counsel for cross-appi;llants josh and sheila haas jmlynchi^green-1aw.carti j...
TRANSCRIPT
IN THE SUPREME COURT OF OHIO
JOSH HAAS, et al., . Supreme Court Case No. 2013-1195
Plaintiffs,%A.ppellees/Cross-Appellants, Appeal fronl Williams County Court ofAppeals, Sixth District
V.
VILLAGE OF STRYKER, et al.,Court of Appeals Case No. WM-12-004
DefendantslAppe l.l ant/Cros s-Appeliees
MEMORANDUM OF CROSS-APPELLEES VILLAGE OF STRYKER ANI)PEGGY ST.,IOHN OPPOSING THE 1!!IEMORA.NDUM IN StiPPORT OFJURISDICTION OF CROSS-APPELLANTS J(?SH AND SHEILA HAAS
Jane M. Lynch (0012180) (COUNSEL OF RECORD)Jared A. Wagner (0076674)Green & Green, Lawyers109 North Main Street, Suite 800Dayton, Ohio 45402'I'e1. 937.224.3333Fax 937.224.4311jmlynchi^green-1aw.cartij [email protected]
Maria J. Armstrong (00.38973)Bricker & Eckler100 South 'I'hird StreetColumbus, Ohio 43215-4291Tel. 614.227.8821Fax 614.227.2390marmstrong c^bricker.corn.
^,^
COUNSEL FOR CROSS-APPELLEES VILLAGE OF STRVKER AND PEGGY ST. JOHN
George C. Rogers (0014107)6884 State Rt. 110Napoleon, Ohio 43543Tel. 419. 748.8041Fax 419.748.8532
COUNSEL FOR CROSS-APPI;LLANTS JOSH AND SHEILA HAAS
I. EXPLANATION OF WHY TIIE ISSUES RAISED BY THE CROSS-APPELLANTS ARE NOT OF GREAT PITBLIC. OR GENERAL INTEREST
All three of Plaintiffs' propositions of law involve matters of well established law for
which there is no demonstrated, nor even argued, conflicts for this Court to resolve. As sach,
Plaintiffs have a failed to establish any issues of great public or general interest and jurisdiction
over the issues raised in their memorandum should be dectined.
In the first proposition of law, Plaintiffs argue that a party should be held liable under the
Fourth Ainetidment for filing a criminal complaint resulting in a summons to appear in court
Nvhere the criminal suspect is subsequently arrested for failing to appear. 1-lowever, as correctly
noted by the Sixth District, the relevant case law on this issue clearly and unequivocally
establishes that the filing of a criminal complaint that results in a suzninons is not, as a matter of
law, sufficient to establish that the defendant effectuated a seizure of the plaintiff, even if he is
sr.ibsequently arrested for failing to appear in response to the summons. 7faas v. Stlyker, 6th
Dist. hTo. WM-12-004, 2013-Ohio-2476,'^ 28-31 (citing Fitlly v. .Barada, 599 F.3d 591, 594-595
(7th Cir.2010); Burg v. Gosselin, 591 F.3ti 95, 99-101 (2d Cir.2010); Bielanski v. Cot<n1y of
Kane, 550 F.3d 632, 637-643 (7th Cir.2008); L?iBella v. Borough of'Beachwvocl; 407 F.3d 599,
601-603 (3d Ci.r.2005); DePiero v. City of l'tlaceclonia, 180 F.3d 770, 789 (6th Cir.1999); and
Gonzales v. I?ickson; 6th Dist. No. WD--09---071, 2010-Ohio-2792, 14 24.) Thus, because
Plaintiffs' first proposition of law is contrary to the well establish law and there is no conflict
among the Ohio Courts on this issue of law, it does not involve an issue of great public or
general interest for this Court to consider.
alleged claim, arld may not simply state legal conclusions."). Accordingly, this proposition of
law also does not present an issue of great public or general interest.
In sum, all of the arguments raised by the Plaintiffs in their three propositions of law seek
to have this Court address areas of law that are well established and devoid of conflict. Such
arguments do not present the sort matters of great public or general interest necessary to invoke
this Court's discretionary jurisdiction, and the Court should decline I'laintiffs' attempt to obtain a
review of the Sixth District's decision.
