deputy had him in a submission hold and that the court found no evidence that the deputy made any effort to moderate the level of force that he used.

After reviewing the entire case, however, in my opinion, the case turned on the fact that the inmate was restrained at the time the use of force occurred.

This is illustrated by the Sixth Circuit, at p. 15 of the Opinion, where it states:

We have held in the past that “striking a neutralized suspect who is secured by handcuffs is objectively unreasonable.”  Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir. 2010); see also Burgess v. Fischer, 735 F.3d 462, 474-75 (6th Cir. 2013).  While Cordell admitted turning toward Deputy McKinney, presenting a slightly different factual situation, we doubt that slamming a handcuffed and controlled prisoner headfirst into a concrete wall comports with human decency.  See Burgess, 735 F.2d at 474-75 (citing Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002); McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988)).

As such, it continues to be extremely important to carefully consider the level of force necessary to subdue a subject that is already restrained, as the Sixth Circuit continues to carefully scrutinize these types of cases.

Secondly, on March 26, 2014, the United States, Supreme Court, in U.S. v. Castleman, 134 S Ct. 1405 (2014), considered the issue of what constitutes “the use of physical force” adequate to result in a misdemeanor crime of domestic violence sufficient to trigger the lifetime ban on possession of firearms contained in 18. U.S.C. §922(g)(9).

The case examined the statute’s definition of misdemeanor crime of domestic violence, to wit:

“an offense that… (i) is a misdemeanor under Federal, State or Tribal law; and (ii) has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person that is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.”

However, the case turned specifically on the meaning of the phrase “the use . . . of physical force,” in the statute.

The trial court had previously held that the defendant’s conviction did not trigger the federal firearms disability on the theory that the use of physical force, for §922(g)(9) purposes, must entail “violent contact with the victim.”

On appeal, the Sixth Circuit affirmed, but, on other grounds.  It held that the degree of physical force required is the same as that which occurs in the statutory definition of “violent felony,” which requires “violent force.”  Therefore, it found that the defendant’s conviction did not qualify as a misdemeanor crime of domestic violence for the purpose of the federal firearms ban.

The United States Supreme Court reversed by indicating that Section 922(g)(9)’s “physical force” requirement is satisfied “by the degree of force that supports a common-law battery conviction – namely, offensive touching.”  Id. at Syllabus.

Thus, the court found, that defendant’s conviction for having “intentionally or knowingly cause[d] bodily injury to” the mother of his child qualified as a misdemeanor crime of domestic violence sufficient to trigger the firearm ban in the federal statute.

The potential impact of this case cannot be understated for anyone that is required to carry a firearm within the scope of his or her employment.

As always, if you have any questions about these or other issues that may impact your livelihood, please do not hesitate to contact your OPBA representative.

Last Updated (Sunday, 05 October 2014 09:13)


Brady v. Maryland

By:  Joe Hegedus, Esq.

Lately, it has come to my attention that, apparently, employees of certain prosecutor’s offices are advising law enforcement employers that there is a mandatory obligation to immediately disclose personnel records of peace officers to defendants in criminal cases.  Depending on the jurisdiction, I have heard this obligation defined in terms that typically appear to be all encompassing.[1]

However, a review of the actual law applicable in cases of this nature, seems to paint a slightly different picture.

The seminal case in this area of the law is Brady v. Maryland, 373 U.S. 83, 87 (1963), where the United States Supreme Court held that:

the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

(Emphasis supplied).

In United States v. Bagley, 473 U.S. 667, 669 (1985), the Court revisited its decision in Brady, supra., by stating:

[1A] In Brady, v. Maryland, 373 U.S. 83, 87 (1963), this Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.”  The issue in the present case concerns the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecutor failed to disclose requested evidence that could have been used to impeach Government witnesses.

The Court in Bagley then amplified its decision in Brady, supra., as follows:

The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and “material either to guilt or to punishment.”  373 U.S., at 87.  See also Moore v. Illinois, 408 U.S. 786, 794-795 (1972).  The Court explained in United States v. Agurs, 427 U.S. 97, 104 (1976):  “A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.”  The evidence suppressed in Brady would have been admissible only on the issue of punishment and not on the issue of guilt, and therefore could have affected only Brady’s sentence and not his conviction.  Accordingly, the Court affirmed the lower court’s restriction of Brady’s new trial to the issue of punishment.

The Brady rule is based on the requirement of due process.  Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.  Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive that defendant of a fair trial:

“For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose. . . .”

“. . . But to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.”  427 U.S., at 108.

Bagley, at pp. 675, 676, emphasis supplied.

