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The Law & You

A Legal Handbook

For Ohio Consumers and Journalists

14th Edition

Prepared by the Ohio State Bar Association


Funded by the Ohio State Bar Foundation
The Law & You was prepared by the Ohio State Bar Association and
funded by the Ohio State Bar Foundation as part of their ongoing joint
program to improve public understanding of the law and the legal system.
The Ohio State Bar Association and the Ohio State Bar Foundation
welcome your comments, criticism and suggestions.

Send to:

Editor
The Law & You
P.O. Box 16562
Columbus, OH 43216-6562

Copyright 1967, 1968, 1975, 1976, 1978, 1981, 1982, 1984, 1988,
1989, 1993, 1997, 2002, 2006 and 2012.

The Ohio State Bar Association and the Ohio State Bar Foundation
table of contents
Acknowledgements v

Introduction viii

Part I The Sources of Law ................... 1


Constitutional Law .. 1
Statutory Law .......................................... 2
Administrative Law ................. 3
Common Law .. 4
Different Legal Systems in the World ................ 5
For Journalists: Covering the News in a Global World ........................ 10

Part II The Courts 13


Ohio Trial Courts ...................................... 13
Ohio Courts of Appeals . 15
The Supreme Court of Ohio .. 17
The Federal Courts ........................................ 18
For Journalists: Working with the Courts . 19

Part III Legal Procedure ... 26


Procedure in Civil Actions ........................................ 26
Procedure in Criminal Actions .. 31
For Journalists: Reporting on Procedure ... 41

Part IV Criminal Law 44


What Constitutes an Offense? ... 44
Types of Crimes ........................................ 44
Penalties and Sentencing ... 46
Criminal Law and Constitutional Rights ... 52
Victims Rights ......................................... 57
For Journalists: Covering Criminal Trials 59

Part V Torts ... 62


Civil (vs. Criminal) Wrongs . 62
What Is Negligence? . 62
How Tort Rules Apply . 64
Torts That Are Crimes .............................. 65

i
Part V Torts (continued)
Tort Cases: Negligence .. 65
Traffic Accidents .................................... 66
Other Tort Lawsuits 68
Liability for the Acts of Others .. 70
Defenses in Tort Actions ............................ 71
Remedies for Tort ... 72
Workplace Torts ................................. 72
Resolving Disputes Without a Trial ................................... 73
For Journalists: Covering Torts .. 74

Part VI Contracts . 77
What Is a Contract? ................................ 77
Basic Requirements for a Contract . 77
Performance of Contracts and the Consequences of Breach .. 80
Excuses for Nonperformance or Breach of Contract . 82
Remedies for Breach of Contract ... 83
For Journalists: Covering Contract Cases .. 84

Part VII Business Transactions and Organizations ...................... 87


Business Transactions in General .. 87
Commercial Paper .. 87
Consumer Transactions in General ................................ 89
Credit Cards ................................... 92
Retail Installment Sales .. 94
Home Solicitation Sales ................................. 95
Other Consumer Credit Transactions ................................. 96
Bankruptcy ................................. 98
Common Sense in Business Transactions 101
Business Organizations ................................ 102
Nonprofit and Tax-Exempt Organizations . 104
For Journalists: Covering Business Transactions and Organizations .. 105

Part VIII Property Law . 109


Kinds of Property . 109
Types of Real Property Ownership .. 110
How Real Property Ownership Is Transferred . 114
Land Records 117
Purchase and Sale of Real Estate.. 120
Landlord and Tenant 123

ii
Part VIII Property Law (continued)
Other Real Property Issues ... 125
For Journalists: Covering Property Law... 128

Part IX Probate Law .. 133


Wills . 134
What Happens When There Is No Will? .. 137
Administration of Estates . 140
Estate, Health and Financial Planning ..................................... 142
Other Duties of the Probate Court 146
For Journalists: Covering Probate Law 148

Part X Family Law . 151


Marriage 151
Family Rights and Obligations . 154
Minors and Their Rights ... 156
Juvenile Delinquency, Unruly Children and Juvenile Traffic
Offenders 159
Neglected, Dependent and Abused Children .. 163
Divorce and Related Matters ... 165
For Journalists: Covering Family Law . 172

Part XI Workplace Law 176


The Relationship between State and Federal Workplace Laws ... 176
Major Workplace Laws: Statutory and Case (or Common) Law 176
Labor Law 182
Government Employment 183
Wages and Hours . 184
Workplace Safety . 186
Workers Compensation .. 187
Pension and Welfare Laws Affecting Employment 188
Privacy On and Off the Job . 190
Whistleblowing and Retaliation .. 192
When the Job Ends .. 193
For Journalists: Covering Workplace Law .. 196

iii
Part XII Education Law .................... 200
Public Education in Ohio . 200
Alternatives to Public Education . 203
Student Rights .. 204
Special Education 208
Federal Legislation and Education .. 211
For Journalists: Covering Education Law .... 214

Part XIII Online Law ........................ 217


Online Law As It Affects Individuals ............................... 217
Online Law As It Affects Businesses ... 222
Journalists and Online Law . 225

Part XIV The Lawyer ............................ 229


The Legal Profession ... 229
Legal Ethics and Discipline . 231
When and How to Locate an Attorney ................................ 236
How Lawyers Charge for Their Services ................................. 238
The Attorney-Client Relationship ... 241
Bar Associations and Related Organizations ... 245
Journalists and Lawyers ... 247

Part XV Media Law and Legal Resources for Working


Journalists ................................................................................... 250
Section I: Libel, Privacy & Journalists Privilege 250
Section II: Media Access to Courts, Meetings and Public Records.. 262
Section III: Internet and Journalism . 276
Section IV: Legal Contacts and Resources for Reporters 283

Glossary ... 288

Index 325

Postscript . 349

iv
acknowledgements
The Ohio State Bar Association and the Ohio State Bar C. Jocelyne Kokaz-Muslu, Esq., Atlanta, GA (formerly of
Foundation gratefully acknowledge the assistance of the Sams, Fischer, Packard & Schuessler LLC)
following individuals and groups in the preparation of this, Margery B. Koosed, Esq., University of Akron School of
the 14th edition of The Law & You: Law, Akron
Ed Krauss, Dispute Resolution, Inc., Columbus
Kerry M. Agins, Esq., Siegel & Agins Co. LPA, Cleveland P. Wesley Lambert, Esq., Koehler Neal LLC, Cleveland
Katherine A. Albrecht, Esq., Vorys Sater Seymour & Pease, Emily M. Little, Capital University Law School,
Akron Columbus
Richard L. Altman, Esq. (magistrate), Henry Co. Family Jason T. Lorenzon, Esq., Independence
Court, Napoleon Julia B. Meister, Esq., Taft Stettinius & Hollister LLP,
Matthew D. Austin, Esq., Austin Legal LLC, Dublin Cincinnati
Robert P. Bartlett Jr., Esq., Faruki Ireland & Cox PLL, Karin M. Mika, Esq., Cleveland-Marshall College of Law,
Dayton Cleveland
James C. Bates, Esq., Bates & Perry Co. LPA, Medina Russell R. Miller, Esq., Lyden, Liebenthal & Chappell
Alison Belfrage, Ohio State Bar Foundation Ltd., Sylvania
Ronald E. Burdge, Esq., Burdge Law Office Co. LPA, Scott R. Mote, Esq., Ohio Lawyers Assistance Program,
Dayton Inc., Columbus
Lisa M. Burleson, Esq., Benesch Friedlander Coplan & Hon. Michael J. Newman, magistrate judge, U.S. District
Aronoff LLP, Columbus Court, Southern District of Ohio, Dayton
Darrell A. Clay, Esq., Walter & Haverfield LLP, Cleveland William A. Nolan, Esq., Barnes & Thornburg LLP,
Carmen V. Codjoe, Esq., Forestdale, MA (formerly of Columbus
Harrington, Hoppe & Mitchell Ltd., Youngstown) Ohio State Bar Association Criminal Law Committee
Sean Cooke, Benesch Friedlander Coplan & Aronoff LLP, and Workers Compensation Committee
Columbus Mag. Marcie Patzak-Vendetti, Mahoning County Juvenile
Jeffrey T. Cox, Esq., Faruki Ireland & Cox PLL, Dayton Court
Robert M. Curry, Esq., Thompson Hine LLP, Dayton C. Eileen Pruett, Esq., Franklin County Municipal Court,
David J. Diroll, Esq., Criminal Sentencing Commission, Columbus
Supreme Court of Ohio Timothy J. Puin, Esq., McCormick Barstow LLP,
Prof. Victoria S. Ekstrand, Bowling Green State University Cincinnati
Robert Lee Ellis, Esq., Peterson, Ellis, Fergus & Peer LLP, Zachary B. Pyers, Esq., Reminger Co LPA, Columbus
Columbus Andrew J. Reitz, Esq., Faruki Ireland & Cox PLL, Dayton
Carol Ann Fey, Esq., Carol A. Fey, Atty. at Law, Columbus Jared Reitz, Ohio Center for Law Related Education
Jeffrey Fortkamp, J.D., Ohio Legal Assistance Foundation, Kevin G. Robertson, Esq., Baker Hostetler, Cleveland
Columbus Barbara A. Sanchez, Esq., Vorys, Sater, Seymour and
Wendi M. Fowler, Esq., First-Knox National Bank, Mount Pease LLP, Akron
Vernon Jeremy J. Sharp, Esq., Walter & Haverfield LLP,
Thomas E. Friedman, Esq., Thomas E Friedman Atty at Cleveland
Law, Columbus Kevin T. Shook, Esq., Frost Brown Todd LLC, Columbus
Rebecca M. Gerson, Esq., Rebecca M. Gerson Atty at Law, Hon. James A. Shriver, Clermont County Municipal Court,
Poland, Ohio Batavia
Frederick M. Gittes, Esq., The Gittes Law Group, Prof. Timothy D. Smith, Esq., Kent State University
Columbus Joseph B. Swartz, Esq., Weston Hurd LLP, Cleveland
Richard M. Goehler, Esq. (formerly of Frost Brown Todd E. Jane Taylor, Esq., Ohio Legal Assistance Foundation,
LLC, Cincinnati) Columbus
Gregory A. Gordillo, Esq., Gordillo & Gordillo LLC, Marlene Torres, Esq., Columbus
Cleveland Allison K. Tracey, Esq., Collins & Slagle Co. LPA,
Jacqueline Hagerott, J.D., L.L.M., Dispute Resolution Columbus
Section, Supreme Court of Ohio Daniel F. Trevas, Esq., Columbus
Thomas Hodson, Esq., WOUB Public Media, Athens Craig J. Van Horsten, Esq., Robison Curphey & O'Connell,
Victor H. Holcomb, Esq., Victor H. Holcomb J.D., Tecumseh, MI
Perrysburg

v
Patricia F. Weisberg, Esq., Walter & Haverfield LLP, Kathleen C. King, Esq.
Cleveland Neil E. Klingshirn, Esq.
Prof. Kyu Ho Youm, University of Oregon Fredric E. Kramer, Esq.
Terry D. Zimmerman, Esq., Akron Prof. Max Kravitz
Gary P. Kreider, Esq.
The Ohio State Bar Association and the Ohio State Bar Pamela Straughan Krivda, Esq.
Foundation also gratefully acknowledge the assistance of Edward L. Kurek, Esq.
the following individuals in the preparation of previous David H. Lefton, Esq.
editions of The Law & You: Pamela J. MacAdams, Esq.
Edward G. Marks, Esq.
Kerry M. Agins, Esq. Hon. Richard M. Markus
David T. Ball, Esq. John J. Mascio, Esq.
Robert B. Barnett Jr., Esq. Dr. Jerry L. Maynard
William F. Bates, Esq. Stephen S. Mazzei, Esq.
Barbara Kaye Besser, Esq. Christopher C. McCracken, Esq.
Marjorie H. Brant, Esq. James F. Mong, Esq.
Prof. Mark R. Brown Scott R. Mote, Esq.
Stephen R. Buchenroth, Esq. Jack L. Neuenschwander, Esq.
David S. Cooper, J.D. James R. Office, Esq.
Dianna Bessemer Copp, Esq. Christopher L. Parmelee, Esq.
Dianne S. Coscarelli, Esq. Mag. Patzak Vendetti
Hon. Dale A. Crawford Thomas Pillari, Esq.
Prof. Stanton G. Darling Randall K. Price
Deborah DeHaan Hon. Jack R. Puffenberger
David J. Diroll, Esq. F. Mark Reuter, Esq.
Andrew L. Fabens, Esq. Hon. Richard M. Rogers
Prof. Jeffrey T. Ferriell Ruth I. Rounding, Esq.
Hon. Patrick J. Foley Jeffrey S. Rosenstiel, Esq.
Howard M. Friedman, Esq. Jan A. Saurman, Esq.
Frederick M. Gittes, Esq. Nessa G. Siegel, Esq.
Stanley Goodman, Esq. Jeffrey E. Smith, Esq.
Nathan Haskell, Esq. Ronald L. Solove, Esq.
Eric B. Hershberger, Esq. Carol Gremel Stovsky, Esq.
Gail M. Ignatz-Hoover, Esq. David Strawser
Hon. James L. Hoover Prof. Gregory M. Travalio
Richard L. Innis, Esq. Patricia A. Walker, Esq.
Stephen D. Jones, Esq. Thomas C. Washbush, Esq.
Edward G. Kagels, Esq. Thomas W. Weeks, Esq.
Eugene R. King, Esq. Mag. Robert E. Whitlatch

vi
Participating Ohio State Bar Association Staff
(14th edition) Eugene P. Whetzel, Esq.
Kenneth A. Brown, Esq. General Counsel
Director of Public & Media Relations
Kalpana Yalamanchili, Esq.
Deborah K. Cooper (Law & You editor and project manager) Director of Bar Services
Public Information Manager
Andrea Donahue (Law & You cover design)
Stephanie Beougher Graphic Designer
Communications and Online Media Associate
Consultants
Ashley Goins, The Ohio State University Liz Atkinson (Law & You design)
Intern, Public & Media Relations Department (Designer)

Lindsey Kell, University of Chicago Funding


Intern, Public & Media Relations Department Ohio State Bar Foundation

Melanie Tuttle, The Ohio State University


Intern, Public & Media Relations Department

William Gutmann, The Ohio State University


Intern, Public & Media Relations Department

vii
introduction
The law is an integral part of our lives. We are born, live, and die under the law. Marriage,
the care of children, education, how we earn our daily bread, our relations with others, our
conduct, what becomes of our property when we dieall are governed by the law.

Ours is a government of laws, not of individuals. Good citizenship requires everyone to


have at least a basic knowledge of the law. This may seem an impossible task, because a
modern law library (with even modest pretensions to being complete) must contain thousands
of volumes. Most of the literature of the law is written by and for attorneys, and the layperson
is understandably repelled by the prospect of wading through mountains of technical language
for information. Further, the layperson risks becoming so bogged down in detail that the
fundamental principles are lost.

This book was written to help fill the need for a survey of law for the non-lawyer. It is
written, as much as possible, in non-technical terms and it avoids detail in favor of main
principles. It makes a determined attempt to aid understanding of legal principles by
explaining, where appropriate, what the law is and how it got that way. Many illustrations are
used to explain the operation of the law in commonplace terms. The basic subjects covered are
the sources of law, organization and operation of the courts, legal procedure, criminal law,
torts, contracts, business transactions and corporations, property law, probate law, family law,
workplace law, school law, online law and media law. A glossary explains many technical
terms the layperson is likely to encounter.

The reader should bear in mind that this book is not a definitive work on the law. Some
areas of the law are not discussed at all, and most others are not discussed in great detail. The
discussions that are included touch only the high spots. The inclusion of too much material or
detail would defeat the books main purpose. Further, some interpretations of the law contained
in this book may be unintentionally misleading or erroneous. The law is constantly changing;
the law today may not be the law tomorrow.

Even assuming that such a work could be written, this book is not intended as a complete,
how-to manual on the law. Neither the Ohio State Bar Association nor the Ohio State Bar
Foundation provides legal or other professional services. This book attempts to provide a
simplified overview of the law. Readers should not and cannot rely on this book when faced
with a real-life legal or law-related issue. They must obtain their own information and make
their own decisions. Readers should contact a lawyer when they are faced with real-life legal
problems.

Note to journalists: This 14th edition of The Law & You includes a four-section chapter on
media law that replaces the Legal Handbook for Ohio Journalists. In addition, all other
chapters include short sections regarding journalists coverage of legal matters.

viii
Part I ___________________________
the sources of law
The Constitution of the United States was made not merely for the generation that then
existed, but for posterityunlimited, undefined, endless, perpetual posterity.
Henry Clay

hink of the law as a collection of The U.S. Constitution

T broad principles and specific rules


concerning freedom, conduct and
property that establishes rights and
duties designed to help people live
together in communities, states and nations. The
law didnt appear overnight, but evolved over
Our federal government is a union of 50
separate states. The basic purposes of the U.S.
Constitution are to effectively govern the entire
nation while preserving a measure of state sov-
ereignty, to promote the general welfare, and to
protect the individual rights of all citizens. To
centuries from the human desire for order. As achieve these ends, the U.S. Constitution defines
people began living closer together, this desire the powers granted by the people to the federal
gave rise to customs that became accepted by the government, reserves all other powers to the
larger group and eventually became law. states and spells out how the states relate to each
The law is really not as mysterious as some other and to the federal government. It establishes
people perceive, and the law that governs Ohio three branches of the federal government: the
and the United States can be broken down into legislative, or lawmaking branch (Congress); the
four classifications: executive branch (the president and the presi-
constitutional lawthe fundamental law of dents subordinates), whose duty is to see that the
the land as spelled out in the Constitution of laws made by Congress are carried out; and the
the United States and state constitutions; judicial branch (the national court system headed
statutory lawlaws adopted by legislative by the U.S. Supreme Court), whose duties are to
bodies such as the U.S. Congress, the Ohio interpret the laws and to administer justice.
General Assembly or a city council; The first 10 amendments to the Constitution,
administrative lawwritten rules adopted by known as the Bill of Rights, guarantee individual
(and legal interpretations issued by) various rights and liberties such as the right to free speech
government agencies under limited authority or to gather freely. The U.S. Constitution is the
granted by legislative bodies; and standard against which all other laws are judged
common lawa large body of law that has and administered.
grown out of previous court decisions,
customs, and usage, rather than resulting from
specific legislation (statutory law).
The Ohio Constitution
The Ohio Constitution is the supreme law of
the state and is like the U.S. Constitution in many
Constitutional Law respects. It establishes the government of Ohio
and provides for legislative, executive and judicial
branches; spells out the powers of state govern-
The U.S. Constitution outlines the federal
ment; and lists fundamental individual rights.
governments structure and powers and estab-
The Ohio Constitution, however, addresses more
lishes basic law in the United States. Similarly,
issues than the U.S. Constitution. For example, it
the Ohio Constitution establishes basic law for the
establishes the right of referendum, whereby the
people of Ohio. Should a conflict arise between
people can adopt and repeal laws by direct vote;
the state and federal constitutions, the U.S.
Constitution takes precedence.

1
contains detailed provisions for financing public drugs are bought, sold and controlled in interstate
works and various state programs; and establishes and foreign commerce.
the organization and operation of local govern- In some areas, states may create laws only
ment. Still, the Ohio Constitution is subordinate so long as they fit within a federal outline of law.
to the U.S. Constitution. Thus, it would not be For example, generally speaking, a state may
possible, for example, to amend the Ohio Con- create laws to govern over its land and waterways
stitution to require criminal defendants to testify within its territorial boundary as long as the
at their trials, because the Fifth Amendment to activities are within the state boundary. However,
the U.S. Constitution specifically states that no Congress may pass laws or the Environmental
person shall be compelled to testify against him- Protection Agency (EPA) may make rules with
self or herself. the force of laws that govern over that same land
or waterway for an interstate commerce activity.
There are some instances where a law of Congress
Statutory Law may trump a state law, especially if both laws
address the same subject at the same time. In other
Laws written by federal and state legislative instances state and federal laws may be applied
authorities are known as statutes. The U.S. Con- together in areas where they do not overlap to
gress enacts those statutes affecting the entire cancel each other out.
nation, while the Ohio General Assembly enacts
Ohios statutes. City or village councils enact State Statutes
local laws called ordinances. Ohio statutes (or laws) are enacted by the
Federal laws are compiled in the United States General Assembly and affect the entire state.
Code. Ohios state statutes are compiled in the Generally, Ohio statutes take precedence over
Ohio Revised Code, and each individual city and city ordinances, the regulations of government
village maintains a code of municipal ordinances. agencies and the common law of the state.
Ohio statutes are compiled in the Ohio
Federal Statutes Revised Code and cover a wide range of subjects
Federal laws are enacted by the Congress and including:
affect the entire country. They are compiled in the the organization and operation of state and
United States Code, which, like the Ohio Revised local governments
Code, is arranged according to subject matter. agriculture
Under the U.S. Constitution, only the U.S. Con- financial institutions
gress may deal with certain subjects, such as the commercial transactions
armed forces, bankruptcy, patent law and inter- natural resources
state commerce. In other areas, federal law might business organizations
govern some parts of an activity and state law courts and procedures
might govern other parts. criminal law and procedure
Sometimes both the state and federal govern- family law
ment have similar laws covering the same subject. education
Usually, state law governs a particular activity elections
within the state, and federal law governs the same health and safety
activity in interstate and foreign commerce. insurance
For example, Ohio handles how firearms, labor and industry
explosives and drugs are bought, sold and licensing of drivers
controlled within the state, while federal law liquor control
steps in to handle how firearms, explosives and motor vehicles and traffic

2
occupations and professions of not more than one year in the local jail or
protection of incompetents and children workhouse, or both.
public utilities
public welfare
real estate Administrative Law
roads
taxation Its deer-hunting season in Ohio, so you
veterans and military affairs traipse off into the woods and bag a 10-point
water and sanitation buck. Feeling like frontiersman Simon Kenton,
you begin hauling the deer away, when a park
Municipal Ordinances ranger asks to see your hunting license.
Under the Ohio Constitution, municipalities Oops. Forgot to buy yours? The ranger issues
(incorporated cities and villages) may adopt laws you a citation for violating a state administrative
for their own self-government. These local laws rule that requires you to purchase a hunting
are called ordinances and are adopted by the license issued by the Ohio Department of Natural
village or city council, which is the legislative Resources (ODNR). The fee to purchase the
branch of municipal government. Municipal license was established by ODNR according to
ordinances are effective only within the muni- its authority to set rules for conserving Ohios
cipality enacting them and are valid only if they natural resources. The authority to establish the
do not conflict with state law. fee and adopt other rules was granted to ODNR
The relationship between municipal ordin- by state statute.
ances and state law requires some explanation. Many activities governed by statutes or ord-
Ordinances may duplicate or overlap state law, inances are so technical, or change so often or so
but ordinances can neither permit anything pro- fast, that they cannot effectively be regulated by
hibited by state law, nor prohibit anything state statute or ordinance alone.
law specifically permits.
Like state law, municipal ordinances may Adoption and Effect of Rules
deal with a wide range of subjects, including The authority to adopt administrative rules
the organization and operation of police and is a limited legislative power given to an admin-
fire departments, housing, sanitation, licensing istrative agency by the legislative body. It is
and inspection of various businesses, and many a power granted by both the U.S. and Ohio
other matters. constitutions. Administrative rules supplement
Municipal ordinances commonly contain a statutes and are useful because activities regu-
traffic code, which is similar to, or even a dup- lated by statutes and ordinances are numerous,
licate of, the state traffic code. Further, municipal technical and change so often that they cannot be
ordinances generally have many provisions sim- effectively enforced by statute or ordinance alone.
ilar to those of the state criminal code. This is Administrative rules can cover only the specific
allowed as long as the violation of a municipal subjects authorized by the statute or ordinance.
traffic ordinance is not classified as a felony Our states administrative rules are found in
(whose potential penalties may include imprison- the Ohio Administrative Code and cover activities
ment for more than six months or even a death such as hunting, fishing, wildlife management,
sentence) and provided a municipality does not try development of natural resources, public recre-
to attach felony penalties to any of its ordinances. ation, pollution control, health, sanitation, liquor
The only penalties that can be imposed for viola- control, insurance, housing, building construction,
tion of a municipal ordinance are a fine or a term land use and industrial safety.

3
It is important to note that many of these English colonists, along with numerous English
activities are also governed by federal adminis- statutes. It owes its present vitality to the custom,
trative rules. Most of these rules are published in begun in the 17th century, of recording judicial
the Code of Federal Regulations. Federal income proceedings and decisions, as well as the prin-
taxation is the best known of these activities and ciples and reasoning behind them. When a court
is governed by a long list of rules adopted by the decides a case and records its decision in a written
Internal Revenue Service, commonly called tax opinion, that opinion, or case, becomes a prece-
regulations. dent. That is, the principles on which the case was
The adoption of administrative rules in Ohio decided may be used to decide future cases with
involves a detailed set of procedures, which similar factual situations.
include multiple public hearings. Once adopted, The following example illustrates how we
administrative rules carry the same force of law deal with the concept of precedence on a daily
as statutes and can be enforced by the courts. Vio- basis: Lets say your immediate work supervisor
lating an administrative regulation may be a crime issues an order about how to stack boxes. This
if the corresponding statute or ordinance says it is order remains the precedent unless your super-
a crime and creates a penalty. If you fail to buy a visors boss issues another order about stacking
hunting license, for example, you may be found boxes, which replaces the first order and becomes
guilty of a fourth degree misdemeanor. Because the new precedent. Precedent might also change,
agencies do not have full legislative power, they for example, if a new system of packaging makes
cannot create new criminal classifications and the old way of stacking boxes obsolete.
criminal penalties. Limiting the power of the The impact of a case as precedent depends
bureaucracy keeps the lawmaking functions of the mainly on the court in which it is decided. A
state in the hands of the legislature, which is the higher court is not bound to follow the precedents
intent of the Ohio Constitution. established by the lower courts in its jurisdiction.
Lower courts, however, are bound to follow the
precedents of all higher courts having jurisdiction
Common Law over them. Courts of equal rank may use each
others precedents, just as the courts of one state
The common law is a large body of law that may borrow from the precedents of another state
has grown out of societys customs and usage, or federal court. Courts often use the precedents
and out of previous court decisions, rather than of equal or lower courts, the courts of other states,
resulting from specific legislation (statutory law). and the federal courts when such precedents are
Because it is (and was) created by the courts, well reasoned or address new problems or create
common law is a product of judicial rather than new or better solutions to old problems. (See Part
legislative power. It fills the gaps, interprets II, The Courts, for more information on the
ambiguities and helps unify constitutional, ranking of courts.)
statutory and administrative law. Based on
generations of the natural development of human Scope of the Common Law in Ohio
experience, common law gives continuity and Many major divisions of Ohio law are govern-
consistency to the law. It also allows the law ed almost entirely, or in significant respects, by
to respond to the changing needs of society. the common law. One important subject govern-
ed almost entirely by common law is torts. The
Case Law as Common Law common law of torts deals with civil remedies for
The common law is believed to have origin- injuries or damages caused by negligence, or other
ated in England following the Norman Conquest wrongful acts or omissions by others. It overlaps
(1066) and was brought to North America by substantially with what is thought of as personal

4
injury law. For example, most of the law govern- systems differ in the development and use of
ing the question of liability for injuries suffered in substantive laws, procedures, remedies and
automobile accidents is based on the common law enforcement mechanisms. Therefore, the same
of torts. legal problem may be resolved using different
Contract law is covered partly by the common remedies depending on the legal system applied
law and partly by statutes. Some areas of the law to the particular problem.
are based almost entirely on statute, such as con- People living in a globalized world must
duct that is considered a crime, and benefits avail- have a basic understanding of how culture and
able under workers compensation. However, the diverse legal systems affect the realization of
common law retains its importance even in the justice. For example, even though courts exist
parts or divisions of the law based on statute. For in China, they are used as a last resort accord-
example, common law principles and concepts ing to Chinese culture and legal tradition. In
are used to decide if, or how, a statute, ordinance China, it is considered preferable to follow a
or regulation applies to a particular situation. step-by-step approach starting with negotiation,
Further, when a statute, ordinance or regulation mediation, and, if necessary, going to litigation
is interpreted in a certain way, the interpretation in court as the last step.
itself becomes part of the common law and is Different countries in the world use common
thus entwined with the written law. law, civil law, religious law, traditional law, tribal
customary law, or a combination of these legal
The Importance of Common Law systems. In the United States of America all states
The common law can prevent a casual dis- except Louisiana operate under the common law
missal of societys established principles. At system. Louisianas system of law is considered
the same time, it forces society to look at out- a hybrid between civil law based on French and
dated principles and replace or reshape them to Spanish codes and the common law used by
address contemporary issues. other states in the United States. While courts
The landmark U.S. Supreme Court case of elsewhere in the United States tend to rule based
Brown v. Board of Education is a good example on precedents developed from common (case)
of how the law can change with time. In its 1954 law, Louisiana judges generally rule based on
decision, the high court ruled that separate edu- their own interpretations of the law, although
cational facilities for white and black students Louisianas civil law does acknowledge estab-
were unconstitutional. That decision (which lished precedents.
reflected changes in our societys views on race)
overruled another decision rendered nearly 60 Comparison of Common Law and
years earlier that found separate but equal facil- Civil Law Systems
ities were constitutional. It can be argued that this
particular decision illustrates the flexibility our Brief History
founding fathers consciously built into the U.S. The civil code or civil law system is based on
Constitution. the foundation laid by Roman law. Civil law is the
most common type of legal system in the world,
Different Legal either in its pure form or in combination with
another legal system such as religious law or tribal
Systems in the World customary law. Civil law is governed entirely by
statutes, which aim to cover every area of the law.
Initially, colonial expansion spread the civil
Different countries around the world have law system. Today, European civil law has been
diverse legal systems and legal cultures. Legal adopted in all of Central and South America, parts
5
of Asia including China, parts of Africa and even branch and its heavy reliance on its codified laws
some areas of the common-law world (Louisiana to decide cases.
in the United States, Quebec in Canada, and Civil law countries have authoritative, com-
Puerto Rico). There are certain major differences prehensive and systematic collections of general
between civil and common law systems of gov- clauses and legal principles called codes that
ernment. The major differences include the define the law in a logical fashion.
codification process in the civil law tradition, the The codes in a civil system cover many
role of the judge, the application of evidentiary legal topics, sometimes treating separate areas
rules, the inquisitorial vs. adversarial nature of of law in different codes, such as the criminal
the two systems, and the remedies allowed by code or the commercial code. A specific code,
the two systems. e.g., the commercial code, aims to lay down the
The goal in the civil law system is to find and whole area of commercial law in one document
apply a relevant statute to solve the legal problem. to provide a coherent and consistent set of rules.
This is done in an inquisitorial fashion, where the The commercial code is then applied to solve
judge asks questions and takes an active role in all disputes in the area of commercial law.
the process. The use of codes in a civil system is similar
In a common law system, the goal is, rather, to the use of statutes in a common law system.
to find a case that is similar in facts to the case However, statues in a common law system cover
at hand. The way in which the earlier case was only certain areas of the law, whereas in civil law
decided creates a legal precedent, which can be systems, all areas of law are regulated by com-
used to solve the legal problem in the current case. prehensive statutes that even incorporate judicial
The attorneys generally try to find legal prece- decisions. In a common law system, judicial
dents from older cases on behalf of their clients, decisions established from earlier cases form
while the judge functions as a referee. The precedents that are used to decide future cases,
attorneys are responsible for representing their but these are not included in the statutes.
own parties, whose interests generally oppose
each other, so their role is adversarial in nature. The Judges Role in Civil and Common Law
That is why the common law system is considered Systems
adversarial rather than inquisitorial. In countries The judges duties and career path are quite
that rely heavily on the common law, courts may different in civil and common law systems. Civil
base decisions on precedent developed through law judges must follow written codes and take
case (common) law, but they are still bound to care to administer them in a technically correct
follow the statutory (written) law if there is a manner when reaching judicial decisions. There
conflict between common and statutory law. is little room for creativity; rather, the judge must
apply the written law in the specific code to reach
Codification in Civil Law Systems a decision. The judge is expected to interpret the
The legislative branch (such as the parliament) statute until a new statute is enacted to address a
is today the principal source of law in civil law particular legal problem, which means that courts
countries. The concept of enacted law covers legal may struggle to apply an existing solution to a
rules adopted by the legislative branch, executive new problem. In a civil law system, consistency
decrees, administrative regulations and local and predictability within the written law is valued
ordinances issued by the executive branch (such more than innovation when attempting to solve
as the president or government agencies). A dis- legal problems.
tinguishing feature of a civil law system is its In systems that draw largely on the common
codification of laws enacted by the legislative law, judges may use precedents established by

6
earlier cases to resolve a legal problem. Because and written communication during which evi-
the facts in one case are never exactly identical dence is introduced, testimony is taken, and
to those of another, the judge must confirm the motions are made and decided. Settlements are
similarity between the cases before applying the encouraged throughout the course of the legal
precedent. Although the judge must abide by the action.
demands of written law, the process of resolving During this process, the judge plays an active
a question where the precedent does not exactly role by questioning witnesses and seeking to
match the current issue allows the judge to exer- reframe or define the issues, although lawyers
cise some creativity. This is why common law also may submit questions to witnesses. The judge
is sometimes called judge-made law. also may introduce new legal theories and factual
In civil law countries, a new lawyer may issues during the proceedings, and can even obtain
become a judge immediately rather than first expert opinions on his or her own motion. The
spending time as a practicing attorney or a pro- admission of documents into evidence is not a
secutor. There is a specific exam and training formal process. Parties themselves may introduce
generally set by the ministry of justice for career- evidence or the court may ask for evidence. One
path judges. After having completed the exam party must notify the other party that evidence
and the training, the judge is assigned to a specific will be introduced, and give the other party an
court and post by the ministry of justice. In coun- opportunity to inspect the documents for authen-
tries that rely on the common law, a new lawyer ticity. The judge determines what weight should
must spend a significant amount of time in the be given to the evidence, and there are no rules
private practice of law or, perhaps, as a govern- governing hearsay evidence provided by those
ment attorney or law professor before becoming who are not first-hand witnesses. Because civil
a judge. Judges are appointed or elected to office law systems do not use juries, there is no need
in common-law countries, and there is no com- for elaborate exclusionary rules of evidence.
petitive examination. In the common law system, the judge has
some ability to direct the timing and flow of a
Trials in Civil and Common Law Systems case. However, the lawyers for each party are
In civil law systems, judges have broader generally responsible for moving the case
authority and more control regarding evidentiary forward, producing evidence and questioning
rules than in common law systems. A civil law witnesses. In representing their parties, the law-
judge is specifically trained to administer a trial yers are allowed to argue about what evidence
and can enforce the rules of evidence and exer- should be allowed at trial, although the judge
cise a great deal of control in directing the timing is responsible for applying and enforcing the
and flow of a case. appropriate rules of evidence. The lawyers are
The judge defines the issues as the proceedings largely responsible for questioning witnesses,
continue and decides which witnesses will be and the judge acts as more of a referee during
examined at trial, what questions will be asked this process, although the judge also may ques-
of them and how to evaluate their testimony. In tion witnesses. A system grounded in the com-
a civil system, there is no real counterpart to the mon law is client-centered, and the primary duty
common law practice of pre-trial discovery and of the lawyer is always to the client, although
motions, and there is no genuine trial in the the lawyer is still bound to uphold the statutory
sense of a single major event. A civil law action law. The judges job is to make sure the lawyers
is a continuous process of meetings, hearings, follow the law governing the trial procedure.

7
Inquisitorial vs. Adversarial Nature of Civil such as France, Norway, Spain and Brazil, but
and Common Law Systems they are generally used for a limited range of
Both civil and common law systems seek to offenses that are mainly criminal.
uncover the truth, but they do so from different In the United States common law system,
perspectives. accused people have a right to a trial by jury in
Civil law systems tend to be inquisitorial, certain cases. Even so, many cases are not tried
meaning that the emphasis is upon discovering before a jury, especially when the case does not
the truth by asking questions and then finding involve a crime. In some countries that make use
the appropriate statute to apply to the case. In a of the common law, such as Papua New Guinea
civil law system, the court is not necessarily seen and India, trial by jury is not common, largely
as a forum where the plaintiff and defendant bat- because, in these countries, tribal or clan loyalties
tle to demonstrate to a judge or jury who is right make it difficult to find people who can reach an
and who is wrong. Rather, judges are actively objective judgment when evaluating the parties at
involved in questioning witnesses, directing trial (such as the accused or the alleged victim). In
investigations and challenging evidence. such a society, it likely will not be in the parties
Common law systems tend to be adversarial, best interest to be tried by a jury of peers.
meaning that the truth is expected to be revealed
through a vigorous debate between two oppos- Remedies in Civil and Common
ing points of view as presented by the parties Law Systems
lawyers. In the common law system, the judge At the end of a case, in both civil and com-
generally serves as an impartial observer of this mon law systems, the court typically deter-
debate, but must make sure the lawyers follow mines a remedy to compensate for whatever
statutory rules at trial when (for example) pre- harm it finds a party has suffered. However,
senting evidence or questioning witnesses. If remedies can be quite different in civil law and
the trial does not involve a jury, the judge will common law systems. For instance, courts in
determine the truth based on the evidence pre- the United States sometimes award punitive
sented and will apply the law in making a final damages (in addition to damages to com-
judgment. In a jury trial, the judge must tell the pensate for losses) in order to punish a party
jury how to apply the law to the evidence pre- for outrageous conduct. In most civil law
sented by the opposing parties. In a common countries, the notion of punitive damages is
law system, the judge also may recommend not common except in certain criminal cases.
alternatives to trial. For example, in the United Punitive damages awarded by a court in the
States, an adversarial trial is increasingly used United States in a non-criminal case likely
as a last resort, and judges frequently recommend could not be enforced in a country that uses
mediation and negotiation before allowing a case a civil law system.
to come to trial. Civil law systems favor providing the
injured party with only compensatory damages
Juries in Civil and Common Law Systems to make up for the harm that was done. In a
The jury was developed to give accused common law system, punitive damages are
people the option to be tried by their peers awarded most often in tort cases. In a civil law
rather than by the countrys rulers or decision- system, however, torts are included in the crim-
makers. However, trial by jury is not the norm in inal codes, which address punishment of those
civil law systems, where the judge is generally causing harm in tort actions. Any matter that is
responsible for finding the truth and deciding included in the criminal codes must be decided
cases by applying the appropriate statutes. Juries only by courts that render judgments on crim-
are sometimes used in some civil code countries inal matters.

