IN THE SUPREME COURT OF OHIO. Appellees,. ON APPEAL FROM THE ALLEN COUNTY COURT OF APPEALS, VS, : THIRD APPELLATE DISTRICT

Transcription

1 IN THE SUPREME COURT OF OHIO BRENNEMAN BROTHERS, et al.. CASE NO: Appellees,. ON APPEAL FROM THE ALLEN COUNTY COURT OF APPEALS, VS, : THIRD APPELLATE DISTRICT ALLEN COUNTY COMMISSIONERS COURT OF APPEALS CASE NO.: Appellant. APPELLEES' MEMORANDUM IImI RESPONSE TO APPELLANT'S MEMORANDUM FOR JURISDICTION Dustin K. Looser ( ) Gregory M. Antalis ( ) Allen County Prosecutor's Office 204 N. Main Street, Suite 302 Lima, Ohio Counsel for Appellant, Allen County Commissioners Michael A. Rumer ( ) Zachaiy D. Maisch ( ) Rumer & Maisch Co., LLC 212 N. Elizabeth Street, Suite 410 Lima, Ohio Counsel for Appellees Brenneman Brothers, et al. C s^ ^yf ^ ^ D. ^ ^ 9- Itt i u, :^ ''"....., :.i CLERK OF COUrIT SUPREME Ct^^^^ ^^ OHIO

2 TABLE OF CONTENTS Page TABLE OF CONTENTS I TABLE OF AUTHORITIES ii EXPLANATION AS TO WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST ARGUMENT ,... 2 PROPOSITION OF LAW NO. 1: A common pleas court, sitting as an appellate court hearing an administrative appeal, does not have the jurisdiction to review and consider previously unfiled allegations regarding violations of R. C in subsequently determining appellate allegations of error based on "illegality" under R. C CONCLUSION... 7 CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES Cases Page Brenneman Bros., et czl. vs. Allen County Comm., 2013-Ohio , 5 Fahl v. City of Athens, 2007-Ohio-4925 (4t" District) , 7 Peffer v. Board of County Commissioners, 2001-Ohio Appeal Lexis-3185 (11"' District)... 6, 7 Stainfield v. Jefferson Emergency Rescue District, 2010-Ohio-2282 ( 11`t' District)... 6, 7 State ex rel Toledo Blade Co. v. Economic Opportunity Plan Association of Greater Toledo, 61 Ohio Misc.2d Statutes R.C R.C

4 EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST The issue posed by appellants in this case is whether a trial court can rule on an alleged R. C violation when brought as part of an administrative appeal. It is appellants' position that an action brought to enforce R. C is for injunctive relief and the only method by which the common pleas court has jurisdiction of the subject matter. Appellees' position is that in an administrative appeal the trial court does have jurisdiction, if a determination can be made that an active participant has committed an illegal act by violating R. C In the present case the trial court concluded it did not have subject matter jurisdiction in the context of administrative appeal. That conclusion was appealed to the Third District Court of Appeals together with two other assigned errors. The Court of Appeals concluded that the trial court did have jurisdiction to consider violations of R. C as illegal acts. The Court of Appeals remanded that specific assignment of error to the trial court for factual determination and found the other assigiirnents of error moot based upon that decision. Upon reversal and remand, then, the issue for the trial court is whether the evidence that has been presented at the R. C , et seq, hearing, and the record, is sufficient to establish a violation of the Open Meetings Act, and thus constitute an illegal act which would be invalid under R. C (H) retroactively to the moment the illegal act occurred. It is appellees' position that the Court of Appeals decision does not negatively affect the common pleas courts of this state in their determination of administrative appeals. While it is true that the trial court sits as an appellate body in the determination of an R. C et seq. appeal, it also sits as a trier of fact for that additional evidence that is permitted to be presented to