The Bagley Court then further explained that impeachment evidence, as well as exculpatory evidence, both fall within the disclosure requirements of Brady.[2] See Giglio v. United States, 405 U.S. 150, 154 (1972).

The Bagley Court continued by reiterating that regardless of whether the suppressed evidence is exculpatory or utilized for impeachment purposes, it is only subject to disclosure if it is material to guilt or punishment and “[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.  A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.”  Bagley, supra., at pp. 681-682.

Consequently, as emphasized by the Ohio Supreme Court, “[s]ince Bagley, the “reasonable probability” test has been held to apply in all cases where the defense alleges the prosecution improperly suppressed exculpatory evidence.”  State of Ohio v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988).

For the purposes of this article, then, the question is: do the Brady and Bagley disclosure requirements apply as broadly to disciplinary investigations contained in personnel files as is being demanded by prosecutors in certain jurisdictions?

In my opinion, the answer is probably not.

For example, in United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), the Sixth Circuit Court of Appeals considered a case where a defendant challenged his felony convictions, inter alia, on the basis that the Court’s denial of his motion for disclosure of the officers’ personnel files, in an effort to find information that cast doubt on their credibility, violated Brady v. Maryland.

In rejecting this argument, the Court indicated:

Mr. Driscoll offered no support for his contention that personnel files might contain information important to his case.  “The Supreme Court has made clear that the Brady rule is not an evidentiary rule which grants broad discovery powers to a defendant and that ‘there is no general constitutional right to discovery in a criminal case.’”  United States v. Todd, 920 F.2d 399, 405 (6th Cir. 1990) (quoting Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 845, 51 L. Ed.3d 30 (1977)).  “The Court also has made it clear that while the Brady rule imposes a general obligation upon the government to disclose evidence that is favorable to the accused and material to guilt or punishment, the government typically is the sole judge of what evidence in its possession is subject to disclosure.”  United States. v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988).  Furthermore, “the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.”  United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2399-2400, 49 L. Ed. 2d 342 (1976).

In light of these principles, we agree with United States v. Andrus, 775 F.2d 825 (7th Cir. 1985)., in which the Seventh Circuit rejected a defendant’s argument that he should have had access to material from testifying officers’ personnel files that might have been used for impeaching them.

“Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial.  A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the district court.”

Sometime later, the United States District Court for the Southern District of Ohio considered a similar request by a defendant, in a discovery motion, which sought to generally examine employment information of all testifying witnesses.  In denying the motion, the court relied on Driscoll, supra., by stating:

With Item 8F, Defendant does not ask for the disclosure of any particular information; rather, he requests that the Government examine the personnel files of all its testifying witnesses, including law enforcement officers, to ascertain whether those files contain any evidence of perjurious conduct, dishonesty or any other material that is relevant to impeachment.  The Court will decline to order the Government to conduct the requested examination of personnel files.  Although the Ninth Circuit has held that the Government has an obligation to examine the personnel files of testifying law enforcement officials in order to comply with its obligations under Brady, see United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), the Sixth Circuit implicitly rejected Henthorn in Driscoll, supra.  Therein, the Sixth Circuit concluded that, under Brady, the Government was not obligated to produce personnel files of its testifying agents, based solely upon the defendant’s speculation that those files might contain impeaching information.  In support of that conclusion, the Sixth Circuit relied, inter alia, upon United States v. Andrus, 775 F.2d 825 (7th Cir. 1985), wherein the Seventh Circuit concluded that the defendant’s speculation that personnel files might contain impeaching information did not impose upon the District Court the obligation of conducting an in camera review of those files, since Brady was not a discovery device.  The dissenting opinion in Driscoll argued that the Sixth Circuit should decline to follow the Seventh Circuit’s decision in Andrus and should adopt the approach of the Ninth Circuit in Henthorn, a case which was described by the dissent as being “on all fours.”  970 F.2d at 1489.  The fact that this Court will not require the Government to conduct a review of the personnel files of its testifying witnesses does not, however, relieve it of its obligation under Brady of disclosing impeachment material of which it becomes aware, including any such material contained in the personnel files.

United States v. Floyd, 247 F.Supp.2d 889, 901 (S.D. Ohio, 2002).

More recently, another District Court, within the Sixth Circuit, followed Driscoll by reiterating that “a speculative, nonspecific claim that an officer’s personnel file might contain material helpful to the defendant is not sufficient to entitle the defendant to the officer’s file. . .”

United States v. Johnson, 2010 U.S. Dist. Lexis 94513 (W. D. Tenn. 2010).  See also People of the State of Michigan v. Rawls, 2007 Mich. App. Lexis 760 (Court of Appeals of Mich. 2007).