8
As globalization has increasingly required tions of employment within one month of the start
civil law systems and common law systems to date. Employees who have been employed for
work together, civil law countries are beginning more than six months by employers with more
to allow for punitive damages in an increasing than 10 regular employees enjoy protection
number of cases that originate from the civil against termination under the Unfair Dismissal
courts of common law countries. Act. Under this act, the employer cannot end the
employment contract without giving one of the
Different Understandings about Particular three statutorily defined reasons for termination.
Areas of Law In China, Article 16 of the labor law requires
In certain areas of the law, rules and principles an employment contract to be signed before an
differ greatly from one legal system to another. employment relationship can exist. It is generally
Labor and employment law is a good example. accepted that an employment relationship exists
In the United States, all states except Montana if a person is on anothers payroll.
generally presume that employment is at will, Such differences in whole areas of law lead
meaning that either the employer or the employee to different applications and different remedies
may terminate the employment relationship with- throughout the world.
out notice or cause.
In Germany, employees are entitled to receive
a written statement of the main terms and condi-

Comparison chart between countries based in common law and civil law
Common law Civil law

Cultural sources Anglo-American, English Continental, Romano-


Germanic

Sources of law Case law, legislative statues and Codes, statutes, legislation
administrative codes

Lawyers role Primary; debate and oppose Secondary; advise and


inform

Judges role Referee and instruct Direct and examine

Juries Provided at trial level Used in some criminal


cases

Examples United States, England, Australia Germany, France, Turkey


China, Mexico

9
figures can entail serious consequences abroad,
For Journalists: Covering the while it is less consequential in the United States,
News in a Global World where seditious libel is a non-issue.
Freedom of information (FOI) is probably one
United States journalists often assume of the valuable exports of the United States to for-
wronglythat the First Amendment follows them eign countries, especially in the past 20-plus years.
abroad when they report news events. That is, Significantly, some countries are now more active-
they are not critically aware that our constitutional ly engaged in practicing open government than the
commitment to a free press is still uniquely United States is. But foreign FOI laws are not as
American. The U.S.-centric presumption of press accommodating as the United States Freedom of
freedom is more likely than ever to place American Information Act (FOIA) is to non-citizen requests
journalists in trouble, especially when they engage for access to government records. The American
in online news reporting that defies geographical FOIA makes no distinction between American
boundaries. citizens and foreigners.
In recent years freedom of speech and the press American journalists should develop a work-
has become more widely accepted as a human right ing knowledge of foreign press law and regula-
around the world, but when it comes to freedom of tions before they engage in international reporting,
the press, the United States is more different from whether at home or abroad.
than similar to the rest of the world.
For example, actual malice epitomizes the Resources for journalists engaging in
preferred position of free expression in American international reporting:
law over reputation. Similarly, hate speech is not
a crime in America, but it is a crime outside the Richard N. Winfield, Globalization Comes to
United States with few exceptions. The absolute Media Law, 1 Journal of International Media &
Internet Service Provider immunity from liability Entertainment Law 109-116 (2006).
under Section 230 of the Communications Decency
Charles J. Glasser Jr., ed., International Libel &
Act is another case in point that makes the United
Privacy Handbook (2d ed. 2009).
States stand out from other countries.
Also, while contempt of court is not the rule Mark Warby et al., eds., The Law of Privacy and
in news reporting on trial proceedings in the the Media (2d ed. 2011).
United States, it is frequently invoked by foreign
courts when balancing free press with fair trial. Cameron Doley & Alastair Mullis eds., Carter-
Prior restraint (a governments prohibition of Ruck on Libel and Privacy (6th ed. 2010).
speech in advance of publication) is no different.
In American law, prior restraint generally is pre- Eric Barendt, Freedom of Speech (2d ed. 2005).
sumed to be an unconstitutional affront on free
speech, but in foreign and international law this Matthew Collins, The Law of Defamation and the
is not necessarily the case. That is, defamatory Internet (3d ed. 2010).
statements are rarely subject to pre-publication
Andrew B. Ulmer ed., Media, Advertising &
injunctions in the United States, while defamation
Entertainment Law Throughout the World (2011
and invasion of privacy can be a ground for prior
ed., 2011).
restraints in foreign countries. Indeed, defamation
of government officials or important public

10
Chapter Summary
The U.S. and Ohio constitutions outline the powers given to federal and state
government, respectively. When there is a conflict between the two, the U.S.
Constitution is the supreme authority and takes precedence over the state
constitution.
The law in the United States is divided into constitutional law, statutory law,
administrative law and common law.
State law in Ohio is made up of statutes created by the Ohio General Assembly.
Local laws are ordinances adopted by incorporated villages and cities.
Administrative law in the United States establishes governmental agencies with
the authority to regulate activities and adopt rules.
In the United States, common law has evolved over time and continues to do so.
It unifies the gaps between constitutional, statutory and administrative law, while
providing the flexibility to adapt to societal changes.
Different countries in the world use common law, civil law, religious law,
traditional law, tribal customary law, or a combination of these legal systems.
The civil law system, the most common type of legal system in the world, is
governed entirely by statutes, which aim to cover every area of the law.
The legislative branch (such as the parliament) is the principal source of law in civil
law countries today. Civil law countries have authoritative, comprehensive and
systematic collections of general clauses and legal principles called codes that
define the law in a logical fashion.
Civil law systems tend to be inquisitorial, meaning that the emphasis is on
discovering the truth by asking questions and then finding the appropriate statute to
apply to the case. Common law systems tend to be adversarial, meaning that the
truth is expected to be revealed through a vigorous debate between two opposing
points of view as presented by the parties lawyers. The United States operates
largely under a common law system.
While accused people have a right to a trial by jury in certain cases in the United
States, trial by jury is not the norm in civil law systems and is generally used for
only a limited range of (mainly criminal) offenses.

11
Web Links:
International Resources:
www.juriglobe.ca/eng/index.php
From the University of Ottawa, World Legal Systems
Features a world map that uses color to indicate nations that operate under civil law,
common law, customary law, Muslim law and mixed legal systems. Briefly describes
each type of legal system.

www.loc.gov/law/help/guide/nations.php
Law Library of Congress, Guide to Law Online: Nations of the World
Links to websites for constitutions and the executive, judicial and legislative branches
of government for hundreds of countries. Some foreign country websites provide an
English-language version but many do not.

Examples of specific civil codes:

English translation of the German Civil Code:


www.gesetze-im-internet.de/englisch_bgb/index.html
English translation of specific portions of the Turkish Civil Code:
www.tusev.org.tr/userfiles/image/turkey%20tr%20civil%20code%20provisions.pdf
Indonesian Civil Code:
www.unhcr.org/refworld/category,LEGAL,,,IDN,3ffbd0804,0.html

Examples of civil law around the world prepared by Louisiana State University:
www.law.lsu.edu/index.cfm?geaux=clo.view&cid=3B4BB9B5-1372-69E5-
F769BEC6C6509622

Description of legal systems and laws in the countries where European Bank for
Reconstruction and Development operates:
www.ebrd.com/pages/sector/legal/cla.shtml

Canada as country of common and civil law:


www1.canadiana.org/citm/specifique/lois_e.pdf

12
Part II ___________________________
the courts
Law has become utilitarian. It can be what the majority conceives as law, or it can be what an
elite says it is. There is no absolute. In the end, it is always what a court or judge says it is.
William H. Seward (1850)

he courts oversee and administer lished by statute, the court of claims is entirely

T the law. They resolve disputes


under the law and strive to apply
the law in a fair and impartial
manner.
Like other states, Ohio is served by separate
state and federal court systems organized into
created by statute.

Common Pleas Courts


The common pleas court is the most important
of Ohios trial courts. It is Ohios court of general
jurisdiction, which means that it has the authority
trial courts, intermediate courts of appeals and a to hear almost any civil or criminal matter, and
supreme court in each system. State courts deal that most serious civil or criminal cases must be
primarily with cases arising under state law and heard in common pleas court. Each of the states
federal courts deal primarily with cases arising 88 counties has a common pleas court.
under federal law. It is also the only trial court with the power
to deal with certain matters. For example, the
Ohio Trial Courts common pleas court generally has exclusive jur-
isdiction over felonies, or crimes whose potential
penalties may include a prison term or even a
In Ohio, most cases begin and are resolved death sentence. In civil matters, the common
in trial courts, which are the workhorses of the pleas court has exclusive jurisdiction in lawsuits
states judicial system. Ohio has several kinds seeking certain extraordinary remedies, such as
of trial courts and each has venue and jurisdiction injunctions and restraining orders, or monetary
over cases. Simply stated, venue is the geograph- compensation. When monetary damages are
ical location where a case is heard. Jurisdiction is sought, the common pleas court usually hears
the power and authority to hear and decide certain cases claiming more than $15,000, although in
kinds of cases. Ohios trial courts include: counties without county courts, the minimum
common pleas courts that have countywide amount that can be sought in common pleas
venue and jurisdiction to decide all levels of court is $500.
civil and criminal cases; The common pleas court has no authority to
municipal and county courts that have more hear appeals from lower trial courts, although it
limited jurisdiction than common pleas courts, can hear appeals from rulings made by govern-
and authority to decide only less serious civil ment administrative agencies. In lesser civil and
and criminal cases; criminal cases, the common pleas court shares
mayors courts that do not have civil jurisdic- the power to handle certain matters with other
tion and have only limited authority to hear trial courts; that is, it has concurrent jurisdiction
minor criminal matters that occur within a city with municipal and county courts.
or village;
Ohios court of claims, which handles suits Probate/Domestic Relations/Juvenile
against the state of Ohio and claims for state
Divisions
compensation that are filed by crime victims.
One or more separate divisions of the
common pleas court handle probate, domestic
Unlike the other trial courts that are both
relations, and juvenile matters, and it is through
authorized by the Ohio Constitution and estab-

13
these divisions that most people have direct con- To qualify for election, common pleas judge
tact with the court. At one time or another, you candidates must be licensed attorneys with at least
or someone in your family probably will have six years of experience. Once elected, they serve
some sort of contact with the probate division of six-year terms.
the common pleas court. This is because many
matters of everyday life are handled in this court, Municipal and County Courts
and its function is extensive. For example, if You find yourself running late for class or a
your neighbor dies, his or her will is likely to be job interview, so you push the speed limit, hoping
administered through the probate division. The to make up some time. As fate would have it,
probate division handles wills, estates, adoptions youre stopped by a police officer and ticketed
and guardianships, and issues marriage licenses. for speeding. To make matters worse, you forget
It also supervises the activities and accounts to pay the fine, remembering only when a court
of people in positions of trust (generally called summons arrives. Most likely, you will settle the
fiduciaries), such as estate executors or matter before a municipal or county court judge.
administrators, guardians and trustees. Mayors courts also may handle such matters.
The domestic relations division deals with (See Mayors Courts on the next page.)
divorce, marriage dissolution, annulment, legal Municipal and county courts are authorized
separation, spousal support, parental rights, child by the constitution and established by statute, and
support, parenting time, visitation and companion- may serve a single city or an entire county. The
ship. territories of county courts include only those
The juvenile division has jurisdiction over areas not covered by a municipal court. Traffic
delinquent, unruly, or neglected children; juvenile cases involving minor injuries and damage, minor
traffic offenders; and adults who neglect, abuse or criminal cases, minor civil cases, collection cases
contribute to the delinquency of children. When a and real estate evictions are heard in either muni-
juvenile (any person under age 18) is accused of cipal or county courts.
an offense, whether serious or minor, the juvenile The jurisdiction of municipal and county
division has exclusive jurisdiction over the case. courts is similar, although there are some impor-
When a juvenile is accused of a particularly seri- tant differences. Municipal courts have jurisdic-
ous crime, he or she may be transferred from the tion in civil cases not exceeding $15,000, while
juvenile division to an adult court for trial and county courts have jurisdiction in cases not
sentencing. Once the child is transferred, the exceeding $500.
juvenile division no longer has jurisdiction over Both municipal and county courts are
the case. The juvenile court also has jurisdiction authorized to hear special types of cases, such as
over matters involving paternity, child custody, landlord-tenant disputes and misdemeanor cases
child support and visitation when the childs (those classified as minor offenses under state
biological parents are unmarried. law). Both courts can try misdemeanor cases, and
both courts can hold preliminary hearings in more
Court Operations/Common Pleas Judges serious felony cases to determine if there is prob-
Depending on a countys size, the common able cause to believe a felony was committed. If
pleas court is overseen by a judge or several probable cause is found, the accused is bound
judges and divided into divisions. Larger counties over to the common pleas court, since neither a
may have several judges in the general division municipal nor county court can try a felony case.
plus separate judges for the probate, domestic
relations and juvenile divisions. Counties with Small Claims/Mediation
smaller populations might have a single judge Every municipal and county court maintains a
handling all cases coming before the court. small claims division that hears claims for money

14
only (not exceeding $3,000). Although someone cannot hear any contested issues (not guilty
going to small claims court may employ a lawyer, pleas); those cases are transferred to municipal
it is not necessary for a couple of reasons. First, court. Each mayor has the option to hold court and
the procedure is simple and informal and does serve as presiding judge in these minor cases even
not require a jury. Second, the cost of hiring an if he or she is not an attorney, or the mayor may
attorney may exceed the $3,000 monetary limit appoint a magistrate, who must be an attorney
for small claims cases. However, corporations with at least three years of experience, to hear the
must be represented by a lawyer even in small case.
claims court because corporations are considered Mayors courts generally hear cases involving
to be separate from their individual owner and violations of municipal ordinances, covering such
therefore need a lawyer to represent the corpora- issues as animal control, city income tax, zoning,
tions interest. building codes, vendors and public safety, as well
In many communities, courts now provide as cases involving state traffic law violations.
mediation services to help plaintiffs and defend- If someone whose case has been heard in a
ants resolve their differences before the case mayors court is unhappy with the outcome, he or
actually goes before a judge or magistrate in she may file a notice of appeal with the mayors
small claims court. court within ten days of the courts judgment.
The case then will be transferred to the municipal
Court Territorial Jurisdiction/Municipal and court or county court in the county of that per-
County Court Judges sons residence, and will be heard by a judge. The
The territorial jurisdiction of municipal and judge will not consider the previous decision of
county courts is established by state law. A the mayors court when hearing the case.
municipal court has jurisdiction over a single
incorporated city (and sometimes over unincor- Court of Claims
porated portions of the county in which it is The court of claims is a special court located
located), while a county courts jurisdiction is in Columbus that hears tort and contract claims
those areas of the county that are not covered against state agencies, and victim of crime claims.
by a municipal court. Ohios court of claims hears claims on behalf of
To qualify for election, municipal court judge Ohio citizens who suffer injury as a result of
candidates must be attorneys with at least six crimes committed anywhere and on behalf of
years experience. Once elected, they serve six- non-residents who suffer injury as a result of
year terms. County court judge candidates must crimes committed in Ohio. The court of claims
be licensed attorneys with at least two years of has limited appellate jurisdiction in civil actions
experience. They also serve six-year terms. and extensive appellate jurisdiction in victim of
crime claims. (Some claims against governmental
Mayors Courts entities smaller than the state [counties and cities]
A mayors court handles misdemeanors and may be brought in common pleas court.)
traffic violations in communities with no
municipal court of record and populations of more
than 100 people. Mayors courts are the trial Ohio Courts of
courts with the most limited authority. Mayors
must take training and become qualified to hear Appeals
cases; even then, they can hear only guilty and
no contest pleas and only minor, non-jury cases The goal of every judicial system is to achieve
involving violations of municipal ordinances or complete and equal justice with every trial, but the
moving traffic violations under state law. They world is imperfect. Trial courts sometimes make

15
mistakes or parties may disagree about the A court of appeals may reverse the trial
outcome of a particular case, which is why the courts decision and give final judgment to the
courts of appeals were established. party who should have had it in the first place.
Ohios appeals court system is divided into 12 It might reverse and send the case back for a
districts. The number of judges in each district new trial, or it might simply send the case back
varies based on population. Cases challenging for whatever further proceedings are needed. It
decisions made by a lower trial court located can modify the trial courts judgment or order
within its district are heard by a panel of three of in any way.
the districts judges. Although many cases end
with a decision by a district court of appeals, such Original Jurisdiction
courts are not the last resort but an intermediate Certain types of cases cannot be brought
step from the trial courts to the Supreme Court before a regular trial court, but must begin in a
of Ohio. district court of appeals or the Supreme Court
of Ohio.
Appellate Jurisdiction These cases are often based on what are
The most important duty of Ohios courts known as extraordinary writs. These writs
of appeals is to review questions brought from include:
common pleas courts, municipal courts and quo warranto, which tests a persons title
county courts. Only a final judgment or order to a public office;
can be appealed, and appeals generally must be mandamus, which is a means to compel
on questions of law and not the facts of a case. government officials to perform their duty;
Court of appeals judges generally do not hear prohibition, which is a means to prevent a
new testimony. They review transcripts from the lower court from proceeding in a particular
lower courts hearings to determine if the law was case; and
correctly interpreted and applied. An attorney procedendo, which is a means to compel a
writes a brief, arguing the clients position. Then lower court to proceed in a particular case.
the attorney may make oral argument, at which
time the judge can raise questions about the case Another writ, habeas corpus, tests the legality
before making a decision. of imprisonment and may be initiated in a court
After reviewing the trial courts decision, of appeals, the Supreme Court of Ohio, or in a
appeals judges can take one of several actions: common pleas court.
affirm the lower courts ruling; overturn its deci- An example of a case based on an extra-
sion; send it back for additional proceedings; or ordinary writ would be the case of a workers
modify the decision. compensation claimant who was denied a
In some instances, the appeals court judges claim for workplace injuries by the Industrial
may agree mistakes were made by the trial court Commission. If the claimant believes state law
but choose to uphold the initial decision because required the Commission to honor the claim
the errors werent severe enough to affect the based upon the facts of the case, the claimant
rights ofor to have created prejudicial error could file a writ of mandamus in a court of
forthose who lost in the lower court. If the appeals, asking that the Commission be ordered
mistakes substantially affect a partys rights, to perform its duty and change its decision to
they constitute prejudicial error, and the court match the demands of state law.
of appeals may then take whatever action is Consider another scenario where an extraor-
necessary to bring about justice. dinary writ could be implemented: An individual

16
is convicted of a crime by a trial court and sen- of Ohio are generally from the district courts of
tenced to a prison term. Not willing to accept the appeals rather than from the trial courts.
courts decision, the convicted individual files a The Supreme Court is required to hear some
petition for post-conviction relief in the lower types of cases (cases involving the death penalty,
court that tried the case, but the court refuses to some appeals from state agencies, cases involving
act on the petition. Undeterred, that individuals state constitutional issues, and others), but most
next step would be to file a writ of procedendo in of its jurisdiction is discretionary and it selects
a court of appeals, asking that the trial court cases of great public interest to resolve.
be compelled to rule on the petition.
Prescribing Rules of Procedure
Organization of the Courts of The Supreme Court of Ohio is charged by
Appeals the Ohio Constitution to adopt rules governing
Ohios counties are organized into 12 appel- practice and procedure in all Ohio courts and to
late districts, and each district is served by a court oversee the activities of all courts. The Supreme
of appeals. To qualify for election, courts of Court of Ohio has adopted complete sets of rules
appeals judges must be licensed attorneys with for civil, criminal, appellate, juvenile and traffic
at least six years of experience. Once elected, procedures, as well as rules for the admission of
they serve six-year terms. evidence in all courts.

Supervision of the Courts


The Supreme The Supreme Court of Ohio oversees the
activities of all Ohio courts and publishes rules
Court of Ohio governing court conduct and procedure to ensure
the fair, effective and efficient administration
The Supreme Court of Ohio is the highest of justice.
and most powerful court in the state, and its pri-
mary purpose is to serve as a court of appeals and Supervision of the Practice of Law
Ohios court of last resort. It has original (trial) The Supreme Court of Ohio also regulates
jurisdiction in the same types of extraordinary the admission of attorneys to practice in Ohio,
cases as the courts of appeals. The Supreme Court
sets standards for the practice of law, and
of Ohio also has other important duties. These
disciplines attorneys who do not abide by the
duties include prescribing rules of procedure for
strict ethical rules of their profession. (See
and supervising the operation of all lower courts
Part XIV, The Lawyer.)
as well as controlling the practice of law.

Appellate and Original Jurisdiction Organization of the Supreme


The appellate jurisdiction of the Supreme Court of Ohio
Court of Ohio is similar to that of the courts of The Supreme Court of Ohio is located in
appeals. The Supreme Court is empowered to Columbus and consists of a chief justice and six
review final judgments and orders of lower courts; justices. To qualify for election, candidates must
to affirm, reverse, remand (send back to a lower be licensed attorneys with at least six years of
court), or modify judgments; and to do whatever experience. Once elected, they serve six-year
is necessary to render a just and final determin- terms.
ation of a case. Appeals to the Supreme Court

17
district court, although it operates as an
The Federal Courts independent court and handles almost all
aspects of bankruptcy cases. (See Part VII,
The federal court structure is similar to Ohios Business Transactions, for more infor-
court structure, with trial courts, courts of appeals mation on bankruptcy courts.)
and a Supreme Court. The federal courts are pri-
marily concerned with administering the federal Ohio has two federal district courts, the U.S.
law, and they function independently of state District Court for the Northern District of Ohio,
courts. and the U.S. District Court for the Southern
District of Ohio. The Northern District has a
District Courts western division, based in Toledo, and an eastern
The trial courts in the federal system are the division, based in Cleveland, with separate courts
U.S. District Courts. The district courts are courts in Akron and Youngstown. The Southern District
of general jurisdiction and correspond to Ohios has a western division, based in Cincinnati, with a
common pleas courts, meaning they handle all separate court in Dayton, and an eastern division,
types of criminal cases (felonies as well as mis- based in Columbus. There is a bankruptcy court
demeanors) that arise under federal statutes, as for the Northern District, as well as the Southern
well as many kinds of civil cases. For example, District. There are bankruptcy court offices and
district courts handle: courtrooms in Akron, Canton, Cleveland, Toledo,
cases governed solely by federal law (bank- Youngstown, Cincinnati, Columbus and Dayton.
ruptcies; patents, copyrights and trademarks; Judges of the U.S. District Court are
and admiralty, the branch of law that governs appointed for a life term by the president of the
shipping and navigation on the oceans, seas United States, with confirmation by the U.S.
and navigable inland waterways); Senate. Judges of the bankruptcy court are
cases under the U.S. Constitution or federal appointed for 14-year terms by the judges of the
statutes (cases involving interstate commerce, U.S. Court of Appeals for the circuit where the
claims by one state against another, civil district court is located.
rights or antitrust claims); and
diversity cases (claims by a citizen of one U.S. Courts of Appeals
state against a citizen of another state where The United States and its territories are
the amount of the claim is $75,000 or more). divided into 13 circuits, with a court of appeals
For example, a diversity case might be a claim for each circuit. Ohio is in the Sixth Circuit,
by an Ohio resident against a Kentucky res- along with Michigan, Kentucky and Tennessee.
ident for injuries sustained in an auto accident The U.S. Court of Appeals for the Sixth Circuit
that occurred in Ohio. If the amount involved is based in Cincinnati.
was $75,000 or more, this case could be heard The U.S. courts of appeals are intermediate
in a federal district court located in Ohio. appeals courts. The U.S. courts of appeals hear
Because the federal system does not have appeals from the district courts and their decisions
a common law of its own, the law of Ohio may be appealed to the U.S. Supreme Court. The
would be applied in such a case. U.S. appeals courts correspond to Ohios courts
Bankruptcy cases require an additional of appeals and function in much the same manner.
explanation. District courts have the power to The president of the United States, with con-
handle bankruptcy cases, but have referred firmation by the U.S. Senate, appoints all judges
them in the past to bankruptcy courts. Tech- on the U.S. courts of appeals for life terms.
nically, the bankruptcy court is part of the

18
The U.S. Supreme Court
Just as the Supreme Court of Ohio is the relationships with court clerks. The clerk is
highest court in the state, the U.S. Supreme Court responsible for administering oaths, evidence
is the highest court in the nation and the court of and exhibits and assisting the judge in a case.
last resort. It consists of the chief justice and eight The clerk can provide journalists with calendar
information, documents, names, addresses and
associate justices, who are appointed for life terms
phone numbers of court participants and other
by the president of the United States with confir- tips for coverage. The bailiff may also be
mation by the U.S. Senate. helpful and can assist the journalist with seating
The U.S. Supreme Court is the ultimate and issues of entering or leaving a courtroom.
authority on many of the nations most important In some cases, a courtroom may have a public
issues. Over the years, those decisions have information officer assigned to help the press
desegregated our nations public schools, com- with these issues and other concerns.
pelled a president to produce evidence in a pend- Journalists are reminded to address a judge
ing criminal case, extended the rights of persons with respect, using the terms Your Honor and
accused of crime, established equal voting rights The Court. Journalists can be cited for
contempt during proceedings if they cause a
and resolved a disputed presidential election.
disruption. Showing up on time, following
calendars, con-ducting good research and
For Journalists: double-checking names, facts and other details
can all go a long way toward gaining the courts
Working with the Courts helpful hand.
Many journalists working with both state and
federal courts stress the importance of building

19
DIRECTORY of OHIO COMMON PLEAS COURTS
Names and telephone numbers of clerks of court, by county
(for additional information and links to court websites, go to www.occaohio.com)

County Clerk Phone Number


Adams Gary Gardner (937) 544-2344
Allen Margie Miller (419) 223-8513
Ashland Annette Shaw (419) 282-4242
Ashtabula Carol Mead (440) 576-3642
Athens Ann C. Trout (740) 592-3242
Auglaize Jean Meckstroth (419) 739-6765
Belmont Cindy McGee (740) 695-2169
Brown Clark Gray (937) 378-3100
Butler Mary Swain (513) 887-3278
Carroll William R. Wohlwend (330) 627-4886
Champaign Penny S. Underwood (937) 484-1047
Clark Ron Vincent (937) 521-1680
Clermont Barbara A. Wiedenbein (513) 732-7560
Clinton Cynthia R. Bailey (937) 382-2316
Columbiana Anthony J. Dattilio (330) 424-7777
Coshocton Janet S. Mosier (740) 622-1456
Crawford Sheila Lester (419) 562-2766
Cuyahoga Gerald E. Fuerst (216) 443-7950
Darke Cindy Pike (937) 547-7335
Defiance Amy M. Galbrath (419) 782-1936
Delaware Jan Antonoplos (740) 833-2500
Erie Luvada Wilson (419) 627-7705
Fairfield Deborah Smalley (740) 687-7030
Fayette Evelyn A. Pentzer (740) 335-6371
Franklin Maryellen OShaughnessy (614) 462-3600
Fulton Paul MacDonald (419) 337-9231
Gallia Noreen Saunders (740) 446-4612, Ext. 222
Geauga Denise M. Kaminski (440) 279-1960
Greene Terri A. Mazur (937) 562-5290
Guernsey Teresa A. Dankovic (740) 432-9232
Hamilton Tracy Winkler (513) 946-5656
Hancock Cathy Prosser Wilcox (419) 424-7039
Hardin Carrie Haudenschield (419) 674-2278
Harrison Leslie Milliken (740) 942-8863
Henry Connie Schnitkey (419) 592-5886
Highland Ike Hodson (937) 393-9957
Hocking Sharon Edwards (740) 385-2616
Holmes Ronda Steimel (330) 674-1876
Huron Susan S. Hazel (419) 668-5113
Jackson Seth I. Michael (740) 286-2006
Jefferson John A. Corrigan (740) 283-8583
Knox Mary Jo Hawkins (740) 393-6788

20
County Clerk Phone Number
Lake Maureen G. Kelly (440) 350-2657
Lawrence Michael P. Patterson (740) 533-4356
Licking Gary R. Walters (740) 670-5791
Logan Dottie Tuttle (937) 599-7275
Lorain Ron Nabakowski (440) 329-5624
Lucas Bernie Quilter (419) 213-4491
Madison Renae Zabloudil (740) 845-1683
Mahoning Anthony Vivo (330) 740-2104
Marion Julie M. Kagel (740) 387-8128
Medina David B. Wadsworth (330) 725-9722
Meigs Diane Lynch (740) 992-5290
Mercer James J. Highley (419) 586-5826
Miami Jan A. Mottinger (937) 440-6010
Monroe Beth Ann Rose (740) 472-0761
Montgomery Gregory A. Brush (937) 225-4512
Morgan Carma Harlow (740) 962-4752
Morrow Vanessa Mills (419) 947-2085
Muskingum Todd A. Bickle (740) 455-7104
Noble Karen Starr (740) 732-5604
Ottawa Jennifer Wilkins (419) 734-6755
Paulding Ann E. Waldman Pease (419) 399-8210
Perry Timothy J. Wollenberg (740) 342-1022
Pickaway James Dean (740) 474-5231
Pike John E. Williams (740) 947-2715
Portage Linda K. Fankhauser (330) 297-3644
Preble Christopher B. Washington (937) 456-8160
Putnam Teresa J. Lammers (419) 523-3110
Richland Linda Frary (419) 774-5549
Ross Ty D. Hinton (740) 702-3010
Sandusky Tracy M. Overmyer (419) 334-6161
Scioto Lisa D. White (740) 355-8218
Seneca Mary K. Ward (419) 447-0671
Shelby Michele K. Mumford (937) 498-7221
Stark Nancy S. Reinbold (330) 451-7622
Summit Daniel M. Horrigan (330) 643-2211
Trumbull Karen Infante Allen (330) 675-2557
Tuscarawas Jeanne Stephen (330) 365-3243
Union Teresa L. Nickle (937) 645-3006
Van Wert Cindy Mollenkopf (419) 238-1022
Vinton Lisa Gilliland (740) 596-3001
Warren James L. Spaeth (513) 695-1120
Washington Brenda Wolfe (614) 373-6623
Wayne Tim Neal (330) 287-5589
Williams Kimberly L. Herman (419) 636-1551
Wood Cindy Hofner (419) 354-9286
Wyandot Ann K. Dunbar (419) 294-1432

21
FEDERAL TRIAL AND APPELLATE COURTS SERVING OHIO

Court/ Location Phone Website Counties Served


Divisions Address
U.S. District www.ohsd.uscourts.gov Total of 48 counties; see
Court for the breakdown below. (NOTE:
Southern District Cases are generally, but not
of Ohio always, assigned by county of
origin.)
Eastern U.S. Courthouse (614) 719-3000 www.ohsd.uscourts.gov Athens, Belmont, Coshocton,
Division 85 Marconi Blvd., Delaware, Fairfield, Fayette,
(Columbus) Rm. 121 Franklin, Gallia, Guernsey,
Columbus, OH Harrison, Hocking, Jackson,
43215 Jefferson, Knox, Licking,
Logan, Madison, Meigs,
Monroe, Morgan, Morrow,
Muskingum, Noble, Perry,
Pickaway, Pike, Ross, Union,
Vinton, Washington
Western U.S. Courthouse (513) 564-7500 www.ohsd.uscourts.gov Adams, Brown, Butler,
Division 100 East Fifth Street Clermont, Clinton, Hamilton,
(Cincinnati) Rm. 103 Highland, Lawrence, Scioto,
Cincinnati, OH Warren
45202
(Dayton) Federal Building (937) 512-1400 www.ohsd.uscourts.gov Champaign, Clark, Darke,
200 West Second Greene, Miami, Montgomery,
Street, Rm. 712 Preble, Shelby
Dayton, OH 45402
U.S. District www.ohnd.uscourts.gov Total of 40 counties, see
Court for the breakdown below. (NOTE:
Northern Cases are generally, but not
always, assigned by county of
District of Ohio
origin.)
Eastern U.S. Courthouse (216) 357-7000 www.ohnd.uscourts.gov Ashland, Ashtabula,
Division 801 W. Superior Crawford, Cuyahoga, Geauga,
(Cleveland) Avenue Lake, Lorain, Medina,
Cleveland, OH 44113 Richland
(Akron) U.S. Courthouse (330) 252-6000 www.ohnd.uscourts.gov Carroll, Holmes, Portage,
Two South Main Stark, Summit, Tuscarawas,
Street, Rm. 568 Wayne
Akron, OH 44308
(Youngstown) U.S. Courthouse, (330) 884-7400 www.ohnd.uscourts.gov Columbiana, Mahoning,
125 Market Street Trumbull
Rm. 337
Youngstown, OH
44503
Western U.S. Courthouse, (419) 213-5500 www.ohnd.uscourts.gov Allen, Auglaize, Defiance,
Division 1716 Spielbusch Erie, Fulton, Hancock, Hardin,
(Toledo) Avenue, Rm. 114 Henry, Huron, Lucas, Marion,
Toledo, OH 43604 Mercer, Ottawa, Paulding,
Putnam, Sandusky, Seneca,
Van Wert, Williams, Wood,
Wyandot
U.S. Court of U.S. Courthouse (513) 564-7000 www.ca6.uscourts.gov Hears federal appeals from the
Appeals for the 100 East Fifth Street district courts in Ohio,
Sixth Circuit Ste. 540 Michigan, Kentucky and
Cincinnati, OH Tennessee
45202

22
OHIO DISTRICT COURTS OF APPEALS

District Address Phone/Fax County(ies) Served


1st District Court Administrator Phone (513) 946-3500 Hamilton
230 East Ninth St., Fax (513) 946-3412
12th Floor
Cincinnati, OH 45202
2nd District Court Administrator Phone (937) 225-4464 Champaign, Clark, Darke,
41 N. Perry, P.O. Box 972 Fax (937) 496-7724 Greene, Miami and Montgomery
Dayton, OH 45422
3rd District Court Administrator Phone (419) 223-1861 Allen, Auglaize, Crawford, Defiance,
204 N. Main Street Fax (419) 224-3828 Hancock, Hardin, Henry, Logan,
Lima, OH 45801 Marion, Mercer, Paulding, Putnam,
Seneca, Shelby, Union, Van Wert and
Wyandot
4th District Court Administrator Phone (740) 779-6662 Adams, Athens, Gallia, Highland,
14 South Paint Street, Fax (740) 779-6665 Hocking, Jackson, Lawrence, Meigs,
Suite 38 Pickaway, Pike, Ross, Scioto, Vinton
Chillicothe, OH 45601 and Washington
5th District Court Administrator Phone (330) 451-7765 Ashland, Coshocton, Delaware,
110 Central Plaza S. #320 Fax (330) 451-7249 Fairfield, Guernsey, Holmes, Knox,
Canton, OH 44702 Licking, Morgan, Morrow,
Muskingum, Perry, Richland, Stark
and Tuscarawas
6th District Court Administrator Phone (419) 213-4755 Erie, Fulton, Huron, Lucas,
One Constitution Avenue Fax (419) 213-4844 Ottawa, Sandusky, Williams and
Toledo, OH 43604 Wood
7th District Court Administrator Phone (330) 740-2180 Belmont, Carroll, Columbiana,
131 W. Federal Street Fax (330) 740-2182 Harrison, Jefferson, Mahoning,
Youngstown, OH 44503 Monroe and Noble

8th District Court Administrator Phone (216) 443-6350 Cuyahoga


Cuyahoga County Courthouse Fax (216) 443-2044
1 Lakeside Avenue #202
Cleveland, OH 44113
9th District Court Administrator Phone (330) 643-2250 Lorain, Medina, Summit and
161 South High Street, #504 Fax (330) 643-2091 Wayne
Akron, OH 44308
10th District Court Administrator Phone (614) 462-3580 Franklin
373 South High Street Fax (614) 462-7249
24th Floor
Columbus, OH 43215
11th District Court Administrator Phone (330) 675-2650 Ashtabula, Geauga, Lake, Portage
111 High Street, NE Fax (330) 675-2655 and Trumbull
Warren, OH 44481
12th District Court Administrator Phone (513) 425-6609 Brown, Butler, Clermont, Clinton,
1001 Reinartz Boulevard Fax (513) 425-8751 Fayette, Madison, Preble and
Middletown, OH 45042 Warren

23
Chapter Summary
State and federal court systems have trial, appeals and supreme courts.
Ohios trial courts include common pleas, municipal, county and mayors courts,
and a court of claims, all with varying degrees of authority.
Common pleas courts may be subdivided into probate, juvenile and domestic
relations divisions.
Municipal and county courts are established by statute and hear cases ranging from
traffic violations to minor criminal and civil cases.
Courts of appeals review questions brought to them from common pleas courts,
municipal courts and county courts.
The Supreme Court of Ohio is the highest and most powerful court in the state and
is primarily a court of appeals and Ohios court of last resort.
The federal court structure is similar to Ohios, consisting of district courts, courts
of appeals and the U.S. Supreme Court. Federal courts administer federal law and
function independently from state courts.

24
Web Links:
From the OSBAs Law Facts pamphlet series:
www.ohiobar.org/lawfacts (search by title)
Ohios Courts
From the OSBAs Law You Can Use column:
www.ohiobar.org/lawyoucanuse (search by title or topic)
Bailiffs and Court Officers: What to Do When They Tell You What to Do
Deaf or Hard-of-Hearing Individuals Can Receive Help to Communicate
in Court
Magistrates Service Is Widespread in Ohio Courts
Mayors Courts Hear Misdemeanor Criminal Cases in Ohio
Mental Health Court Can Save Time, Money and Lives
Ohio Courts Work to Improve Access to Justice
Precedents Affect Judges Decisions
Preserving Legal Testimony: Court Reporters or Electronic Recording?
Reentry Courts Aim to Reduce Offender Recidivism
What Is a Drug Court?
What To Expect in Traffic Court
What You should Know about Funding Ohio Courts
Why You Should Know Your Ohio Clerk of Courts
From the Supreme Court of Ohio:
www.supremecourt.ohio.gov

From the Ohio Judicial Conference:


www.ohiojudges.org
From the U.S. Supreme Court of the United States:
www.supremecourtus.gov

From National Center for State Courts (portal to state and federal courts):
www.ncsc.org
Choose Information and Resources and then Court Web Sites

Federal judicial websites:


www.ohsd.uscourts.gov
www.ohnd.uscourts.gov
www.uscourts.gov

From Cornell Law School Legal Information Institute:


www.law.cornell.edu (choose legal encyclopedia and type key words in Wex
toolbox)

25
Part III__________________________
legal procedure
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates
of our passions, they cannot alter the state of facts and evidence.
John Adams

he law of legal procedure differs Stage 1: The plaintiff selects a court

T from what is known as substantive


law. Substantive law (such as
criminal law and the law of torts,
contracts, probate law, family law,
etc.) defines our rights and obligations. Proce-
dural law establishes procedures for enforcing
The first step in filing a civil action is to select
a court in which to file the action. The plaintiff-
to-be (and attorney representative) must select a
court that satisfies three conditions: 1) subject-
matter jurisdiction; 2) personal jurisdiction; and
3) venue.
those rights and obligations fairly and efficiently. Subject-matter jurisdiction is simply the
Rules of procedure are provided for criminal power to hear a particular type of case. As
actions, which are prosecuted by a governmental explained in Part II, The Courts, both federal
entity (such as the state of Ohio) or its represent- (national) and state courts sit in Ohio. The rules
ative (such as the county prosecutor). In criminal governing subject-matter jurisdiction are found
actions, the prosecution usually will ask the court primarily in federal and state constitutions and
to order the defendant to pay a fine or be impris- statutes (legislative acts).
oned. Sometimes, a plaintiff-to-be can choose to file
Different rules of procedure are provided for in federal court or in state court. For example, a
civil actions, also called civil suits or civil cases. citizen of Ohio who contemplates filing a major
In such actions, the plaintiff (the person or entity personal injury action against a citizen of another
bringing the action or suit) typically asks the state can choose to file in state or in federal court.
court to order the defendant (the person against Sometimes, a plaintiff-to-be will be required to
whom the action is brought) to pay damages to file in one system or the other. For example, civil
the plaintiff, or to obey an injunction (an order actions for divorce or dissolution are properly
to do something or refrain from doing some- filed only in state court, while civil actions seek-
thing), or to perform a legal obligation to which ing damages for patent infringement are properly
the defendant has agreed by contract. filed only in federal court.
Because the procedural rules governing civil Personal jurisdiction is the power to decide
actions and criminal cases are different, the two the rights of the parties to the civil action. The
types of cases are discussed separately in the plaintiff who chooses to file a civil action in a
remainder of this chapter. particular court has agreed or consented to the
power of the court to decide the plaintiffs rights.
Procedure in A court must also have the power to decide the
rights of the defendant or defendants in a civil
action. Earlier in our countrys history, a state
Civil Actions court could exercise jurisdiction over a defendant
only if the defendant:
Procedure in a civil action is best understood was served with process (see Stage 2) in the
by analyzing the following 11 stages, although the state;
stages may overlap. It is important to note that consented to have the court determine the
plaintiffs and defendants agree to settle more than defendants rights; or
90 percent of all civil actions before reaching trial was considered a legal resident of the state
(see Stage 8) and that only a very small percent- in which the court was located.
age of civil actions continue through all 11 stages.