5 the trial court under the provisions of R. C What appellant is seeking herein is a determination that art illegal act, committed by a public agency as a violation of R. C , cannot constitute the basis upon which illegality of a resolution of the public body can be determined. Appellees submit that the public policy of the State of Ohio is that any illegal act, regardless of its genesis, is sufficient to constitute a violation of R. C et seq. and to justify the determination that the public agency actions should be reversed. ARGUMENT Proposition of Law No.1: A common pleas court, sitting as an appellate court hearing an administrative appeal, does not have the jt2risdiction to review and consider previously tmfiled allegations regarding violations of R. C in subsequently determining appellate allegations of error based on "illegality" under R. C The primary contention set forth by appellant is that its absurd to allow a trial court to sit as an appellate court and also be acting simultaneously as a trial court fact finder. This is the very nature of a R. C hearing if the trial court permits the presentation of additional evidence. Under the statute in the case at bar, the court did take additional evidence, part of which was that the appellant Board conducted an illegal closed-door meeting as part of its deliberations in the ultimate determination of the resolution from which the administrative appeal was taken. Appellant is hung up on the concept that R. C has the remedy of injunction contained in its terms. However, as pointed out by the Court of Appeals, there is nothing in R, C , which states that injunction is the exclusive remedy for violation of the statute and thus the illegality of the act. The appellant raised, by cross-appeal in the Court of Appeals, the issue of whether or not 2

6 the trial court should have allowed the introduction of new or additional evidence pursuant to R. C The Court of Appeals specifically found that the Board's cross assignment of error was overruled. Brenneinan Bros., et al. vs. Allen County Comm., 2013-Ohio-4635, 145 This part of the Court of Appeals decision has not been appealed to this court. Tlierefore, this matter must be considered in the context that the additional evidence presented to the trial court under R. C was properly before the trial court. Appellees acknowledge that there is no prior case law wherein a court has found a violation of the Open Meetings Law, as an underlying illegal act, warrants vacatin.g a political body's decision under R. C Likewise, there is no case law which states a court does not have jurisdiction to make such a ruling. It is unequivocally clear that R. C allows the trial court to vacate the Board's decision due to an illegal act. Simply because the facts necessary to allow such a naling to be made, have never been previously argued or presented, should not prevent approving such an endeavor. R. C makes it clear that a private meeting at which public business is accomplished is illegal unless one of the exceptions apply. No exception applies to the matter at bar. Appellees contend that the Board committed two separate illegal acts throughout the genesis of the specific project which warrants vacating the Board's action pursuant R. C The first illegal act occurred with the Board's violation of the Open Meetings Law on January 12, The trial cotwt held that the plaintiffs are required to bring a separate action in the court of common pleas in order to attack the Board for its violation of R. C Appellees were not seeking the remedy set forth in R. C , but rather submit that the simple act of violating the Open Meetings Law is an illegal act and, if so concluded, warrants the vacating of all the 3

7 Board's actions which resulted therefrom. By analogy, appellees submit that if the public agency took action which created criminal conduct, such as spoilation of documents or misappropriation of funds for some nonpublic purpose, the fact that these illegal acts were committed, notwithstanding that no criminal prosecution occurred, should not prohibit the appellees from obtaining a vacation of the action taken by the Board under R. C assuming proper standing. R. C states in pertinent part: "... the court may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by preponderance of substantial, reliable, and probative evidence on the whole record." (Bold added.) This statute charges the trial court, when additional evidence is permitted pursuant R. C , with the responsibility of evaluating the evidence on a preponderance basis. The additional evidence is presented, together with the balance of the record, for the trial court to make a determination as to whether or not the public agency committed an act which would make the decision of that agency illegal. R. C is to be liberally construed and specifically requires officials of a public body to take official action and conduct all deliberations regarding official business in open rneetings unless specifically excepted by law. R. C (H) provides both the rule and the exceptions governing resolutions, rules, or formal action by a public body. Division (H) in pertinent part, states:... a resolution, rule or formal action of any kind is invalid unless adopted in an open meeting of a public body. A resolution, rule, or fornial action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically authorized in division (G), or (J) of this section and conducted at an executive session held in 4

8 compliance with this section.... The record and evidence herein reflect that the Board had a meeting on January 12, 2012, including a majority of the Commissioners, with its clerk, and other county personnel present. This conclusion was reached by the Court of Appeals, after reviewing the record as a whole to determine whether the trial court abused its discretion in permitting additional evidence under R. C Brennerrean Bros., supra 14 The case at bar is analogous to State ex rel. Toledo Blade Co. v. Econoitaic Opportunity Plan Association of Greater Toledo, 61 Ohio Misc.2d 631 (Ohio Com. Pl. 1990). In that case, the Toledo Blade Company brought an action against the Economic OpportLinity Planning Association of Greater Toledo, and the members of its Board of Trustees. The plaintiff alleged violations of the Open Meetings Law. The trial court determined that the Board of Trustees was a public body that was subject to the public meetings requirements and that it violated the law in two ways: (1) when transitioned into a closed session meeting to discuss subjects that are not within the purview of R. C (G) exceptions; and (2) reached the decision to agree to certain stipulations concerning the head start program by a process other than through a public meeting. Ia' at p The court in that case stated that "because the EOPA Board took formal action at meetings that were closed, or in the absence of any meeting, those actions are invalid..." Id. at p Similarly, in the case at bar, a decision was reached by the appellant Board, county engineer and the soil and water department for the recertification of a project to the Board by process other than through a public meeting. If such action occurred by the appellant Board, all subsequent acts under R. C (H) lack validity. This conclusion can surely be reached, 5