II. ARGt,'hIENTS CONTRA TO PLAINTIFFS' PROPOSITIONS OF LAW
A. The Sixth District Correctly Applied the Undisputed and Clearly EstablishedLaw When it Found That the Filing of a Criminal Complaint Resulting in aSummons to Appear in Court Does Not Give Rise to a Seizure under theFourth Amendment
'I'he first proposition of law raised by Pla:intiffs challenges the Sixth District's conclusion
that defendant Peggy St. John was not liable for plaintiff Josh Flaas' arrest. Stryker at 28-31.
The only action St. John is alleged to have takezi in this matter was to file a criniinal complaint
against Mr. IIaas in the Bryan, Ohio Municipal Court, which resulted in that court issuing a
summons for Mr. llaas to appear before the court. (Complaint at', 4.) When Mr. F-laasfailed to
appear in response to ttie summons, a bench warrant was issued for his arrest, pursuarzt to which
he was subsequently arrested and incarcerated. (Iei. at ^, 5-6.) There are no allegations that St.
John was in any manner involved with the issuarzce of the warrant for Mr. Haas' arrest or with
his actual arrest_ (see, generally, Id. )
Applying the well established case law regarding what constitutes a seizure under the
l`ourth Amendment, the Sixth District recognized that merely initiating a criminal action that
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results in the issuance of a summons is insufficient to establish a seizure under the Fourth
Amendment, even where the criminal defendant is subsequently arrested for failing to appear in
response to the summons. Stryker at'!f 28-31 (citing Tailly, 599 F.3d at 594---595; Burg, 591 F.3d
at 99-101; Bielanski, 550 F.3d at 637-643; DiBella, 407 F.3d at 601-603; DePieYo, 180 F.3d at
789; Dickson at ¶ 24.) As noted by the Sixth District, the law on this point is clear and
undisputed. Moreover, Plaintiffs have failed to point to any discernable conflicts on this issue
among any courts at all let alone among Qhio's courts.
In arguing that the Sixth District's decision is incorrect, Plaintiffs rely on the case of
Malley v. Briggs, 475 U.S. 335 (1986); however, the holding in tl%lalley is not applicable to the
facts of this case and the interpretation of lVlcrlley urged by Haas' is contrary to law.
l'irst, Nlalley is factually distinguishable. LJnlik:e the facts alleged in this case, Malley
involved a claim against a police officer who had applied for an arrest warrant without
probable cause. Nlalley, 475 U.S. at 338-339 (empliasis added). I-1ere, Plaintiffs alleged that a
policy maker (St. John) filed a criminal complaint, which resulted in the issuance of a
summons to appear. (Complaint at ^j 4.) The defendant in ji/Jalley specifically requested the
arrest of the plaintiff by applying for an arrest warrant. 1111cclley; 475 U.S. at 338-339.
F=lowever, in this case, St. John, like the defendants in Depiero and Bur^q, simply initiated
criminal proceedings that required Mr. Haas to appear in court and answer a summons.
(Complaint at ^,,'4.) Therefore, there is no basis for holding that St. Johm is liable for Mr. Haas'
seizure.
Second, the holding in Nfalley does not, as 1'laintiffs contend, stand for the proposition
that a party responsible for initiating the criminal process is liable for a subsequent arrest arising
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out of the plaintiff's failtu-e to appear in response to a sumnlons. Rather, MalleY simply stands
for the logical proposition that a party requesting an arrest warrant is liable for the resulting
arrest. There are no allegations that St. John ever sought or received. a warrant for the arrest of
either of thePlaintiffs.
Third, Plaintiffs' interpretation of Malley is directly in conflict with the plethora of
subsequently issued case law relied upon by the Sixth District, which unequivocally holds that
the Fourth Amendment is not implicated by the initiation of a criminal action requiring the
plaintiff to appear in court: Zully, 599 F.3d at 594-595; Burg, 591 F.3d at 9$; Bielanski, 550
F.3d at 642; Di.Bellcr, 407 F3d at 603; DePiera, 1.80 F.3d at 789, Dickson at 24; see, also,
Martinez v. Ca3°r, 479 F.3d 1292, 1299 (10thCir. 2007) ("the niere issuance of a citation
requiring presence at future legal proceedings does not qualify, as a constitutional seizure");
Kara7n v. C,'itv of Bacrhank, 352 F.3d 1188, 1191-1194 (9th Cir. 2003); Technical C?rclnance, Inc.
v. United Stutes. 244 F.3d 641, 651 (8th Cir. 2001); I3y-ittan v. ^'L7alUney, 196 F.3d 24, 30 (l st Cir.