26
Now, most states have adopted long-arm Service of process is commonly made by
provisions that permit a state court to exercise certified or express mail addressed to the defen-
jurisdiction over an out-of-state defendant based dant as specified by the relevant rules. Service is
merely on the defendants having certain contacts sometimes accomplished by handing the docu-
with the state. Under Ohios long-arm provisions, ments to the defendant or by leaving them at the
for example, an out-of-state manufacturer that defendants home or place of business.
markets products to Ohio residents is likely to be
subject to an Ohio courts jurisdiction if one of Stage 3: Further pleadings and
its products proves defective and injures some-
one in Ohio. For statutory reasons, the personal
motions
As noted above, a defendant in a civil action
jurisdictional reach of each federal court has,
must answer the summons and complaint by filing
for many types of civil actions, been limited to
an official document with the court. In this docu-
the reach of the state courts in that state. For
ment (the answer), the defendant either admits
some civil actions, however, Congress has pro-
or denies the allegations of the complaint. The
vided for nationwide (even worldwide) service
defendant also may provide certain defenses or
of process (official notice to a defendant that
reasons why the court should not decide in favor
an action has been started).
of the plaintiff. For example, the defendant may
The rules of venue attempt to ensure that a
point out that the plaintiffs claim has expired in
court that has subject-matter and personal juris-
accordance with the statute of limitations (for
diction is relatively convenient for the defendant.
example, a claim for an auto collision that occur-
They do so by limiting a plaintiffs choices to
red more than two years before the plaintiff filed
specified locations, such as the county or judicial
the case). If the defendant also has a claim against
district in which the defendant lives or does bus-
the plaintiff, then the defendant may be permitted
iness, or in which events key to the civil action
(even required) to enter a counterclaim against
occurred.
the plaintiff, either in the defendants answer or
in a separate pleading. For example, lets say Ms.
Stage 2: Service of process Black and Mr. Simms are involved in an auto
State and federal constitutions require that a accident, causing personal injury as well as
defendant be given fair notice of the filing of a damage to both vehicles. Ms. Black (the plaintiff)
civil action. Controlling procedural rules typi- files a civil action against Mr. Simms (the
cally require that two documents (process) defendant) for these injuries and/or property
be transmitted to (served on) the defendant. damage. If Mr. Simms believes he also has a
One document is a complaint that the plaintiff claim against Ms. Black for injuries and/or
files, which provides details about the plaintiff, property damage resulting from the same
the relief sought by the plaintiff and the court accident, then he must file a counterclaim.
in which the action has been filed. The second The plaintiff (in this case, Ms. Black) then
is a summons, which informs the defendant that, will be required to file a reply to respond to
unless the defendant files a response (a document the allegations of the counterclaim and raise
called an answer [see Stage 3]) by a certain date, any applicable defenses.
the court will enter default judgment in favor of If a plaintiff files a civil action against more
the plaintiff for the relief sought in the complaint. than one defendant, one of the named defendants
The threat of a default judgment against a defen- may be permitted to assert a cross-claim against
dant helps to ensure that the defendant will not another defendant. For example, lets say Mr.
ignore the action (just as a sports team will make Rivera was injured while using a chain saw that
every effort to show up at a game if it risks a loss he bought at a retail hardware store. He files a
by forfeit for failing to appear). civil action for damages against both the manu-

27
facturer of the chain saw and the hardware store. deposition may be another party to the legal
If the store believes the responsibility for injury is action, a witness, a medical expert, or any other
ultimately the manufacturers, the store may assert person who has information that may be useful
a cross-claim against the manufacturer. in the case. At the deposition, the person being
Under limited circumstances, a defendant deposed is placed under oath by the steno-
may be permitted to file and serve a third-party grapher (called a court reporter) who is also a
complaint on a person who is not a party to the notary public, and parties or their attorneys ask
original civil action. Lets say Mr. Rivera (the the person questions. The party who requests the
man in the example above) decides to file a civil deposition must pay for the reporters time there,
action against only the retail hardware store. If the but any party can pay the reporter for a transcript
store believes the chain saw manufacturer should of the deposition testimony.
bear this responsibility, then the store may file a Another way a party can gain information is
third-party complaint against the manufacturer. by requiring other parties to the legal action to
In the third-party complaint, the store will ask respond under oath to written questions known
the manufacturer to reimburse the store for any as interrogatories. Court rules limit the number
damages it may have to pay to Mr. Rivera. of interrogatories, so they usually ask for specific
Before, during, or after the pleading stage of information without follow-up questions that oral
a civil action, parties may file various pre-trial depositions permit.
motions asking the court to take various actions. A party also may require other parties to pro-
For example, a defendant may move to dismiss a duce documents or permit inspection of property
civil action because the court lacks subject-matter through a request for production. A party may
jurisdiction or because the court lacks personal obtain similar information from other persons who
jurisdiction over the defendant. If a defendant are not parties in the case through use of the sub-
believes that the plaintiff does not have a valid poena, a court order to produce documents or to
legal claim, even if every fact alleged by the permit inspection of property. A party also may
plaintiff is true, then that defendant may move to require another party to respond to requests for
dismiss a civil action. By making such a motion, admission, in which the other party is asked to
the defendant logically argues to the court that admit certain facts. The judge may decide that
the action need go no further because, even if a party who fails to respond has admitted those
the plaintiff can prove the alleged facts, the plain- facts. Further, the judge may decide that a party
tiff will not be entitled to any legal relief. (For who declines to admit facts that were not fairly
example, a court would likely dismiss a plain- disputable must reimburse the requesting partys
tiffs claim that the defendant was rude and expense to prove them. If the physical or mental
disrespectful). condition of a party is questionable, another party
may request that he or she submit to a physical
Stage 4: Pre-trial discovery or mental examination by a physician or other
The discovery process allows the parties to appropriate professional.
a civil action to get relevant factual information In the federal courts, each party to a civil
from each other and from other persons before action must disclose certain basic information
trial. Ordinarily, parties send each other discov- to other parties even if the other parties do not
ery requests without court participation, but the request it.
court will enforce proper discovery requests if
the opposing party fails to comply. One of the Stage 5: Pre-trial conferences
ways a party can gain this information is through In many civil actions, the court holds one or
a scheduled deposition of another person. The more pre-trial conferences after filing and before
person called on to provide information at a trial. While the purposes vary from judge to judge

28
and depending on when the conference is held, brief questionnaires completed by prospective
the parties or their attorneys and the court may jurors. The judge often asks preliminary questions
meet to accomplish such tasks as: 1) simplifying designed to determine whether any juror should
the issues in the action; 2) attempting to resolve be excused for cause (such as relationship to a
the matter by arbitration or other alternative to party or admitted inability to be fair in arriving at
litigation; 3) preparing and organizing the action a verdict). Each party has an unlimited number
for trial; 4) controlling discovery (see Stage 4 on of challenges for cause, which are based on man-
the previous page); 5) scheduling the trial and any datory reasons not to seat a person as a juror for
pretrial proceedings; and 6) settling the action. the particular civil action and which must be
approved by the judge. Also, each side is usually
Stage 6: Motion(s) for summary entitled to make three peremptory challenges to
excuse prospective jurors without having to pro-
judgment vide a reason. After all challenges for cause have
After a reasonable time for discovery, a party
been made and ruled upon and after peremptory
(most commonly a defendant) sometimes makes
challenges have been made or waived, a jury
a motion for summary judgment. In an action
(usually consisting of eight persons and one or
scheduled for trial by jury (see Stage 7), the
more alternate or substitute jurors) is impaneled
defendants motion must make two arguments to
and sworn.
the court: 1) based on affidavits or the evidence
produced through the discovery process, no rea-
sonable person could find in favor of the plain- Stage 8: The trial
tiff; and 2) the defendant is entitled to judgment If the civil action has not been settled, a trial is
as a matter of law. If the court is persuaded by held. The trial begins with opening statements by
both arguments, the court will conclude that no the attorneys representing the parties, or, in some
trial is needed and will enter final judgment for cases, by the parties themselves (in cases where
the defendant. For example, in a product lia- they are not represented by counsel). Each partys
bility civil action brought by Mr. Rivera (the attorney summarizes the legal position of his or
plaintiff) against the chain saw manufacturer her client and how the evidence to be presented
(the defendant), the court might enter summary will support that position.
judgment against Mr. Rivera if the court deter- The parties then proceed with the presentation
mines on motion that no reasonable person could of witnesses and of documentary and other phys-
find that the manufacturers product was legally ical evidence. The plaintiff traditionally goes first
defective, so the manufacturer is entitled to win and bears the burden of proving every element
the case without consideration of any other issues. of any claim asserted by a preponderance of the
evidence. A preponderance of the evidence is
the greater weight of the evidence and must be
Stage 7: Jury selection enough to convince a juror that, in light of all the
State and federal constitutions and statutes
evidence, the plaintiffs position is, more likely
provide for a right to trial by jury in many types
than not, correct. Thus, in a product liability
of civil actions, particularly those seeking
action, the plaintiff may be required to convince
damages. Jury trial is not, however, automatic.
the jury (or judge in a non-jury trial) that, more
Any party may demand a jury trial if such a right
likely than not, the defendants product was
exists, but if a jury trial is not requested, the case
defective and that the defect caused physical
will be decided at a bench trial in which the judge
injury to the plaintiffs person or property.
rather than a jury decides the facts.
In a jury trial, after the opponents evidence
The process of jury selection is known as voir
has been presented, or after all evidence has been
dire. In many courts, the parties have access to

29
presented by both sides, a party is permitted to questions that are relevant to the verdict (for
make a motion for directed verdict (now called example, Do you find that the product manufac-
motion for judgment as a matter of law in federal tured by the defendant y was defective?).
court). In such a motion, the moving party asks
the court to issue an immediate decision in its Stage 9: Post-trial motions
favor, without allowing the jury to deliberate, A party who is dissatisfied with the jurys
on the basis that a reasonable jury would have verdict can make two post-trial motions. The first
to agree with that partys position. For example, motion, traditionally known as a motion for judg-
in the case above involving Mr. Rivera and the ment notwithstanding the verdict (now called
chain saw, the chain saw manufacturers repre- motion for judgment as a matter of law in federal
sentative may move for a directed verdict on the court), is similar to the motion for directed verdict
ground that, based on the evidence presented, that may be made during trial. The party making
no reasonable jury could find the chain saw to the motion (the moving party) asks the judge to
be defective. Or, similarly, Mr. Riveras repre- determine that a reasonable jury could not have
sentative may move for a directed verdict on the reached the verdict that this particular jury has
ground that, based on the evidence presented, a reached; therefore, the judge should rule in favor
reasonable jury must find that the manufacturer of the moving party notwithstanding or contrary
marketed a defective chain saw that, in turn, to the jury verdict.
caused Mr. Riveras injuries. A dissatisfied party also may make a motion
If the motion or motions for directed verdict for new trial. In such a motion, the moving party
are denied, the attorneys then present their closing alleges that, even if a judgment notwithstanding
arguments. Before then, the lawyers may ask the the verdict is not appropriate in this case, one
judge to instruct the jury about specific matters. or more legal errors were made during trial that
By that time, the judge has let them know which entitle the moving party to a new trial.
of their requests will be part of later jury instruc-
tions to be given, so that each attorney can use
the relevant law and evidence to demonstrate that
Stage 10: Final judgment
The trial judge ultimately enters a final judg-
his or her client deserves a favorable verdict. If
ment, typically either granting (in whole or in
an improper argument is made and is objected to,
part) or denying the relief sought by the plaintiff
the judge may instruct the jury to disregard the
and by any other involved parties.
argument or may even declare a mistrial.
The court then instructs or charges the jury,
mainly about what laws apply to the case. The Stage 11: Appealing the courts
court reminds the jurors of their obligations and decision
describes what each party must prove. Some A losing or dissatisfied party is entitled to take
judges give parts of those instructions at earlier one appeal without getting permission from either
times in the trial. the trial judge or the appellate court. Such a party
The jury then retires to deliberate and to reach ordinarily has only 30 days from entry of the final
a verdict. Once inside the jury room, the jury judgment of the trial court to initiate an appeal.
members select a foreperson who makes sure that The appealing party must pay the court reporter
discussion is orderly and who reports to the judge for a transcript of the trial, unless some other
in the courtroom. In most civil actions, the jury record satisfactorily reports any claimed errors.
returns a general verdict (for example, For the In deciding civil appeals, appellate courts
defendant or For the plaintiff x in the amount have the power primarily to act based on errors
of $y). Occasionally, at a partys request, the of law and not to retry questions of fact already
judge will ask the jury to answer certain specific

30
decided by the jury. Appellate courts make their A police officer has authority to arrest a
determinations based on the written record of person without a warrant if the officer has
the trial, the briefs (written legal arguments) of probable cause to believe that person committed a
the parties, and oral argument by the attorneys felony (a serious crime potentially punishable by
for the parties. A decision on a first appeal can at least six months in prison).
be taken to a higher court (such as the Supreme Police officers also can arrest a person without
Court of Ohio or the U.S. Supreme Court), but a warrant for any misdemeanor (generally, a less
the higher court usually decides which appeals serious offense usually punishable only by a fine
it will consider and which appeals it will decline or local jail time for six months or less) if the mis-
even to hear. demeanor was committed in their presence, or if
they have reasonable cause to believe the suspect
committed a certain misdemeanor, such as theft,
Procedure in assault, menacing, domestic violence or public
indecency.
Criminal Actions A person who is not a police officer can
lawfully detain an alleged offender with a citi-
Like civil actions, criminal cases follow zens arrest only if the person has reasonable
clearly established procedural rules. However, cause to believe that the alleged offender com-
constitutional and statutory provisions have more mitted a felony offense. However, the person
control over criminal cases than civil cases, even who makes a citizens arrest should promptly
though both use court-made rules. Here again, deliver the alleged offender to a law enforce-
several separate stages define the progress of ment officer. For example, an ordinary citizen
criminal cases. who sees a cashier being robbed has the author-
ity to arrest the robber. However, a citizen who
Stage 1: The government begins attempts to make an arrest is putting himself or
herself in great jeopardy. Ordinarily, the non-
the case officer citizen should not intervene at the scene,
Unlike civil actions, a private person cannot
but should inform the police as soon as possible.
begin or control a criminal case. A private per-
Only a police officer can make an arrest for a
son can and should report a crime to the proper
misdemeanor.
federal, state or local government. However, the
When the officer believes that the alleged
government decides whether to pursue the case,
offender will appear for court proceedings with-
regardless of how any private person may feel
out an arrest, the officer can issue a summons or
about the matter. The victim of a crime is an
citation that directs the person to appear in court.
important witness with important rights, but the
In minor misdemeanor cases (offenses punishable
government can prosecute or decline to prose-
by a fine of no more than $150), including minor
cute, despite the victims contrary wishes. A
traffic violations, an officer must issue a citation
civil action usually seeks to enforce the plain-
instead of arresting the accused, except where the
tiffs rights to money or property. A criminal
person fails to show evidence of his or her identity
case seeks to punish an alleged offender for
or has failed to appear in court in a previous case,
violating the governments criminal laws.
or requires medical care and cannot provide for
A criminal case usually begins with an arrest.
his or her own safety, or if the person refuses to
If a police officer satisfies a judge or other qual-
sign the citation. A citation (a traffic ticket is an
ified court official that an alleged offender prob-
example) is a form of combined complaint and
ably violated that governments criminal law, the
summons, and it informs the defendant of the
court can issue a warrant directing the officer to
arrest that person.

31
violation, and when and where he or she must a constitutional right to indictment by grand jury
appear in court. in serious cases, the suspect can be tried on a bill
When a person is arrested, or served a sum- of information only with his or her consent. Con-
mons or citation in lieu of arrest, the arresting sequently, bills of information usually are filed as
officer must file a complaint with a court without part of a plea bargain agreement between the pro-
delay. In citation cases, the citation itself is filed secutor and the defendant.
because it includes the complaint. Filing the com-
plaint after the arrest (or service of the summons) Stage 2: Arraignment and bail
is necessary because it formally begins the crim-
inal case in court. Arraignment
Usually a grand jury hears a criminal case Whether a criminal case begins with an arrest,
after the police have arrested the alleged offender a summons, or an indictment, the court begins
and a court has conducted a preliminary hearing the case with an arraignment. An arraignment
to decide whether there is enough evidence to is a (usually) brief proceeding at which the court
hold that person until the grand jury considers confirms that the accused person understands
the case (see Stage 3: Bindover and indictment the charge and his or her rights as a defendant.
in felony cases). However, a grand jury can begin Usually a court arraigns the defendant very
a criminal case by indicting an alleged offender shortly after his or her arrest. An arraignment
without any previous arrest or other proceedings. follows an indictment, even if another court has
A grand jury is made up of citizens who previously arraigned the defendant after his or her
review the information given to them and deter- arrest and before a grand jury has considered the
mine whether a certain individual should be case. For an arraignment after an indictment, the
formally charged with committing a certain judge should read the indictment (or state the
offense or offenses. An indictment is a formal substance of the charge) to the defendant. Copies
accusation charging a named person with a spe- of the indictment are provided to the accused.
cific crime. The grand jury examines evidence At the time of the arraignment, the judge is
about the crime and the evidence allegedly required to ensure that the defendant understands
involving the suspect in the crime, and determines the following:
whether the evidence warrants formally indicting the nature of the charges;
the person for the offense. The indictment is the the right to retain counsel and to a reasonable
formal charge. The grand jury itself does not continuance of the arraignment proceedings
decide whether the alleged offender has commit- to secure counsel, regardless of how the
ted any crime. Rather, it investigates information defendant intends to plead;
and decides whether a person should be formally the right to have the court appoint counsel if
accused of an offense. the defendant cannot afford counsel;
When a grand jury indicts someone without a the right to bail if the offense allows it;
previous arrest, the indictment begins the criminal the right to refuse to make a statement at any
case. As in cases begun by an arrest and the filing point in the proceeding; and
of a complaint, the indictment must be served to that any statement made can and may be used
the defendant through a warrant or arrest, or sum- against the defendant by the prosecution.
mons and delivery of the summons.
In a few relatively rare cases, the prosecutor For any arraignment, the judge will ask the
can begin a criminal case by filing in court a bill accused to enter a plea. There are several pleas an
of information, a formal accusation made by the accused can make during arraignment or at any
county prosecutor, that may be used instead of an later stage of the case:
indictment by a grand jury. Because a person has

32
Not guilty The accused denies the charges. guilty plea is the result of a plea bargain, infor-
Not guilty by reason of insanity While the mation supporting that agreement must be filed
accused may have committed the criminal with the court or read into the transcript of the
act, the defendant is not subject to criminal proceeding.
liability because, at the time the offense was At the arraignment, the judge will also set bail
committed, the person did not know the to ensure the defendants appearance at any later
wrongfulness of his or her act due to a severe proceedings, including a later trial.
mental disease or defect. It is also true that a
defendant may not be brought to trial if he or Bail
she is incapable of understanding the nature When a person 18 or older is arrested (or
of the criminal case proceedings or assisting when a juvenile court transfers a person under
in his or her own defense. In such cases, the 18 for trial in adult court), he or she is usually
court may order treatment, and the probate entitled to be free on bail pending trial, provided
court may issue civil commitment orders. he or she satisfies any conditions imposed by
The plea must be made in writing. the court. In general, bail is a deposit of money
No contest The accused does not admit or property with the court, or a promise to pay or
guilt, but admits the truth of the facts in the forfeit money or property to the court, designed
accusation (the no contest plea is sometimes to guarantee that the accused will appear at court
used where the accused realizes that a guilty for all proceedings. Often, bail is provided
plea could be used against the accused in a through a kind of insurance policy called a bail
civil suit). bond. An arrested person who qualifies for bail
Guilty The accused admits he or she com- must be given the opportunity to be free on bail
mitted the crime. as soon as possible, although different bail terms
or guarantees of appearance in court may be
The court will not accept pleas of guilty or required. Bail is set by the court in one of these
no contest unless it is satisfied that the plea is forms:
voluntary, that the accused is aware of his or her Personal recognizance A defendants
rights and fully understands the possible conse- written promise to appear.
quences of the plea. A defendant has the right Unsecured bail bond A defendants promise
to waive the reading of the indictment and enter to appear, coupled with a personal, unsecured
a plea without a formal reading. promise to pay a certain amount of money if
In some cases, the accused may offer to plead he or she does not appear.
guilty to a lesser offense through a process called A 10-percent bond A deposit of 10 percent
plea bargaining. A defendant may accept a plea of the face amount of the required bond plus a
bargain agreement when he or she has some written promise to forfeit the deposit and pay
doubts about his or her chances of winning at trial. the remainder of the bond if the defendant
The defendant hopes, by pleading guilty to a less fails to appear. For example, if the bond were
serious offense, to secure a lesser sentence that $2,000, the defendant would deposit $200 and
might involve some form of community control promise to forfeit and pay the entire $2,000
rather than prison, in return for saving the state if he or she fails to appear. If the defendant
the time, expense and uncertainty of a trial. The appeared throughout the case, 90 percent of
prosecution may accept a plea bargain if it has the $200 deposit, or $180, would be returned
some doubts that it can obtain a conviction on the to him or her.
offense charged in the indictment, or if it believes A surety bond A bond secured by real estate,
that it is more economically feasible and in the securities, or cash, sometimes provided by a
interest of justice to accept a lesser plea. If a bail bondsman.

33
The amount of a bond or bail for misdemean- accused committed it, the judge must bind over
ors is usually set by the court and published in the accused (transfer the case) to the grand jury
a bail schedule. In such cases, bail can be paid for further action. If the judge finds the evidence
at the police station without a hearing before a supports only a misdemeanor charge, the case will
judge. In felony cases, the accused is usually held stay in that court.
until the initial appearance in court, at which time The accused can waive the preliminary
the judge sets bail and the conditions of release hearing, in which case he or she is automatically
pending trial. These conditions may include house bound over to the grand jury. The judge will set
arrest, restrictions on travel, orders not to contact bail to ensure the defendants appearance in the
a victim plus any other conditions the judge event that the grand jury hands down an indict-
believes are required to ensure the public safety ment.
and the defendants appearance in court. When a person accused of a felony is bound
It is important to remember that bail is not over to the grand jury, the evidence against the
a substitute for trial. If a person does not appear accused is presented by the county prosecutor and
as required by the court, he or she forfeits any examined by the grand jury. If the grand jury finds
deposit, is liable on any promise to pay bail and insufficient evidence to believe a crime was com-
is subject to re-arrest and detention until trial. mitted or, if one was committed, that the accused
Additionally, failure to appear on a personal did not commit it, then it will return a no bill,
recognizance not only subjects the accused to meaning the case is dismissed.
re-arrest and detention, but is also a separate A grand jury is composed of nine jurors and
offense in itself. up to five alternates who have the power to
inquire into any criminal offense committed in
Stage 3: Bindover and indictment in their county. The regularity with which grand
juries are convened varies from county to county.
felony cases In some larger counties, one or more grand juries
A person arrested for a felony is entitled to a
may be in continuous session.
preliminary hearing within a short time period.
If at least seven members of the grand jury
This hearing is held before a municipal court
find enough evidence to believe that a crime was
or county court judge or magistrate, unless the
committed and that the accused committed it,
person waives the right to a hearing in writing.
then the grand jury will return a true bill, meaning
The preliminary hearing is not a trial. Its purpose
it will return an indictment against the accused.
is to allow the court to examine the evidence
The grand jury may indict for any offense the
against the accused and determine if it is suffi-
evidence warrants, regardless of the charge for
cient to warrant further proceedings. (Editors
which the case was bound over. Even though the
note: Generally, under Ohio law, a magistrate
accused was bound over for a felony, the grand
has the authority to act as a judge under limited
jury may indict for a misdemeanor if the evidence
circumstances. The term judge will be used
supports only a misdemeanor offense, and vice
hereafter to denote both judge and magistrate.)
versa. For example, if the evidence only shows
If there is no probable cause to believe any
that the defendant stole property worth only $25,
offense was committed, or no probable cause to
he or she can be indicted for the misdemeanor
believe the accused committed the offense (even
offense of petty theft. If, on the other hand, the
though an offense was committed by someone),
defendant stole property worth more than $500,
then the case against the accused will be
he or she can be indicted for the felony offense
dismissed. A finding of probable cause must be
of theft.
based on credible evidence.
In essence, the preliminary hearing and the
If the judge finds probable cause to believe
grand jury are screening devices. The purpose of
both that a felony was committed and that the

34
each is to ensure trials are held on well-grounded the names and addresses of witnesses, unless
accusations. Indictment by a grand jury in serious the court bars such disclosures because the
offenses is a right guaranteed by both the U.S. information may subject the witness to harm;
and Ohio constitutions. A preliminary hearing is and
a right given by state statute. evidence that is favorable to the defendant.

Stage 4: Pleadings, motions, When the defense makes such a request, the
prosecution is then permitted to ask for corres-
discovery, and pre-trial in criminal ponding disclosure from the defense. The prose-
cases cution may not initiate discovery requests unless
Unlike civil cases, the defendant in a criminal the defense has first made similar discovery
case does not file a written pleading (an answer) requests.
in response to the charge; the defendants oral Under certain rare circumstances, the depo-
plea in court serves the same function. However, sition of a witness may be taken.
when the defendant intends to rely on the defense It is important to point out that a defendants
of alibi, the defendant must file written notice deposition cannot be taken because defendants
with the court of the place the defendant claims he cannot be forced to give testimony. Defendants
or she was when the offense occurred. In essence, and witnesses have the constitutional right (under
the defense of alibi states, I was somewhere else, the Fifth Amendment to the federal Constitution
so I couldnt have committed the crime. and Article 1, Section 10 of the Ohio Constitu-
There are several requests, challenges and tion) to refuse to say anything that might tend to
objections the accused can make by filing a incriminate them.
written motion asking for relief. For example, Pre-trial conferences are used in criminal
a defendant can ask for a bill of particulars, cases for discussion of potential evidence prob-
which is a more detailed statement of the facts lems, for possible plea negotiations, and to con-
of the alleged offense; or the defendant may firm the trial date. In a criminal case, the pre-trial
object that the accusation does not properly conference generally involves a review of the
charge an offense or is otherwise defective; or evidence, time necessary for trial, whether the
he or she may ask that certain evidence be indictment charges the correct offense, defenses
suppressed on the grounds that it was obtained in raised, a schedule for the trial and any proceed-
violation of the defendants constitutional rights. ings before the trial, and the possibility of a plea.
For example, the defendant may challenge the
basis upon which a police officer searched his or Stage 5: The trial
her home, vehicle or person. Many other defenses,
Like civil trials, the main steps in criminal
objections or requests can be made by motion.
trials include:
Criminal discovery is more limited than the
selection of a jury;
discovery in civil cases. In a criminal case, the
opening statements by the attorneys;
defendant can (but is not required to) initiate
presentation of witnesses and evidence (in a
discovery by asking the prosecutor to provide:
criminal trial, the state always goes first, and
statements made by the defendant or a co-
the defense follows; the state then may offer
defendant to the police;
rebuttal evidence if the prosecutor wishes to
the defendants prior criminal record, if any;
do so);
documents and other tangible evidence, which
closing arguments by the attorneys;
may be used during the trial;
instructions on the law by the judge to the
reports of photographs, examinations and
jury; and
tests;
deliberation and decision (verdict) by the jury.

35
The goal of any trial is to find the truth. The In criminal cases involving serious offenses
theory is that, when each party in a dispute pre- where a jail sentence may be imposed, a trial by
sents evidence and argument about his or her side jury is automatically provided unless the accused
of an issue before a judge and jury, the truth will waives the right to a jury in writing. Serious
be discovered. To this end, parties act as adver- offenses include all felonies and those misde-
saries or opponents during the trial. The role meanors punishable by more than six months
of an attorney in a trial is to represent his or her imprisonment. If the offense is a petty offense
own clients interests as fully as possible. When that could be punished by no more than six
opposing attorneys on both sides do this, it is months confinement, the defendant must
assumed that the truth of the matter will become demand a jury trial within certain time limits.
clear to the judge and jury. The role of the judge When a civil or criminal case is tried with-
is to control the trial as a neutral referee and to out a jury, it is tried to the judge alone. This is
rule on questions of law. The role of the jury is commonly called a bench trial. In capital cases
to decide who to believe and what happened. (criminal cases in which death is a potential
Each party present has the right to present evi- penalty) a three-judge panel tries the case if a
dence and argument. jury is waived.
Juries in criminal cases consist of 12 jurors
Burden and standard of proof in felony cases and eight jurors in misdemeanor
In a criminal case, the state must prove the cases.
defendants guilt beyond a reasonable doubt. This At the beginning of the trial, a bailiff, a court
is a much more stringent burden of proof than in official who acts as an aid to the judge, opens
a civil case. Reasonable doubt is present when court. The bailiff will ask everyone to stand when
the jurors, after they have carefully considered the judge enters the court and to be seated when
and compared all the evidence, cannot say they the judge sits.
are firmly convinced of the truth of the charge. The judge then calls the case by name (State v.
It is a doubt based on reason and common sense. Blue, for example) and asks the attorneys for each
Reasonable doubt is not mere possible doubt, side if they are ready to proceed. In jury trials, the
because everything relating to human affairs or first step is the selection of the jurors.
depending on moral evidence is open to some
possible or imaginary doubt. Proof beyond a Jury selection
reasonable doubt is proof of such character that The process of choosing jurors is called voir
an ordinary person would be willing to rely and dire. During voir dire, attorneys for both the
act upon it in the most important of his or her own plaintiff and the defendant interview potential
affairs. If the jurors believe that the defendant is jurors. In many courts the judge begins a prelim-
probably guilty, but they have a reasonable doubt, inary interviewing process before permitting the
they must find the defendant not guilty. Every attorneys to question prospective jurors. The pur-
defendant is presumed to be innocent until the pose of voir dire is to select individuals for the
state proves, beyond a reasonable doubt, that the jury who can be fair and impartial. Each side in
defendant committed the offense. a case can reject potential jurors through a chal-
lenge for cause or a peremptory challenge.
Jury and non-jury cases Prospective jurors may be challenged for
While the right to trial by jury applies in many cause for any of a number of specific reasons.
situations, it does not apply in all cases. For example, a prospective juror may be chal-
Persons accused of minor misdemeanor lenged for cause if he or she:
offenses are not entitled to a jury trial.

36
has been convicted of a crime, usually a case, what the party expects to prove, and the
felony, which is an automatic disqualification; evidence by which the party expects to prove it.
has served as a member of a petit jury in the
same case (usually a situation where a new Witnesses and evidence
trial has been granted); The prosecution then presents its evidence,
has been subpoenaed as a witness in the case; after which the defendant may present any
has a relationship by blood or marriage to additional evidence. If the defendant presents
either party, or to the attorney for either party; any evidence, the prosecutor may present
has a legal proceeding pending with one of rebuttal evidence.
the parties to the case; A defendant in a criminal case has no duty
does not speak or understand English well to present any evidence. Rather, the state is
enough to follow the proceedings; obligated to prove that the defendant is guilty,
discloses information showing that he or she whether or not the defendant presents any
is unable to be a fair and impartial juror. evidence.
Evidence is almost always presented through
There is no limit to the number of prospective witnesses. In fact, witnesses are so important that
jurors who may be challenged for cause. Each they can be compelled to attend the trial by means
time a prospective juror is excused, another will of a subpoena. A subpoena is a court order com-
be interviewed. manding a witness to appear in court and provide
When each side has no more challenges for testimony. Anyone who disobeys a subpoena is in
cause, each side may exercise a limited number contempt of court, and may be fined or jailed, or
of peremptory challenges. No reason is needed both.
for peremptorily excusing a juror, but neither a Witnesses testify about events they saw or
prosecutor nor a defense attorney may ask to heard, report on the tests or investigations they
excuse a juror for an improper reason, such as conducted, or testify about other relevant matters.
race. Expert witnesses sometimes are used to give
In criminal cases the number of peremptory professional opinions about elements of a case.
challenges allowed each party is six in capital For example, a coroner may testify that a gun-
cases, four in all other felony cases and three in shot at close range caused the victims death
misdemeanor cases. in a murder case. Even tangible evidence, such
If the prosecutor or defendant does not use as a murder weapon or a document, must be
a particular peremptory challenge, he or she introduced through the testimony of a witness.
loses or waives that peremptory challenge, thus Evidence may be direct or circumstantial.
reducing the number of peremptory challenges Direct evidence is evidence that was seen, touched
at his or her disposal. or heard by a witness directly. For example, if a
When all challenges are used or waived, the witness sees rain coming down, he or she has
jury is complete and takes an oath to perform its direct evidence that it is raining. Circumstantial
duty to render a true and just verdict. evidence comes from a reasonable conclusion
of fact that a witness infers from direct evidence.
Opening statements An example of circumstantial evidence is the
After the jury is selected and sworn in, the testimony of a witness who noted that, upon exit-
attorneys for each party make their opening ing a building, everything was wet and water was
statements, beginning with the prosecutor and running down the street into the gutters. The
followed by the defendants attorney. The open- testimony offers circumstantial evidence that it
ing statement is an outline of the facts of the recently rained, even though the witness did not

37
see or feel the actual rain. The other side in the that the victim had terminal cancer and probably
case could introduce evidence to rebut this cir- would have died in a month even if the victim
cumstantial evidence. They could call a city street had not been shot and killed during the robbery.
maintenance supervisor to testify that the operator One of the judges most important functions
of a city water tanker sprayed the entire area while in a trial is to rule on whether certain evidence
preparing the street for a street-cleaning machine. is admissible. Generally, a judge will not keep
The jury will draw its own conclusions based on evidence from being heard unless one of the
testimony of the witnesses and can choose to partys attorneys objects and asks that the evi-
ignore all or part of the testimony of any witness. dence be excluded. The judge carefully considers
Contrary to popular opinion, circumstantial evi- matters such as this, since the improper admission
dence is often reliable evidence and can be more or exclusion of evidence may be so prejudicial as
persuasive than direct evidence. Even criminal to affect the outcome of the trial, and cause an
convictions can be based on circumstantial evi- appeal to the court of appeals. In criminal cases,
dence. the failure by defense counsel to object to
The parties are not free to present any evi- improper evidence may result in the reversal of
dence in any way they please, but must abide by a conviction, based on counsels incompetence.
the Ohio Rules of Evidence as published by the For each witness, the side that calls that wit-
Supreme Court of Ohio. The main purpose of the ness conducts direct examination. When that side
Rules of Evidence is to ensure that evidence is concludes its questions, the other side has a right
competent, relevant and material to the case being to cross-examine that witness. The side that called
tried to prevent a jury from considering unreliable the witness may ask redirect examination ques-
or unfairly misleading evidence. tions after any cross-examination, and the other
An example of evidence that usually cannot side may then ask re-cross examination questions.
be presented would be a defendants prior crim- The judge may then permit either side to ask
inal record. Such evidence offers no proof that further questions. The right of cross-examination
the defendant committed the particular crime for is considered so important that it is guaranteed in
which he or she is standing trial and may only both the U.S. and Ohio constitutions.
serve to prejudice the jury against the defendant. The chief purposes of a cross-examination
Similarly, a witness generally cannot testify to are to place a witnesss testimony in perspective,
what another person said he or she saw. This to test its accuracy, and to bring out information
kind of testimony is called hearsay. Hearsay not offered during direct examination.
is not reliable since there is no opportunity for For example, if woman who is a credible
the opposing party to examine the person who witness in a murder case testifies that she saw the
allegedly made the statement. defendant shoot the victim, her testimony would,
The court will not permit the jury to consider on its own, be very damaging to the defense.
evidence that has nothing to do with the case at However, her testimony takes on a different light
hand. For example, in a rape case where the when, upon cross-examination, this witness tes-
defendant denies any sexual contact with the tifies that she was a city block away from the
victim, the court will not permit evidence that the shooting, it was 11 p.m., and that she regularly
victim was sexually promiscuous with others. The wears glasses for night and distance vision, but
issue is whether the defendant forcibly engaged in was not wearing them that night.
sexual relations with the victim, regardless of
whether the victim willingly engaged in sexual Closing arguments
activity with others. Similarly, in a trial for mur- Once all the evidence has been presented,
der committed in the course of a robbery, the the attorneys deliver their closing arguments to
judge would not permit the jury to hear evidence the jury. The prosecutor goes first, because the

38
prosecution has the burden of proving the case. The bailiff is outside the jury room and allows
When the prosecutor is finished, it is the defense no one to enter or leave the room without the
attorneys turn. The prosecutor may reserve part express permission of the judge. Sometimes the
of his or her time for rebuttal after the defense jurys deliberations go on for several days. In
attorney is finished. such cases, the jurors may be allowed to go home
In general, each attorney uses the closing for the night with an order to return the following
argument to summarize the evidence, commenting day to resume deliberations. Or, in certain high-
on it in a way that shows his or her client in the profile cases, the jury may be sequestered, that is,
most favorable light. Each attorney may talk about housed at a local hotel under the supervision of
the facts and all the inferences that can properly the court bailiff, with security provided by deputy
be drawn from them. An attorney may not talk sheriffs. In a capital murder case, the jurors will
about evidence that was not presented, or argue be sequestered if they are unable to reach a verdict
about points that do not apply to the case. If an by the end of the day. In all cases, the jurors are
attorney uses improper material in a final argu- told not to discuss the case with anyone until after
ment, the opposing attorney may object and the the verdict is announced in court. Even then, the
judge may instruct the jury to disregard what jurors have no obligation to discuss the case with
was said. If the offending material is seriously anyone else.
prejudicial, the judge may declare a mistrial. Usually, the court will give jurors written
forms for each of the possible verdicts in the
Jury instructions case. In a criminal case, the verdict must be
When the attorneys have completed their unanimous. In many cases, the court may give
closing arguments, the judge instructs or charges the jury detailed information about specific
the jury. This means the judge explains to the questions (known as interrogatories) pertaining
jury their duties as members of a jury and the to the case.
law applicable to the case. On rare occasions, the jury becomes hope-
Before the closing arguments, the attorneys lessly deadlocked when the jurors cannot agree
may ask the judge to give specific instructions on a decision. This is called a hung jury, and if
on the law as it applies to the evidence. If these the judge is convinced that the jurors will not be
instructions are proper and would not have been able to reach a verdict, the judge declares a mis-
covered by the judge in his or her charge to the trial. The case may have to be retried with a new
jury, the judge will include them. The charge jury, unless the prosecutor decides to dismiss it.
may take minutes or, in complicated cases, it If the jurors agree on a decision, they will sign
may take hours. the appropriate verdict form and return to the
courtroom where the verdict is announced either
Verdict by the judge, by the jury foreperson, by the clerk
After the judge charges the jury, the jurors are of the court or by the court bailiff.
escorted to the jury room to make their decision Attorneys for the prosecution or the defendant
or verdict. Once inside the jury room, the jury may ask that the jurors be polled individually to
selects a foreperson to make sure that the discus- determine if the announced verdict really is each
sions are orderly and that each juror gets ample ones verdict. If each juror agrees with the verdict,
time to speak, and to report to the judge in the the verdict is accepted, the jury is dismissed and
courtroom. Once a foreperson is selected, the jury the trial is over.
begins deliberations about the facts of the case.