Finally, in State of Ohio v. Widmer, 2013-Ohio-62; 2013 Ohio App. Lexis 44 (12th App. Dist. 2013) the Ohio Court of Appeals for Warren County considered a claim by a defendant that the prosecution violated Brady v. Maryland by not disclosing an administrative investigative report that indicated that one of the investigating police officers had allegedly lied about some of his credentials, listed in an employment application and resume’ letter, more than ten years prior to the relevant murder investigation.

After a comprehensive review of Brady and its progeny the Widmer Court observed:

It is one thing to require prosecutors to inquire into whether the police have discovered exculpatory or impeachment evidence during the course of the investigation.  It is quite another to require them, “on pain of possible retrial, to conduct disciplinary inquiries into the general conduct of every officer working the case.”  Robinson, 627 F.3d at 952.  Here, Braley’s alleged misconduct is so unrelated to his role in the investigation and to the state’s case against Widmer, that it is difficult to burden the prosecution with an obligation to discover this evidence.

(Id., 2013 Ohio App. Lexis 44 at p. 54).

Further, the Widmer Court explained that “cross-examining Braley on the employment applications and the other information in the DD&M report would have only created a dispute about purely collateral matters, i.e., whether Braley fabricated various credentials over ten years ago for jobs unrelated to his position as lieutenant detective.  Braley was not on trial for fraud or misconduct, Widmer was on trial for murder, and examining this part of Braley’s past would only lead to surprise, jury confusion and a waste of time, which are the very reasons for the rule against impeachment on collateral matters.”  Id. at p. 47.

The Widmer Court then denied the defendant’s claim that a Brady violation occurred by concluding:

After a thorough review of the record below, we find that even if the allegedly suppressed evidence in the DD&M report could have helped the defense to cast some doubt on the police investigation under Kyles, it is not enough to establish materiality.  Id. at 109-110 (“[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense”).

Moreover, the suppressed information was not material impeachment evidence.  See Id. at 676-677; United States v. Jones, 399 F.3d 640, 648 (6th Cir. 2005).  Generally, impeachment evidence constitutes Brady material when the evidence relates directly to a key witness’s veracity on matters about which he or she has testified at trial.  See Giglio, 405 U.S. at 154.   However, as we discussed earlier, Braley was not a key witness, and the allegedly suppressed evidence pertained only to collateral matters that had nothing to do with Braley’s trial testimony.  See, e.g., People v. Fernandez, 249 A.D.2d 3, 5, 670 N.Y.S.2d 840 (1998) (“where the impeachment information has no bearing on defendant’s guilt or innocence, such as where the prosecution witness’s misconduct is completely unrelated to the trial at which he is testifying and [his] testimony is not crucial to the prosecution’s case, its nondisclosure does not constitute a Brady violation”).  Even if the new evidence was severely impeaching, the fact remains that Braley’s credibility was not determinative of Widmer’s guilt or innocence.  Instead, Braley’s testimony was simply cumulative to the considerable evidence bearing on Widmer’s guilt, and there is no reasonable probability that impeaching Braley would have resulted in a different outcome.  See Evid.R. 608(B); Agurs, 427 U.S. at 112; Jones, 399 F.3d at 648.

In sum, under the Brady line of cases, the prosecution has an obligation to disclose personnel information that could be utilized for impeachment purposes only if that information is material to the defendant’s guilt or level of punishment.  Moreover, materiality in the Brady sense requires disclosure, “if there is a reasonable probability that had the evidence been disclosed to the defense the result of the proceeding would have been different.”  Bagley, 473 U.S. at 682.  Thus, the burden of disclosure of evidence contained in personnel files, for impeachment purposes, under Brady, may not be as far-reaching as some prosecutors seem to believe.

[1] This purported obligation to disclose personnel records has been described to me, at times, in the broadest possible terms.  However, the information actually required to be disclosed concerns only information that is material to guilt or punishment.  Notwithstanding that, I have been told that some prosecutors are requiring that all disciplinary records be provided on an ongoing basis.

[2] It appears to me that this explanation of Brady, to include evidence that may be utilized to impeach a prosecution witness, is the genesis of the perceived obligation to disclose disciplinary records of law enforcement officers, especially if the investigation resulted in a finding of dishonesty.

Last Updated (Monday, 17 March 2014 17:50)


In Defense of Collective Bargaining

A team of OPBA attorneys recently completed a lengthy odyssey when the Ohio Supreme Court refused to accept for review the appeal of the City of Munroe Falls (The “City”) in the case captioned City of Munroe Falls v. State Employment Relations Board, et al., Case No. 13-0266 (2013).

The case began in the spring of 2010, when the City, for the first time, refused to bargain with the OPBA concerning a successor contract for a bargaining unit of Sergeants.