1999) (holding tr.rat the issuance of a summons cannot constitute a seizure simply because it
threatens a citizen with the possibility of confnement if he f.°ails to appear in court). More
importantl:y, Plaintiffs' interpretation is also at odds with the Supreme Coiirt's own in:ternal
discussion within Malley regarding the difference between an officer applying for an arrest
warrant and an individual initiating a criminal prosecution:
We have interpreted § 1983 to give absolu.teimmunity to functions "intimatelyassociated with the judicial phase of th.e criminal process," not from anexaggerated esteem for those who perform these functions, and certainly not froma desire to shield abuses of off ce, but bucause any lesser degree of inlmunitycottld irnpair the judicial process itself: We zntend no disrespect to the of.ficerapplying for a warrant by observing that his action, while a vital part of theadministration of criminal justice, is fizrther removed from the judicial phase of
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criminal proceedings than the act of a prosecutor in seeking an indictment.Furthermore, petitioner's analogy, while it has some force, does not take accotmtof the fact that the prosecutor's act in seeking an indictmeitt is but the first step inthe process of seeking a conviction. Exposing the prosecutor to liability for theinitial phase of his prosecutorial work could interfere with his exercise ofindependent judgment at every phase of his work, since the prosecutor mightcome to see later decisions in terms of their effect on his potential liability. T`hus,we shield the prosecutor seeking an indictment because any lesser immunitycould impair the perfortnance of a central actor in the judicial process.
tl%lalley, 475 U.S. at 342-343.
In support of their interpretation of Malley, the 1laas' cite to a Washington State Court
decision, Han.son v. City of Kent, 914 P.2d 127 (Wash. App. 1996), which relied on dicta
contained withizi a footnote in Malley for the proposition that a police officer requesting an arrest
warrant may not avoid liability on the basis that a judge approved of the warrant. Hanson, 914
P.2d at 137-138. Putting aside the fact that this decision has no binding precedential value in this
case and is based on dicta within a fbotnote, even if there were a string of Ohio cases providing
the exact same conclusion set forth within Hansfln, such law would stiil not be relevantsince the
legal cozlclusion thereiiY is not applicable to the facts and claims in this action.
Both .rl^lalley and Hanson involved police officers requesting arrest warrants. Malley,
475 U.S. at 338-339; Hanson, 914 P.2d at 129-130. Whereas an arrest is obviously the likely
and intended outcome of an arrest warrant, the same cannot be said for the filing of a criminal
complaint that results in a summons to appear, si.nce an arrest is not the necessary result of filing
such a complaint. It would be impossible to argue that one did not intend the seizure of another
Nvhen requesting an arrest warrant since a seizure is the express and sole purpose of an. arrest
warrant: An arrest is not, however, either the necessary or intended result of the filing of a
criminal complaint requesting that anotller appear in court. Indeed, in order for an arrest to occur
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in such a circumstance all of the following must occur: (1) the party does not show up in
response to the summns; (2) the trial court elects to issue a bench warrant for failing to appear;
and (3) the party is subsequently arrested prior to appearing before the court. As noted by the
Sixth District, as well as every other court to have considered this issue, the connection between
the filizlg of a criminal complaint resulting in a summons to appear and a subsequent arrest for
failing to appear in response to the sununons is simply too attenuated. to attribute liability for the
arrest upon the person filing the initial complaint.
Thus, neither the holding in Malley nor the holding in Hanson are relevant to a
determination of whether St. John effectuated a seizure of Mr. Haas under the Fourth
Amendment. Rather, the only relevant cases are those that specifically address the question of
whether a party that initiates a criminal complaiilt resulting in the issuance of a summons to
appear is liable for a subsequent arrest caused by the plaintiff's failure to appear in response to
the summons. All of the cases addressing this issue have clearly and unequivocally held that the
answer to that question is no. DePiero, 180 F.3d at 789; Tully, 599 F.3d at 594-595; I3ui°l-, 591
F.3d at 98; Bielanski, 550 F.3d at 642; lVartinez, 479 F.3d at 1299; Kar•arn, 352F.3d at 1191-
1194; Technical Ordnance, 244 1~'.3d at 651; DiBella, 407 F.3d at 607; Britton, 196 F.3d at 30;
Dickson at !T, 24.