39
Stage 6: Sentencing and motions tutional protection against double jeopardy. In
general, double jeopardy means a person cannot
after the trial be tried or punished more than once for the same
offense. (See Double Jeopardy in Part IV,
Sentencing in criminal cases Criminal Law.)
In criminal cases, the sentence is part of the Appeals are generally made on questions
judgment. In minor criminal cases, sentencing of law rather than questions of fact. (The trial
usually takes place immediately following a jury process, not the appeal process, is best equipped
verdict of guilty or the judges finding that the to determine facts.) Appellate courts usually
offender is guilty. In serious criminal cases, sen- accept the factual determinations of trial courts
tencing is often deferred pending a pre-sentence unless they are clearly not supported by credible
investigation to gather information on the case evidence, concentrating instead on whether the
and on the offenders background. The judge can trial court incorrectly interpreted or applied the
then determine the proper sentence according to law.
sentencing guidelines established by the Ohio For a trial court decision to be appealed, the
legislature. A person convicted of or pleading decision must be known as a final order. This
guilty to a felony will not be considered for pro- prevents what might be the continual interruption
bation (now called community control sanctions) of the trial process if any and all court decisions
without a pre-sentence investigation completed before and during the trial could be appealed. In
by the adult probation department of the court. a criminal case, an appeal could be made only
(See Part IV, Criminal Law, for a schedule after the filing of the judgment journal entry that
of Ohios felony and misdemeanor sentencing imposes sentence upon the defendant. However,
guidelines.) in certain circumstances, a pre-trial ruling by a
court that excludes evidence offered by the state
Proceedings after the trial may be appealed, and the trial suspended pending
Following a conviction, the defendant may an appellate court decision.
file a motion for a new trial or for judgment not- Generally, a party has 30 days from final
withstanding the verdict, that is, a judgment that judgment or order to file an appeal. Appeals filed
sets aside the jurys guilty verdict in favor of a after that time are allowed only in criminal cases
judgment for the defendant. The judge should with the appellate courts permission (called
deny the motion for judgment notwithstanding leave of court). Permission to file a late appeal
the jurys verdict unless no reasonable person is granted only when the appellant (the party
could find that the prosecution proved the charge filing the appeal) can show a good reason for
beyond a reasonable doubt, when viewing the failing to meet the regular deadline. The right
evidence in the light most favorable to the pro- to appeal is lost if the appeal is not filed within
secution. The judge should deny the motion for a the time allowed or leave to file a late appeal is
new trial unless a serious error denied the defen- not granted.
dant a fair trial, the verdict is clearly contrary to
the evidence, or the defendant provides newly Other post-trial proceedings
discovered evidence that was unavailable at the In criminal cases, there are a number of other
trial and that would probably change the result. proceedings that may be held months or years
after the trial.
Appeal If an offender is placed on community control
In criminal cases, a person who is convicted sanctions, but then violates one of the conditions
may appeal, but the states (prosecutions) right of the sanctions, the court may hold a hearing to
of appeal is very limited because of the consti-

40
determine if the sanctions should be revoked and and may require the writer to define for readers/
the offender sent to jail or prison. viewers the exact nature of a pre-trial hearing, for
Similarly, when a person is released on parole instance, and how that is different from an actual
from prison and violates the parole conditions, a jury trial, or why it is that a case is being decided
hearing may be held to determine if the parole without a jury.
violator should be returned to prison. While journalists may worry that reporting
Also, the trial court may hold a post-convic- such detail may risk burdening readers/viewers
tion relief proceeding to determine the validity with too much legalese, these important sub-
of later claims that the offenders constitutional tleties in the law reflect on the parties involved
and the accuracy of the journalists endeavor.
rights were violated.
Without an explanation of the process and the
stages of procedure, a reader/viewer may be left
with the wrong impression as to a defendants
For Journalists: guilt in a criminal case or a judges ruling in civil
case, for example.
Reporting on Procedure Worse yet, journalists who ignore procedural
Reporting on cases requires understanding the issues do so at their peril. Such writers may create a
exact case stage so that readers/viewers are not picture of a defendant (or plaintiff)or of the court
misled. There are distinct subtleties in the process itselfthat is incorrect. In some cases, reports may
that may confuse some readers/viewers. For border on libelous because they are erroneously
instance, some readers/viewers may think someone more definitive about who is winning or losing
who has been arrested is necessarily guilty of the than is actually the case. More than any other part
crime he or she is charged with committing if the of court reporting, defining the stages and proce-
journalist omits important information about dures of a case is one of the court journalists most
procedure. The selection of terms used to describe important responsibilities to reflect accurately what
the various points in the legal process are critical has happened in the courtroom.

Chapter Summary
The law defines our rights and obligations as citizens, while legal procedure provides
the means for enforcing those rights and obligations fairly and effectively.
Legal procedures identify where, when and how legal action is to be started, conducted
and concluded.
Jurisdiction refers to the power and authority of a court. Different courts have different
powers, and a case can be brought only in a court with authority to deal with it.
Venue refers to the place where a case must be tried.
Statutes of limitations provide time limits for beginning legal actions to discourage
unreasonable delay in bringing civil lawsuits and criminal prosecutions.
Continued on page 42

41
Chapter Summary continued
A civil case begins when the claimant, or plaintiff, files a written pleading, or complaint,
with the proper court. The defendant in a lawsuit is entitled to know he or she is being
sued and why, and given time to answer the lawsuit. The parties to any civil lawsuit can
challenge each others pleadings by means of motions, or written requests filed with the
court.
Discovery is the process whereby the parties to a civil lawsuit obtain information or evidence
from each other, often in written question or oral deposition form.
A criminal case can begin when a proper arrest is made (followed by the filing of a
complaint); when a grand jury returns an indictment; when a private citizen files a complaint;
or when a summons or citation is issued.
Bail is the pre-trial release of an accused, provided the court is satisfied that the accused will
attend all court hearings. An arrested person who qualifies for bail must be given the
opportunity to be free on bail as soon as possible, although different guarantees of
appearance in court may be required.
A person who is arrested for a felony must be given a preliminary hearing without delay.
The purpose of a preliminary hearing is to look at the evidence against the accused, and
determine if it is sufficient to warrant further proceedings.
An indictment is a formal accusation made by a grand jury, charging a named person with a
specific crime.
An arraignment follows an arrest or indictment. The purpose of an arraignment is to inform
the defendant of the nature of the charge, advise the defendant about his or her rights, and
obtain his or her plea to the charge.
Unlike civil cases, the defendant in a criminal case does not file a written pleading (an
answer) in response to the charge; the defendants oral plea in court serves the same function.
Criminal discovery is more limited than the discovery in civil cases and can be initiated
by the defendant.
Pre-trial conferences are used in criminal cases for plea negotiations and for the same
purposes as civil pre-trial conferences.
A trial is a contest between adversaries. The role of the judge is to control the contest
as a neutral referee and to rule on questions of law. The role of the jury is to decide questions
of fact.
The main steps in civil and criminal trials include selection of a jury, opening statements
by the attorneys, presentation of witnesses and evidence, closing arguments by the attorneys,
instructions by the judge to the jury, and deliberation and decision (verdict) by the jury.
The right to trial by jury applies in many, though not all, situations. The process of choosing
jurors is called voir dire.
A number of legal proceedings may be conducted after the trial is over. Any party may file an
appeal in civil cases. However, because of double jeopardy provisions in the U.S. and Ohio
constitutions, the prosecutions right to appeal in criminal cases is more limited.

42
Web Links:
From the OSBAs Law You Can Use column:
www.ohiobar.org/lawyoucanuse (search by title or topic)
Civil Trials: How Are Jurors Selected?
Expert Witnesses Help Judges and Juries Find the Truth
How Does a Grand Jury Operate?
Know How to Answer a Complaint
Perjury Can Lead to Prison
What You Should Know about Evidence Rules and Hearsay
What You Should Know about Obstruction of Justice

43
Part IV___________________________
criminal law
We will sell no man, we will not deny to any man, either justice or right.
Magna Carta

riminal law is one of the oldest of For example, the crime of murder is defined

C the major branches of law. It spells


out rules of conduct for society to
follow and provides for penalties
when those rules are broken. It also
protects citizens by shielding them from wrongful
prosecutions and mistakes made by law enforce-
as purposely causing the death of another person.
Thus, causing someones death accidentally is not
murder (though it may be negligent homicide)
because the required guilty state of mind for the
crime of murder is not present. Someone might
actually plan to steal and therefore have a guilty
ment officials, affording certain constitutional mind. However, that person has not committed a
rights if an individual is accused of committing crime until he or she actually takes or attempts to
a crime. take something while having a guilty mind.
The exceptions to requiring a culpable mental
state generally have to do with regulatory offenses
What Constitutes dealing with public health and safety. Selling
impure food, for example, is a violation of the
an Offense? pure food and drug laws even if the seller did not
know the food was tainted. Such crimes are
In Ohio, all crimes must be defined by state commonly known as strict liability offenses. Most
statute or local ordinance. Statutes and ordinances traffic violations are strict liability offenses. For
(commonly referred to as laws) must also provide example, exceeding the speed limit is a crime.
penalties for committing crimes. There are vary- It does not matter whether the driver does so
ing degrees of criminal offenses, ranging from recklessly, negligently or with some intent or
jaywalking to premeditated murder. purpose.
In Ohio and most other jurisdictions, two
things are required for an act or omission to
qualify as a criminal offense. First, the law must Types of Crimes
prohibit the unlawful act or conduct, or there
must be a failure to perform some duty required There are two major classifications of crimes:
by the law. (This is called actus reus, or guilty felonies and misdemeanors. The word felony
act.) Second, at the time of the unlawful act, comes from the Latin word felonia, meaning
conduct, or omission, the person committing the treason or treachery. Misdemeanor combines
offense must have a certain guilty state of mind, mis for wrong or bad, and demeanor
or culpable mental state (in Latin, mens rea). from the Middle English word demenure,
Depending on the specific crime with which meaning to govern oneself or behave. Both
an offender is charged, it must be shown that he felonies and misdemeanors are further classified
or she: according to the comparative seriousness of the
acted in a reckless manner; or offense. Crimes of the first degree generally
acted with purpose or knowledge; or are the most serious. A few crimes are simply
acted with criminal negligence. defined as felonies or misdemeanors without
being classified by degree.
With few exceptions, for an act or omission Felonies are the most serious crimes. In
to be considered a crime, at least one of these Ohio, punishment for felons (persons commit-
culpable mental states must be present. ting felonies) may include community sanctions,

44
various financial penalties and imprisonment. rape and other types of sexual assault,
Felonies carry a potential penalty ranging from prostitution, obscenity and disseminating
six months or more in a state prison to a penalty matter harmful to juveniles;
of death. arson and other property damage offenses;
The most serious felony is aggravated robbery, burglary, breaking and entering,
murder, followed by murder. Both are done safecracking and trespassing;
purposely, but aggravated murder is committed theft, bad check and credit card offenses,
with prior calculation and design. Aggravated forgery, fraud and other theft offenses;
murder also can be a purposeful killing that is gambling;
committed while the perpetrator is also commit- inciting violence;
ting a first- or second-degree felony such as riot, disorderly conduct and false alarms;
kidnapping, rape or robbery. This crime is com- certain aspects of abortion, nonsupport,
monly referred to as felony murder. The murder endangering children and domestic violence;
offenses are categorized in descending level of bribery, perjury, resisting arrest, harboring
seriousness by felonies of the first, second, third, criminals, escape, graft, conflict of interest,
fourth and fifth degrees. dereliction of public duty and violation of
Under certain circumstances, felony offenders civil rights;
can serve time in local jails or community-based conspiracy, attempt and complicity;
correctional facilities; however, most violent or weapons and explosives control;
repeat offenders are housed in state prisons. corrupt activity (racketeering); and
Misdemeanors are less serious than felonies. drug offenses including possession, sale,
They range from speeding and littering to drunk manufacture and cultivation.
driving and simple assault (with minimal harm).
In Ohio, the penalty for a misdemeanor can range Crimes Outside the Ohio Criminal
from payment of court costs to no more than six
months in jail and/or a $1,000 fine per offense.
Code
Besides the crimes defined in Title 29, a
In addition, the penalty may include community
number of other criminal offenses are enumer-
control sanctions such as probation or community
ated in the Ohio Revised Code. Some, such as
service. In fact, the penalty for most misdemean-
traffic and liquor control offenses, are grouped
ants (persons committing misdemeanors) often
in a single chapter, while others are spread
involves community and financial sanctions and/
throughout the Code.
or electronic monitoring rather than jail time.
Many are regulatory offenses and address
Minor misdemeanors are the least serious
matters such as motor vehicle licensing and
offenses and, in Ohio, may be punished only by
registration, agricultural products and raw
a fine of $150 or less, but no jail time.
materials, weights and measures, hunting and
fishing, boating, licensing of professionals,
Crimes in the Ohio Criminal Code public health and elections. Many of these
The Ohio Revised Code lists all crimes that offenses are strict liability offenses.
apply in Ohio. Title 29, the Ohio Criminal Code, Municipal ordinances, while duplicating
lists most of the serious offenses according to many state misdemeanors, also cover local
state law. issues such as building repairs, property care,
Subjects covered include: noisy neighbors, curfews and pets. Under the
homicide, assault and menacing threats; Ohio Constitution, municipalities cannot
kidnapping, abduction, false imprisonment, create felonies.
extortion and coercion;
patient abuse and neglect;

45
The United States Code contains federal law prevents the parole board from releasing
criminal offenses, which are applicable nation- people from non-life sentences for acts committed
wide. Federal offenses include crimes committed after July 1996. With very narrow exceptions,
across state lines, on federal property or against only a judge can modify a sentence. The judge
federally insured banks. Overall, a very small can do this by judicial release (formerly known
percentage of criminal cases involve federal as shock probation) for eligible offenders or by
offenses. Most criminal prosecutions take place allowing the offender to be placed in a boot camp
in state courts and involve violations of state treatment or furlough program.
statutes and local ordinances. The length of an inmates sentence may be
changed without direct input from a judge only
if the inmate earns credit while in prison. An
Penalties and earned credit reduces a sentence by one day for
each month an inmate participates in meaningful
Sentencing school, work, training or treatment programs.

One of the most important features of the Mandatory Terms


Ohio Criminal Code is its plan for penalties While judges have latitude in selecting an
and sentencing and its treatment of offenders. appropriate sentence from the range of penalties
Penalties are listed according to the comparative available for misdemeanors or felonies, some
seriousness of offenses. Within each degree of crimes carry mandatory jail or prison terms.
crime a range of penalties is provided, permitting In those cases, the judge must send the person
judges to tailor penalties to individual offenders to prison or jail. Sometimes, the amount of time
rather than basing the penalties on their offenses is specified (e.g., an additional three years for
alone. The sentencing law provides that judges using a firearm during a felony). However, for
should give progressively strict penalties for most mandatory terms, the judge can exercise
certain repeat offenders, for those who use or discretion in selecting the actual duration of the
threaten the use of violence and for those who offenders prison term.
use or carry firearms while committing a crime. A prison term must be imposed for offenders
(See chart on page 50 showing potential felony convicted of criminal acts in the following cases:
penalties and sentencing under Ohio law.) aggravated murder when a death sentence is
not imposed;
Penalties murder;
The Ohio Criminal Code was revised in July any rape and any attempted rape when the
1996. Now, in most cases, the prison sentence victim is younger than 13 years old;
imposed in open court on a convicted felon is first- or second-degree felonies when the
the actual time he or she will serve, minus credit offender has a prior second-degree or higher
for any time spent in jail while awaiting trial or felony conviction;
sentencing. first-, second-, or third-degree drug offenses
Before the law was changed, judges would when specified as mandatory by statute;
impose indeterminate sentences (e.g., 5 to 25 corrupt activity (racketeering) when the most
years). The length of time offenders actually serious underlying offense is a first-degree
served would be reduced for good behavior. The felony;
ultimate release date would be determined by the felony vehicular homicides and assaults, or
parole board. drunk driving when specified by statute;
Ultimate control over each offenders actual having a firearm in the commission of a
sentence is now left to the sentencing judge. The felony;

46
gross sexual imposition or sexual battery if the community control sanctions (community control
offender has a prior conviction for either, or sanctions are explained later in this chapter).
for rape, involving a victim under age 13; The most complicated provisions deal with
any sexual offense where the indictment states fourth- and fifth-degree felonies. Even though
that the perpetrator is found to be a sexually felonies generally carry the possibility of a prison
violent offender; term, the law requires one year of community
human trafficking involving kidnapping and control sanctions instead of prison for those
certain sexual offenses; convicted of fourth- and fifth-degree felonies if:
a felony assault against a pregnant woman, the most serious charge against the offender
under certain circumstances; is a fourth- or fifth-degree felony;
the wearing or carrying of body armor while the crime is not an offense of violence and
committing a felony; and the offender did not cause physical harm to
illegal conveyance, by a prison employee, of another person;
contraband items (such as narcotics, alcoholic the offender did not possess a firearm while
beverages, weapons or pornography) into a committing the offense; and
prison facility. the offender did not violate any conditions
of bond.
Individuals defined as repeat violent offenders
and major drug offenders face long mandatory However, if the court believes that there is
terms and can have as many as 10 years added to not an appropriate community control sanction
their sentences. According to Ohio law, a judge available for the fourth- or fifth-degree felon, the
must add three years to prison terms for those judge must delay sentencing and allow the Ohio
using, possessing or brandishing a firearm while Department of Rehabilitation and Correction
committing a felony. If the firearm was not visible (DRC) to identify an appropriate non-prison
or indicated during the crime, an additional one- sanction within 45 days. If the DRC finds such
year term is mandated. When the firearm is an a community control sanction, the court must
automatic or equipped with a silencer, the manda- impose it.
tory sentence is six years. If a person has committed a fourth- or fifth-
The offender serves a mandatory term for degree felony, but does not meet the above criteria
using a firearm before and separate from the term for a community control sanction, the judge must
served for the crime the offender was convicted of decide whether to sentence that person to prison.
committing. Firearm sentences cannot be served In making such a decision, the judge must first
simultaneously (concurrently) with the original determine if the offense:
offense, and they cannot be suspended or reduced brought physical harm to a person;
other than through credit for jail time served. involved an attempted or actual threat of harm
with a weapon;
Sentencing Discretion involved an attempted or actual threat of harm
Although the Ohio Criminal Code gives without a weapon when the offender has a
judges sentencing discretion, the discretion is prior conviction for causing harm;
guided by some basic rules, particularly in felony was committed by an offender possessing a
cases. Generally, for first- and second-degree firearm;
felonies, the law presumes a prison term is needed was related to a public office or position of
to punish the offender and protect the public. For trust;
fourth- and fifth-degree felonies, the law steers was for hire or was committed as part of
some offenders toward prison while steering many organized crime;
property and non-violent offenders toward was a sex offense;

47
was committed by an offender who has been sentencing process by way of impact statements.
to prison before; or There are two kinds of victim impact statements.
was committed while the offender was under One is an actual statement made by the victim
indictment or under community control for or the victims family members at sentencing. It
another offense. can be made orally in court or in writing. Such
a statement allows the person or persons most
If any one of these factors is present, the Ohio affected by a particular crime to tell the judge
Criminal Code steers the judge toward imposing how the crime has affected them. The other kind
a prison sentence, provided the court finds that of impact statement is information a victim gives
the offender is not a good candidate for available to a probation officer as part of a pre-sentence
community sanctions. If none of these factors is investigation. The pre-sentence investigation is
present, the judge is steered toward community ordered by the judge to gather information (such
sanctions. as the offenders criminal history, social history,
Judges can choose not to follow the Ohio employment record, financial situation, personal
Criminal Codes guidance in favor of or against characteristics, family situation and physical and
a prison term when choosing a sentence. For mental condition) before choosing an appropriate
example, a judge may order a community drug sentence. The probation officer gives this infor-
rehabilitation program rather than a prison mation, including the victims impact statement,
sentence for a second-degree felon who has a to the judge, and it generally remains confidential.
history of drug dependency but no other crim- After reviewing the pre-sentence report, and
inal record. A judge can also sentence repeat non- after having heard from the victims and the
violent offenders to prison if it is determined that defendant in open court, the judge determines
the offender deserves to go to prison and is not the sentence to be imposed. A judge is more
amenable to community control. However, if the likely to be lenient with a first-time offender,
judge goes against the guidance, he or she must provided leniency does not mock the seriousness
give a reason for the decision. of the offenders crime or the likelihood that the
In every felony case, the sentence must serve offender will commit future crimes. A judge is
to punish the offender and protect the public. more likely to be severe when the person is a
Judges must look at factors indicating whether repeat or a dangerous offender.
the crime was more serious or less serious and If a felon or misdemeanant does not face man-
factors suggesting whether the offender is more datory prison or jail time, the judge may sentence
or less likely to repeat the crime. the offender to community control sanctions or
In sentencing for misdemeanor offenses, probation rather than prison or jail. Judges may
the judge must consider factors similar to those place some felons on community control after
considered when sentencing felons, such as the they have served a certain portion of their prison
risk of a repeated offense, the need to protect terms. The time that must be served before
the public, the nature and circumstances of the seeking early judicial release varies depending
offense, victim-impact statements, the history/ on the length of the sentence. However, these
character/condition of the offender, the offenders options are not available to those sentenced to
need for correctional or rehabilitative treatment mandatory prison terms.
and the offenders ability to pay a fine, if a fine is While mandatory sentencing reduces judges
imposed. The law is less strict about judges giv- ability to modify sentences, most crimes do not
ing reasons for sentences in misdemeanor cases, carry mandatory terms. For all of these non-
and sentence appeals are far less common. mandatory offenses, judges sentencing latitude
Victims of crime, as well as the victims includes:
family members, may provide input in the

48
ordering a sentence to be served in a local permitting payment of a fine in installments;
jail on weekends or overnight, enabling the providing for commitment and treatment
offender to keep a job and maintain family options for offenders determined to be
responsibilities (much more common for mentally deficient, mentally ill or drug- or
misdemeanants than for felons); alcohol-dependent.

49
Felony Sentencing Table
Felony Sentencing Prison Terms Maximum Repeat Violent Is Post-Release PRC Period
Level Guidance 2929.14(A) Finea Offender Control 2967.28(B) &
2929.13(B)-(E) 2929.18(A)(2) Enhancement Required? (D)(2)
& (3) 2929.14(B)(2) 2967.28(B) & (C)
F-1 Presumption for 3, 4, 5, 6, 7, 8, 9, $20,000 5 years, no
prison (also applies 10 or 11 years 1, 2, 3, 4, 5, 6, reduction
to in 7, 8, 9 or 10 Yes
favor drug 2, 3, 4, 5, 6, 7 or 8 years
F-2 offenses) years $15,000
No guidance other 9, 12, 18, 24, 30 or For F-2
F-3 than purposes & 36 months involving Yes if sex or
principles (also or $10,000 attempted violent offense; If sex offense, 5
applies to Div. 12, 18, 24, 30, 36, serious harm or otherwise optional years, no
(C) drug offenses) 42, 48, 54 or 60 for invol. reduction;
monthsb manslaughter:
1, 2, 3, 4, 5, 6,
7, 8, 9 or 10
years;
otherwise none
Mandatory 1 year 6, 7, 8, 9, 10, 11,
F-4 community control 12, 13, 14, 15, 16, $5,000 otherwise, 3
for non-violent, no 17 or 18 months years, reducible
prior felony etc. by Parole Board
Otherwise: None
If any of 9 factors Yes if sex offense;
& not amenable to
other sanction(s),
guidance for
prison. If none of
9 factors, guidance otherwise optional
against prison. 6, 7, 8, 9, 10, 11 or $2,500
F-5 (Also applies to 12 months
Div. (B) drug
offenses)

Exceptions: Indeterminate sentences for agg. murder, murder, human trafficking, and certain sex offenses &
crimes with sexual motivation.
Drug OffensesNote penalties track degree of offense, but the sentencing guidance may be different than for other
offenses at that felony level.
Repeat Violent Offenders are (2929.01(DD)): Being sentenced for: agg. murder, murder, a violent F-1 or F-2, or
an F-1 or F-2 attempt of violence, with a prior conviction for one or more of the same offenses or their equivalents.
a
Maximum FinesCover conventional and day fines. There are exceptions in drug trafficking cases
(2929.18(B)(4)-(7)). And some offenses call for a superfine of up to $1 million (2929.32). For the fine if the
offender is an organization, see 2929.31.
b
Higher F-3sThe longer sentence range applies to agg. vehicular homicides & assaults, sexual battery, GSI, sex
with minor, & robbery or burglary with 2 or more separate agg. or non-agg. robberies or burglaries (see
2929.14(A)(3)(a)).

OHIO CRIMINAL SENTENCING COMMISSIONSept. 30, 2011

50
Misdemeanor Penalty Table courts must make similar assessments when
Misdemeanors are punishable by a definite dealing with misdemeanor offenders.
term in jail, a fine and/or community control One way to protect the public from future
sanctions. The judge may also impose a jail term, crime is to rehabilitate offenders. This is why
suspend it and place the offender under one or the sentencing laws generally allow judges dis-
more community control sanctions. Probation cretion in imposing sentences. However, the
supervision, community service, restitution and law recognizes that not all offenders respond the
counseling are common sanctions imposed. Minor same way to efforts aimed at rehabilitation and
misdemeanors are punishable only by a fine of that, sometimes, there is little chance that an
$150 or less or community sanctions (no jail time offender will be rehabilitated. In cases where
can be imposed for a minor misdemeanor). The public safety is endangered, the law provides for
judge fixes a misdemeanor sentence from the per- the offenders long-term removal from society.
missible range of penalties (jail terms and fines
may not exceed the maximums specified in the Community Control Sanctions
statute). The following table contains the basic Since the mid 1990s, in response to crowded
misdemeanor jail terms and fines stated in the and expensive prisons not suited for rehabilitation,
Ohio Criminal Code. the Ohio General Assembly has formally listed a
variety of alternatives to prison. These alternatives
NOTE: This table does not specifically cover the hold offenders accountable for their crimes while
mandatory jail or prison sentences to be imposed addressing the underlying causes.
when an offender is convicted of operating a Misdemeanants and felons not facing man-
vehicle while under the influence of alcohol or datory prison terms are eligible for the following
drugs or other certain offenses. The maximum residential and non-residential sanctions outlined
fines for OVI offenses are higher than what is in the Ohio Criminal Code:
reflected in the chart. As of Oct. 2011, they were residential sanctions including community-
$1,075, $1,625 and $2,750 respectively, for a 1st, based correctional facilities, jails, minimum-
2nd and 3rd OVI offense within six years, all of security jails and halfway houses;
which are misdemeanor offenses. non-residential sanctions including house
arrest and electronic monitoring, community
Misdemeanor Jail Terms and Fines service, drug testing, drug treatment, basic
Maximum Maximum supervision, intensive supervision, monitored
Offense Term Fine time, alcohol monitoring, curfew,
1st degree misdemeanor 180 days $1,000 employment, education or training, victim-
2nd degree misdemeanor 90 days $750
3rd degree misdemeanor 60 days $500 offender mediation, anger management
4th degree misdemeanor 30 days $250 programs, license violation reports and day
Unclassified misdemeanor None $1,000 reporting;
Minor misdemeanor None $150 financial sanctions can include conventional
fines, fines based on a standard percentage of
Goals of Sentencing and Corrections the offenders daily income over a period of
time, mandatory fines in higher level alcohol
Because Ohios felony-sentencing system is
or drug cases, restitution to victims for their
designed to punish offenders and protect the pub-
economic loss and reimbursement for the
lic from future crimes, courts are asked to assess
costs of sanctions or for the costs of jail or
and balance needs for incarceration, rehabilitation,
prison; and
restoring victims losses, deterring crime and, in
some cases, retribution. Somewhat less formally,

51
boot camps, intense regimens of work, school, designed to protect individuals from unreasonable
training or treatment monitored by the state government intrusion and to ensure fundamental
prison authorities. fairness. These rights are so important that vio-
lating them may result in the suppression of evi-
Boot camp typically involves 90-day periods dence or the dismissal of criminal charges as well
of incarceration with military-style discipline, as charges against those responsible for violating
physical training and labor, substance-abuse those rights.
education, psychological treatment and social The following is an outline of some basic
and employment skills training. Incarceration is constitutional rights under the law.
followed by a 30- to 90-day stay in a halfway
house or community-based correctional facility, Equal Protection Under the Law
followed by a period of supervision in the The 14th Amendment to the U.S. Constitu-
community. tion entitles everyone to equal protection under
Eligibility for the program is limited to the law. In the context of criminal law, this
offenders who are approved by the trial judge amendment means that the law must be the
and the prison officials and who are generally same for everyone regardless of race, creed or
healthy, young, nonviolent inmates who have economic standing.
not spent much time in prison.
Due Process of Law
Intervention in Lieu of Conviction The 14th Amendment also prohibits the
and Diversion Programs state or federal government from taking away
The Ohio General Assembly provides that a persons life, liberty or property without due
certain non-violent drug users (not sellers) who process of law. This means that the laws must
are amenable to treatment can enter and complete be enforced only through a rational procedure
an intervention program before being found that is constructed and used to ensure fundamen-
guilty of the crime for which they are charged. tal fairness. Due process prevents an accused
If the offender is unsuccessful in the program, he person from arbitrarily being fined, jailed or
or she is convicted of the offense and generally otherwise punished. Guilt or innocence must be
is sentenced to prison. Common pleas judges determined fairly, impartially and in a timely
administer this program. manner through an appropriate procedure, such as
The Ohio General Assembly also authorizes a hearing, where the accused has the opportunity
county prosecutors to administer felony diversion to face his or her accusers and to offer a defense.
programs. To be eligible for diversion, individuals
must be first-time non-violent offenders who can Double Jeopardy
successfully complete a diversion program with Both the U.S. and Ohio constitutions provide
conditions that include restitution to the victim(s), that no one can be placed in jeopardy (or tried)
if any, employment, community service and no more than once for the same crime. Generally,
offenses during the time in the program. this means that the state has only one chance in
a criminal prosecution to prove that the accused
Criminal Law and committed the crime. If a person is found not
guilty, the state cannot appeal or attempt to try
Constitutional Rights that person again. The same is true if an accused
is found guilty. The state cannot accuse a person
of the same crime again and attempt to inflict
The U.S. and Ohio constitutions provide double punishment for it.
people accused of crimes with basic rights that are

52
Search and Seizure by a grand jury helps ensure that no one is sub-
The U.S. and Ohio constitutions prohibit jected to trial on false or spiteful accusations.
unreasonable searches and seizures. Generally,
law enforcement officers need a search warrant Notice of Charge
to search a person or property and only judges An accused person is entitled to fair notice
can issue search warrants. Furthermore, judges of the specific charges against him or her. This
can do so only when there is probable cause to notice allows the accused to prepare a defense
believe that a search will uncover particular intelligently. An accused cannot prepare a proper
evidence of a crime. Searches without warrants defense if the charge is a vague statement of some
are permitted in certain situations, such as in unspecified wrongdoing.
connection with a lawful arrest, when a search
is conducted with the permission of the person Speedy Trial
whose property is being searched or when the The U.S. and Ohio constitutions state that a
items found are in plain view of the officer. person charged with a crime is entitled to a speedy
trial so that the matter will not be hanging over the
Self-Incrimination accused persons head indefinitely.
Individuals cannot be compelled, tortured, Ohio time limits are provided by statute and
frightened, coerced or tricked into self-incrim- are extended only for good reasons. The maxi-
ination. This means a person cannot be forced to mum time limits for a hearing or trial after an
confess, make damaging statements or make any arrest or summons service are:
statement at all that might suggest wrongdoing. 30 days for trial in mayors courts or minor
During a trial, the accused cannot be forced to and unclassified misdemeanors in any court;
testify (be a witness) against himself or herself. 45 days for misdemeanors carrying a
Likewise, if the accused decides to remain silent, maximum penalty of 60 days in jail;
the prosecution cannot suggest to the jury that the 90 days for more serious misdemeanors;
accuseds silence indicates guilt. 15 days for preliminary hearings in felony
cases if the person is released on bail, but
Right to Counsel 10 days if the person remains jailed;
Everyone is constitutionally entitled to the 270 days for trials in felony cases.
services of an attorney when accused of a crime.
If a prison sentence is a possible punishment for Ohio law provides that when counting prison
the crime and the accused cannot afford an attor- time, each day spent in jail awaiting trial is
ney, the state must provide one. In serious cases, counted as three days. For example, the accused
legal counsel must be provided at all significant felon who cannot make bail must be brought to
steps of the procedure, from arrest and police trial within 90 days (270 days 3 = 90) after the
questioning through arraignment, trial and, if arrest.
necessary, appeal.
Public Trial in a Locality
Indictment by a Grand Jury Both the U.S. and Ohio constitutions give an
Both the U.S. and Ohio constitutions provide accused the right to a public trial, thus ensuring
that no one can be brought to trial for a felony that trials are not held in secret, but are conducted
unless a grand jury hands down an indictment openly, fairly and properly. An accused also has
or the prosecutor files an information statement the right to be tried where the alleged offense was
saying that there is probable cause to believe committed so that witnesses and evidence are
the accused has committed the crime. Indictment readily available and the state cannot transfer the

53
trial to a place where the atmosphere is hostile as constitutional rights that limit criminal laws.
toward the accused. Accused persons who believe The following paragraphs explain some of these
they cannot get a fair trial in the place where the constitutional rights.
alleged crime occurred may petition to have their Neither Congress nor the states can enact
trials transferred (called a change of venue). retroactive or ex post facto laws. This means a
persons criminal liability must be established
Confronting Accusers and Securing according to the law at the time the person com-
mitted the alleged crime. If a persons conduct
Witnesses was not considered a crime when it occurred, he
Both constitutions also state that defendants
or she cannot be subjected to liability under a
in criminal cases are entitled to meet the accusers
subsequent or later law prohibiting the earlier
and the witnesses against them. The Ohio Consti-
conduct. Additionally, such a person cannot be
tution specifically requires that this confrontation
subjected to a greater penalty or have a defense
occur face to face, allowing accused persons to
taken away by a subsequent law.
question these witnesses and eliminating the use
Both the U.S. and Ohio constitutions prohibit
of anonymous witnesses. In some cases the courts
cruel and unusual punishment such as torture;
have allowed a narrow exception to the face-to-
death by barbaric, painful, or lingering means;
face confrontation rule. For example, in some
and excessive punishments. (An example of an
sex-offense cases involving young victims, the
excessive punishment would be a prison term for
witness can testify by videotape. Likewise,
a minor traffic offense.) Additionally, the Ohio
accused persons are entitled to have their own
Constitution prohibits punishments that include
witnesses be subpoenaed to speak on their behalf.
forcing an offender to give up personal property
Just as the state can force witnesses to testify, if
or family inheritance. However, if property is
necessary, so can the defense.
used in a crime (e.g., an automobile used in a
drug transaction), it can be forfeited as part of
Trial by Jury a civil proceeding.
Under the U.S. Constitution, a defendant is Criminal laws must be specific: they must
entitled to trial by jury if it is possible for the make clear what people are prohibited from
defendant to receive a punishment of more than doing and what they are required to do.
six months in prison. Ohios constitution and
statutes are more stringent and entitle an accused Informing the Accused of Rights
to a jury trial if the potential penalty is greater
Accused persons cannot intelligently insist on
than a $150 fine with a possible jail sentence or
or waive their constitutional rights if they are not
where jail cannot be imposed and the fine exceeds
fully aware of them. Accused persons must be
$1,000. There are eight jurors in a misdemeanor
informed of their rights if they ask or when police
case and 12 jurors in a felony case. All decisions,
have them in custody and wish to interrogate
whether guilty or not guilty, must be unanimous.
them. These rights are called Miranda warnings.
If the jurors cannot agree, there is a hung jury and
They were established as a result of a 1966 U.S.
the prosecution has the option to retry the accused
Supreme Court decision saying, essentially, that,
or dismiss the charges.
before interrogation can begin, a suspect in cus-
tody must understand that he or she has certain
Other Constitutional Rights constitutionally protected rights. For example, if
In addition to the rights mentioned above, someone is taken into custody, that person must
other constitutional rights are important in all be told of his or her right to remain silent, to have
criminal proceedings. These include constitutional counsel and to have counsel provided at state
prohibitions against certain kinds of laws as well

54
expense if that person cannot afford it. The proceedings. The appeal is limited to questions of
accused also must be given an explanation of his law or issues appearing in the official court record
or her constitutional rights when appearing before (the trial transcript), or in papers filed in the case.
a judge and entering a plea of guilty or no contest If the court of appeals finds that a prejudicial
to any charge. error occurred (an error that might have unfairly
prejudiced the jury against the defendant) and
Waiver of Rights affected the outcome of the trial, it will reverse
An accused individual can waive or forego the conviction and send the case back to the trial
a constitutional right. For example, an accused court for retrial or other proceedings. If no pre-
woman can confess to a crime, and waive the con- judicial error occurred, the court of appeals will
stitutional right that allows her to remain silent so uphold the conviction.
as not to incriminate herself. However, the waiver In a capital case in which a sentence of death
must be voluntary and must be made with full is imposed for an offense committed on or after
knowledge of the rights being waived and of the Jan. 1, 1995, the judgment, or final order, may
consequences of waiving those rights. be appealed from the trial court directly to the
Supreme Court of Ohio, as a matter of the defen-
dants statutory right. In contrast, the defendant
Enforcement of Rights in a non-death-penalty case will appeal to the
Constitutional rights can be enforced in a
court of appeals rather than to the Supreme
variety of ways:
Court of Ohio. If the defendant in a non-death-
Evidence obtained through an unreasonable
penalty case loses at the appeals level, he or she
search or an involuntary confession can be
may petition (ask) the Supreme Court of Ohio to
suppressed, or kept from being heard in court.
review the case. A defendant does not have an
A decision can be reversed and the case
automatic right of review by the Supreme Court,
dismissed or remanded for a new trial if
except in capital cases in which a sentence of
evidence is provided that shows these rights
death has been imposed.
were violated and that their violation was
In general, the Supreme Court of Ohio does
or could have influenced the outcome of the
not have to accept an appeal in non-death-penalty
trial. Public officials responsible for violating
cases, but may do so depending on the issues
constitutional rights can be liable for civil
raised in the appeal and how the court of appeals
damages.
decision affects Ohio law. If the Supreme Court
of Ohio decides not to hear the defendants appeal
Under Ohio law, certain violations of civil
or if it allows the appeal but then upholds the
rights constitute crimes. For example, public
conviction, the defendant may petition the U.S.
servants may not knowingly deprive, or conspire
Supreme Court to review the case. The U.S.
or attempt to deprive, any person of a constitu-
Supreme Court can review only issues involving
tional or statutory right while serving in public
rights granted or claimed under the U.S. Consti-
office. Individuals violating the law in this way
tution. The high court is not required to allow an
are guilty of interfering with civil rights, a first-
appeal, but may do so depending on the issues
degree misdemeanor.
presented in the appeal.
Strict time limitations must be met when filing
Review on Appeal an appeal, and a document called a notice of
In Ohio, a defendant who has a trial and is appeal must be filed within the required time to
found guilty of a crime has the right of appeal. secure the review of a court decision by a higher
If the defendant cannot afford it, the state must court. If an appeal is by right (according to statu-
provide legal counsel and a transcript of the trial