The City initially claimed it had no duty to bargain because the bargaining unit only contained one member and, thus, was not subject to the Collective Bargaining Act - - R.C. Chapter 4117, purportedly due to the fact that it could not “collectively” bargain with a unit containing only one member.[1]

In response to the City’s refusal to bargain, the OPBA filed an Unfair Labor Practice Charge (the “Charge”) with the State Employment Relations Board (“SERB”), on or about September 10, 2010.

SERB investigated the OPBA’s Charge and on October 14, 2010, determined that there existed probable cause to believe that the City violated R.C. §§4117.11(A)(1) & (A)(5) by refusing to bargain a successor contract for the Sergeant’s bargaining unit.

As the case at SERB proceeded through the hearing process, the City’s theory of the case took an interesting turn.  In addition to its more pedestrian arguments that single member bargaining units abated as a matter of law, the City began to broadly also assert that R.C. Chapter 4117 was unconstitutional, in that it allegedly violated Section 3, Article XVIII of the Ohio Constitution and that it was an improper delegation of legislative authority.

On or about July 12, 2011, SERB ruled in favor of the OPBA and ordered the City, inter alia, to bargain a successor contract, in good faith, with the OPBA for the Sergeant’s Bargaining Unit.  In doing so, SERB ignored the City’s constitutional arguments.

The City timely appealed SERB’s ruling to the Summit County Court of Common Pleas and renewed all of its former arguments, including its claims that Chapter 4117 was unconstitutional.

On or about February 6, 2012, Judge Tammy O’Brien upheld the SERB decision in favor of the OPBA and, notably, ruled in favor of the constitutionality of Chapter 4117, by stating at p. 10 of her Order:

The Supreme Court of Ohio addressed constitutional arguments like those presented by Munroe Falls, in Rocky River v. State Emp. Relations Bd., 43, Ohio St.3d 1, 539 NE.2d 103 (1989).  The Court held in Rocky River:

The Ohio Public Employees’ Collective Bargaining Act R.C. Chapter 4117 *** [is] constitutional as [it] falls with the General Assembly’s authority to enact employee welfare legislation pursuant to Section 3, Article II of the Ohio Constitution, Section 3, Article XVIII of the Ohio Constitution, home-rule provision, may not be interpreted to impair, limit or negate the Act.  (Citations omitted). Rocky River has not been overruled and remains good law.[2]

The City then appealed to the Summit County Court of Appeals.

On December 31, 2012, the Appeals Court affirmed the decision below, while stating, at pages 8-9 of its Judgment Entry:

Munroe Falls asserts in its fourth assignment of error that the lower court erred in concluding that R.C. Chapter 4117 does  not violate the Ohio Constitution.  We do not agree.

We note that Munroe Falls does not point to a particular section in R.C. Chapter 4117 that it believes is unconstitutional; instead, it broadly asserts the entire Chapter is unconstitutional.  We are mindful that “[s]tatutes are presumed to be constitutional unless shown beyond a reasonable doubt to violate a constitutional provision.”  (Internal quotations and citations omitted.)  Nitchman v. Nationwide Mut. Fire Ins. Co., 146 Ohio App. 3d 315, 317 (9th Distr. 2001).

Essentially Munroe Falls asserts that R.C. Chapter 4117 violates Section 3, Article XVIII of the Ohio Constitution and is an improper delegation of legislative authority. . . .

Rocky River has not been overruled, and, thus, this Court is bound to apply the law as set forth by the Supreme Court of Ohio.  As the Supreme Court has already determined that Chapter 4117 is constitutional and has not reversed its position on this issue, Munroe Falls’ argument concerning Section 3, Article XVIII of the Ohio Constitution is without merit.  See id.

With respect to Munroe Falls’ assertion that R.C. Chapter 4117 represents an improper delegation of legislative authority, we are likewise not persuaded.

In the winter of 2013, the City attempted to appeal this case to the Ohio Supreme Court.  As previously stated, the Ohio Supreme Court refused to accept jurisdiction of the case, by Entry dated May 8, 2013.

Thus, the foregoing three-year ordeal concluded with a significant victory for OPBA members and other public employees, as another challenge to the continued viability of the Collective Bargaining Act was completely rebuked.

[1] The City’s position was disingenuous, at best, given the fact that the unit had only contained one member since at least 2004 and the City had previously bargained a contract with the OPBA for the one person unit.

[2] Ironically, former Ohio Supreme Court Justice, Andy Douglas, the author of the Rocky River decision, guided and advised the team of OPBA attorneys working on the Munroe Falls case.

Last Updated (Tuesday, 24 September 2013 05:15)

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