B. It is undisputed that Issues of Immunity Can Be Raised Through a Motion toDismiss
Plaintiffs' second proposition of law, although it is not developed in any meaningful
manner within their memorandum, appears to suggest that the issue of inlmunity cannot be raised
through a motion to dismiss. In support of this proposition, Plaintiffs rely solely on the decision
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in N.A.D. v. Cleveland Metro. x5"chool Dist., 8th Dist. No. 97195, 2012-Ohzo-4929, wherein the
Eighth District recognized that immunity is a question of law that is preferably addressed
through a motion for summary judgment. Ici. at !1( 18 (emphasis added). From this language,
Plaintiffs attempt to arrive at the conclusion that immunity cannot ever be addressed through a
motion to dismiss as a matter of law. However, such a conclusiori completely ignores the
necessary logical implication of the use of the word preferably, which by its very nature
indicates that a motion t<or sunamary judgment is only one of several rnethods available to
address immunity, Moreover. Plaintiffs' reasoning also completely ignores the fact that the
Eighth District in N.A.D. went on to consider the merits of the immunity issue within the context
of a motion to dismiss. Icl. at T 19-22. Therefore, rather than supporting Plaintiffs' second
proposition of law, N.A.D. actually demonstrates that a motion to disniiss can be used to address
issues of imnlunity. Id.
Indeed, this Cour-t has previously considered the merits of the question of imrnunity
within the context of a motion to dismiss. Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-
1483} ¶ 14-23. Likewise, numerous otller courts have consistently and specifically upheld the
use of a Civ.R. 12(B)(6) motion to dismiss as an appropriate mechanism through which to
address all of the following: § 1983 claims (Pepper- at ^ 19-22; Kinlin v. Kline, Case No. 1:12
CV 581, 2012 WL 3780461, *3-*7 (N.D. Ohio Aiig. 31, 2012); IL:litchell v. City, of Hamilton,
Case No. 1:11-CV-764, 2012 WL 701173, *5-*6 (S.D. Ohio Mar. 1, 2012)); issues of R.C. 2744
statutory imrmunity (Pepper at ^ 5-18; Rid-All E.xterminating at ^J 1-15; Inwood Village at ^ 1-
20); qual1ified immunity (Harrell v. C'oolr, 169 F.3d 428, 431 (7th Cir. 1999); Heyne v. i1^1Etro.
Nashville Pub. &hs, 655 F.3d 556, 562-570 (6th Cir, 2011); I3ettio v. I'illage of Norehfielr,l, 775
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F. Supp. 1545, 1551 (N.I). Ohio 1991)); and absolute immunity (Loyer v. Tasrner, 129 Ohio
App.3d 33, 34-38 (6th Dist. 1998); Dowclv v. Jones, 7th I)ist. No, 10 CO 21, 2011-Ohio-316$;1^
14-20; Transky>v. 0hio Civ. RightsCmrn'n, 11th Dist. No. 2010-L-038, 2011-OhiQ-1865,'^. 10-
20; I,i.rhoa v. 1_,isboa, 8th Dist. No. 95673 201I-Ohio-351,12-23.)
C. Plaintiffs' argument that the Dismissal of Their Claims Was InappropriateBased on the Allegation that There May Possibly Be Some Set of Facts ThatWould Allow Them To Recover is Contrary to the Well Established Law inOhio Requiring Parties to Establish At Least Some Facts Within aComplaint Suppoi°ting their Legal Conclusions
Ohio case law interpreting the no set of facts standard of review for motions to dismiss
has held both: (1) that courtsrnust identify which of the allegations in a complaint are legal
conclusions since such allegations do not enjoy an assumption of truth; and (2) that courts must
determine whether the factual conclusions set forth within a complaint support the legal theories
upon which plaintiffs are seeking to recover. Ogle v. Ohio Power Co., 180 Ohio App.3d 44,
2008-Ohio-742,3(4th Dist.) (citing McGlone v. Gritnshaw, 86 Ohio App.3d279, 285 (4" Dist.