55
tory law in death-penalty cases), counsel is always their constitutional rights and contributed to
appointed to represent the defendant. If an appeal their convictions, but the errors are not included
is not by statutory right (non-death-penalty cases), in the courts record.
the accused must retain his or her own attorney or Because the errors claimed do not appear
file the appeal pro se (on his or her own behalf). in the record, these cases cannot be reviewed
Further, defendants generally have no right through direct appeal; however, a defendant
to counsel when asking the Supreme Court of may file a petition for post-conviction relief in
Ohio or the U.S. Supreme Court to allow an the trial court in which he or she was convicted.
appeal, although, in many cases, counsel may be The defendant must include evidence that is not
appointed. The state public defender may repre- in the record to support his or her claims, and the
sent a criminal defendant who has been convicted petition may be denied without a hearing. Since
of a crime and wants to appeal to the Supreme there is no right to counsel in post-conviction
Court of Ohio. proceedings, the defendant must secure counsel
at his or her own expense or act as his or her own
Review of Sentence on Appeal counsel (pro se), although the court may choose
When the Ohio Criminal Code was revised in to appoint counsel in rare cases. The public
July 1996 it afforded new rights to appeal certain defender generally will represent a defendant
felony sentences to the court of appeals that serves on post-conviction relief if the public defender
the district in which the case was heard. believes a claim exists.
The defendant may appeal to the court of Lastly, a defendant may seek post-conviction
appeals when: relief if the sentencing pattern of an individual
there was guidance against a prison sentence judge shows an impermissible bias based on
and the judge sentenced the offender to prison the race, ethnicity, gender or religion of the
anyway; and defendant.
the sentence is otherwise contrary to law.
Non-Citizens Charged with Criminal
The prosecution may appeal to the same court Offenses
of appeals when: United States immigration laws are complex.
a first- or second-degree felon did not receive A non-U.S. citizen (non-USC) facing a criminal
a prison sentence; matter will need both a criminal defense lawyer
the felon is granted judicial release; and and an immigration lawyer. Once the criminal
the sentence was otherwise contrary to law. issue is resolved, the non-USC may have to
resolve an immigration issue.
However, these rights to appeal do not apply To be considered a U.S. citizen, a person
if the sentence was based on a plea bargain and must be born in the United States or have other-
was lawfully imposed. The defendant may appeal wise received official citizenship statusor have
certain consecutive sentences, but the appellate derivative citizenship based on the legal status
court does not have to review these appeals and of a parent or (possibly) a grandparent as a U.S.
appeals addressing consecutive sentences must citizen. If none of these conditions apply, the
be consolidated with other appeals in the case. person is considered a non-USC.
A non-USC can be arrested by local law
Post-Conviction Relief enforcement or U.S. Customs and Border
The appeal procedure outlined above, refer- Protection (CBP). That arrest may lead to a
red to as direct appeal, only allows for a review detainer being placed on the non-USC by U.S.
of issues that appear in the record. Sometimes Immigration and Customs Enforcement (ICE).
defendants claim errors occurred that violated The detainer permits local law enforcement or

56
CBP to hold the non-USC until ICE arrives A non-USC who has been placed in proceed-
and takes the non-USC into custody. ings for removal from the United States may be
For immigration purposes, the immigration eligible for relief from removal, even if a plea
court can look only at the conviction record of bargain is unsuccessful. Relief can include, but
a non-USC. A non-USC who is convicted of a is not limited to, adjustment of legal status, tem-
criminal offense may face deportation. To receive porary protected status or deferred action. The
a conviction, a judge must find the non-USC removal may even be cancelled. The non-USC
guilty of the charges against him or her and order also may be eligible for asylum or protection
some form of punishment, penalty or restraint of under the United Nations Convention Against
freedom. Violating the terms of probation or fail- Torture. However, depending on the crime, the
ing to follow a court order also might lead to non-USC may not be eligible for certain forms
a conviction. A criminal offense can affect of relief.
immigration status even if the non-USC was
put on probation and the record was expunged.
Two main types of crime can result in depor- Victims Rights
tation: aggravated felonies and crimes of moral
turpitude. Suffering at the hands of a criminal can
The Immigration and Nationality Acts (INA) be traumatic for anyone, and it becomes more
definition of aggravated felony includes a frustrating if it is perceived that the criminal
number of crimes that are not commonly con- justice system treats victims unfairly.
sidered either felonies or aggravated. A Punishing criminal behavior through arrest,
criminal defense attorney working with a non- prosecution and sentencing, and protecting the
USC client must fully understand the INA public from future crimes are the primary func-
definition of aggravated felony to provide tions of the criminal justice system. Because
correct advice about offenses that can result we live in a free society, the system requires
in deportation. balance between the power of the government
According to the U.S. Citizenship and and individual rights.
Immigration Services (USCIS), a crime of moral This interest in ensuring a balance of power
turpitude is inherently base, vile or depraved, has driven the system to focus on protecting
contrary to social standards of morality and done the rights of the accused, which, in turn, has
with a reckless, malicious or evil intent. It is a led some to conclude that the system treats the
broad and subjective term that can be used for accused better than the crime victims. Since
any crime that USCIS considers offensive. the 1980s, this perception has given rise to a
Conviction of crimes of moral turpitude may growing victims rights movement, and laws
also disqualify someone from an employment have been enacted at both state and federal
opportunity. The precise definition of a crime levels to address the issue.
that involves moral turpitude is not always clear, Congress adopted the Victims and Witness
but the following crimes are always considered Protection Act in 1982, making it a crime to
crimes of moral turpitude: murder; involuntary intimidate a witness or retaliate against some-
manslaughter; rape; statutory rape; domestic one who testifies or provides evidence for the
violence; prostitution; fraud and crimes where prosecution. The act allows prosecutors to take
fraud is an element; all theft offenses; blackmail; steps to protect a witness or victim and to obtain
malicious destruction of property; arson; alien a restraining order for witness protection.
smuggling; harboring a fugitive; bribery; and
perjury.

57
At the state level, the Ohio General Assembly Courts must consider victims objections to
has adopted a series of laws over the past two delays and allow them to make victim-impact
decades to help crime victims. These laws were statements at sentencing.
consolidated and clarified by the Ohio Criminal The court must consider the impact of the
Sentencing Commission. Emerging from that crime on the victim in choosing an appropriate
work were Senate Bill 186, adopted in 1994, and sentence.
Senate Bill 2, which applies to crimes committed Upon request by a victim, prisons and jails
after July 1996. must notify the victim when the victims
State law now provides that victims must be assailant is released.
notified about each key stage in a criminal case The court must make a reasonable effort
and that they must be given the opportunity to to minimize contact between victims and
speak to the court before key decisions are made. defendants. When practical, separate court
The law also now centralizes all legislation waiting rooms must be made available so
pertaining to crime victims in Chapter 2930 of victims do not have to be near the accused.
the Ohio Revised Code. Victims of sexual offenders are notified when
Because of the 1996 adoption of definite the defendants are released from prison. All
sentences (replacing indeterminate sentencing sex offenders must register with the county
ranges), victims now have greater certainty about sheriff in the county in which they reside.
how their attackers will be punished. Other recent Sexual offenders must register with the
changes include extending rights to more misde- county sheriff for at least 15 years. Neigh-
meanor victims, adding a victim of crime to the bors, schools and day care centers are then
parole board and creating the Office of Victims notified by the sheriff of the county in which
Services at the Ohio Department of Rehabilitation the offenders live. In larger cities, the location
and Correction. of sexual offenders is on the websites of
Some of the rights and protections provided to county sheriffs.
crime victims under current Ohio law are listed The court may grant a motion to prevent
below: disclosure of a victims address, place of
Victims in any felony case, and in misde- employment or similar information when
meanor cases involving actual or threatened the victim fears violence or intimidation by
violence, have the right to be informed about the defendant.
the process and the right to be heard. Employers may not discipline victims for
Law enforcement officers must give victims the reasonable exercise of these rights.
certain information when investigating a In most cases, victims are entitled to the
crime, including notice of any arrest in the prompt return of their property.
case. Prosecutors have the authority to seek
When practical, prosecutors must meet with compliance with the law on behalf of victims
victims and brief them on pre-trial matters. (e.g., if a court clerk ignores the laws victim
A prosecutor must provide notice of proceed- notice requirements, the prosecutor can peti-
ings, convictions and appeals in a case if the tion the court to compel the clerk to follow
victim asks. the law).
A victim has the right to be present when the
defendant is present at any proceeding that is
on the record.

58
The Associated Press recommends that journal-
For Journalists: ists in these situations can raise their hand to make
Covering Criminal Trials the following statement:

Coverage of criminal trials, particularly of fel- May it please the Court, I am (name) of (news
ony trials, normally draws intense media scrutiny organization). I respectfully request the oppor-
and interest. As with other areas of court business tunity to register on the record an objection to
but especially with criminal trials, reporters are closing this proceeding to the public. (My organ-
encouraged to understand, research and report on ization) requests a hearing at which its counsel
the step-by-step process of criminal adjudication may present to the Court legal authority and
so that readers/viewers can understand and appre- arguments showing why any closure in this case
ciate the differences among criminal indictments, would be improper.
pre-trial hearings, cross-examination and rules on The press and the public have a constitutional
sentencing, for instance. In each criminal trial, it is right to attend judicial proceedings, and may not
the courtroom bailiff and assistants for the judges be excluded unless the Court makes findings, on
who will help to manage media presence at the the record that: 1) closure is required to preserve
trial. Reporters are advised to work closely with a compelling constitutional interest, 2) no ade-
these individuals regarding coverage and access quate alternatives to closure exist, and 3) the
issues. In some cases, journalists may want to closure is narrowly tailored to protect the
make arrangements ahead of time for seating threatened interest effectively.
passes, designations for cameras (if permitted), (My organization) submits that these findings
access to electronic equipment for filing and cannot be made here, especially given the public
parking for vans. interest in this proceeding. The public has a right
In high-profile criminal cases, the judge may to be informed of what transpires in this case, the
impose rules and restrictions on media coverage, positions being argued by the parties, and the
perhaps limiting the number of media in the court- factual basis for rulings made by the Court. The
room, for instance, or requesting greater gallery Court should avoid any impression that justice
cooperation from spectators. Judges, in these is being carried on in secret. (My organization)
instances, are required to weigh the defendants objects to any closure order and respectfully
Sixth Amendment rights to a fair and impartial requests a hearing at which it can present full
jury against the medias First Amendment rights legal arguments and authority in support of this
to cover the trial. The U.S. Supreme Court has position. Thank you.
ruled that the public has a First Amendment right The Associated Press recommends a copy
to attend criminal court proceedings. Judges are of this statement be made available in writing
armed with other remedies (such as ordering a (handwritten is fine) to the courtroom clerk,
change of venue or gagging trial participants) in making these same points.
the event that a defendants fair trial rights may Criminal trials can entail an element of
be compromised. Journalists are advised to be theater. While it may be tempting for journalists
prepared for such limitations on coverage and to highlight the theatrics of lawyers or witnesses,
should consult with their own attorneys about it is more important for journalists to understand
preparing for the possibility that a judge may when a lawyer is using drama to make an effec-
limit or restrict coverage of court proceedings. tive legal point, and when the lawyer is simply
In rare instances in which a judge decides to engaging in show business that has little positive
close or restrict access to court proceedings, a effect on the judge or jury. Gaining experience in
journalist may request a separate hearing to understanding both legal procedure and the flow
appeal the judges decision. Journalists must be and theater of a courtroom proceeding can help
prepared to make such a request during the those who cover the courts make these important
course of the proceedings. distinctions for their readers and viewers. When
covering a criminal trial, a reporter should not:

59
come to a trial with preconceived notions or pay too much attention to secondhand
beliefs about the guilt or innocence of an information heard outside of the courtroom;
accused person; forget that lawyers represent their clients, and
risk missing important events by leaving the that any confidential information they may offer
courtroom, except to file a story; is likely designed to help their clients.

Chapter Summary
In Ohio, all crimes must be written and defined by statute or ordinance.
There are two major classifications of crimes: felonies and misdemeanors.
Laws creating criminal offenses are found in the Ohio Revised Code,
municipal ordinances and the United States Code.
The Ohio Criminal Code outlines penalties, sentencing procedures and
treatment of offenders for most criminal offenses.
The overriding purpose of Ohios felony-sentencing system is to punish
offenders and to protect the public from future crime.
The U.S. and Ohio constitutions provide people accused of a crime with
basic rights.
Since the 1980s, legislation has provided crime victims with certain rights.

60
Web Links:
From the OSBAs Law Facts pamphlet series:
www.ohiobar.org/lawfacts (search by title)
Being a Witness
Your Rights if Questioned, Stopped or Arrested by the Police

From the OSBAs Law You Can Use column:


www.ohiobar.org/lawyoucanuse (search by title or topic)
Bailiffs and Court Officers: What To Do When They Tell You What To Do
Consensual Encounters with Law Enforcement: Am I Free to Leave?
Constitution Provides for Reasonable Bail in Criminal Cases
Criminal Defense Lawyers Help Protect Clients Rights
Criminals May Go Free When Constable Blunders
Guns at Home Can Make Parents Liable for Childs Criminal Actions
Judges Instruct Juries in Criminal Cases
My Child Was Arrested: Now What?
Non-Citizens Charged with Criminal Offenses Face Complex Laws
Not Eligible for Expungement? Executive Clemency May Be Option
Not Guilty: A Plea for Those Who Didnt Do It and Those Who Did
Ohios Victim of Crime Compensation Program: Questions and Answers
Pleading Guilty: A Choice of Cost and Benefit
Police Must Give Miranda Warnings
Understanding How Criminal Records Are Expunged
Understanding the Crime of Arson
What You Should Know about Plea Bargains in Criminal and Traffic Cases
What You Should Know about Pleading No Contest

From the Ohio Criminal Sentencing Commission:


www.supremecourt.ohio.gov/Boards/sentencing

From Cornell Law School Legal Information Institute:


www.law.cornell.edu/wex (type criminal law in search box)

61
Part V___________________________
torts
Each problem that I solved became a rule which served afterwards to solve other problems.
Ren Descartes

or wrong. In a tort case, the chief goal is not to


Civil (vs. Criminal) punish the wrongdoer but to make the plaintiff
whole to the extent that money can do so. How-
Wrongs ever, sometimes a defendant will be assessed a
penalty for conduct leading to injury. When it is
tort is the violation of a legal determined that the conduct of the defendant

A
responsibility when that vio- deserves a penalty, the injured person will be
lation directly causes injury to awarded punitive damages.
a persons body, property or
rights. Both the law of torts and
criminal law deal with socially What Is Negligence?
unacceptable conduct; however, torts and crimes
are brought to court for different purposes, by Torts may be intentional, such as when some-
different people, and they are handled by the ones reputation is purposely damaged (defamed),
courts using different rules. The same conduct or they may have to do with negligence. People
can be both a crime and a tort, simultaneously, are most likely to encounter torts involving negli-
but each is treated independently and is analyzed gence following a traffic accident.
and resolved by applying different rules. Negligence is essentially the failure to use
Although a criminal act usually has an indi- reasonable care, and may be the legal cause of
vidual victim, the act is a crime because it is also a damage in a tort case. Four things together deter-
serious offense against a public interest: the peace mine negligence, and a tort lawsuit will succeed
and safety of the community. The alleged wrong- only if the plaintiff who brings the suit against the
doer is brought to court by a prosecutor on behalf defendant proves all four:
of the public, and if the defendant is found guilty, the defendant owed a duty to the plaintiff;
he or she is punished by the state. An individual the defendant violated (or breached) that duty;
cannot choose whether a person is prosecuted. the plaintiff suffered an injury or other loss;
Rather, the state decides whether a crime has been and
committed and whether there is enough evidence the defendants breach of duty directly and
to prosecute the person alleged to have committed proximately caused the plaintiffs loss.
the crime.
On the other hand, a tort is a civil wrong that However, even when a plaintiff proves these
has resulted in an injury to a person. The injured four elements, a defendant still may allege that
person, not the state, brings the claim to court, the plaintiff contributed to or helped cause the
and the defendant may be an individual, multiple injury. When this occurs, the damages assessed
individuals or even a company. against a defendant may be reduced.
In tort cases (and other types of civil law-
suits), the person claiming to be injured and A Legal Duty Owed to the Plaintiff
seeking compensation for alleged damages is First, there is no tort unless the defendant
called the plaintiff. The party from whom com- owed a legal duty to the plaintiff. For example, a
pensation is sought is called the defendant. If a storeowner is legally obligated to make sure that
defendant is found responsible for an injury, he spills are cleaned up so that shoppers do not fall,
or she may be ordered to pay money damages to but the owner of a ballpark ordinarily has no duty
the injured person to compensate for the injury

62
to prevent a spectator from being struck by a duty. If the facts are in dispute, usually a jury
batted ball because such a risk is inherent in decides whether a breach of duty has occurred.
the sport.
Even where there is a duty, the scope of the
duty varies according to the relationship of the
Injury or Loss to the Plaintiff
Third, there is no tort unless the plaintiff
parties and other circumstances. For example,
suffered an injury. The injury may be physical
when broadcasting information that might damage
damage to a person or property, or injury to (or
the reputation of an ordinary citizen, a television
loss of) a valuable right or interest. For example,
station has a duty to use reasonable care that the
if the defendants actions caused the plaintiff to
information is accurate. When airing the same
miss the opportunity to make a purchase that
sort of story about a public figure such as a politi-
would have become profitable, then the defendant
cian, however, the stations duty is diminished.
might be found liable for a tort. A tort injury may
In that situation, the public figure can recover
also be psychological, although it is often difficult
damages for damage to reputation (or defamation
to prove the extent of psychological damages.
of character) only if he or she can prove that the
The injury need not be great, but it cannot be
television station acted with actual malice (real
insignificant. The legal rule dismissing non-
and deliberate cruelty) in broadcasting the false,
significant losses is de minimus non curat lex
damaging information.
(literally, The law does not cure trifles).
Sometimes the duty is created and defined
by a statute or ordinance (such as the traffic laws
that require drivers to stop at red lights and main- Violation of the Duty is the Direct
tain a safe following distance, or laws that require Cause of the Injury or Loss
that children must ride in child-safe seats), but Fourth and finally, there is no tort unless the
many legal duties are defined by case (common) defendants breach of duty directly and proxi-
law. The duties recognized in case law have mately caused the plaintiffs injury. Direct
grown out of previous court decisions or other causation is demonstrated when a defendants
legal customs. Some of them have been used for action is the most obvious cause of the plaintiffs
decades, or even centuries. injury. For example, the defendant may have
One common law standard is the broad rule caused an injury to the plaintiff by way of a
that a person must act with reasonable care for car accident.
the safety of others. This does not mean that every Proximate cause is demonstrated when the
person must ensure the safety of every other per- action of the defendant indirectly caused the
son in all circumstances. It does mean that, when injury to the plaintiff. For example, a bartender
dealing with others, an individual must act reason- might be found to have committed a tort by
ably to prevent foreseeable injuries. This might serving alcohol to a drunken patron who, while
mean telling a cable repair person that a family drunk, later causes an injury to the plaintiff by
pet bites strangers or ensuring that everyone in a way of a car accident. For the bartender to be
car is wearing a seat belt. found to have committed a tort in such a situation,
a court must find that the accident likely would
Violating the Duty not have occurred if the bartender had not
Second, there is no tort unless the defendant contributed to the defendants drunken state.
breached his or her legal duty. If the material facts On the other hand, no tort occurs if the breach
in a case are not disputed, a judge can decide did not result in the injury, or if the same injury
whether the defendants actions (or failure to act) would have happened even without the breach.
under the given circumstances violated a legal For example, if it is later discovered that the cause

63
of the drunken patrons car accident was actually treat the patient with the degree of reasonable care
caused by the mechanical failure of the car, the used by competent heart surgeons, but because
bartender may not be found to have committed she performed the surgery according to reason-
a tort. able professional standards, she did not breach
or violate that duty. The patient may have been
injured as a result of the surgery, but not as a
How Tort Rules Apply result of anything the doctor did wrong.

The examples provided below may help to Injury to the Plaintiff


clarify how the four elements of tort apply. Suppose a barber sees a spot of grease just
inside his shops front door, but turns away to
Owing a Duty answer his telephone and forgets to clean up the
Suppose a trespassing woman is injured when spot. Five minutes later, a customer walks in the
she sneaks into a mans yard after dark and falls door and slips on the grease. He is able to keep
into a ditch. Neighborhood children have often from falling by grabbing onto a railing, but
played on the property with the mans permission. because he is well known locally as an athlete,
If the property owner had been reasonably careful, he is embarrassed that people have seen him
he would have put a fence around the ditch to lurch so clumsily. The barber has not committed
prevent accidents. Still, the man had no reason to a tort. Even though he owed the customer a duty
expect the presence of a trespasser. The man has of reasonable care and breached that duty by
not committed a tort because a landowner ordi- failing to take steps promptly to eliminate the
narily does not owe the duty of reasonable care to danger caused by the grease, the customer was
an adult trespasser. In this context, the property not injured. His embarrassment, without any
owners duty is simply to not intentionally injure physical harm, is not enough to count as an
the trespasser. Legally, it does not matter that the injury for purposes of the law.
landowner did not use reasonable care to keep his
yard safe, or that someone was injured because of Violation of the Duty is the Direct
his failure to do so. When dealing with a child,
however, the duty of reasonable care may be
Cause of the Injury or Loss
Suppose a taxi driver races across town while
different, since children cannot be expected to
his passenger sleeps, then slows down to the
exercise the judgment expected of an adult. Thus,
speed limit when the passenger wakens. After he
a homeowner is expected to undertake certain
has been driving with reasonable care for five
measures to make sure that his backyard pool is
minutes, a truck suddenly pulls out in front of
not easily accessible to a trespassing child.
him, and his passenger is injured in the resulting
accident. The cab driver had a duty to his passen-
Violating the Duty ger to use reasonable care while driving and he
Suppose a doctor performs surgery on a heart violated that duty by speeding, and his passenger
patient and she completes the operation exactly was later injured. Nevertheless, the cab driver
the way a good heart surgeon is supposed to do. has not committed a tort because the passengers
Nevertheless, as even the most careful surgery injury was not directly and proximately caused
involves the risk of infection, this patient is by his speeding. The cab drivers breach of duty
infected during surgery and his heart is damaged was long over and done with by the time of the
further. Assuming she informed the patient of the accident. If the passenger has a tort claim, it is
risks before surgery, the doctor has not committed against the truck driver.
a tort. She had a duty to so advise the patient and

64
Torts That Are Crimes Tort Cases:
Sometimes an act, or the failure to act when Negligence
action is legally required, is both a tort and a
crime. For example, a man who shakes his girl- The elements of a tort case that have been
friends crying baby so recklessly that the baby discussed so far relate to the tort of negligence,
dies may be prosecuted for the crime of involun- since most tort lawsuits are based on negligence
tary manslaughter. This means that he did not and more negligence cases arise from traffic acci-
intend to kill the baby, but his criminal violence dents than from any other cause. As described in
caused the death just the same. Because the mans the last section, negligence cases involve conduct
gross (extreme) lack of reasonable care directly that falls short of the legal standards established
caused serious injury, he committed a tort as well to protect others from harm. Negligence is proven
as a crime. Thus, the babys mother may sue him by showing that the defendant owed a duty to the
for the damages he caused. plaintiff to exercise reasonable care and violated
In some criminal cases, the court can order that duty. In many negligence cases, the standard
the defendant to pay restitution (that is, to com- of reasonable care is defined by common law as
pensate the injured person for his or her loss). the sort of conduct that a reasonably careful
Usually, however, in order to recover money person would use in the same circumstances. In
damages for such a tort, the injured person must some cases, however, a higher or lower standard
sue the wrongdoer in a civil case separate from of reasonable care is applied. For example, the
the criminal prosecution. Often, no suit is pursued professional conduct of a person with special
because, although the injured can prove a legal skills, such as a doctor or a lawyer, is evaluated
right to compensation, the defendant has no by comparing that persons conduct with the stan-
money to pay the amount a court would order dards normally maintained by other such pro-
him or her to pay. fessionals in the same circumstances, unless the
Once in a great whilesuch as in the O.J. standards maintained by the profession are not
Simpson casesan injured or aggrieved person themselves reasonable. In other words, reasonable
can recover compensation in a tort suit even care for a lawyer is not merely doing what any
though the wrongdoer was not convicted of the reasonably careful person would do, but doing
crime. That is possible because proof of a crime what a person trained and skilled in the practice
requires more convincing evidence than what is of law would normally do.
needed to prove a tort. Although the prosecutors Similarly, the conduct of the very young must
had been unable to prove beyond a reasonable be judged according to what would be reasonable
doubt (the criminal standard) that Simpson had to expect of persons of similar age, intelligence,
committed murder, the families of the victims capacity and experience. The conduct of persons
won a separate tort suit for financial damages acting in emergencies is judged according to what
against Simpson because they proved by a pre- would be reasonable to expect of others under
ponderance, or greater weight, of the evidence similar conditions.
(the civil standard) that Simpson had killed
their loved ones.

65
Proof of Negligence usually claims that the injury was caused because
In some types of cases, a plaintiff can prove the defendant failed to exercise reasonable care
that the defendant violated his or her duty simply in operating a motor vehicle. Even though the per-
by showing that he or she broke a law that defines son operating the vehicle may have been directly
specific conduct as negligent. For example, run- responsible for the accident, others also may be
ning a red light or blindly shooting a gun on a liable for the plaintiffs injury. For example, the
crowded playground is negligence per se (as driver as well as the drivers employer may be
such). held liable if the driver was driving the vehicle in
Where it is impossible for the plaintiff to the course and scope of the employment. (See
prove that it was the defendant instead of another Responsibility for Employees and Agents later
person who breached a duty, the law allows the in this chapter.)
plaintiff to make that proof using the rule of res Because traffic accidents are the most com-
ipsa loquitur (The thing speaks for itself). This mon form of tort suit, Ohio law requires persons
rule applies only when the incident that injured applying for a vehicle registration or an operators
the plaintiff would not happen unless someone license to prove their ability to pay for damages
was negligent and the cause of the injury was caused in an accidentno matter whose conduct
completely under the defendants control. For causes the accident. The most common way to
example, if a surgical sponge is left inside a show financial responsibility is proof of a valid
patient after an operation, the patient does not insurance policy with liability coverage.
need testimony from someone who is willing The minimum amount of coverage required
to admit he or she actually saw what happened by Ohio law is:
during the surgery. It is enough to show that sur- $12,500 for personal injury or death of one
gical sponges do not end up in patients unless person in any one accident;
someone violated the duty of reasonable care $25,000 for personal injury or death of two or
and that the person in charge of the surgery was more persons in any one accident; and
the only one in a position to violate this duty. $7,500 for damages to another persons
Typical negligence cases arise out of: property in any one accident.
traffic accidents (which are considered in
detail later in this section); Ohio law requires any person who obtains a
hazards on property controlled by the drivers license or registers a vehicle to sign a
defendant (such as a restaurants broken porch statement indicating that he or she will not operate
step or a dangerously placed electrical line at a any motor vehicle unless covered by an accept-
construction site); and able and valid insurance policy that compensates
the failure of some person with special persons injured in accidents. Vehicle owners who
knowledge and skill (such as an engineer or fail to maintain appropriate financial responsi-
an accountant) to do what would have been bility face license suspension, the impounding of
reasonable for someone knowledgeable and their registration papers and license plates, plus
skilled in that sort of work. court costs and additional fees. Also, a person
whose license has been suspended for any reason,
or who is placed on probation for any traffic
Traffic Accidents offense, must sign a proof-of-financial-responsi-
bility statement stating that he or she can pay for
A person who operates or is responsible for the personal injuries or property damage of others
a motor vehicle may be involved in an injury caused by his or her operation of a motor vehicle.
accident that results in a lawsuit. In such cases, In addition to these legal problems, the
the injured person bringing suit (the plaintiff) possibility of having to defend a lawsuit and pay

66
a large amount of money out of ones own pocket If an injured individual cannot understand or
in the absence of insurance should encourage write down pertinent information, the other
people to maintain adequate coverage. Finally, driver must notify the police department and
where a drivers momentary lapse of attention or wait until a police officer arrives at the scene,
judgment has caused serious injury to an innocent unless the other driver is also injured and is
person, there is some moral satisfaction in being transported to a hospital by an ambulance or
able to reimburse that person for his or her injury other emergency vehicle.
and loss. If an accident occurs on private or public
property other than a public road (in a shop-
Financial Responsibility Accident ping center parking lot, for example), all
drivers involved in the accident must give
Report the required information, on request, to any
As long as both parties are insured, neither
injured person and to the owner of the dam-
party is required to file an accident report with the
aged property. Drivers must also show their
Bureau of Motor Vehicles (BMV). However, if
operators license upon request. If drivers do
a motorist involved in an accident has reason to
not provide the information at the time of the
believe the other party was not insured at the time
accident, it must be reported to the police
of the accident, that motorist has six months to file
within 24 hours of the accident.
a BMV accident report (Form 3303) and to allege
If an accident causes damage to land or to
that the other party was not financially respon-
property attached to the land, such as a
sible. After the report has been filed, the BMV
building or utility pole, the driver must stop
contacts the other party, who must prove that
and take reasonable steps to locate the owner
he or she had insurance coverage or some other
of the property. If the owner cannot be
means of assuming financial responsibility. Form
located, the driver must report the accident
3303 is available from the BMV, insurance com-
and supply personal information to local law-
panies and independent insurance agents, and can
enforcement authorities within 24 hours.
be downloaded from the Internet through http://
If an accident damages an unattended vehicle,
bmv.ohio.gov/bmv_forms.stm (choose BMV 3303
the driver must leave a written note (normally
Crash Report).
placed under the windshield wiper) providing
personal contact information.
Stopping and Exchanging Leaving the scene of an accident or failing to
Information at an Accident provide the necessary personal information
Ohio law requires a driver who is involved is a serious offense, and people who do so are
in a motor-vehicle accident to stop the vehicle liable for a maximum fine of $1,000 or a six-
immediately and provide certain information to month jail term, or both. In some cases of
the owner, driver or person in charge of the other leaving the scene of an accident, a court can
vehicle, anyone injured in the accident, or to impose a license suspension of at least six
a law-enforcement officer at the scene. That months and up to three years. Also, because
information is: the drivers name and address; leaving the scene may be interpreted as an
the vehicle registration number; and, if the driver admission of fault, fleeing may be used as
is not the owner of the vehicle, the name and evidence against the driver if a lawsuit is filed.
address of the owner. Here are some other rules
about traffic accidents:

67
commonly known torts of assault, battery and
What to do at accident scenes trespass); misuse of the legal process; defamation
of character; and product liability.
Do not move the car until the police arrive
unless the car is a traffic hazard.
Intentional Interference with
Cooperate with law-enforcement officers.
Property or Persons
Warn other drivers of any danger. It is a good One example of a tort involving intentional
idea to carry flares, reflectors, or warning lights interference with property or persons is trespass,
in an emergency kit.
which is unauthorized entry onto real property,
Get names, addresses and license plate numbers such as land or buildings. Trespass also can be an
of other drivers, their insurance carriers, passen- invasion of anothers personal property, such as
gers and witnesses. If it is not possible to get all tampering with his or her car. Another tort of this
this information, the driver should at least get type is conversion, the civil aspect of property
license plate numbers of the other drivers invol-
theft. Conversion occurs when one person
ved in the accident.
improperly assumes control of anothers property
Take notes and make sketches concerning the for his or her own use or benefit. Stealing another
accident and its circumstances. If a camera is persons watch and pawning it is an example of
available, the driver should take pictures of the the tort of conversion.
scene and make notes about the location of the
Assault, battery, false arrest and false impris-
camera in relation to the subject of each picture.
onment are examples of torts dealing with inten-
Attempt to make anyone who is seriously tional interference with a persons liberty. Assault
injured more comfortable until emergency med- is a threat of violence; it may or may not include a
ical personnel arrive. Although Ohios Good physical attack. Assault, even without a physical
Samaritan statute (Ohio Revised Code, Section
attack, may be enough to give rise to a tort action.
2305.23) protects those who, without willful or
malicious misconduct, offer assistance to an If an individual is physically attacked, the tort
injured person, an injured person should not be becomes battery.
moved by anyone but medically trained per- False arrest and false imprisonment are sim-
sonnel except in an extreme emergency. ilar; both involve the unlawful detention of one
person by another. For example, a police officer
Report the accident to your insurance company
immediately. Most insurance policies require who arrests a person without probable cause to do
such a report and any delay can jeopardize so may be liable for false arrest. A store owner
coverage. who refuses to allow a customer to leave the
premises, without a valid reason to believe the
Do not make any payment in a personal-injury
customer has done something wrong, may be
or property-damage accident without consulting
an attorney. No settlement offer should be liable for wrongful detention.
accepted without legal advice. In torts based on intentional interference with
property or persons, defendants can avoid legal
liability if they prove that:
the defendants conduct was permitted
Other Tort Lawsuits (privileged) in the circumstances;
the plaintiff consented to the conduct;
Negligence is the most common basis of lia- the defendant was acting in self-defense
bility used in tort law, but there are others types of or was protecting his or her property; or
torts. Some of these are: intentional interference the defendant was driven by necessity.
with individuals or property (which encompasses

68
However, many defenses have legal limita- In defamation cases, truth is an absolute
tions. For instance, although a person may con- defense. In other words, if a newspaper accuses a
sent to being hit by participating in a fight, the businessman of accepting bribes, the businessman
person would not be considered to have consented cannot recover for the injury done to his reputa-
to being hit over the head with a baseball bat. tion if the evidence shows that he actually did
Additionally, even though people are entitled to take bribes.
protect their property from trespassers, they are As mentioned previously, there is a different
not entitled to purposely set up traps that might standard of proof for public figures and private
seriously injure or kill a trespasser. citizens. Public figures must prove that an individ-
ual is spreading untruthful information in order to
Misuse of Legal Procedure maliciously cause an injury. Private citizens need
Individuals sometimes commit torts by mis- not meet this standard. In addition, as in negli-
using the legal system. Abuse of process may gence cases, there must be some damage that
occur when a person who has initiated a proper relates to the alleged defamation. It is not enough
legal proceeding improperly causes a warrant, that a person feels badly about what has been said
summons or subpoena to be issued against another or written.
person. For example, suppose neighbor A brings
about criminal or civil proceedings against neigh- Product Liability/Strict Liability
bor B simply out of spite or hatred, without a A product liability action is similar to a neg-
reasonable basis to believe that B committed ligence action. In a product liability action, the
the wrong alleged by A. In such a case, A may plaintiff brings suit against a company, alleging
be liable to B for malicious prosecution. that the defective nature of a product has caused
Even some misuses of legal process that are an injury. A product may be defective in several
not torts can result in penalties. For example, a ways: in its design or formulation; in its manu-
court can sanction people involved in lawsuits facture or construction; because the instructions or
who will not play by the rules of procedure, warnings as to its use were inadequate; or because
especially when that failure harms another party, it did not work as advertised or intended.
and particularly when a desire to purposely harm A product liability case differs from a negli-
another party seems to have been the reason for gence action in that the plaintiff need not prove
the misconduct. Also, those who habitually file all of the elements of negligence. Some of the
frivolous legal claims may be prohibited from elements are assumed (such as the duty to pro-
filing new cases without the judges permission. duce a product that is safe for consumers). If,
therefore, the plaintiff is able to prove that the
Defamation of Character product caused the injury, the defendant is said
Defamation is a false and derogatory state- to be strictly liable for the injury.
ment made by one person about another. Writing A well-publicized example of strict liability
that defames someone is called libel; speaking in a product liability case is the class-action
that defames someone is called slander. Plaintiffs lawsuit filed against Firestone in the late 1990s.
in defamation cases typically allege that the In that case, the plaintiffs claimed that many
defendant wrote or said something that: 1) caused people had been killed or seriously injured when
people to believe that the plaintiff is of low char- the companys tires blew out, and that the blow-
acter and morals; 2) damaged the plaintiffs good outs were a result of a defective tire design.
reputation and community standing; and 3) caused Strict liability is not only applicable in a
the plaintiff to lose business or sustain some other product liability action. Strict liability also may
financial loss. apply where the plaintiffs injury was caused by

69
a dangerous substance (such as explosives, poison An employer is usually not responsible for
or radioactive materials) that was under the the actions of an independent contractor. An
defendants control. Sometimes the dangerous independent contractor is an individual who may
substance is in control of a company, such as do work at times for an employer, but is not nec-
where a company sells a chemical that explodes essarily consistently employed with an employer
if handled improperly by a consumer. However, from day to day. An independent contractor
sometimes a private citizen may control a might, for example, be a painter who is hired by
dangerous substance, such as when setting off a construction company to finish some painting
fireworks for a Fourth of July celebration. work on a job or employees of a yard service who
are hired by a corporation to do landscaping work.
Because an employer is usually not liable for
Liability for the the acts of independent contractors, it is necessary
in some cases to determine how much control the
Acts of Others employer had over the independent contractor.
If it is determined that the employer had a high
Under certain circumstances, individuals, degree of control over the independent contractor,
employers and parents may be responsible for then the employer may become liable for the inde-
the acts or omissions of others. pendent contractors actions. If the worker has
agreed to accomplish a particular task, but is free
Responsibility for Employees and to decide how and when to do the work, the
worker probably will be considered an indepen-
Agents dent contractor and the employer would not be
An employer is responsible for employees or
liable for any acts committed by the independent
agents when they are actually working for the
contractor.
employer. The law uses the phrase, acting in the
course and scope of employment, to describe
this relationship. For example, a construction Negligence of Children, and Parental
company may be held liable for damages if an Responsibility for Children and
employee negligently allows debris to fall from Minors
a jobsite and injure a pedestrian. Liability in The law in Ohio is that children under the age
these cases is based on the ancient common-law of seven are incapable of negligence. The law
rule of respondeat superior, or, The master also presumes that children aged 7 to 14 are
must answer. likely incapable of negligence, but negligence can
However, an employer is not responsible for be demonstrated if the child is shown to be mature
the wrongful conduct of an employee or agent enough to make intelligent decisions about the
acting outside the scope of his or her employment. activity in which that child is engaged. For
For example, an employer generally is not liable example, a 12-year-old child with babysitting
for damages caused by the negligent driving of experience who allows a toddler to bathe without
an employee traveling between home and the supervision might be found negligent if the tod-
workplace. Again, a shoe salesman who punches dler drowns. Children over 14 years of age may be
an irritating customer is probably outside the held liable in the same way that an adult may be
scope of his employment at the time; he is not held liable, but a jury in such a case would deter-
doing his job carelessly, but is, instead, doing mine whether negligence has occurred. Parents or
something that is not his job. Usually, the guardians may be responsible for the acts of a
employer wont be responsible for the salesmans minor child if they knew the child would commit
violent acts unless he or she had reason to know an injurious act (or was very likely to commit the
that the employee was inclined to act that way.

