Freshwater: The role of the appeals court

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Given some dispute and confusion in comments earlier, I asked Ken Lane, an attorney friend of mine who has considerable prosecutorial and civil law experience, especially in legal issues associated with local governments and administrative agencies, to write a paragraph or two on the role of appellate courts in cases like Freshwater’s appeal of his termination by the Mt. Vernon City Schools Board of Education. His excellent and helpful response is below the fold.

The Ohio Supreme Court website states:

The courts of appeals are established by Article IV, Section 1, of the Ohio Constitution and their jurisdiction is outlined in Article IV, Section 3. As the intermediate level appellate courts, their primary function is to hear appeals from the common pleas, municipal and county courts. Each case is heard and decided by a three-judge panel.

The state is divided into 12 appellate districts, each of which is served by a court of appeals. The number of judges in each district depends on a variety of factors, including the district’s population and the court’s caseload. Each district has a minimum of four appellate judges. Appeals court judges are elected to six-year terms in even-numbered years. They must have been admitted to the practice of law in Ohio six years preceding commencement of the term.

In addition to their appellate jurisdiction, the courts of appeals have original jurisdiction, as does the Supreme Court, to hear applications for writs of habeas corpus, mandamus, procedendo, prohibition and quo warranto. The 10th District Court of Appeals in Franklin County also hears appeals from the Ohio Court of Claims.

The Freshwater case was appealed to the Fifth District Court of Appeals, which is based in Canton, and covers 17 counties, including Knox County. The clerk of the Knox County Court of Common Pleas also serves as clerk of the court of appeals for all cases originating in Knox County. The case transcript and briefs are filed in Knox County, and shipped to Canton when the court of appeals is ready to review the case.

In most instances, the court of appeals is the first appeal of right, meaning they must accept every case appealed to it. By way of contrast, the Ohio Supreme Court hears some appeals of right involving a substantial constitutional question, but generally hears discretionary appeals which it deems to be of public or great general interest.

Teacher termination cases are confusing because the common pleas court acts as the first layer of appeal, and the court of appeals acts as a second layer of appeal. The Ohio Supreme Court then acts as a third layer of appeal. This additional layer of appeal is unusual when viewed through the lens of most civil and criminal actions, but is not at all unusual when viewed through the lens of administrative appeals. As the name implies, administrative appeals come from administrative agencies, e.g. state departments and agencies, cities, villages, townships, and zoning boards.

In teacher termination cases, the court of common pleas can hear additional testimony, but is not required to do so. The court of appeals is restricted to reviewing the record, which consists of the common pleas court judgment entry, the actions of the school board, and the transcript of proceedings. The transcript of proceedings in the Freshwater case was over 6,000 pages. Transcripts in most cases are well under 200 pages, and some are only 20 to 30 pages.

Judge Eyster has publically stated he read every word of the transcript. The court of appeals almost certainly will not, nor will they scour the record looking for errors. The appellant’s [Freshwater’s] attorney must provide the court of appeals with specific errors committed by the school board, supported by specific portions of the transcript which demonstrate the error took place. Appellant’s attorney must then provide a statute, rule, or case in support of their position. Appellee’s [Board of Education’s] attorney then provides the court with argument as to why no error took place, and why counsel for appellant’s argument is erroneous, and is not supported by the statute, rule, or case cited. The court of appeals can also allow amicus curiae briefs to be filed, which urge the court to either affirm or reverse the decision of the court from which the appeal originated.

In most cases, the court of appeals would review the briefs of appellant and appellee, and set the matter for oral argument. In the Freshwater case, the court allowed two amicus curiae briefs to be filed, and the case was placed on the court’s accelerated calendar, so no oral arguments will be heard.

The court of appeals can (among more subtle subsets of these options):

- Determine no error occurred and affirm Judge Eyster’s decision.
- Determine an error occurred, but it was harmless error, and affirm Judge Eyster’s decision.
- Determine an error occurred and reverse Judge Eyster’s decision.

The clerk of courts shipped the case transcript and briefs to Canton on February 2, 2012. Even though the case is on the court’s accelerated calendar, I would not expect a decision before early April. A day or two after the case is decided, it will be available online.

9 Comments

Interesting… So, because of the request from Freshwater for an accelerated schedule, there are no oral arguments and the judges will be working purely from the written records.

Somehow that doesn’t sound like it will work in Freshwater’s favor…

–W. H. Heydt

Old Used Programmer

W. H. Heydt said:

Interesting… So, because of the request from Freshwater for an accelerated schedule, there are no oral arguments and the judges will be working purely from the written records.

Somehow that doesn’t sound like it will work in Freshwater’s favor…

–W. H. Heydt

Old Used Programmer

However, it minimises the opportunities for R Hamilton Kelly to get up the judges’ noses.…

Determine an error occurred and reverse Judge Eyster’s decision.

Can they (God forbid!) send it back for a new trial?

Matt Young said:

Determine an error occurred and reverse Judge Eyster’s decision.

Can they (God forbid!) send it back for a new trial?

Almost certainly. But we can hope they’re smarter than that. That there are 6K pages in the original hearing transcript might be considered A Clue that that would be a Bad Idea. Especially if they’ve read a few random bits of it…

–W. H. Heydt

Old Used Programmer

Perhaps a brief synopsis of the transcripts would be helpful in the review process. Here is my unofficial version:

Freshwater: I didn’t do it.

Freshwater: I didn’t do it.

Freshwater: I didn’t do it.

Freshwater: OK I did it, but I had my reasons.

Freshwater: OK I did it, even if my reasons weren’t that good.

Freshwater: Like I said, I didn’t do it.

That about sums it up.

Is it entirely coincidental that this post carries the date of the first anniversary of the Referee’s issuing of the recommendation to terminate? Will we see a post entitled “The Freshwater Saga: A New Decade Begins”?

Kevin B said:

Is it entirely coincidental that this post carries the date of the first anniversary of the Referee’s issuing of the recommendation to terminate?

No, it’s by divine intervention. Or something. These things don’t happen by chance, you know. :)

Will we see a post entitled “The Freshwater Saga: A New Decade Begins”?

If there were a custom-designed Hell, that would be it for me.

Richard B. Hoppe said:

Kevin B said:Will we see a post entitled “The Freshwater Saga: A New Decade Begins”?

If there were a custom-designed Hell, that would be it for me.

It’s not just a job…it’s a career. Just ask Pamela Jones, who has been following SCO v. just about everybody since 2003.

You have my profound sympathy…and vast amounts of gratitude for the job you’ve been doing following the Freshwater Saga.

–W. H. Heydt

Old Used Programmer

They aren’t called SCO anymore … well they are because people who talk about them today want to make sure that noone forgets what a ludicrous business model it was to sue all your customers over nothing. But they changed the name to TSG Group and TSG Operations. What does TSG stand for? The SCO Group?? Who thinks up these things?

http://www.groklaw.net/articlebasic[…]073013574557

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This page contains a single entry by Richard B. Hoppe published on February 7, 2012 1:13 PM.

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