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Walter | Haverfield Secures Victory for Client in Ohio Supreme Court Case


September 18, 2020

September 18, 2020 

On September 16, 2020, the Supreme Court of Ohio ruled in favor of the Village of Put-in-Bay’s imposition of a tax on owners of vehicles available for hire. Walter | Haverfield partner, Benjamin Chojnacki and former Walter | Haverfield partner, Susan Keating Anderson represented the Village in the case against a Put-in-Bay business owner.

In Village of Put-in-Bay v. Mathys et al, the Village charged the business owner for failure to pay the annual license fee on each of the golf carts that he rents out for use in the Village.

The case proceeded all the way to Ohio’s high court which addressed two propositions of law:

  1. Because Ohio licenses vehicles for use on all public roadways in exchange for payment of an annual statutory tax on vehicles, no municipality in this state may levy an additional local tax for similar purposes—otherwise, localities could negate or attach additional strings to statewide licenses.
  2. Under Ohio Constitution Art. XII, Section 5a, any moneys collected from taxes levied on motor vehicles must be expended solely for a statutory purpose, therefore, a statute—not an ordinance—must enable the expenditure, and hence the exaction, of a vehicle tax.

Implicit within the first proposition of law is the owner’s contention that the Village ordinance was preempted by state law which provides for a statutory scheme that taxes vehicle licensure, the proceeds of which pay the expense of administering laws related to registration of motor vehicles and maintaining and repairing state roadways. To this point, the Supreme Court of Ohio reasoned that the General Assembly’s enactment of a statewide vehicle tax is not the equivalent of a municipal ordinance which imposes a business tax on owners of vehicles for hire. The Court placed great emphasis on the fact that Put-in-Bay’s ordinance does not impose a license tax on the operation of motor vehicles in general, but rather, Put-in-Bay’s ordinance imposes a tax on those wishing to have the privilege of operating a vehicle rental business in the village.

As to the second proposition of law accepted, the Court determined that Section 858.01 did not run afoul of Article XII §5a of the Ohio Constitution which requires, in part, that money derived from “fees, excises, or license taxes” relating to registration, operation, or use of motor vehicles on public highways shall not be used for purposes other than the costs associated with administering those laws and construction, maintenance, and repair of public highways and bridges. The Court quickly dismissed the business owner’s second proposition of law by distinguishing the business tax in Section 858.01 of Put-in-Bay’s ordinances from a state law tax on the operation or use of vehicles on public highways.

This decision solidifies the principle that there must be an express act of restriction present in order for a state law to be said to preempt a local ordinance and lends further support to a municipality’s home rule authority.

If you have any questions regarding this case and its implications, please reach out to the Walter | Haverfield Public Law Group here.

Wesley M. Kretch is an associate at Walter | Haverfield who focuses his practice on public law. He can be reached at wkretch@walterhav.com or at 216.658.6216.

No Conviction Needed: Ohio Supreme Court Rules That Lawsuits Based on Criminal Acts Do Not Require an Underlying Conviction

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August 3, 2020

Wesley KretchBen ChojnackiAugust 3, 2020 

On July 29, 2020, the Supreme Court of Ohio decided Buddenberg v. Weisdack et al., 2020-Ohio-3832, an important case interpreting a provision of the Ohio Revised Code which imparts civil liability on persons who engaged in “criminal acts.”

Before Buddenberg, it was not clear whether a party could bring a civil lawsuit against a person for a “criminal act” if that person has not been convicted in a criminal proceeding. After Buddenberg, it is clear that an underlying criminal conviction is not a necessary predicate to bring a civil lawsuit against someone for a “criminal act” under R.C. § 2307.60.

Buddenberg arises out of a federal lawsuit alleging certain government officials violated anti-discrimination laws and committed “criminal acts,” including violating the plaintiff’s civil rights, which the plaintiff claimed exposed the defendants to civil liability under R.C. § 2307.60. Significantly, no defendants had been convicted of a crime. To properly adjudicate the claims predicated on R.C. § 2307.60, the federal court certified two questions for the Supreme Court of Ohio for determination:

  1. Does [R.C.] 2307.60’s creation of a civil cause of action for injuries based on a “criminal act” require an underlying criminal conviction?
  2. Is a criminal conviction a condition precedent to a civil claim pursuant to [R.C.] 2921.03?

Buddenberg holds that the answer to both questions is no. The Court reasoned that a plain reading of R.C. Section 2307.06 does not require proof of an underlying conviction. Rather, the statute demands only that a victim’s injury to person or property be caused by a “criminal act” of another. The Court soundly rejected the argument that the General Assembly’s use of the term “criminal act” equates to a requirement that a conviction be proven.  The Court applied a similar rationale in reaching the conclusion that a criminal conviction is not a condition precedent to a victim pursuing a claim for a violation of Ohio’s criminal intimidation statute found at R.C. Section 2921.03.

This decision will have important implications for public employees and officials. If you have questions regarding Buddenberg, the Public Law attorneys at Walter | Haverfield LLP are available to answer your questions.

Wesley M. Kretch is an attorney with Walter | Haverfield’s public law group. He has extensive experience representing public entities at trial and appellate levels in state and federal court. He can be reached at wkretch@walterhav.com or at 216.658.6216.

Benjamin Grant Chojnacki is a partner with Walter | Haverfield’s public law group who counsels municipalities, public entities and private corporations on all aspects of public law. He can be reached at bchojnacki@walterhav.com or at 216.619.7850.

Careful, Texts on Personal Cell Phones About Employees Can Be Public Records


October 18, 2019

Peter ZawadskiThe Ohio Court of Claims has confirmed that text messages between public officials using personal devices can be public records.  Although the question has previously been open to interpretation, this decision clarifies the answer and serves as a warning for all public employees.

In Sinclair Media III, Inc. v. Cincinnati, a reporter issued a public records request to the city seeking all text messages for a six-week period that were sent from any city council member, the mayor or the city manager discussing the city manager’s employment.  When the city did not comply, the news outlet filed an action with the Ohio Court of Claims.

The city asserted that the request was ambiguous, overly broad, and that the records were not public records. Despite the city’s objections, the court found that because the request was limited to text messages sent by specific public officials on a specific topic and within a six-week time period, it was not ambiguous or overly broad.  The court also confirmed that the text messages of city officials concerning another official’s employment were public records because they were records created, received by or under the jurisdiction of the city, even though they were maintained on the personal, privately paid devices of city officials.

The court emphasized that the important question is:  Do the text messages about an employee document the functions, policies, procedures, operations, or other activities of the city?   The court found that they did, and it therefore compelled the city to provide the text messages.

So when it comes to responding to public records requests for text messages, maintaining objections will be much more difficult due to this decision.  Therefore, all public employees are urged to use caution when texting.  Even if the text is on a private device, and even if you think the text is insignificant or does not serve to document the functions, policies, procedures, operations, or other activities of your district, it is very likely a public record if it’s work-related.  In sum, whatever work-related texts you send, make sure you’re comfortable with a media outlet publishing those messages.

Peter Zawadski is an associate at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at pzawadski@walterhav.com and at 216-928-2920.

*An expanded version of this article appears in Crain’s Cleveland Business.