70
act), but failed to take reasonable steps to prevent compensation due a negligent plaintiff will be
the act. reduced in proportion to his or her negligence.
Additionally, according to Ohio law, parents For example, suppose a three-car accident
are strictly liable for up to $10,000 for damages results in the injury of driver X, and the combined
caused by a child under age 18 who willfully negligence of drivers X, Y and Z caused the
and maliciously injures another person. Likewise, accident. If Xs negligence was 10 percent of the
parents are held liable for as much as $10,000 total negligence, and Ys and Zs combined neg-
for injury or loss to a person and property as the ligence was 90 percent of the total negligence, X
result of their childs criminal acts. will be able to recover damages totaling 90 per-
Similarly, when a minor applies for a drivers cent of the proven loss. Driver X will have to pay
license, his or her parent or guardian, or another for that 10 percent of the loss that he or she fairly
adult willing to assume responsibility, also must can be said to have caused. However, if Xs share
sign the application. By signing, the parent or of the total negligence was more than 50 percent,
guardian agrees to be liable for damages resulting he or she will not be able to recover at all; if the
from the minors negligence, recklessness or accident was 51 percent the fault of X and 49
willful misconduct while driving. percent the fault of Y and Z combined, X will go
away empty-handed.
Assumption of risk is another defense to neg-
Defenses in ligence claims. In the broadest terms, this rule of
law provides that an adult who knows that he
Tort Actions or she is voluntarily taking a specific and high risk
by engaging in particular conduct (say, playing
Comparative Negligence and Russian Roulette with a loaded pistol), will not
be allowed to recover compensation for his or her
Assumption of Risk injuries from someone whose negligence helped
When a suit is filed in which the plaintiff
to create the dangerous situation (perhaps, the
claims injury as a result of the defendants neg-
guns owner, who negligently failed to lock it
ligence, it is not unusual for the defendant to
away). Evidence of assumption of risk is consid-
claim that the negligence of the plaintiff caused,
ered by the judge or jury as part of its comparative
or helped to cause, the loss. For example, where
negligence analysis. That is, the conduct of the
the plaintiff might say that the defendants neg-
injured person in voluntarily taking a high risk
ligent speeding caused a traffic accident, the
is compared to whatever the defendant did that
defendant might claim that the plaintiff caused the
helped bring about the injury.
accident or increased the force of impact and the
In two types of cases, assumption of risk can
severity of the resulting injuries by suddenly and
still be a complete bar to recovery. First, where
negligently changing lanes in front of him or her.
one party has expressly agreed to assume the
Ohio uses the rule of comparative negligence
risk of injuries arising from certain conduct (by
when determining the degree to which a party is
signing a waiver of liability, for example), the
responsible for an accident. Applying the com-
agreement may be enforced by the court if the
parative negligence rule, the negligence of the
parties had equal bargaining power and the waiver
plaintiff is compared to the negligence of the
does not violate some other law or public policy.
defendant (or defendants). The plaintiff is not
Second, a recreation provider ordinarily owes no
barred from recovering damages even if he or
duty to protect a participant or spectator against
she was negligent, so long as that negligence
risks so inherent in the activity that they cannot be
was no more than the combined negligence of
eliminated. This rule of primary assumption of
all the other parties involved. However, the

71
risk therefore bars recovery where a baseball
player or fan is injured by a batted ball, for Remedies for Tort
example.
Compensatory Damages
Statutes of Limitations The basic remedy used by courts in successful
A person who has been injured by the tortious tort cases is an order requiring the defendant to
conduct of another cannot wait forever to make pay a certain amount of money to the plaintiff.
a claim for compensation. As with nearly every The money is intended to compensate the plaintiff
other sort of legal proceeding, suits on tort claims for losses or injuries suffered. Compensatory
are subject to statutes of limitations. For example, damages may include reimbursement for actual
negligence claims for personal injury usually must expenses, such as medical bills, repair bills or lost
be brought within two years after the defendants wages, as well as compensation for intangibles,
negligent conduct first caused injury to the plain- such as pain, suffering and mental anguish. If an
tiff. Malpractice claims against professionals injury is permanent, the jury may include damages
such as medical doctors or attorneys are usually for disability and loss of future earning power.
covered by a one-year limitation, as are cases
against those accused of assault offenses. Punitive Damages
Determining the proper statute of limitations As previously mentioned, a court can order
is, however, sometimes very complicated. a party to pay punitive damages, also called
Depending on the type of the claim, the limit may exemplary damages, in the case of certain inten-
be calculated from the date of the injury or the tional torts such as assault or defamation, and in
date the plaintiff discovered the injury. For negligence cases where the partys acts or omis-
instance, if a patient is unaware that a surgical sions are especially outrageous. Punitive damages
instrument has been left in his or her body, the are used both to punish such conduct and to warn
statute of limitations will not begin until the other members of the community not to follow
person discovers that this mistake has occurred. that example. They can be likened to a fine in a
Other dates that might determine when the statute criminal case, except that the plaintiff collects
of limitations begins may include the date the the money instead of the state. When punitive
plaintiff identified the defendants conduct as a damages are assessed, the court also may order
possible cause of the injury or the last day of the the wrongdoer to pay the attorney fees and other
professional relationship between the plaintiff expenses incurred by the innocent party.
and the defendant.
Further, in some cases the operation of the
statute of limitations is postponed or its running Workplace Torts
is interrupted. For example, if a girl is injured on
her 17th birthday by a careless driver, she will Some types of tort cases arise as a result of
have three years to bring suit against the driver legally wrongful conduct in the workplace. For
because the two-year limitation wont begin to example, claims based on sexual harassment or
run until she turns 18. discrimination are sometimes called workplace
Because so many variables affect the time torts. Additionally, certain cases of workplace
allotted to bring a legal action, it is important injurythose arising out of certain dangerous
to consult with an attorney promptly if you conditions known to the employermay form the
believe that you might have a tort claim against basis of a tort claim even though injury lawsuits
someone. The attorney can determine how the against employers are generally prohibited by the
relevant statute of limitations applies in your law that provides workers compensation to
particular case.

72
injured employees. (For more information on agree to arbitration. They may agree that the arbi-
workplace torts, see Part XI, Workplace Law.) trator will decide all of the issues or only selected
issues in their dispute. The arbitrator will strive to
reach a fair and reasonable solution. For example,
Resolving Disputes a major league baseball player who cannot reach
a salary agreement with the owner of his team
Without a Trial may choose to submit the dispute to an arbitrator,
who will consider the matter using rules that the
A trial determines whether a defendant is owners and players adopted years ago. At the end
liable (responsible) for the plaintiffs damages of that process, the arbitrator decides what the
and, if the plaintiff is liable, the amount of money player will be paid.
required to compensate the plaintiff. Getting a
case to trial (litigation) is often a long, stressful Mini-Trials/Summary-Jury Trials
and expensive process. Lawyers, courts and other Disputes may also be resolved without trial
professionals use other ways to resolve civil dis- through mini-trials or summary-jury trials.
putes that do not require a trial. Although usually more complicated than
These dispute resolution processes include arbitration, mini-trials and summary-jury trials
the following: negotiation, mediation, arbitration, are also ways of resolving disputes without the
mini-trial, summary-jury trial, and trial to a investment in time and expense of a full trial.
private judge. The method used depends on the In a mini-trial, attorneys for the parties present
nature of the dispute, the people involved, the a shortened version of their cases to a panel of
amount of money at risk and many other factors. people they have jointly selected. Panel members
In many cases, dispute resolution helps the parties usually represent the parties and/or the insurance
reach an agreement that is satisfactory to all and companies for the parties. After the presentations,
helps the parties save time and money. It can also a neutral third party helps the parties, represent-
be more creative and less stressful than litigation. atives and attorneys discuss the issues of the case.
Although some disputes are not good candidates Because they have gained a clearer understanding
for dispute resolution, many will benefit from the of both sides of the case during this process, the
process even if the parties do not reach a complete parties often are able to evaluate their positions
agreement. (Dispute resolution is also discussed more realistically and can agree to a settlement.
in Part III at Stage 5: Pre-trial conferences.) In a summary-jury trial, lawyers present
There are two types of dispute resolution shortened versions of their cases to a panel of
processes: binding and non-binding. If parties use jurors. The jurors do not have a stake in the out-
a process like arbitration or a private judge, they come of the dispute. After the presentations, the
may agree to have the decision be binding (final). jurors discuss the issues and reach an advisory
Negotiation and mediation are both non-binding, verdict. They then discuss the reasons for the
meaning that any party who is not satisfied with verdict with the parties and attorneys. This infor-
the result may leave the process and continue to mation can help parties reach settlement because
litigate. it helps them see their cases the way an unbiased
group of ordinary people would see them.
Arbitration
In arbitration, the parties present facts and Private Judging
legal arguments to an arbitrator or panel of Sometimes the parties choose to use a private
arbitrators. The arbitrator is impartial and makes method to resolve their dispute. Ohio law allows
a decision. A contract may require arbitration, parties to engage a retired judge to hear a case.
or a court may order arbitration. Parties also may

73
Such a private judge can hear a case and pro- a dispute. Mediation is private; the mediator is
vide a binding decision that parties may or may impartial. This means that the mediator has
not appeal. A trial to a private judge may help nothing to gain or lose from the outcome of the
resolve a case more quickly and help to ease the dispute. The mediator is not a judge and will not
overloaded dockets of many Ohio courts, espe- decide the case. In mediation, the parties make
cially in complex and expensive cases, such as their own decisions. During mediation, the
malpractice cases. mediator leads the parties and/or their lawyers
through a discussion of all aspects of the dispute
Negotiation and helps them learn about the other sides issues
Nearly all attempts to resolve (or settle) and interests. The mediator helps the parties
claims without a trial involve negotiation. Before assess the advantages and disadvantages of
the negotiation, the attorney and client talk about settlement and can also help look at different
what the client wants or needs in order to resolve options for settlement.
the case. Also, based on his or her knowledge and
experience, the lawyer discusses with the client
the advantages and disadvantages of settlement For Journalists:
and what the terms of a reasonable settlement Covering Torts
might be. The lawyer then discusses the possible
settlement of the case with the lawyer for the Just as when covering criminal trials,
opposing party. Offers and counteroffers are journalists covering tort cases are advised
usually part of these discussions. Even if a client to spend time understanding the law and
is not present during these discussions, the lawyer the process of tort law. Since journalists
must use negotiation sessions to advance the are usually assigned to cover criminal cases,
more study and research may be required
clients interest. An attorney may agree to a final
for the journalist when covering a tort case.
settlement only with the clients permission. Much of the same advice about covering
criminal trials can apply here (see For
Mediation Journalists: Covering Criminal Trials in
Mediation helps people reach an agreement Part IV, Criminal Law).
(settlement) about some or all of the issues in

74
Chapter Summary
A tort is a violation of a legal responsibility when that violation directly causes
injury or loss to a persons body, property or rights.
Negligence is the most common basis of liability used in tort law, but there are
others. Some of these are: intentional interference with individuals or property;
misuse of the legal process; defamation of character; and strict liability. Four
things together determine negligence, and a tort lawsuit will succeed only if the
plaintiff proves all four: the defendant owed a legal duty to the plaintiff; the
defendant violated (or breached) that duty; the plaintiff suffered an injury or
other loss; and the defendants breach of duty directly and proximately caused
the plaintiffs loss.
Under certain circumstances, individuals, employers and parents may be
responsible for the acts or omissions of others.
Where a persons own negligence caused, or combined with the negligence of
other(s) to cause, his or her own injury, the amount of money the person can
recover as compensation may be diminished or, in certain cases, recovery may
be completely denied.
The basic remedy used by courts in successful tort cases is an order requiring
the defendant to pay a certain amount of money to the plaintiff.
Dispute resolution is a phrase used to describe the development and use of
various methods or techniques to settle tort claims and other conflicts.

75
Web Links:
From the OSBAs Law You Can Use column:
www.ohiobar.org/lawyoucanuse (search by title or topic)
Are Schools Legally Responsible for Your Childs Sports Injuries?
Auto Accidents: Do You Know Your Legal Responsibilities?
Business Owners Shoulder Responsibility for Employed Drivers
Consumers Use Arbitration to Settle Lemon Law Disputes
Harm Caused by Defective Products Can Lead to Liability Claims
Know about Varieties of Ohio Automobile Insurance Coverage
Landowner or Tenant Could Be Responsible for Harm to Trespassing Children
Law Allows Citizens to Help Heart Attack Victims
Mediation Can Resolve Disputes
Ohio Law Protects Property Owners from Recreational User Liability
Ohios Good Samaritan Law Protects Volunteers
Ohios Lemon Law Protects Consumers
Ohios Social Host Law: Parents Serving Teens
Parents May Be Liable for Childs Actions
Uninsured Motorist Coverage Protects Drivers from Lawbreakers
Underinsured Motorist Coverage: When Auto Liability Coverage Is Not Enough
What Is a Wrongful Death Claim?
What You Should Know about Auto Insurance Law
What You Should Know about Loaning Your Car to Others

From the OSBAs Law Facts pamphlet series:


www.ohiobar.org/lawfacts (search by title)
Court Mediation
Traffic Accidents

From Cornell Law School Legal Information Institute


www.law.cornell.edu/wex (search by keyword: tort)

Hieros Gamoss general torts page:


www.hg.org/torts.html

76
Part VI___________________________
contracts
The business of the law is to make sense of the confusion of what we call human lifeto
reduce it to order but at the same time to give it possibility, scope, even dignity.
Archibald MacLeish

ontracts permeate our lives. If we that causes a party to enter a contract.) In addition,

C
rent an apartment or agree to buy the parties must be 18 years of age and mentally
a home, we enter into a contract. competent, the terms of the agreement must be
When we have electricity, gas and defined in enough detail that a court (and the
water furnished to that apartment parties) can determine their obligations and the
or home, we have a contractual subject matter of the agreement must not be
relationship with each utility provider for the illegal.
service. When writing a check, we are under a To illustrate how a contract is formed, imag-
contractual obligation with our bank to honor ine that your neighbor, Ms. Lodge, approaches
the check. We even enter into a contract when you about raking the leaves around her house.
we marry. You discuss the project, and Ms. Lodge agrees
Generally, common law, which was devel- to pay you $50 to rake and bag the leaves. This
oped by our courts (and Englands) over the meets the mutual agreement requirement for a
last several hundred years, governs contract law. valid contract: your neighbor offered to pay you
However, some significant contracts, particularly $50 to rake and bag her leaves and you accepted
those dealing with the sale of goods and business the terms of her proposal. Consideration is present
transactions, are governed by statute. (See Part because you promised to rake her leaves in
VII, Business Transactions and Organizations.) exchange for her promise to pay you $50. You
It is important to understand the details and obli- will receive a $50 benefit as a result of the deal
gations of various types of contracts because they and your neighbor will receive the benefit of a
affect so many areas of our lives. raked yard. Assuming you are both adults and not
suffering from any mental incapacity, a valid
contract exists because the terms are definite
What Is a Contract? enough that it will be easy to determine if each of
you performed your respective promises and there
Common law defines a contract as a prom- is nothing illegal about an agreement to pay a
ise the law will enforce. However, this simple neighbor to rake your leaves. This is a promise the
definition is deceptive because the law of con- law would enforce; however, if your neighbor
tracts imposes numerous limitations on the types failed to pay you for your work, it likely would
of promises that can be enforced and under which not be worth bringing a lawsuit against your
circumstances they will be enforced. neighbor to collect the $50.

The Offer
Basic Requirements An offer is the outward expression of a will-
for a Contract ingness to enter into an agreement. The agreement
between you and your neighbor arises from an
oral offer. Offers also can be written or even
The basic requirements for a contract are implied from conduct. Let us say you go to the
mutual agreement, usually made through a pro- doctor to be treated for the flu. The fact that you
cess of offer and acceptance, and consideration, sought treatment from the doctor implies that you
or one of its substitutes. (Consideration is gener- offered to pay the doctor for his or her medical
ally defined as the reason or compelling influence services and that he or she agreed to treat you in

77
exchange for your implied promise to pay. In rare When an offer specifies terms of a particular
cases, an advertisement also can be an offer, method of acceptance, it may not be satisfactory
although the usual advertisement is nothing more to accept it any other way. For example, if an
than an invitation to patronize the advertisers offer by Joe to sell a car to Hilda stipulates that
business. it can only be accepted by a $250 deposit on the
An offer might impose time limits on the purchase price, an acceptance by Hilda without
acceptance. If so, the offer expires if it is not the deposit will not be effective.
accepted within that time period. If there is no Generally, accepting an offer requires an
specific time limit, the offer must be accepted affirmative act by an individual. Silence does not
within a reasonable period of time. If you are usually imply acceptance. Let us say a telemar-
the one making the offer, usually you may revoke keter calls during dinner and offers to sell you
or withdraw the offer before it is accepted, even if steak knives. You let the caller make his pitch,
you have promised to keep it open for a specific but then hang up without responding. Six weeks
amount of time. If the contract involves a sale of later, a set of steak knives arrives in the mail
goods, however, and you promise to leave the along with a bill. Must you pay the bill? No,
offer open for some period of time (not to exceed because you have not entered into a contract to
three months), the offer cannot be withdrawn buy the knives by your silence. You can keep
within that period. the knives without paying. Both Ohio and fed-
Also, if the other person has paid you to eral law clearly state there is no obligation to
keep the offer open, thereby creating an option pay for unsolicited merchandise.
contract, then you do not have the right to revoke An individual does not have to accept an offer
or withdraw the offer before it is accepted. For as proposed. The individual can reject it outright
example, a company may find a parcel of land or make a counteroffer, which may include its
that looks promising for a new factory, but needs own terms and conditions. If a counteroffer is
six months to decide whether it is feasible to made, all previous offers are void. If an offer is
build there. That company would then pay the accepted with conditions, it is not actually an
property owner a sum of money to keep the prop- acceptance at all, but, rather, a counteroffer. The
erty off the market for a six-month period. The process of purchasing a house, for example, usu-
option agreement typically would provide that, ally involves an initial offer and several counter-
at any time within the six months, the company offers until the parties agree on the terms of the
could exercise its option and buy the land for sale and create a written contract. Contracts to
a specified price and on terms set forth in the purchase a home must be in writing.
option agreement.
Consideration and Reliance
The Acceptance For a contract to be valid, each party must
Like an offer, an acceptance consists of some make a promise or give or receive some benefit
outward expression of agreement. The acceptance in return for the promise. A contracts consider-
can be express or implied, written or oral. It might ation may be either an act or a promise. Without
consist of a signature on a written offer, a simple this element of exchange, a promise lacks con-
okay or even a nod of the head. If you call a sideration and usually cannot be enforced as a
repairperson, Mr. Simmons, to fix your washing contract. As a result, a promise to make a gift to
machine and he responds, your call is an implied someone generally is not regarded as a contract,
offer to pay for the repair services. By coming to because usually only one party benefits and the
your house, Mr. Simmons has implied his accep- necessary element of consideration is lacking.
tance of your offer to pay a reasonable price for
the repairs.

78
Consideration can take many forms. It might will eventually be made and that the donor will
be money, property, rights, services, a promise make even larger gifts in the future.
to do something in return, or even a promise not
to do something that you would otherwise have
the right to do. Consideration can be present even
Additional Requirements: Certainty,
though no money changes hands. Consideration Legality and Competence of the
exists when parties have done nothing more than Parties
exchange promises with one another. If, for A contract cannot be enforced if its terms
example, you promise to sell your car to some- are so vague that no one can determine what to
one for $2,500 next Saturday and the other per- enforce. For example, you tell a friend you will
son promises to pay that amount for your car at do something for him in the future and he agrees.
the same time, consideration exists even though Because there is no certainty about what to do,
neither of you has yet performed the contract, when to do it or the consideration for doing it, the
and no down-payment was made. contract (if there is one) would be unenforceable
Even when there has been nothing given in based on any one of these uncertainties.
exchange for a promise, the promise still might be In addition, the agreement must be for some-
enforceable if someone relied on the promise in thing on which it is legal for the parties to agree.
some tangible way. Thus, even though a promise An agreement to do something illegal is not a
to make a gift is not usually enforceable, if the contract.
beneficiary of the gift takes some concrete action Also, the parties to a contract must be com-
in reliance on the promise, the promise may be petent to enter into it. In most cases, children
enforced. This is called promissory estoppel, under 18 years of age are not considered legally
because the person who made the promise is competent to enter into legally binding agree-
stopped from claiming that there was no con- ments. Furthermore, a person suffering from a
sideration for the promise. A good example of mental disease or disability may be found by a
this is when a person promises to make a chari- judge to be incompetent to enter into a legally
table donation and the charity takes some action binding agreement. However, a minor or incom-
in anticipation of receiving the promised gift. petent person who receives something necessary
Thus, if a person promises to make a donation for life, such as food, shelter, clothing or medical
to a college and the college, relying on the prom- care, may be responsible to pay for the reasonable
ised donation, constructs a building, the promise value of whatever was provided.
likely will be enforceable even though the college While a minor or a person suffering from legal
gave nothing in exchange for the pledge. disability cannot be bound to a contract, if such a
A promise to make a gift to a family member person performs his or her part of an agreement,
also might be enforceable if the family member the other party will be bound by the contract.
takes some definite action in reliance on the prom-
ise. For example, if a rich uncle promises to give Express and Implied Contracts
his niece $5,000 so she can take a trip to Europe The terms express contract and implied
and the niece relies on the promise of the gift and contract refer to nothing more than the formality
actually goes on the trip, the niece will probably or informality of the method used to create the
be able to enforce the contract and collect the contract. Many express contracts are created by
$5,000. signing a detailed written agreement, containing
In reality, charities and family members all or most of the terms the parties have agreed
usually are reluctant to sue people who have made on, such as a contract for the purchase of a home
such promises. They hope that the promised gift

79
or a new car. Implied contracts are created with Written contracts do not have to be formal.
little or no formality, such as the implied contract They may be printed or typewritten and the lan-
that is made when someone asks a mechanic to guage can be plain or very complicated. The
perform a necessary car repair. By asking the writing may be nothing more than a sales slip,
mechanic to do the work, the car owner implies which is no more than a memorandum of the
that he or she agrees to pay the mechanics usual contract of sale, or it might be a handwritten
hourly service fee together with the cost of any note on a stray scrap piece of paper.
parts necessary to complete the repairs. By tak- Of course, it is almost always better to write
ing the car, the mechanic agrees to perform the out the terms of a contract, even when there is no
work within a reasonable time and to do so in legal requirement for the contract to be written.
a professional manner for the usual hourly fee. The more that is available in writing to all the par-
If the charge is too high or the work takes too ties to a contract, the less likelihood there is that
long, a court might have to determine the precise there will be a misunderstanding between the par-
meaning of these agreed terms. However, there ties about their obligations. However, if parties
would be little doubt that the parties entered into go to the trouble of writing out the terms of their
some type of agreement for the repair of the car agreement, they should make sure to include all
even if they signed nothing and even if neither of the agreed-upon terms. Otherwise, they may
of them made a legal offer or acceptance. not be able to prove that a particular part of their
agreement was ever made, and oftentimes parties
Written and Oral Contracts agree that the written contract surpasses any and
With some exceptions, an oral contract is as all previous oral contracts.
valid as a written contract, as long as the basic
elements of a contract exist. However, in a
dispute, the terms of an oral contract may be
Performance of
more difficult to prove than the terms of a
written contract.
Contracts and
Some types of contracts must be in writing
and will not be enforced unless the essential terms
the Consequences
of the agreement are contained in a signed, written
document. Contracts that must be written are:
of Breach
contracts for the sale of land or any interest
in real property, including a home; Generally, parties to a contract must do every-
contracts in which one person promises to thing required by their agreement. Differences of
pay anothers debt (for example, when a opinion and legal action may arise when one party
parent guarantees a childs debt); to a contract either fails to perform completely
prenuptial agreements or contracts between or chooses not to complete his or her end of the
couples settling various questions of property bargain.
and other rights in consideration of marriage; A person who substantially performs his
contracts that cannot be fully performed or her side of a bargain can enforce the contract
within a year of the time the contract is against the other person if the other person fails
made, such as a contract to work for some- to perform.
one for 18 months; The situation becomes more complicated
contracts for the sale of goods for a price of when a person partially performs a promise,
$500 or more. but does not substantially perform. A person

80
who only partially performs a contract may not down, but leaves them lying on the lawn without
be able to get paid for the value of that partial removing them as promised. This is not only a
performance, and likely will be responsible for breach; it is probably a material breach because
any harm caused to the other party. Let us say, it does not fulfill the essential purpose of the
for example, that a bricklayer only performs 20 contract, which was to get rid of the trees. If,
percent of the patio he promised to install. If the as a result of ABCs breach, Mr. Smith has to hire
homeowner must pay another bricklayer a higher another company, which charges him $800 to cut
price to get the job finished, then the cost of pay- up the trees and haul them off, Smith will not
ing the new bricklayer might be higher than the have to pay ABC anything. In fact, ABC would
value of the work done by the original bricklayer owe Mr. Smith the $100 difference between the
who started the job. In such a case, there may be $700 it agreed to charge for the job and the $800
a cause of action for the homeowner to collect Smith ended up having to pay to have the job
from the first bricklayer for the additional finished.
expense, but if, for example, the original contract On the other hand, if ABC cut down the trees,
did not establish a timeframe for completion of cut them up and hauled off everything except for
the work, the homeowner may not prevail in two small pieces that had fallen into some bushes,
such a legal action. ABC will have substantially performed its con-
Generally, a party to a contract must fulfill tract with Mr. Smith. Although ABC did not do
the promises made as part of the contract. If one absolutely everything it contracted to do, it sub-
party does not perform, the other party usually is stantially performed the contract, and would be
entitled to recover money damages for the losses entitled to full payment, minus only whatever
suffered as a result of the breach. In addition, small expense Mr. Smith may incur to remove
depending on the extent of the breach, the injured the two pieces that ABC failed to remove.
party may be justified in delaying or terminating The result would be the same in a contract
performance of his or her own obligations under for the sale of goods. If, after a car is delivered,
the contract. the buyer discovers that the brakes dont work,
the buyer is justified in returning the car and
Substantial Performance and refusing to pay for it. Before returning the car
without paying the agreed-upon price, however,
Material Breach the buyer may be required to give the seller a
At one time, the law required strict compli-
chance to cure the breach by repairing the
ance with the terms of a contract. Even a minor
defective brakes. (Likewise, in the agreement
deviation from the terms of one persons promise
between ABC and Mr. Smith, Mr. Smith likely
would excuse the other person from performing
will be required to give ABC an opportunity to
his own duties. Today, if one party has broken
finish the job before refusing to pay ABC and
a promise in some minor way, but has still sub-
hiring someone else.) If the only problem the
stantially performed the promise, then the other
car buyer discovers is that the spare tire needs
party still must perform his or her own part of
to be replaced, the buyer still must pay the price
the deal. The second party is excused from per-
of the car, with a modest reduction based on the
forming his or her own part of the deal only
cost of a new spare tire.
if the first partys failure to perform is serious
enough to be a material breach.
An example will illustrate how this works. Offer to Perform as a Precondition
Mr. Smith has several dead trees on his prop- to the Right to Sue
erty and enters into a contract with ABC Tree As previously explained, Ohio law does not
Company (ABC) to cut down and remove the require one party to honor an agreement if the
trees for a price of $700. ABC cuts the trees other party fails to perform his or her end of the

81
contract. But, to enforce a contract, a party may keeper will be unable to pay will justify the sup-
be required to demonstrate that he or she is still plier in making a written demand for adequate
ready, willing and able to fulfill his or her part assurances of performance and in refusing to
of the agreed exchange. For example, unless the deliver the goods until the shopkeeper provides
buyer can demonstrate he or she can pay the adequate assurance that the goods will be paid
agreed price for the promised product, the buyer for if they are delivered.
will not be able to sue the seller if the seller When the contract specifies that its duties or
refuses to deliver the goods to the buyer. Like- obligations absolutely must be performed by a
wise, unless a seller can show he or she was specific time (when time is of the essence), a
ready, willing and able to deliver the product that delay by one party can excuse performance by
was to have been sold, the seller will not be able the other and provide the other party with grounds
to recover damages from the buyer. It works the for legal action. For example, contracts for con-
same way with services that are to be performed. structing large buildings often require precise
In the case of ABC Tree Company, if ABC scheduling, and the general contractor or project
failed to cut up and remove the trees because Mr. manager will specify that various subcontracts
Smith said he wouldnt pay for the work under must be completed by certain dates. Delay in
any circumstances, then Mr. Smith has breached performing a subcontract may justify the prime
the requirement of good-faith tender of perfor- contractor in refusing to continue with the con-
mance and would not be able to sue ABC for tract, and give the prime contractor the right to
failing to finish the work. recover any losses caused by the delay.
A party to a contract also may voluntarily
give up some rights through a voluntary waiver.
Excuses for A waiver can be an excuse for nonperformance
by the other party. For example, let us assume
Nonperformance or that you order a new car in Treasure Island
Green. Two weeks later, the dealer calls to tell
Breach of Contract you that the factory no longer makes that color.
If you agree to allow the dealer to substitute Sky
Sometimes, a party to a contract may be Blue, you have waived the color portion of
excused from performing his or her part of an the original contract. Waivers are contract amend-
agreement. As explained, a person is excused ments and may be formal or informal, in writing
from performing due to the other partys failure to or implied through the action or inaction of a
substantially perform his or her own obligations. party. If an original contract must be in writing,
Similarly, a party may be excused if it is clear that amendments must be written as well. Generally,
the other party is unlikely to perform, even if the a written amendment is the safest and most effec-
other party has not yet breached the contract. tive way to change a contract.
Consider, for example, a contract between
a shopkeeper and one of the shops suppliers for Prevention of Performance
merchandise to be delivered immediately, but Nonperformance of a contract is excused if
paid for some time later, such as at the end of the one party prevents the other from complying with
month. If the shopkeeper goes out of business, the contract. For example, the owner of a building
the supplier is likely to be excused from deliver- cannot contract to have the building renovated,
ing the merchandise as promised, even though and then deny the renovator access to the building
payment is not due until a month after the goods to perform the work.
will be delivered. The likelihood that the shop-

82
Impossibility of Performance for a little while, might prevent the buyer from
Impossibility of performance of a contract getting the solution he or she wants or from
also might excuse nonperformance. Lets assume obtaining any remedy.
that a carpenter, Ms. Harris, contracts with an
owner to renovate the owners building, but Money Damages for Breach of
before the carpenter can start to work, a tornado Contract
destroys the building. Under these circumstances, The usual remedy for losses caused by a
it is impossible for Ms. Harris to perform the con- breach of contract is monetary damages (money
tract, and she is excused. If the owner has paid paid to make up for the loss). The person who
Ms. Harris a down payment, the owner probably breached a contract is not necessarily liable for
will be able to recover the down payment. Other- the entire contract price, but rather for the value
wise, Ms. Harris would be unjustly enriched as a of the actual loss suffered by the injured party.
result of the tornado. For example, if a buyer breaches a promise to
On the other hand, if the carpenter agrees to buy a house for $100,000, and the seller is able
restore the building and then sells all of her tools to resell the property to someone else for only
and fires all of her workers before beginning $90,000, the first buyer will be responsible for
work, she has only herself to blame. The fact that the $10,000 difference. The seller also may
it is now impossible for her to complete the prom- recover additional damages, such as insurance
ised renovations is not an excuse and she will be and maintenance expenses incurred while find-
liable to the owner for all the damages that the ing another buyer, and any other losses resulting
owner suffers as a result. from the delay or inconvenience.

Remedies for Specific Performance


If the object of a contract cannot be obtained
Breach of Contract by any other means, or if the subject matter of the
contract is unique, a court may force a party to
comply with the contract rather than pay damages.
The usual remedy for breach of contract is
For example, land is considered unique, and a
legal action to recover enough money to pay for
rare museum piece or antique may be unique. A
the harm caused by the breach. In some cases,
court may require the person who contracted to
the injured party can force the breaching party to
sell the land, museum piece or antique to transfer
perform the contract, under threat of imprison-
the land or item to the buyer as promised. Note
ment for contempt of court, or have the contract
that there is nothing unique about the money the
modified or cancelled, or obtain some other type
seller would receive as the purchase price, so that
of court order to prevent further loss.
if the buyer defaults, the sellers only remedy is
The injured party should notify the other party
monetary damages. Even if the subject of the con-
right away if there is a defect in the other partys
tract is not unique, the court may award specific
performance. In some situations, the injured party
performance damages if obtaining a substitute will
who fails to provide prompt notice will be pre-
be difficult.
vented from obtaining any remedy. This is partic-
ularly true in contracts for the sale of goods. If
the goods are defective, the buyer must advise Cancellation
the seller as soon as possible. If the goods are so The technical term for cancellation of a con-
defective that the buyer wants to rescind the tract is rescission. In the earlier example involving
contract and get his or her money back, the buyer the insolvent storeowner, the supplier probably
must advise the seller promptly. Waiting, even would call the storeowner to say the contract is

83
cancelled, and probably should formalize and another, especially when the event in question
record the cancellation of delivery by writing a arose innocently or accidentally.
letter to the storeowner. In some cases, however, The following scenario illustrates the concept
a party might remain bound to a contract despite of quasi-contract. Sue asked Fred to paint her
a breach by the other party. In such instances, house. She wanted it to be finished before her
the first party may have to go to court to have husband returned from a business trip. Fred gave
the contract rescinded. Sue an oral quote that she accepted. When the
For example, suppose that a husband and work was completed, Fred gave Sue an invoice
wife contract to purchase a house subject to their for his work, which she said would be paid when
ability to secure a loan, but the husband passes her husband returned. When Sues husband came
away before the sale is completed. If the wife is home, he refused to pay because he alone owned
unable to secure financing alone, the contract the house and had not contracted for the work.
may be cancelled or rescinded. While Sue did not have the authority to enter
into a binding contract with Fred to paint her
Injunction husbands house, Fred may be able to recover
Injunctions are court orders that require payment for his work. Under the concept of quasi-
people to act (or not to act) in certain ways. An contract, the law will not let Sue and her husband
injunction may order a party not to violate a benefit from the misunderstanding. Sues husband
contract when there is a real threat that a breach would have to pay the reasonable value of the
of contract will continue. In these situations, work to prevent an unjust enrichment.
monetary damages are inadequate remedies
because the injured party would have to go to For Journalists:
court repeatedly. If the injured party succeeds
in getting an injunction against the other party,
Covering Contract Cases
the other party risks being found in contempt of
Because so much of contract law is linked to
court for breaching the contract. actual written agreements, journalists covering
Let us say Mr. Smith contracts to sell a contract cases are advised to obtain the original
unique, antique dresser to Mr. Jones for $5,000, contract documents. But the documents alone will
to be delivered six months in the future, but then not be enough to gain understanding about the
threatens to sell it to someone else in the mean- nature of a contract dispute. Case briefs can often
time. To prevent Mr. Smith from carrying out provide more detail about the nature of the con-
this threat, Mr. Jones might get an injunction, in tract dispute as can interviews with those parties
which the court orders Mr. Smith not to sell the affected by the contract in dispute. These can be
dresser to someone else. If Mr. Smith violates obtained from the court as well as from the parties
in a lawsuit. Increasingly, such briefs are posted
the injunction, he might not only be liable to Mr.
by opposing sides online.
Jones for the damages arising out of his breach In covering contract cases, the devil is in
of contract, but he also might be punished by the the details. Journalists are advised to spend time
court for contemptthat is, for willingly violating understanding the specifics of contract law and
the specific terms of the courts order. the nature of the dispute. Much of contract law
requires a thorough understanding not only of
Quasi-Contract contract law but also of the field or industry that
is part of the contract dispute. Thus, a real estate
Sometimes the law infers a contract-like
contract case will require the journalist to under-
relationship among parties to prevent someone stand the nature of real estate law as much as the
from benefiting unjustly (legally called an unjust nature of contracts. A dispute about an Internet
enrichment). Such a quasi-contract is used to user agreement or terms of service statement
protect one party from taking advantage of

84
will require the writer to understand how agree- questions within the contract for the court to
ments are negotiated and enforced in an online consider. Journalists covering such cases are
environment. (For more information on the often called on to make judgments about the
Internet and the law, see Chapter 13). most important claims to highlight and explain
Covering contract cases often requires to readers and viewers. Those judgments are
advance homework and hours of reading court critical and can be assisted by the attorneys
documents to ascertain the exact nature of the involved in the case, with the understanding
the courts decision. There may be dozens of that attorneys represent a particular viewpoint.

Chapter Summary
A contract is a legally binding agreement between or among two or more
parties to perform the duties stated in the agreement.
Contract law is largely governed by common law with some significant
areas, such as contracts for the sale of goods, governed by statute.
The basic elements of a contract are an offer, an acceptance of the offer, and
either consideration or (sometimes) reliance on the promise.
The terms of a contract must be sufficiently clear that the court can determine
what the parties promised to do, the parties must be legally competent to
enter into the agreement, and the subject matter of the agreement must be
legal.
If the basic elements of a contract exist, an oral contract is as valid and
enforceable as a written contract, with certain exceptions.
If a party performs the contract substantially, or in large part, the other
party cannot refuse to complete his or her part of the agreement. A material
breach may justify the other party in refusing to perform his or her own
promises.
There are a number of situations in which a party to a contract is excused
from performing his or her part of an agreement.
The usual remedy for breach of contract is an action for damages.
Specific performance, injunction, unjust enrichment and rescission are
extraordinary remedies for breach of contract.