9 whether affirmatively or negatively, by a trial court in the determination of an administrative appeal when additional evidence and the record reflect the same. It is illegal conduct. The Court of Appeals was correct when it remanded the matter to the trial court with specific instructions to consider the issue. Appellant herein relies upon three cases for a position that a violation of the Ohio Sunshine Law cannot be considered by a trial court in an administrative appeal. Those cases are Stainfield v. Jefferson Emergency Rescue District, 2010-Ohio-2282 ( 1V' District); Fahl v. City of Atliens, 2007-Ohio-4925 (4r' District); and Peffer v. Board of County Comrnissioners, 2001-Ohio Appeal Lexis-3155 (11t' District). Both Peffer and Stainfield are inapposite to the case at bar in that they do not deal with a properly constituted administrative appeals. The Peffer case deals with the Board of County Commissioners of Portage County, Ohio, adopting a resolution after an unannounced meeting with the corporation's executive director. The Board agreed to forgive a $100, debt to the county. Procedurally, the matter was improperly brought to the trial court as an administrative appeal. The Peffer court reversed and remanded with instnictions for the trial court to conduct a hearing to deterrnine if there was a violation of R. C The Court reasoned that the statute "addresses the form and m.anner in which decisions are ni_ade, and is not concerned with the content of those decisions." In essence, the Peffer Court remanded the case to the trial court to consider the matter as an original action because it was improvidently filed and considered as an administrative appeal. In Stainfield an ousted executive director of an emergency rescue district appealed to the Common Pleas Court the district's decision to remove her from her position. She argued the 6

10 violation of the Open Meetings Law by the Rescue District. Again, the 11`' District decided that the assignment set forth about the public meeting violation was not properly challenged in the manner prescribed by statute. The Stainfield court relied upon a decision of Fahl v. City of Athens 2007-Ohio-492, (01 District). In the case at bar, the Court of Appeals of the Third Appellate District has certified a conflict question on the basis of Fcalzl. Fahl stands for the proposition that standing is a proper issue for determination in an administrative appeal for property owners affected by decisions of the Athens City Cotuicil. Appellants in Fahl argue that they had standing to challenge the ordiriance because the city council had violated R. C In refusing to consider the property owner's argument, the Fourth District quoting Peffer stated that "an action brought to enforce (R. C ) as an action with original jurisdiction in the Court of Common Pleas. It is notan appeal." as follows: The conflict question certified by the Third District Court of Appeals in the instant case is Does a common pleas court, sitting as an appellate court in an administrative appeal under R. C. Chapter 2506, have jurisdiction to consider whether a resolution, rule, or formal action taken by the public body whose decision has been appealed is invalid under R. C ? This question is not exactly the same as the appellants propositioii of law. CONCLUSION For the reasons stated above, this case does not involve a matter of public or great general interest. The Appellees request that this Honorable Court deny jurisdiction in this case. 7

11 Respectfully submitted, RU & M CH CO., LL ^ Michael A. Rumer, ( ) and CERTIFICATE OF SERVICE /Zdchary D. Maisch, ( ) 212 N. Elizabeth Street, Suite 410 Lima, Ohio (419) Fax: (419) mulinier@rmcnlaw.net zmaisch@m-icolaw.net COUNSEL FOR APPELLEES I hereby certify that a tnie and accurate copy of the foregoing Appellees' Meniorandum' in Response to Appellant's Memorandum for Jurisdiction was served upon the following this day of December, 2013, by regular U. S. Mail, postage prepaid: - Dustin K. Looser, and Gregory M. Antalis. Counsel to Appellant, 204 N. Main Stre, Suite 302, Lima, Ohio y, ^J Michael A. Rumer.d- 8