1993) (citing 1Iitchell v. Lawson 1L.tilk Co., 40 Ohio St.3d 190, 193 (1989) (holding that "[t]he
cvurt, however, need zzot presume the truth of legal conclusions that are unsupporteci by factual
allegations.")); see also, JP ^l%IoNgan Chase Bank, N.A. v. f3elden Oak Furniture Outlet, Inc., 5th
Dist. No. 2010 CA 00049, 2010-Ohio-4444, 'c 21-22,De VoNev_ 11fut. of' t9maha .Ins. Co., 32
Ohio App.2d 36, 38 (7th Dist. 1972) (holding that "to constitute fair notice, the complaint must
still allege sufficient underlying facts that relate to and support the alleged claim, and may not
simply state legal conclusions.");NCS Healthcare, Inc. v. Candletitwod Partners, LLC, 160 Ohio
App.3d 421; 2005-Ohio-1669, !j 11 (8th Dist.), discretionary appeal not allowed by 106 Ohio
St.3d 1533, 2005-Ohio-5146; Gonzalez v. Po,snei°, 6th Dist. No. F-09-017, 2010-Ohio-2117, c^;
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19; Clemens v. Katz, 6th Dist. No. L-08-1274, 2009-Ohio-1461, ^7, discretionary appeal not
allowed by 122 Ohio St.3d 1481, 2009-Ohio-3625. Thus, Plaintiffs' argument that the mere
assertion of legal accusations without any sort of factual support is sufficient to withstand
dismissal based on the potential possibility that there may be some set of facts under which they
could conceivably recover is contrary to the well establislled law in Ohio.
What Plaintiff is essentially arguing is that the Court should apply the no set of facts
standard of review in a literal manner rather than in a manner consistent with the jurisprudence
of Ohio's courts. Indeed, one could argue that the no set of facts standard, taken to its extreme
logical conclusion, would prevent dismissals from ever being appropriate since it is always
theoretically possible to argue that there may be some set of facts that would cause one party to
be liable to another. For example, it is theoretically possible that the Pope and Mr. I-laas could
both at some point be driving cars in WilliamsCounty and that the Pope could become liable to
Mr. Ilaas for causing an accident. `I'hus; under Plaintiffs' proposed interpretation of the no set of
facts standard, he could survive a motion to dismiss by simply filing a complaint against ihe
Pope and alleging that he is liable in tort.
This is precisely the reason that the United States Supreme Court has retired the not set of
facts language. Bell Atl. Corp. v. 7ivomhly 550 U.S. 544; 563 (2007) and A;shcroft` v. Ic7bcrl 129
S. Ct. 193', 1949-50 (2009). In retiring the "no set of facts" standard of review, the Supreme
Court noted that such language was "an incomplete, negative gloss on an accepted pleading
standard" that could "be read in isolation as saying that any statement revealing the theory of the
claim will suffice unless its factual impossibility may be shown from the face of thepleadings."
T'Womhly, 550 U.S. at 561-563. Specifically rejecting the sort of reasoning propoErnded by
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Plaintiffs in the third proposition of law, the Court further reasoned that "[o]n such a focused and
literal reading of Conley jv. Gib:sonJ's `no set of facts,' a wholly conclusory statement of a claim
would stirvive a motion to dismiss whenever the pleadings left open the possibility that a
pIaintiffzn.ight later establish some `set of [undisclosed] facts' to support recoverv." Id. at 561.
In sum, Plaintiffs' suggested interpretation of the no set of facts statldard of review is
contrary to both the well established scope and application of this standard of review under Ohio
law as well as the recent law from the tlnited States Supreme Court interpreting pleading
requirements.
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III. CONCLUSION
For all the reasons stated above, the issues raised by Plaintiffs do not involve matters of
great public or gezieral interest. As such, the Cross-Appellees respectfully requests this Court to
decline jurisdiction over all of the Cross-Appellants' propositions of law.
RespectfuIly submitted,
'yMe M. Lynch (00121 60) (Counsel ofRecord)Jared A. Wagner (0076674)Green & Green, Lawyers109 North Main Street, Suite 800Dayton, Ohio 45402-1290".Cel. 937.224.3333Fax 937.224.4311j mlynch(c ,̂green-1aw.comjawagner agreen-law.corn
Maria J. Armstrong (0038973)f3ricker. & Eckler100 South Third StreetColumbus, Ohio 43215-4291Tel. 614.227.8821Fax 614.227.2390inarmstrong^)bricker.com
Counsel for C:ross-Appellees Village of Stryker andPeggy St. John
Certificate of Service
I hereby certify that a true and accurate copy of the foregoing was served via regular mailupon counsel for I'laintiffs/Appellees, George C. Rogers, Escluire, 6884 State Rt. I 10, Napoleon,Ohio 43 543 on the 27`h day of September 2013.
^^'^:k:..,^.^'
Jred A. Wagi^er (007 674) ,C(JLJNSEL FOR CROSS-APPELLEES VILLAGEOF S"IRYKER. AND PEGGY ST. JOH.-N
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