85
Web Links:
From the OSBAs Law You Can Use column:
www.ohiobar.org/lawyoucanuse (search by title or topic)
Ask Questions When Pre-Paying for Funerals
Bad Faith Claims Address Insurer Violations
Consumers Should Know Rights When Buying Used Cars
Consumers Should Watch Out for Predatory Contractors
Electronic Signatures: Can Your Computer Sign a Contract without Your
Knowledge?
How Can a Franchise Owner Get Out of an Agreement?
Know Your Repossession Rights
Some Contracts Can Be Cancelled within Three-Day Period
Understand Recording Company Contracts before You Sign
Vacation Timeshares: Paradise or Problem?
What You Should Know When Choosing a Continuing Care Retirement
Community

From FindLaws website:


http://library.findlaw.com (choose Commercial Law and Contracts)

From Cornell Law School Legal Information Institute:


www.law.cornell.edu/wex (search by key word: contract)

86
Part VII__________________________
business transactions
and organizations
A man with a new idea is a crank, until the idea succeeds.
Mark Twain

hildren learn about business tran- Many commercial transactions, and, in

C
sactions when they set up their first particular, most consumer transactions, are not
lemonade stands or do chores for covered by the UCC, but by separate laws. Some
an allowance, but they likely will of these retail transactions include retail install-
not appreciate the pervasiveness ment sales, charge accounts, home solicitation
of business transactions until they sales and small loans.
grow up and begin to manage their own lives. At
this point, it becomes important for them to have
a basic understanding of business law. Commercial Paper
Special sets of rules govern many daily busi-
ness transactions. For example, sales, credit and What is commercial paper? Commercial
banking are largely regulated by special statutory paper is a written document evidencing an obli-
rules. In Ohio, these rules are compiled in the gation of one party to pay another. Checks and
Uniform Commercial Code (UCC), and give promissory notes are the most common forms
predictability to our business lives. of commercial paper. Drafts, bills of exchange
Business transactions may involve several and certificates of deposit are also common
major fields of the law, particularly the law of forms of commercial paper. Think of a regular
contracts and the law of property. (For discus- check when the term commercial paper is used.
sions of these areas, see Part VI, Contracts, Similarly, think of depositing a check, paying a
and Part VIII, Property Law.) bill by check, or cashing a check when the terms
negotiation, negotiable and negotiability are used.
When a check is negotiated, the cash repre-
Business Transactions sented by the check is transferred from one party
to another. For example, when an individual
in General writes a check to pay an electric bill, the value
of the cash represented by the check is taken
Most states, including Ohio, have adopted from that individuals checking account and
the UCC to govern a wide range of commercial transferred to the electric companys account.
practices, including: When commercial paper meets certain
sales of goods and merchandise and other requirements, it is negotiable and moves freely
consumer transactions; in commerce. Negotiable commercial paper is
commercial paper, such as checks and a substitute for cash and is used in commerce
promissory notes; and because it can be more convenient and more
secured transactionssales of goods on secure than cash.
credit, or loans secured by a security
agreement roughly similar to a mortgage Negotiability
(except that it applies to personal property Commercial paper is considered a negotiable
rather than real estate). instrument if it:

87
is in writing; involved in an original transaction that the com-
is signed by the person making it (the maker) mercial paper (or negotiable instrument) is valid.
or by the person on whose account it is drawn It ensures that commercial paper moves freely
(the drawer); and is honored (paid) by the business and bank-
contains an unconditional promise or order to ing worlds.
pay a fixed amount of money; To become a holder in due course, a person
is payable either on demand, or at a definite to whom commercial paper is transferred must:
time; and give something of value in return for having
is payable either to the order of a certain the instrument transferred;
individual, or to the bearer (the bearer is the complete the transaction in good faith; and
individual possessing the commercial paper, complete the transaction without notice of
even though that individuals identity may any problems with the instrument.
not be known when the commercial paper is
first issued). If these conditions are present, then a party
acquiring a negotiable instrument is said to be a
How Commercial Paper Is holder in due course. This means that, when the
instrument is finally presented for payment, the
Negotiated maker of the note cannot challenge the holders
Commercial paper is transferred or negotiated
rights to receive payment.
by endorsement (the act of approving a transac-
The following example explains the rights
tion with a signature). There are two broad cate-
and obligations of parties and holders in these
gories of endorsements: blank and special.
types of transactions. Mary owns a floral shop
A blank endorsement occurs when the person
and needs a supply of vases for flower arrange-
filling out the check (called the drawer) simply
ments. She locates Bob, a supplier, and buys a
leaves the Pay to the Order of line of the check
years supply of vases on credit, giving Bob a
blank and authorizes the check with his or her
promissory note that obligates her to pay him
signature. This blank endorsement becomes a
within six months. Bob takes the promissory
bearer instrument. Someone who holds a bearer
note to the bank to have it discounted. That is,
instrument, such as a blank check, can negotiate
he sells the note to the bank for something less
it by simply giving the check to another party.
than its face value to get cash, rather than to
The other party then may deposit or transfer the
wait six months for Mary to pay him. Bob may
blank check as he or she wishes.
be willing to take less from the bank than what
Special endorsement occurs when, for exam-
Mary owes him because he knows he can offset
ple, an individual writes a check to a business
this loss by getting the money earlier and invest-
entity such as the electric company. The bank
ing it.
endorses the check with a stamp indicating,
The bank then takes the promissory note to
For deposit to the account of _____ Electric
another financial institution and has it discounted
Company. Depositing the check in the named
again to increase the banks supply of money or
account is the only method of negotiation. Also,
credit. In each case, the note is transferred by
if a check is endorsed, Pay to the order of John
endorsement. Mary, as the maker of the note and
Doe, then only payee John Doe is permitted to
the buyer of the vases for her floral shop, is pri-
endorse the check.
marily liable to repay the note. However, the
holder in due course, that is, the holder of the
Holder in Due Course note, does not have to look to the maker (Mary)
The holder in due course doctrine is a mech- aloneor even at allfor payment. Mary, as
anism used to give some assurance to parties not well as the vase supplier who had the note dis-

88
counted, and the bank, which also had the note
discounted, are all liable to the holder in due Consumer
course for the note.
Mary agrees to pay the note when it is due. If Transactions in
Mary dishonors (does not pay) the note, both the
supplier and the bank will be liable for paying the General
holder, since each, by endorsement, has agreed to
make payment. The endorsement by the supplier Consumer transactions are common and often
and the endorsement by the bank are individual depend on the use of credit. In fact, credit is used
agreements by which each has committed to be so often that paying cash for large consumer
liable for payment if Mary does not pay the note. transactions (buying a car, for example) has
Lets add a twist to this scenario. If the sup- become rare. Consumer credit transactions can
plier furnished substandard or defective vases, be confusing and expensive and are governed
Mary has a valid excuse for not paying, but only by various state and federal laws.
against the supplier, since she cannot raise this Interest rates charged on borrowed money
defense against a holder in due course. The above must fall within certain limits. For most consumer
rule has been modified for most consumer credit loans, including retail installment sales and revol-
transactions. (See Consumer Transactions In ving charge accounts (credit cards), Ohio law
General at the right.) allows an interest rate up to an annual percentage
rate of 25 percent. However, the law also allows
Cognovit Notes for some methods of computing the annual per-
A cognovit note is a note in which the maker centage rate that may result in rates of more than
acknowledges the debt with the understanding 25 percent, which can be enforced under the law.
that, if the debt is not repaid, a court may order (See Small Loans later in this chapter.) The
a judgment against the maker without the usual law does not require a 25 percent annual per-
notice or hearing. centage rate (or any other interest rate). Rather,
Many states prohibit any use of cognovit interest rates are subject to market pressure
notes. In Ohio, these types of notes are prohibited negotiation, and each consumers credit rating.
in consumer transactions. Since Jan. 1, 1974, any Individuals should shop for low interest rates
note given in a consumer loan or transaction and and low finance charges in the same way they
executed has been enforceable only through a shop for low prices on products and merchandise.
regular lawsuit. That is, the cognovit provision One of the basic goals of the federal Truth in
of a consumer note (the waiver of notice and the Lending Act is to give consumers enough infor-
right to trial) is invalid. If the remainder of the mation so that they can shop for credit (that is,
note is valid, however, it may be enforced after know and compare the cost of credit).
notice and trial. Individuals have the right to read all parts of
In Ohio, cognovit provisions are valid in com- applications, contracts and disclosure statements.
mercial transactions, but the note must contain a In fact, Ohio case law states that, generally, a
conspicuous warning that the maker is forfeiting person must honor the terms contained in the
the right to notice and trial. (There is specific lan- document he or she signs, unless the person was
guage that must be stated in the note and may not kept from reading it. Before signing anything, an
be altered.) Further, the actual confession of judg- individual should ask questions about any aspects
ment can only be filed in courts whose territory of the documents that are not absolutely clear and
includes the makers residence or the location get satisfactory answers to all questions. Someone
where the note was executed. who signs a document is bound to its terms, even

89
if he or she has not read it. An individual who closed-end transaction. In an open-end trans-
does not understand a document should ask for the action, the lender or creditor expects repeated
opportunity to study the document or to have an subsequent transactions, as when a consumer
attorney review it. Moreover, if an individual has uses a credit card. Closed-end credit usually
trouble getting information, it should be taken as involves only one transaction, such as when a
a sign of potential problems with the transaction. consumer gets a home loan or a car loan. In both
Both state and federal laws deal with can- types of credit transactions, the buyer receives
celling (rescinding) many kinds of consumer paperwork that includes cost of credit disclosure
transactions within a short period after the goods forms required by the federal Truth in Lending
or services are received. Consumers usually have Act and certain state laws. Disclosure forms vary.
only a very short time to exercise their right of Sellers and lenders may, with certain limitations,
rescission (cancel their orders). For example, a modify the disclosure forms, and the forms may
consumer who has been solicited at home to buy or may not be separate from the contract. Even
merchandise or services on credit has three days where disclosure forms are part of a contract, the
to change his or her mind. If the consumer wishes information shown in the form also must clearly
to cancel an order, it is good practice to do so in appear in the contract itself.
writing. For example, if Mary decides to open a credit
Similarly, in most consumer transactions, the card account to purchase the furniture for her
traditional concept of holder in due course has home, then, before opening the account, the bank
been modified. Under the consumer laws, a buyer providing the credit card must fully explain her
can take all appropriate legal actions against any rights and responsibilities as a cardholder. The
person or entity to which the seller has transferred bank also must provide certain additional disclo-
the buyers contract or note. sures in writing with every periodic statement
For example, if someone takes out a loan to or bill issued upon the account. Buyers who use
buy a car, chances are the auto dealer will sell credit cards should read and understand this
its interest in the note the buyer signed to a bank information.
or financing company. Under the Federal Trade Some credit card companies are proactive in
Commissions holder-in-due-course rule, any making sure their clients understand the terms
rights an individual might have against the dealer and conditions associated with using their cards.
will also apply to the bank that bought the note. Certain companies, for example, have credit
The bank cannot use the holder-in-due-course rule education programs for college students to com-
to escape all responsibility for the individuals municate the conditions and responsibilities that
car purchase because Ohio law may consider the come with credit card use. More information
lender (bank) to be an integral part of the sales about credit cards is provided later in this chapter.
process. For example, if a used car you bought In the example provided on page 91 regarding
from a dealership falls apart as soon as you leave Marys purchase of vases for her business, Mary
the showroom, the bank that financed your loan gave Bob a promissory note to finish paying for
through the dealership cannot expect you to make the vases within six months. To purchase furniture
good on a $3,000 loan if the car is discovered to for her home, however, Mary will use her new
be worth only $500. The bank must take some credit card. The disclosure form that was given to
responsibility and it may have to approach the her when she opened the bank credit card account
dealership to recover its loss. shows, among other things, the Annual Percentage
Rate (APR) being charged for purchases and other
Disclosure to the Buyer types of charges that can be made on the account,
Most consumer transactions are one of two along with the due date and any penalty being
types: an open-end credit transaction or a charged if payments are not made on time, plus

90
any minimum interest charge and other fees that financed, showing the consumer how the amount
may be incurred. With each monthly billing state- being financed will be distributed.
ment, Mary will also receive notice of the APR
payments she has made, the balance on her Amount Financed Itemization
account, and other information, including her The best way to explain the itemization of a
right to dispute any inaccuracy. financed amount is by example. If Mary indicates
Now let us examine the concept of cost of on the disclosure form that she wants an itemiz-
credit disclosure for something other than credit ation, she would receive a written statement
cards. After having bought the vases, Mary similar to the following:
decides to buy a used car for her familys use.
She will not pay any money down and does not
have a trade-in, and she wants to obtain financing Itemization of the Amount
for 24 months. A cost of credit disclosure state- Financed of $5,145.50
ment for the purchase of the car would include
certain key disclosures, such as: $ -0- Any cash back amount the
the APR; dealer pays you directly
the total amount of finance charges; $ 5000.00 Amount paid to your account
the amount being financed; or paid directly to Big Wheel Auto
the total amount of the purchase, including
any down payment or trade-in allowance; Amount Paid on Your Behalf
$ 25.50 to Bureau of Motor Vehicles
the number of payments, the amount of each
$ 120.00 to Credit Life Insurance Co.
and the due date for each payment; $5,145.50 Total
any possible late charges;
any possible prepayment penalty;
notice of a security interest, if any, on the Such information is helpful because it shows
vehicle Mary is buying; the distribution of the amount financed. If part of
any fees or other charges included in the the amount financed included, as it does in many
transaction. motor vehicle transactions, a fee being paid to the
motor vehicle bureau or for credit life insurance
The price of Marys used car in our example or a prepaid finance charge, then that is entered,
is $5,000, and the interest rate is 12 percent APR. along with any types of insurance, such as credit
If there are no other charges or fees in the trans- life insurance in the above example. Car dealers
action, then the resulting finance charge would be routinely include the customers initial state title,
$675.31, and her first payment would be $262.03, registration and tag fees with the sale costs. If the
followed by 23 payments of $235.36 each. As a consumer wants to also purchase credit life or
buyer, Mary should make sure she receives the credit disability insurance in the transaction, that
disclosure form. She should then study the form cost is routinely included in the amount being
and the contract before making a final commit- financed. Generally, credit life insurance pays off
ment to Big Wheel Auto, the seller. the balance of the loan if the buyer dies before the
The disclosure form may be a separate form loan is paid off, and credit disability insurance
or part of the contract. If the disclosure form is not pays the monthly payments if the buyer becomes
part of the contract, it will not include the descrip- unable to work. Both types of insurance have
tion of the vehicle (make, model, color and serial routine restrictions and terms that should be care-
number) that is included in the contract. Many fully reviewed when making a purchase.
cost-of-credit disclosures itemize the amount

91
balances pay the maximum in interest, but do not
Credit Cards greatly reduce the principal amount of the debt
they owe.
Credit cards are perhaps the most widespread When purchases are made on a credit card, the
method of extending consumer credit. Some card issuer must send the cardholder a monthly
people use credit cards instead of cash or checks. statement (a bill). Under many plans, the card-
Historically, credit card (revolving charge) holder may pay the total monthly balance with-
accounts have been among the most expensive out charge (just as if the cardholder had an open
forms of consumer credit because many people account with the issuer).
do not reduce the principal balances on those In all cases, the cardholder may make a min-
cards each month. Instead, they pay just the imum payment and carry the balance into the
minimum payment while the principal continues following month(s) by paying a monthly finance
to accrue at a high interest rate. charge. The minimum monthly payment may
vary depending on the size of the balance, and it
Revolving Charge Accounts is not necessarily uniform among issuers.
A credit card is evidence that the credit A late payment fee is charged when a payment
card holder has a contract with the card issuer is received after the due date. In general, the card
to maintain a revolving charge account in the issuer has no security interest in the goods sold
cardholders name. This permits the cardholder (that is, it is unsecured credit).
to purchase goods and services at any time on Some credit card accounts are not revolving
presentation of the card where it is accepted. charge accounts but, rather, open accounts where
The first and most obvious advantage of the cardholder promises to pay the entire balance
using a credit card is that it allows the user to within a certain time period. In such cases, a bal-
buy goods and services without having to pay ance is not forwarded to the next billing period.
for them immediately. Most credit cards allow a The issuer can cancel the credit card immediately
grace period within which a consumer may pay and refuse to accept further charges if the bill is
for goods and services purchased on a card with- not paid on time. These credit cards are usually
out paying any interest charges. This feature travel and entertainment cards. For example,
allows a consumer to defer payment for pur- some credit card companies offer their cards to
chases, keeping funds in savings accounts until small business owners. The card gives business
the payment is due, and thereby earning interest owners access to cash for various purposes under
on the savings. Or, a consumer who doesnt have the promise that outstanding balances will be paid
funds available for the purchase can use a credit off monthly.
card to finance the purchase over a long period
of time. A credit card also may be used as a line Credit Card Law (In General)
of credit to increase flexibility in an individuals Credit card companies are willing to extend
budget for large and unexpected expenses. credit to consumers because it is profitable. Credit
The primary disadvantage of using a credit card issuers earn interest on consumers payments
card is the cost of interest. Users who do not pay when consumers do not pay off the entire balance
off their credit card balance promptly at the end of their credit cards on a monthly basis. Because
of the monthly billing cycle are charged interest of the popularity of credit cards in our society, it
from the date of the purchase until they pay off is important to understand some general rules
the balance owed. Additionally, because the about credit card law:
interest rate on credit cards is generally greater Credit cards cannot be issued indiscriminately.
than the market rate for most other loans, those They can be issued only in response to a writ-
who make the minimum payment on outstanding ten or oral request, or as a renewal or replace-

92
ment of an existing card. While companies when finance charges begin accruing and any
sometimes issue unsolicited credit card offers grace period (a period where no interest or
that may include actual credit cards, no card finance charges are made);
can be activated for use without the written the method used to determine the balance
or oral agreement of the person to whom the upon which the finance charge is computed;
card was issued. any fees or cash advances, late payments,
If a credit card is stolen or lost, the cardholder exceeding the credit limit, transferring
is liable for paying no more than $50 in any balance, and for a returned payment;
unauthorized charges, and maybe nothing at a description of the property or item pur-
all, depending on the credit card issuer. (The chased by the cardholder, if the lender keeps
maximum liability can be reduced by contract a security interest; and
or through negotiation. Further, the cardholder a reference to a website established by the
can reduce the maximum liability by reporting Federal Reserve at which consumers can
the loss as soon as possible after the loss is obtain information about shopping for and
discovered.) using credit cards.
A cardholder may, with limitations, with-
hold payments when a dispute arises over a Finally, the initial disclosure must contain
particular purchase. For the cardholder to a statement of the cardholders billing rights
exercise this right, however, the initial tran- under the federal Fair Credit Billing Act.
saction must have 1) exceeded $50 and 2) The cardholder also must receive periodic
taken place within the same state as the card- statements (bills) when there is an outstanding
holders mailing address or within 100 miles balance on the account. The terms used in the
from that address. If these requirements are periodic statements must be the same as those
met and the cardholder has made a good in the initial disclosure and must show:
faith attempt to resolve the disagreement the previous balance of the account;
with the merchant, then the card issuer may the transactions within the billing period;
not attempt to collect the amount in dispute credits to the account;
or issue adverse credit reports against the periodic rates;
cardholder until the dispute is settled. the balance on which the finance charge is
being computed;
Disclosure to Buyer (Cardholder) the finance charge;
Generally, a financial institution must notify the grace period during which the balance
a consumer in writing at least 21 days before must be paid to avoid additional finance
making changes to the terms or conditions of a charges;
particular account, if those changes would mean the annual percentage rate and any other
the consumer would pay more, or have increased charges;
liability or decreased access to the account. the closing date of the billing cycle; and
As noted earlier, there are special disclosure the address for notices of billing errors.
requirements for credit card accounts. Before a
credit card account is used, the card issuer must In addition to the initial disclosure and
provide the cardholder with a written initial dis- periodic statements, the card issuer must provide
closure, stating, among other things: the following:
the periodic (monthly) rate used to determine an annual statement of billing rights, if billing
finance charges and the annual percentage rate rights are not stated on each periodic state-
of the finance charges; ment (bill);

93
a written notice of any changes in terms of the
contract on the account (such notices must be Retail
made at least 45 days before the effective date
of the change); and Installment Sales
the existence and amount of any surcharge.
An individual who finances a new car likely
As noted above, the card issuer must tell will be participating in a retail installment sales
cardholders that they have the right to challenge transaction. A retail installment sale is any trans-
billing errors. (For example, you purchase lunch action where the purchase price is paid over time
for $10, but later look at your bill and discover in periodic payments. In this type of sale, the
that you were charged $100.) In summary, the buyer always gives the seller an installment note
procedure for challenging billing errors is as and a security interest or lien (like a mortgage)
follows: on the items purchased, which permits the seller
The cardholder must give the card issuer to repossess the items if the debt is not paid.
written notice (a billing error notice) of any Sometimes the contract, security agreement and
billing error within 60 days after receiving note are all included in one form. (The previous
the first statement (bill) containing the error. section discussing disclosure for credit cards is
The card issuer must resolve the dispute an example of the required kind of disclosure.)
within 90 days of receipt of the billing error
notice. If the dispute is not immediately Balloon Notes
resolved, the card issuer must acknowledge A buyer signs a balloon note when promising
receipt of the cardholders billing error notice to pay a series of small installments and a final
within 30 days of receiving it. large installment (or balloon payment) for the
The cardholder need not make payments on remaining balance. Balloon notes are permitted in
the amount in dispute and the card issuer may consumer transactions only if the note specifically
not charge interest on, or attempt to collect, allows the buyer to refinance the balance due on
the amount in dispute. Further, the card issuer the final installment at the same, or better, terms
may not issue any credit reports that would as the small installments.
adversely affect the cardholders credit rating For example, Joe buys a used car for $1,000.
until the dispute is settled. In fact, it is a vio- He makes a down payment of $100 and finances
lation of federal law for the card issuer or its the balance of the loan for two years at an interest
agents to threaten to make an adverse credit rate of X percent. With the finance charges added
report on account of the consumers failure to the unpaid balance, Joe normally would pay
to pay the disputed amount. monthly installments of more than $50. To reduce
Upon identifying the billing error, the card these payments, Joe could secure a balloon note
issuer must correct the error and send a requiring 23 installments of $35 each and a final
written notice of correction to the cardholder. installment of $397. According to Ohio law, Joe
If a billing error did not occur, the card issuer must be allowed to refinance the final installment
must send the cardholder a written explana- amount at the same interest rate of X percent, or
tion and may then bill the cardholder for the less.
amount due, including finance charges on
the disputed amount.

94
Acceleration of Payments at a discount by sellers of goods and services is
If the buyer is more than 30 days late on a a common and legitimate business practice.
payment in a consumer transaction, the seller
may demand that the payments be paid more Basic Requirements for a Home
quickly, or accelerated. Stated differently, the Solicitation Sale
seller can demand that the entire remaining In a home solicitation sale, the seller closes
balance be made immediately since, by delaying the transaction at the buyers home following a
payment, the buyer has defaulted on the loan. personal solicitation. An example would be the
purchase of a vacuum cleaner from a door-to-
Interest Refund door salesperson. Home solicitation sales do
A buyer who pays off the balance of a loan not include:
before the final payment is due is entitled to a sales under $25;
proportionate refund on any interest or finance sales of real estate, insurance, stocks, bonds,
charge that was included in the original loan or cars or automotive services (when licensed
amount. brokers or dealers in such items are making
the sales); or
sales at auctions.
Home Solicitation
To be valid, a contract for a home solicitation
Sales sale must be in writing and must contain substan-
tially the same language used in the sales pitch.
Paramounts 1987 film, Tin Men, parodied the That is, the salesperson cannot say one thing and
door-to-door aluminum siding sales industry of write something else into the contract.
the early 1960s. The film shed light on abuses that If the sale is made on an installment plan,
had become common in sales made at consumers the laws on retail installment sales apply to such
homes. Such abuses led Ohio and other states to transactions and must be followed. The contract
pass laws controlling home solicitation sales. must contain a cancellation notice (a clear
Common abuses included: description of the buyers right to cancel) and
deception and high-pressure salesmanship; clear instructions on how the buyer can cancel
the sale of goods and services the consumer the contract.
did not want or need; and
the sale of inferior goods and services at Right of Cancellation
grossly inflated prices. A buyer in a home solicitation sale may
cancel the contract at any time within three days
Another common abuse involved the business (the grace period) after it is signed by providing
practices of transient salespersons. Door-to-door a written notice of the cancellation to the seller.
salespeople would sell the consumers promissory If the sale is cancelled, the seller must return any
notestheir written promise to payto finance money paid, plus any trade-in or deposit. Also,
companies or banks for less than the face amount the seller cannot discount the note until five
of the note before leaving the area. In effect, they days after the sale, nor can the seller negotiate
left the consumer owing a finance company or (transfer) the note after the sale has been
bank, but did not provide the name of a person or cancelled. In such cases, the note must be
company to contact about any problems with the returned to the buyer. If the note is negotiated,
sale or with the goods and services. Note, how- the laws on retail installment sales apply and
ever, that the good-faith sale of promissory notes

95
the transferee (the person or entity who received There has been one attempt to repair a
the note from the seller) must notify the buyer of manufacturers defect that could result in
the transfer and give the buyer 15 days to say why serious injury or death and the problem
the note is not valid. For example, the buyer may continues to exist or reoccurs.
state that the note is not valid because he or she
had cancelled the transaction within three days. A (For more information about Ohios lemon
buyer who cancels a home solicitation sale must law, see www.ohiobar.org/lawyoucanuse. Type
return any goods in substantially as good a the word lemon in the search box.)
condition as when the buyer received them.
When an individual buys something for $25
or more from a home sales representative, he or Other Consumer
she has until midnight of the third business day
to legally cancel the transaction. In return, the Credit Transactions
company must give the buyer a notice of can-
cellation form along with a copy of the signed Other means of extending consumer credit are
contract, and must provide a valid address to through electronic fund transfers, small loans and
which the cancellation notice is to be sent. payday lenders.

Purchase of New Motor Vehicles Electronic Fund Transfers


(Ohios Lemon Law) The Electronic Fund Transfer Act establishes
Ohios lemon law, enacted in November the basic rights, liabilities and responsibilities of
1987, protects consumers against manufacturers individuals who receive electronic transfers to
defects that substantially impair the use, value or their accounts and make debit card transactions
safety of a new motor vehicle, either purchased using electronic fund transfer machines, more
or leased. These defects must be reported in the commonly known as automatic teller machines
first year or within 18,000 miles, whichever (ATMs) and point-of-sale terminals. The terms
comes first. The law protects passenger cars, light and conditions involving an individuals account
trucks (no more than one ton capacity and not must be disclosed in understandable language
used for business), motor homes (vehicle portion when such transactions occur.
only) and motorcycles. If the manufacturer is In addition to certain other specific require-
unable to repair the defect after a reasonable ments, the disclosure must include:
number of repair attempts, the consumer may be the consumers liability for unauthorized
eligible for a refund or replacement. The manu- transfers;
facturer is presumed to have made a reasonable the person or office to contact with questions;
number of repair attempts if any of the following a statement of any charges assessed for the
have taken place within the first year or 18,000 service;
miles, whichever occurs first: the circumstances under which the financial
There have been three or more attempts to institution will, in the ordinary course of
repair one problem and the problem either business, disclose information about the
continues to exist or reoccurs. customers account to third persons;
The vehicle has been out of service for repair the consumers right to stop payment of a
for 30 days or more. pre-authorized electronic fund transfer and
There have been eight or more attempts to how to initiate a stop payment order; and
repair different defects that substantially a statement of the consumers right to receive
impair the use, value or safety of the vehicle. documentation of electronic fund transfers.

96
Gramm-Leach-Bliley Act loan for payment at a later time pays a fee for
Signed into law in 1999, the Gramm-Leach- each extension.
Bliley Act requires financial institutions to give The federal Truth in Lending Act requires
customers notice about its privacy policies and payday lenders to disclose the cost of payday
practices when initiating the customer relation- loans. Individuals must receive, in writing, the
ship, and annually once a customer relationship dollar amount of the finance charge and the
is established. annual percentage rate.
Banks, credit card issuers and all other types Payday or cash advance loans secured by
of businesses that offer financial products and a personal check are very expensive credit.
services to consumers are required to protect the Throughout the 1990s, state public interest
privacy of non-public, personal information about research groups and the Consumer Federation
customers. Such institutions may not disclose of America studied payday lenders and found
non-public personal information to non-affiliated they were making short-term consumer loans
third parties, unless the financial institution meets of $100 to $400 at legal interest rates from 390
various disclosure and opt-out requirements, and percent to 871 percent in states where payday
the customer has not chosen to opt out of the dis- lending was allowed.
closure. This means financial institutions must Under Ohio law, check-cashing businesses
send out initial and annual notices of their privacy can make loans provided that each loan meets all
policies to customers, notifying them of their right of the following conditions:
to maintain the confidentiality of personal or pri- the total amount of the loan is not more than
vate (protected) information with non-affiliated $500;
entities, except in limited cases. the length of the loan is not less than 31 days;
the length of the loan is not more than six
months;
Small Loans the interest on the loan is not more than five
All loan companies must be licensed by the
percent per month, and no unpaid interest can
state of Ohio. According to state law, loan com-
be deducted from the loan proceeds or paid
panies are allowed to make small loansup to
in advance;
$5,000at special interest rates. They may charge
the loan is under a written contract;
up to 28 percent per year on the first $1,000 and
the contract states the terms and conditions
22 percent on loans of more than $1,000. Interest
of the loan;
rates are negotiable, meaning buyers can shop for
the contract discloses the total amount of
the best interest rate and terms. Sellers of money
the fees, charges and the rate of interest,
as well as sellers of merchandise can change the
calculated both as an annual percentage rate
terms of their documents, and interest rates on
based on the loan principal and as an annual
this type of transaction might fluctuate.
percentage rate based on the sum of the loan
principal plus any loan origination fee, check
Payday Lenders collection charge or other fee under the loan
Payday lenders make small, short-term, high- contract;
rate loans, called payday loans, cash advance any loan origination fee is not more than $5
loans, check advance loans, post-dated check per $50 of the loan amount;
loans or deferred deposit check loans. Typically, the contract states the total amount of each
an individual writes a personal check payable to payment, when each payment is due, and the
the lender for an amount, plus a fee. The lender total number of payments that will be made
gives the individual the amount of the check, under the loan contract;
minus the fee. An individual who extends the

97
the contract contains a highly visible state- by the court (non-exempt assets) to pay all or a
ment, warning that the rate of interest charged portion of the debts owed to creditors. Depending
on the loan is higher than the average rate of on where the individual debtor lived before filing
interest charged by financial institutions on bankruptcy, he or she may be entitled to keep (or
substantially similar loans; and exempt) some or all of the equity in certain kinds
the loan is not made for the purpose of paying of property (such as a house, car, boat or house-
off an existing payday loan. hold item).
Unless the money raised from the sale of the
Additionally, Ohio law limits payday loans property is expected to be greater than these
to a single borrower to four per year and payday exemptions and any liens or mortgages, the trustee
lenders may not make more than two loans to one may decide to abandon the item of property,
borrower within a 90-day period. meaning that the debtor gets to keep it. Through
this liquidation process, any debts not paid by
the trustee, with certain exceptions, will be dis-
Bankruptcy charged (eliminated), and creditors cannot force
the debtor to pay any remaining amount owed.
No discussion of business law would be com-
plete without an examination of bankruptcy. The Chapter 13
U.S. Bankruptcy Court is part of the federal court Chapter 13 of the Bankruptcy Code provides
system. (See Part II, The Courts.) Individuals for an individual reorganization, an alternative
and businesses use bankruptcy as a way to obtain to Chapter 7 that generally allows a debtor to
relief from debts owed to creditors. Title 11 of the keep personal property. A Chapter 13 debtor
United States Code governs bankruptcy. The U.S. must have regular income and meet certain debt
Bankruptcy Code has been amended several times and asset limits. Effective Oct. 17, 2005 under
since it was enacted in 1978, most recently with the Bankruptcy Abuse Prevention and Consumer
the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, individuals who earn
Protection Act of 2005. As federal law, it super- more than the median income in the state where
sedes any conflicting state law, and with the they lived before filing bankruptcy, and who
exception of certain exemptions, it is fairly can repay at least $6,000 of their debt over five
uniform from state to state. years, are no longer eligible to have all their
debts eliminated.
Types of Bankruptcy Instead, these individuals must repay their
There are four kinds of bankruptcy proceed- creditors over time and enroll in a financial coun-
ings, named for the chapters of the Bankruptcy seling program. Under Chapter 13, an individual
Code that describe them. The chapter best suited debtor submits a plan detailing how all of his or
for a business or individual depends on the nature her debts will be paid from disposable monthly
of the debts and the nature and value of assets. income (income after providing for ordinary liv-
ing expenses) over a period of time of up to five
Chapter 7 years. A plan or reorganization is monitored by
Chapter 7 bankruptcy, known as a straight a Chapter 13 trustee and supervised by the bank-
liquidation, is available to qualified individuals, ruptcy court. A Chapter 13 debtor must pay
married couples, corporations and business part- creditors at least as much as they would be paid
nerships. A Chapter 7 trustee, assigned by the if the debtors assets had been liquidated in a
U.S. Trustees Office or chosen by the creditors, Chapter 7 case.
liquidates (sells) any assets that are not protected

98
Chapter 11 court will issue a discharge of all qualifying
Corporations or other businesses typically debts in about three to six months after the
use Chapter 11 reorganization as an alternative original bankruptcy filing. At that point, the
to Chapter 7 liquidation. It also may be available case is complete.
for individuals who do not qualify for the Chapter In a Chapter 13 proceeding, the debtor files
13 individual reorganization because they cannot the same forms and a proposed repayment plan.
meet the debt and asset limits, or for those who The plan describes how the debtor intends to
do not wish to reorganize under Chapter 13. repay the debts over the next three to five years.
In a Chapter 11 reorganization, as in a Again, the debtor and trustee hold a meeting with
Chapter 13 reorganization, the business debtor the creditors to give them a chance to review and
may keep certain property and be required to question the schedules. After the meeting, the
pay creditors with future earnings according to debtor attends a hearing before a bankruptcy
a reorganization plan. judge who either confirms or denies the plan.
If the plan is confirmed and all the payments
under the plan are made, the debtor often receives
Chapter 12 a discharge of any remaining balance owed.
Chapter 12 is a special reorganization for
family farmers. To qualify, a family farmer must
earn most of his or her income from family farm- Exemptions
ing operations. The U.S. Bankruptcy Code and Ohio Revised
Code include a list of items bankruptcy filers are
permitted to keep from creditors during the bank-
Process of Filing for Bankruptcy uptcy proceedings. These items are called exemp-
To file for bankruptcy, the debtor files a
tions. Again, depending on where the individual
petition with the appropriate bankruptcy court
debtor lived before filing bankruptcy, he or she
and pays a filing fee, unless that requirement is
maybe entitled to keep (or exempt) some or all of
waived by the bankruptcy court. In addition to
the equity in certain kinds of property. In general,
filing a petition, the debtor must provide the
the exemptions available to debtors are as follows:
court with detailed information about assets
Equity in the home: The homestead exemp-
and liabilities on documents called schedules.
tion may allow debtors to protect all or some
These documents must include an accurate
of the equity in their homes.
list of everything owned and everything owed
Insurance: Debtors may be permitted to keep
to creditors, as well as personal information
the cash value of their life insurance policies.
concerning employment and transfers of money
Retirement plans: Pensions that qualify
or other property the debtor may have made
under the Employee Retirement Income
before filing for bankruptcy.
Security Act (ERISA) are fully protected
After these documents are filed, the debtor
from bankruptcy proceedings. In addition,
meets with a trustee. The debtors creditors are
many other retirement benefits are protected;
invited to this meeting. The trustee checks the
however, IRAs and Keoghs are not.
petition and schedules for accuracy. Also, the
Personal property: Most household goods,
trustee and creditors may ask questions about
furniture, furnishings, clothing (other than
the debtors financial situation.
furs), appliances, books and musical instru-
In a Chapter 7 case, the debtor must provide
ments are exempt up to a certain amount.
the trustee with any non-exempt property or its
Debtors may be limited in how much jewelry
value in cash. If no creditor objects, claiming
they can keep. Most states allow a debtor to
that a particular debt is not dischargeable (for
keep a vehicle if the debtor has paid off more
example, because it was incurred by fraud), the

99
than $2,400 of the vehicle debt; many states approval by creditors, who are divided into classes
give debtors a prescribed (or wild card) based on the characteristics of their claims, and
amount of money that they can apply toward whose votes are allocated based on the amount of
any property. Ohio permits $1,175 of wild their claims against the debtor.
card money. The filing of a bankruptcy petition does not
Public benefits: All public benefits, such as guarantee the discharge of debts. The bankruptcy
welfare, Social Security and unemployment court may deny a general discharge of debts if the
insurance, are fully protected. debtor commits certain acts of misconduct before
Tools used on the job: Debtors may be able or after filing the bankruptcy petition, such as des-
to keep a few thousand dollars worth of tools troying, concealing or removing assets that might
used in their trade or profession. otherwise be used to pay creditors. Also, a dis-
Wages: In most states, including Ohio, charge of debts may be denied if the debtor has
the debtor can protect at least 75 percent of destroyed or concealed records that show what
wages that have been earned but not yet paid. assets are available to pay creditors. Finally, the
bankruptcy court may deny a general discharge if
Discharge of Debts the debtor has lied under oath during the bank-
Individuals frequently opt for a Chapter 7 ruptcy case, or has refused to answer questions
bankruptcy because the debtor receives a dis- without a good reason. In addition to acts of mis-
charge of most unsecured debts within several conduct, a debtor will not be granted a general
months of filing the case. If the debtors income discharge if he or she has obtained a discharge in
appears high enough to permit some repayment a Chapter 7 case within six years of the date that
of debt, the trustee or the court may move to dis- a second bankruptcy is filed.
miss the case for substantial abuse. The theory Even if a general discharge is granted, some
is that allowing someone with the ability to repay debts are not discharged in bankruptcy. Also, the
to file Chapter 7 and avoid repayment abuses the type of bankruptcy affects which debts may be
bankruptcy system. This is why Chapter 13 is discharged. Generally, more debts are discharged
often a better choice for debtors if they: in Chapter 13 than in Chapter 7. Congress pro-
have debts that cannot be discharged in vided for greater relief under Chapter 13 as an
Chapter 7; incentive to encourage debtors to repay their
default on mortgages or car payments; debts through a reorganization plan.
own more property than can be exempted Debts that are generally not discharged in
from creditors in Chapter 7; bankruptcy include taxes assessed within 240
owe taxes or other debts that are not days of the bankruptcy filing, certain student
discharged under Chapter 7. loan debts, some child or spousal support debts
arising from a divorce, criminal fines and debts
Chapter 11 bankruptcy is a form of reorgan- arising from operating a vehicle while impaired
ization available to individuals, corporations and (OVI), and any debt incurred because the debtor
partnerships. It is the typical choice for large busi- has committed fraud, breached a fiduciary duty
esses seeking to restructure their debt. The debtor as a trustee, or committed a willful act causing
entity usually remains in possession of its assets injury to a creditor. The bankruptcy court ulti-
and operates the business under the supervision mately decides whether these types of debts will
of the court and for the benefit of creditors. A be discharged based on a particular debtors
Chapter 11 plan is allowed only with a vote of circumstances.

100
an individual is currently getting substantial over-
Common Sense in time pay is no guarantee that the overtime will
continue.
Business Transactions
Understand the Terms
Individuals and businesses often find them- Entering into a business transaction without
selves in difficult situations because they do not fully understanding the particulars is like hiking
wisely manage their business affairs. This is par- an unfamiliar mountain trail in the dark. It is
ticularly true when it comes to consumer credit unwise and you may get hurt.
transactions. Most troubles of this kind can be You should understand your rights and obliga-
avoided by following five simple rules: tions. Read and understand all paperwork, and do
use credit sparingly; not sign anything with blank spaces on it; every-
stay within a written budget; thing should be filled in, or crossed out if it does
understand the terms of business transactions not apply. Do not rely on sales talk. Rely only
before entering into them; on what is written in the contract, note, security
meet personal or business obligations, but if agreement, mortgage or other papers that formal-
trouble arises in meeting those obligations, ize the agreement. Consult a lawyer if you cannot
let the other party know immediately; and understand the terms of a contract or agreement.
keep accurate records. A lawyer can greatly assist in providing guidance
before you close a particular deal.
Use Credit Sparingly
Consumer credit can be expensive and should Meet Personal or Business
be used carefully. In the long run, it may be better
to pay cash and use the money saved on interest
Obligations/Pay on Time
Keep your promises once you make them.
to buy more goods and services. Often individuals
A good credit rating is invaluable. A bad credit
buy things because they believe they have an
rating can restrict you financially and may prevent
immediate need. Usually, however, it is smarter
you from obtaining credit in the future, or make
to save and pay cash later rather than to buy now
future credit more expensive. In fact, a bankruptcy
on credit and pay more in interest. Further, regular
filing likely will remain on your credit report for
savings through a bank, credit union, or invest-
seven years leaving you with limited credit
ment can make an individuals savings grow.
options during that period.
If you have trouble making payments on time,
Stay Within a Written Budget contact your creditors to discuss the situation.
Individuals should not commit to payments Creditors are often willing to adjust or temporarily
they may have trouble meeting. It is wise to pay delay payments.
the essentials first, such as housing, health care, People in the business of extending consumer
transportation, food and clothing, saving a little credit know that if they pressure a debtor in
extra for emergencies and leisure. Many indi- financial trouble too much or too quickly, they
viduals have discovered that adhering to a written may destroy the debtors ability to eventually
budget is extremely valuable to their financial make complete payment. A debtor who does not
planning and helps limit the number of impulse contact creditors when in financial difficulty may
purchases. give the creditors the impression that the debtor
Further, do not calculate overtime pay when has no intention of paying.
determining long-term payments. The fact that

101
Keep Accurate Records separate existence. The owner is directly affected
It is important to keep: by business profits as well as losses. Income is
copies of all signed papers; taxed on the owners personal return and not at
copies of all correspondence concerning the business level (business activity is shown on a
purchases and payments; separate schedule). Sole proprietorships are pop-
records of all tax payments in case a dispute, ular, but a disadvantage is that sole proprietors are
error or question arises; and completely and personally liable for business
mortgage and home-equity loan records as obligations. This means that their personal assets,
proof of the interest paid on these loans, such as homes and automobiles, are not protected
which may be deductible for federal income from debt obligations. A sole proprietor can start a
tax purposes. business at any time, but must obtain any needed
licenses and obey employment laws.

Business Partnership
There are various kinds of partnerships:
Organizations general partnerships, limited partnerships and
limited liability partnerships. A partnership is
The law of business organizations concerns similar to a sole proprietorship; however, it
the various forms of businesses, such as corpora- involves two or more owners operating a business
tions, limited-liability companies and partner- for profit. As in a sole proprietorship, the part-
ships, and the legal consequences that arise from ners pay the partnership taxes themselves (the
each form of business. partnership must file a tax return to show its tax-
able income and allocate it among the partners
Business Formation in General according to their interests). Also, in a general
There are several legal forms that a for-profit partnership, all the partners are personally liable
business can take. Each form requires complicated for business obligations.
legal and taxation decisions that can affect the Ohio recognizes three partnership forms:
business entity and its owners far into the future. The general partnership involves two or more
New businesses must consider the following owners conducting a business for profit. Gen-
issues: eral partners share equally in the right and
start-up expenses; responsibility to manage the business, and
the management structure desired; any individual partner can bind the entire
personal liability issues; group to a legal obligation. Each individual
tax consequences; and partner assumes full responsibility for all of
the continuing legal requirements imposed on the businesss debts and obligations. The tax
the business form by statutes and regulations. advantage of a general partnership is that
profits or losses are not taxed to the business,
Most businesses choose from among the fol- but pass through to the partners, who include
lowing forms: sole proprietorship; partnership; the gains on their individual tax returns at a
limited liability company; or corporation. lower rate or use the losses to offset other
ordinary income. No formal filing is required
to create a general partnership, though if it is
Sole Proprietorship operating under a name other than that of its
Sole proprietorship offers the simplest form
partners, it may need to file a certificate with
of organization, combining ownership and man-
the county recorders office.
agement in one person. The business has no

102
The limited partnership can be formed only ownership interests, or shares, in the company
by filing a certificate of limited partnership to raise capital. Two different kinds of tax treat-
with the secretary of state. Once formed, a ment are available for corporations, depending
limited partnership offers personal liability on whether the corporation qualifies for, and
protection for some of its participants. The elects to be taxed under, Subchapter S of the
limited partners have no voice in managing Internal Revenue Code.
the business and are not liable for its debts. A corporation is formed by filing articles of
However, as in a general partnership, limited incorporation with the secretary of state. Various
partners are liable for the tax on their shares other formalities, such as electing directors, adop-
of the partnership income. Every limited ting regulations and accepting subscriptions for
partnership must have at least one general shares, need to be carried out before the corpo-
partner who manages the partnership and is ration begins to operate.
liable for its debts.
C-Corporations
Ohio does not require a written partnership A C-corporation is a corporation that has not
agreement. In the absence of an agreement, the elected special tax treatment under the Internal
rights and obligations of the partners in a general Revenue Code. It is subject to corporate income
partnership are determined by Ohios version of tax on its profits and its shareholders are generally
the Uniform Partnership Act. Ohios Revised taxed on any dividends at a maximum rate of 15
Uniform Limited Partnership Act governs the percent. The application of these two layers of
rights and responsibilities of limited partnerships. tax is sometimes referred to as double (or dual)
However, it is wise for partners to define these taxation.
matters for themselves through a written partner- One advantage of establishing a C-corporation
ship agreement. Such efforts may help settle is that income tax brackets are lower than indiv-
disputes if they arise. idual rates for the first $75,000 of income. Due to
The limited liability partnership is similar to double taxation, however, the shareholders benefit
the general partnership, except that a partner most if earnings are retained and reinvested rather
in an LLP is not personally liable for the neg- than paid out to shareholders as dividends. A C-
ligence or wrongful acts of other partners or corporation has the flexibility to create different
of employees who have not been directly classes of stock containing varied distribution and
supervised by a partner. The partner is still voting rights.
personally liable for contracts entered into One of the disadvantages of C-corporation
by anyone on behalf of the partnership. To status is double taxation (described above), and
create a limited liability partnership, a regis- another is the trapping of losses in the corpor-
tration application must be filed with the ation. This means that losses are suspended and
secretary of state, and a report must be filed carried forward until they can offset corporate
with the secretary of state every two years. income. Shareholders of a C-corporation cannot
use losses to offset their individual income as
Incorporation owners in a sole proprietorship or partnership
The corporation is a separate legal entity can do. Finally, in Ohio and many other states,
that is liable for its own taxes and obligations. the C-corporation is subject to a separate state
This form insulates the owners, directors and franchise tax, which does not apply to S-
officers of the business from personal responsi- corporations or limited liability companies
bility for taxes and debts. A corporation can sell (LLCs).

103
S-Corporations or by a combination of members and managers.
An S-corporation is a corporation that has As a result, the LLC structure, as described in
elected to have its income and losses taxed like its operating agreement, can resemble that of a
a partnership. The chief advantage of an S-cor- corporation, a partnership or something in
poration is the ability to obtain limited liability between.
while eliminating the second layer of taxation. One of the disadvantages of the LLC is that
Also, shareholders can use corporate losses to employment taxes apply to all LLC distributive
offset their income from other sources. shares of member-employees. Also, because
One disadvantage of an S-corporation is its LLCs are a relatively new type of entity, there
rigid structure (only one class of stock is permis- may be issues regarding LLCs upon which the
sible). Also, the number of shareholders is limited courts have not yet ruled. In the area of taxation,
to 75, and there are restrictions on who can be a however, members can turn to the body of part-
shareholder. Only individuals, estates and certain nership law for answers if the LLC has not opted
trusts and tax-exempt entities can be S-corpo- out of pass-through taxation.
ration shareholders. Corporations and other enti- Most owners desire the protection of limited
ties generally cannot own S-corporation stock. liability. Both corporations and LLCs afford their
owner-employees limited liability from obliga-
Limited Liability Companies tions and liabilities of the company. In choosing
The limited liability company is Ohios newest among the various business entities, the facts and
form of business entity. Its owners are identified circumstances of each business must be consid-
as members. To form an LLC, articles of organ- ered. For many businesses that wish to avoid the
ization must be filed with the secretary of state. double taxation of a C-corporation, but want
Fewer formalities are required in the ongoing flexibility in management and distributions, the
operation of an LLC than are required for a LLC is an increasingly popular choice.
corporation. Members of an LLC are not liable
out of their personal assets for debts or obligations
of the business, unless they have specifically Nonprofit and Tax-
agreed to personally guarantee the debt. Members
are liable only for the amounts they have agreed Exempt Organizations
to invest in the business.
An LLC may elect to be taxed under the same A nonprofit corporation is a corporation that
rules that apply to partnerships. This means that is not formed for its members financial gain or
the business itself only files an information profit. The net earnings of a nonprofit corpora-
return with the IRS, and the income and losses tion are not distributed to its members, directors,
of the limited liability company are taxed to the officers or other private persons. A nonprofit cor-
members on their personal income tax returns. poration must follow the specific guidelines set
The LLC, unlike the S-corporation, can create forth in Section 501(c) of the Internal Revenue
different classes of membership interests having Code of 1986 if it wishes to obtain an exemption
different preferences in earnings and different from federal and state taxes that might otherwise
distribution rights upon liquidation. be imposed upon the income it receives. Nonprofit
An LLC may be managed by all its members, corporations that qualify as charitable, religious,
just as a general partnership is managed by all its scientific, literary or educational organizations
partners. Alternatively, the members can be cre- under Section 501(c)(3) also may receive contri-
ative in developing a management structure. The butions that are tax-deductible to their donors.
LLC can be managed by a manager, by a board, The government has granted special tax treatment

104
to nonprofit organizations because of the benefits stories about bankruptcy, readers and viewers are
the public derives from them. Many states also likely to understand more about bankruptcy when
regulate nonprofit corporations that engage in they understand the choices consumers and busi-
certain charitable activities. nesses can make when filing for bankruptcy (for
Structuring an organization as a nonprofit example, the differences between Chapter 7 and
corporation protects its directors, officers and Chapter 13 bankruptcies.) More recently, the
members from personal liability for the corp- federal governments bailout of whole industries,
orations debts and liabilities. Of course, its such as the auto and banking industries, has
directors and officers remain personally liable required local reporters to understand the impact
of federal policy on local business developments.
for their own negligence in carrying out their
Bankruptcies and foreclosures are popular media
duties to the nonprofit organization. topics that are increasingly affected by continuous
changes in federal policy, which in turn have had
an impact on Ohio law.
For Journalists: Often, the job of the reporter in covering this
area of the law is simply to educate. Unlike the
Covering Business criminal trial, in which the reporters goal may be
Transactions and Organizations to tell the public about how its government is trying
to ensure safety and punish criminals, the reporter
Covering the law of business transactions covering a credit card story or a bankruptcy filing
and organizations mostly involves following and plays a critical role in educating the public about
researching the detailed paper trail of business consumer and business protection issues. In many
establishments, much like covering contract law cases, the media may be the first and only contact
(Section VI). Journalists covering credit card, loan the consumer or business has about this aspect of
or bankruptcy stories are advised to spend time the law.
reading about the law, comparing that law to the Because such laws and regulations are often
notices issued by businesses regarding these issues, intricate, experienced legal reporters often try to
talking to attorneys involved in disputes and talking represent such laws in graphic form. Writers are
to business spokespersons about the disputes. As encouraged to employ the help of graphic artists
when covering other areas of the law, journalists and web designers who can often communicate
need to understand the subtle differences in such important intricacies in the form of charts,
business and consumer options. For example, in visual graphic devices and online links for more
information.

105
Chapter Summary
Special sets of rules govern many daily business transactions.
Business transactions may involve several major fields of the law, particularly the law of
contracts and the law of property.
Ohio and other states have adopted the Uniform Commercial Code (UCC) to govern a wide
range of commercial transactions that may cross state lines.
Checks and promissory notes are the most common forms of commercial paper. Drafts, bills
of exchange and certificates of deposit also are common forms.
Commercial paper is transferred or negotiated by endorsement.
Holder in due course is a doctrine giving some assurance to individuals (or entities) who
were not parties to an original transaction that the commercial paper (or negotiable
instrument) is valid.
The maker of a cognovit note acknowledges the debt and authorizes the creditor to enter a
judgment against him or her without notice or a hearing in case of default. In Ohio, cognovit
notes cannot be used in consumer transactions.
Consumer transactions often depend on the use of credit.
State and federal laws cover most consumer transactions, including those involving credit.
The credit card is perhaps the most widespread method of extending consumer credit.
A credit card represents the credit card holders contract with the card issuer to maintain a
revolving charge account in the cardholders name. This allows the cardholder to use the
card to buy goods and services.
A retail installment sale is any transaction where the purchase price is paid over time by
making periodic payments.
In a retail installment sale, the buyer always gives the seller an installment note and often a
security interest or lien (similar to a mortgage) in the items purchased, permitting the seller
to repossess the items if the debt is not paid.
In a home solicitation sale, the seller (commonly known as a door-to-door salesperson)
comes to the buyers home to solicit and close the sale.
Lemon laws protect consumers who buy or lease vehicles by requiring manufacturers,
under certain circumstances, to replace or buy back defective vehicles that cannot be or have
not been properly repaired in a timely manner.
Consumers also may get credit through electronic fund transfers, small loans and payday
lenders.
Bankruptcy is a process designed to help consumers and businesses eliminate their debts or
repay debts under the protection of the bankruptcy court.
The law of business organizations concerns the various forms of businesses, such as
corporations, limited liability companies and partnerships, and the legal consequences that
arise from each form of business.
A nonprofit corporation is a corporation not formed for financial gain or profit, and none of
its net earnings may be distributed to its members, directors, officers or other private
persons.

106
Web Links:
From the OSBAs Law Facts pamphlet series:
www.ohiobar.org/lawfacts (search by title)
What you should know about Bankruptcy

From the OSBAs Law You Can Use column:


www.ohiobar.org/lawyoucanuse (search by title or topic)
Bankruptcy Law Limits Filing Choices
Consumer Sales Practices Act Addresses Predatory Lending Issues
Consumer Sales Practices Act Affects Mortgage Brokers, Appraisers and Lenders
Consumers Should Exercise Care When Purchasing Health Products Online
Consumers Use Arbitration to Settle Lemon Law Disputes
Credit Repair: You Can Do It Yourself
Federal Law Restricts Activities of Debt Collectors
Franchise Laws Protect Investors
Guard Against Identity Theft
Holiday Spending with Credit Cards: How Much Do You Know About It?
How Do Consumer Class Action Lawsuits Work?
Member-Owned Credit Unions Offer Banking Alternatives
Ohios Lemon Law Protects Consumers
Some Contracts Can Be Cancelled within Three-Day Period
Stores Must Honor Shelf Prices
To Lease or Buy: Know the Differences before You Decide
Use Caution When Considering Foreclosure and Debt Mitigation
What Consumers Should Know before Selecting a Credit Counseling Agency
What You Should Know about Being a Smart Bank Customer
What You Should Know about Online Shopping

From Nolo.com:
www.nolo.com
Links to resources and information of interest to small businesses
Search by topic: under bankruptcy, personal finance and retirement

Continued on page 108

107
Web Links continued
From the Ohio Attorney Generals website:
www.ohioattorneygeneral.gov/consumers
From the federal government:
www.donotcall.gov
www.usa.gov (type consumer in search box)

From the Consumer Federation of America:


www.consumerfed.org

From Findlaw:
www.findlaw.com
Legal topics: bankruptcy and debt; consumer protection

Bibliography
Pakroo, Peri H. The Small Business Start-up Kit.
Berkeley, CA: Nolo.com, 2010.
The American Bar Association Legal Guide for Small Business. Second Edition.
New York: Random House, 2010.

108
Part VIII_________________________
property law
To those who are engaged in commercial dealings, justice is indispensable for the conduct of
business.
Cicero

uying property is considered a land and to various rights that go along with land

B
vital part of living the American or some interest in it.
Dream. While most people buy The term land includes the actual surface
property for personal enjoyment, area and everything under and above a parcel
some individuals make a business of ground. In the past, ownership of a parcel of
of buying, selling, leasing, or land began at the center of the earth and extended
renting real property. So, whether someone is a through the boundaries of the parcel out into
homeowner, business owner, real estate magnate, space. Today, the airspace above the parcel is not
or merely interested in purchasing land as an exclusive; it is considered to be part of the public
investment, it is important to understand the large domain and subject to rights of navigation, which
and complex world of property law and, in means that members of the general public can
particular, real property law. travel through or use that airspace.
Generally, a fixture is something not naturally
a part of the land, but affixed to the land in such
Kinds of Property a way that it cannot readily be removed without
causing damage. Because buildings are usually
The word property has many meanings. In affixed to land, they are thought of as real prop-
a strict legal sense, it signifies ownership. As a erty. A furnace is personal property until it is
practical matter, it refers to objects that can be installed, when it becomes a fixture. If something
owned. The two main classifications of property on the land is portable, such as a mobile home, it
are real property and personal property. Real may or may not be considered part of the land,
property law deals with land, fixtures on land, depending on how it is installed. For example,
and rights and other intangible interests relating crops and trees are part of the land while growing,
to land that are capable of ownership. Real prop- but become personal property when they are har-
erty may include land, a single-family house, vested. The same is true of minerals, which are
a condominium or a vacation home. Personal part of the land in their natural state, but become
property is anything that is not related or attached personal property when mined, quarried, pumped
to real estate; it may be tangible or intangible. or otherwise removed. Fixtures such as crops and
Personal property might include cars, clothes, minerals are sometimes referred to as mixed prop-
furniture, refrigerators, tools and cash as well as erty, because they have some characteristics of
various rights or interests such as stocks or bonds. both real and personal property.
(Different aspects of personal property law There are many degrees of land ownership,
are also addressed in Part VI, Contracts, ranging from full ownershipthat is, including
and Part VII, Business Transactions and all rights relating to it, such as the right to sell it
Organizations.) or give it awayto rental (permission from the
owner to use a portion of the land for specific
Real Property purposes). (Of course, all interests in property
The terms real property, real estate and realty are subject to the rights of the community. Thus,
refer to land, buildings and other fixtures on land. even the full owner of real estate must comply
They also refer to different kinds of interests in with zoning and building codes, for example.)

109
Someone who has less than full ownership of
land is said to have a partial interest in the land. Types of Real
Certain types of ownership carry particular rights,
such as the right of a landowner to receive any Property Ownership
rent the land might yield.
When an individual is said to own real estate,
Personal Property it usually means that he or she is the full owner of
Personal property is anything that is not real a particular piece of property. Full ownership is
estate or affixed to real estate. Personal property only one of the ways to own real property. Or,
can be tangible or intangible. someone with a lesser degree of ownership might
Tangible personal property can be transported, have an interest in a property for a lifetime (called
seen and touched. Examples of tangible personal a life estate) or for a period of years, months or
property include cars, clothes, furniture, refriger- even weeks. Ownership also may be shared in
ators, tools and cash. various ways.
Intangible personal property includes various Property may act as security for debt, and the
rights or interests that cannot be seen or touched. security interest is a kind of shared ownership. An
Examples include ownership of stocks and bonds, individual may own an interest in real property
ownership of a debt and the right to bring a legal merely by having the owners permission to use
action. Stocks and bonds merely represent the it in a certain way, such as where the owner of a
value of the underlying interest; it is not the large yard allows the neighborhood children to
underlying interest. For example, a stock play ball there. Many different kinds of interests
certificate represents an amount and kind of can be separated from the full ownership and can
ownership interest in a particular corporation. be owned or disposed of separately. For example,
Personal property includes money in a bank the mineral rights of a piece of property can be
account, interest in a joint bank account, or a sold while the property owner continues to own
payable-on-death account. A joint-and-survivor- the land and live on it.
ship bank account is an account in the names
of two or more individuals who have an equal Fee Simple
right to the assets in the account with ownership Full ownership of real property is called fee
passing to the survivor(s) on the death of one of simple ownership, fee simple title or, sometimes,
them. The payable-on-death account (POD) is ownership in fee. The distinguishing characteristic
an account owned by one person during his or of a fee simple title from lesser degrees of owner-
her lifetime, which passes, on the owners death, ship is the right to pass full ownership to someone
to one or more named persons. else, whether during the original owners lifetime
Personal property is subject to a set of rules or upon his or her death.
that is different from those governing real prop-
erty. Because there is such a wide variation in
types of personal property, a variety of rules
govern its ownership and use.

110
interest in the property. Further, the life tenant
Fee simple ownership cannot destroy or waste the property because
also gives the right to such action affects the rights of those who will
own the property after the life tenant dies.
use the real property as the owner sees fit; When a life estate is created, a remainder
allow others to use the property; interest is also created. The person who holds the
limit the use of the property by other remainder interest (called the remainderman)
people; automatically acquires the fee simple title to the
property when the life tenant dies. The terms
sell, rent or lease the property;
of the original grant determine whether the fee
collect rents or profits the property yields; simple title stays with the remainderman. If no
and
remainderman is named, fee simple ownership
mortgage the property. reverts to the original owner or to the owners
heirs upon the death of the life tenant.
Fee simple ownership of real property is
sometimes described as absolute ownership.
Types of Joint or Common
This description is misleading because there are Ownership
substantial limits on how a fee simple owner may In Ohio, there are currently two different
use the real property. For example, the fee simple forms of ownership of real property where two
owner must pay taxes on the real property, abide or more individuals own the property: tenancy
by zoning and other restrictions on the use of the in common and survivorship tenancy.
land, and honor the rights of others who own an In a tenancy in common, each owner has
interest in the land (tenants, lessees, mortgagees, an undivided, fractional share of the property.
holders of easements, etc.). Further, the fee simple Depending on how the tenancy in common is
owners use of the land must not interfere with the created and the transactions that subsequently
rights of other landowners or the public. take place, the shares may be equal or unequal.
Regardless of the size of an individuals share,
Life Estate and Remainder Interest each tenant in common enjoys full ownership
of his or her share, and can sell, mortgage, use
A fee simple property owner can grant owner-
or dispose of it as a full owner. On his or her
ship of the property to another person for the
death, the tenancy passes to heirs or to those
duration of the other persons life. This type of
named in the will of the tenant in common.
ownership is called a life estate. The person who
For example, if one tenant wishes to take
holds the life estate is called a life tenant. (The
control of his or her rights in the property, or to
term tenant may be confusing. In this context,
obtain the monetary value for that part, the tenant
tenant does not refer to a participant in a rental
may file a lawsuit to divide or partition the prop-
arrangement, but to a kind of ownership in real
erty. If partition is ordered, the property may be
property.) With certain important exceptions, a
physically divided and a fee simple portion given
life tenant can treat the property in much the same
to each tenant in common, or the property may be
way that a fee simple owner can treat the property.
sold as a unit and the proceeds divided among the
For example, a life tenant has access to the
tenants in proportion to their respective shares.
property and is entitled to use the property, to
In Ohio, a survivorship tenancy is a form of
lease it, and to retain any rents or profits the prop-
joint ownership created by statute. A survivorship
erty may yield. However, by definition, the life
tenancy is similar to tenancy in common, except
tenants interest in the property ends at his or her
that tenants have a right of survivorship. That is,
death. The life tenant cannot sell a fee simple

111
when one tenant dies still owning his or her share, tenant in common with other apartment owners
the share passes automatically to the surviving as to halls, stairways, recreational facilities,
tenant(s). Thus, a survivorship tenancy interest walkways and other common areas, including
cannot be transferred by will, as the nature of this the ground on which the building stands. Of
form of ownership is that it automatically passes course, because each owner has an interest in
to the survivor(s). these common areas, he or she also must con-
The right of survivorship may be ended tribute toward their maintenance and repair.
where, for example, all tenants transfer or convey
their interest to a third person. Leasehold Estate
In most states, the right of survivorship is A property owner may give temporary pos-
automatically created when a joint tenancy session and use of a particular property to another
(common ownership by two or more persons) individual in return for the payment of rent or
is created. In Ohio, however, the right of survi- something else of value. If the owner does this by
vorship must be specifically described in the means of a written agreement called a lease, the
document that creates it. The statute allowing party taking possession of the property acquires a
joint tenancy with right of survivorship states leasehold interest or leasehold estate. In such a
that this law should be liberally interpreted to case, the landowner is called the lessor or landlord
comply with the intent of the owners. However, and the person to whom the property is rented is
the legal document that creates the joint tenancy called the lessee or tenant. The term of the lease
must use clear survivorship language. If the may be weeks, months, or years. Many residential
document does not have such a provision, the property leases are for one year, whereas business
result will probably be tenancy in common. property leases are often for five, 10, or 20 years
It should be noted that joint and survivor or longer. A lease may provide one or more
ownership is commonly used for both real prop- renewal options. An example of a renewal option
erty and personal property. A bank account with is a provision that states the tenant may extend
more than one name on it, for example, normally the lease for another year at a rate that will be
is joint and survivor property, because the signa- adjusted by a certain formula. This provision
ture card that opens the account usually contains gives the tenant the security of knowing that the
survivorship language. lessor will not lease the property to someone else
Tenancy by the entireties is essentially a at the end of the term without first giving the
survivorship tenancy created by a husband and tenant the right to stay.
wife. Ohio law allowed tenancy by the entireties Commonly, leases state that a tenant or lessee
from 1972 to 1984. Under that statute, each cannot sell a leasehold interest (that is, sublet the
spouse owned the entire property and the entire property or assign the lease to someone else, with-
ownership automatically transferred to the sur- out the lessors [owners] permission).
viving spouse. Tenancy by the entireties can no If the lessor sells fee simple title to the prop-
longer be created in Ohio, although those interests erty during the term of a lease, the new owner
that were created while the statute was in effect must honor the lease.
are still valid. Sometimes a lease provides for automatic
Condominium ownership created by statute is renewal: that is, if the lessee does not tell the
a hybrid of individual and group ownership. An owner he or she is going to leave the property at
individual condominium owner normally owns a the end of the term, the lease is automatically
portion of the property (such as one apartment) renewed. Sometimes the lease will specify that a
outright and a portion (the common areas) as a tenants holdover (failure to leave the property)
tenant in common. For example, each resident is not an automatic renewal of the lease term,
might be a fee simple owner of the unit and be a

112
but converts the tenancy to one running from loan, the bank can foreclose its mortgage lien,
month-to-month, week-to-week, or at will. sell the property, and pay off the loan from the
Obviously, it is very important to read and proceeds of the sale.
fully understand the specific terms of a particular There are many other types of liens:
lease or rental agreement, as the terms can vary A tax lien attaches to real property at the
widely. beginning of each tax year, even though the
actual amount of the property taxes has not
Tenancy from Month-to-Month, been determined and the taxes are not yet due.
A tax lien is just like a mortgage lien, but it
Week-to-Week, or at Will exists automatically, because all property
Rental arrangements not bound by a lease
owners have a duty to pay real estate taxes
may be either by the month or at the pleasure of
to the community. To ensure that those taxes
the parties. (See the Landlord and Tenant sec-
are paid, the community automatically has the
tion later in this chapter for more information.)
protection of this lien on the property. If taxes
Usually, when residential property is rented with-
are not paid for a long enough period, the
out a lease, it is on a month-to-month basis. The
communitythat is, county authoritiescan
tenant is entitled to possession for one month at a
have the property sold in order to pay off the
time, and if he or she stays on the premises for
tax debt.
even one day into the following month, occupancy
A judgment lien may be used when someone
is renewed for that entire month. One months
has won a money judgment in a lawsuit and
notice by either the landlord or tenant generally is
wants to make sure to collect the money that
necessary to terminate a month-to-month rental
is owed. Let us say Mr. Smith was awarded
agreement, and one weeks notice is necessary to
$25,000 from a lawsuit against Mr. Jones
terminate a week-to-week agreement.
over injuries sustained in a traffic accident.
Transient accommodations, such as furnished
If the $25,000 is not paid, Mr. Smith can file
rooms, are often rented by the day, and rental
a judgment lien on Mr. Joness property,
arrangements of this sort can usually be termin-
and ultimately can ask the court to have Mr.
ated by either party without advance notice, that
Joness property sold to generate cash to pay
is, terminated at will.
off the $25,000 judgment.
One way of making sure an arrested person
Liens and Mortgages will appear for a criminal trial is for the state
A lien is a claim against property to secure the to place a lien on the defendants property by
payment of a debt or the performance of some act. the terms of the bail bond he signs.
The most common form of lien is created when an A mechanics lien protects those people who
individual mortgages his or her real property to build or repair homes or other buildings. If the
another person to ensure repayment of a loan. owner does not pay the bill within a certain
That is really what a mortgage is about: a period of time, the party supplying labor or
bank loans a large amount of money to a real materials can file documents to secure a lien
estate buyer, but nobody is likely to loan a buyer against that property. Again, as a practical
$100,000 without some protection. That protec- matter, the property cannot be sold to a third
tion is the signed mortgage that gives the bank a person without paying the amount owed, and
special kind of lien on the property. Most mort- the lienholder (for example, the contractor)
gages provide that the real estate owner cannot ultimately can ask the court to have the prop-
convey (sell) a fee simple interest in the property erty sold and the proceeds of the sale applied
to someone else without first paying off the bank to pay the outstanding bills.
loan. And if the real estate owner fails to pay this

113
Property is frequently subject to many liens. sell or otherwise transfer it to someone else.
In such cases, it is desirable to avoid a series of Also, the property owner can terminate a license
foreclosures and forced sales. Accordingly, when at any time. A typical example of a license
one lienholder sues to foreclose, all lienholders would be oral permission for a person to hunt
are notified and their claims dealt within the same on another individuals property.
suit. This process is called marshaling of liens. Because an easement is a genuine interest in
When there are many liens, the property may property while a license is not, a dispute may
not be worth enough to cover all liens, so it is arise about what kind of permission was given.
necessary to determine the priority of liens. The If the court decides that an easement was granted,
general rule is that the first lien in time is the first the permission is an enforceable property right,
lien in priority (first come, first served). Thus, whereas if the court decides that only a license
when the property is sold, the first lienholder will was granted, then no property right is involved.
be paid. If enough money is left, the second lien-
holder will be paid, and so on in order of priority. Mineral Rights and Similar Interests
The priority of some liens is outlined by statute. Rights to search for and develop minerals and
Thus, for example, tax liens almost always take harvest timber are among important real property
priority over other kinds of liens. interests that may be owned separately. Typically,
these activities require a lot of money, so land-
Easements and Licenses owners often lease mineral or lumber rights to
Sometimes a landowner will give someone professionals. For example, a landowner might
permission to use part of his or her property for a lease the mineral rights to his or her property to
specific purpose. Such permission may be either an oil-exploration company in return for a flat
an easement or a license. payment when the lease is signed, plus a royalty
An easement is formal permission, granted of, say, one-eighth of the value of any oil or nat-
in writing by deed or similar document, to use ural gas brought to the surface. Leases to mine
anothers property. An easement can run with coal, quarry stone, sand, or gravel usually involve
the land, meaning it remains valid even though fixed rent rather than royalties. Timber leases
the property involved is rented, mortgaged, sold often are granted for a single, flat payment, but
or transferred through a succession of owners. sometimes also include payment based on the
Normally, an easement is automatically cancelled amount of timber cut.
when the easement holder abandons the specific Sometimes, ownership of the property itself,
purpose for which it was granted. Easements are and of the mineral rights, is transferred separately.
commonly granted to utility companies to install There are many areas in Ohio, for example, where
and maintain water, sewer, gas, electric, and tele- mineral rights were transferred more than 50 years
phone and cable lines across private property. ago; the land is now owned by grandchildren of
Sometimes an owner whose property has no the original landowner, and the original oil
entryway (ingress) or exit (egress) will acquire company long ago sold out to a major producer
an access easement across adjoining property. but the land is still being farmed, the wells are still
A license is informal permission to use producing oil and royalties are still being paid.
anothers property and is most often personal Under certain circumstances, mineral interests not
in nature (that is, the rights may be exercised exercised for at least 20 years can be considered
only by the specific person to whom the per- abandoned and the interest in the mineral rights
mission is given). It may be in writing, but is returned to the landowner. This termination of
more often oral and may be implied from the mineral interest can be very important to clear title
conduct of the parties. Licenses do not run with to property.
the land, so that the holder of a license cannot

114
is signed by the grantor; and
How Real is acknowledged (notarized) by the grantor.

Property Ownership If the grantor is an individual, a deed should


state whether the grantor is married so that a
Is Transferred spouses interest in the property (called a dower
interest) can be determined and released. In a
Property is a commodity, meaning it often general warranty deed, the grantor guarantees
changes hands from one individual to another. that he or she has legal authority to transfer the
An individual can acquire an interest in real property and will defend the title to the property
property through: against all claims of other people. If the grantees
a written document, such as a deed, lease, title is successfully challenged at a later date, the
mortgage or other conveyance; grantee has a claim against the grantor based on
inheritance; the grantors warranty. A limited warranty deed
the operation of law (such as a property (referred to in some states as a special warranty
transfer following abandonment by the deed) guarantees title only as to acts of the
owner or a transfer ordered by a court grantor and matters arising during the grantors
following a lawsuit); or ownership. Warranty deeds are used to convey
adverse possession or prescription, that fee simple title. A quitclaim deed is similar to a
is, through squatters rights. warranty deed, except that it does not guarantee
the grantors title to the property. The effect of a
Deeds, Leases, Mortgages and other quitclaim deed is to convey the grantors interest
in the property (if he or she has any), without
Conveyances guaranteeing that he or she has any interest to
Fee simple interest in land is generally granted
convey and without guaranteeing that the prop-
through a deed. A leasehold interest is granted by
erty is free from liens or other claims. Quitclaim
means of a lease. A mortgage is an interest in land
deeds are often used to adjust boundaries, correct
where the land is pledged to secure or guarantee
errors in previous deeds and to obtain releases in
payment; it is created by a document called a
land disputes.
mortgage deed, or, more simply, a mort-gage. A
A lease is used to bind a property rental
conveyance is any transfer of an interest in real
agreement and is both a contract and a transfer
property, whether done by deed, lease, or
of an interest in the property. A lease names the
mortgage. Deeds, leases and mortgages are not
property owner (the landlord or lessor) and the
only conveyances (transfers) of real property
renter (the tenant or lessee) and describes the
interest, but they also may be contracts or con-
premises involved. It states the period of the lease
tained in contracts, meaning that other rights and
and the amount and method of payment of the
obligations may be spelled out that the parties
rent. The lessor usually promises to protect the
must honor.
lessees possession and quiet enjoyment of the
The higher degrees of ownership in land are
property. The lessee promises to pay the rent as
almost always granted by means of a deed or
agreed, use the premises for proper purposes,
similar document that:
protect the property from undue harm and return
names the person making the grant (the
it in good condition when the lease expires. The
grantor) and the person to whom the grant
terms of a lease frequently cover a variety of other
is being made (the grantee);
matters, such as renewal and assignment.
describes the property or interest being
granted in formal, technical terms;

115
A mortgage is similar to a deed, except that inheritance or survivorship in real property, that
the mortgage lenders ownership of the property interest passes when the property owner dies. Title
is in the nature of a lien, enforceable against the to personal property, on the other hand, is not
property upon default. A mortgage states the pro- automatically assigned to heirs. Although the title
missory note amount and terms for the repayment to real property passes immediately upon death,
of the debt, as well as the language usually found real property and interests in real property may
in a deed. The borrower (called the mortgagor) have to go through an estate administration
may have to take steps to protect the lenders process to ensure that the deceaseds debts and
security, such as paying the taxes when due and taxes are paid and that the transfer of title to the
keeping various insurance policies up to date. property is properly recorded in public records.
Further, a mortgage states that if the borrower (See Part IX, Probate Law, for a more
or mortgagor pays the debt in full as agreed, the complete discussion of inheritance and estates.)
mortgage will become null and void and the lien
will be released; but if the debt is not paid accord- Transfer by Operation of Law
ing to the terms of the promissory note, the lender Ownership in real property may be transferred
can ask a court to foreclose the mortgage and without a formal conveyance procedure. Such a
cause its sale to satisfy the amount due to the transfer may occur as the result of a judgment
lender. in a lawsuit. For example, a divorce decree, or
the court order in dissolution of marriage that
Transfer by Inheritance approves a separation agreement, may award the
When someone dies owning or holding some family home to the wife (or husband), and the
interest in real property, the deceased owners decree, or order, may have an effect similar to a
interest must be transferred to another person or deed. An abandoned mineral interest is another
entity. That other individual may be a beneficiary example.
named by the deceased owners will or the per-
son entitled by law to the property when there is Transfer By Adverse Possession
no will. This other individual also may acquire
the property of the deceased because he or she
or Prescription
Sometimes the title to real property or an
owns the remainder interest after a life estate,
interest in real property is transferred because
or because of a right of survivorship. Ohio also
the original owner neglects his or her rights.
recognizes transfer-on-death (TOD) affidavits
For example, an individual may acquire title
(and, under prior law, transfer-on-death deeds).
to another persons real property by adverse
Such affidavits or deeds transfer ownership to
possession (which, in lay terms, is something
an individual named in the affidavit or deed
like squatters rights). Adverse possession is
upon the death of the property owner. Transfer-
using real property without permission contin-
on-death affidavits or deeds differ from right of
uously for 21 years, provided that the use is
survivorship deeds in that survivorship property
obvious and exclusive against others and that
is owned jointly by the individuals during the
the original landowner does nothing significant
life of both of them, whereas ownership of TOD
to assert his or her rights as owner. Sometimes
property goes to the second individual named
entire tracts of land are acquired by adverse
in the affidavit or deed only upon the death of
possession, although the usual case involves a
the title owner.
small portion of someones property that an
A feature that distinguishes real property from
adjoining owner uses for 21 years. For example,
personal property is that real property automatic-
one individual may build a fence three feet into
ally belongs to the successor on the death of the
his neighbors side of the property line, without
lifetime owner. When an individual has a right of

116
realizing it is the neighbors property. If the
neighbor does not consent and fails to dispute Land Records
the fences location and this situation continues
for 21 years, the individual who built the fence Ownership of real property is recorded in a
will own the property by operation of this legal government office for the owners protection.
principle. Under the law, if an individuals ownership
Similarly, an easement (the rights to use interest is not made a matter of public record, he
real property) may be acquired by prescription, or she may not be able to assert titleespecially
which is based on actual use (without permission) against those who innocently purchased the prop-
coupled with the landowners failure to prevent erty from a former owner. Every state maintains
the use. An example of a prescriptive right is a public records of land and transactions and events
right-of-way acquired over anothers property affecting land ownership. In Ohio, the county
by using the property for driveway purposes for recorder of each of the states 88 counties main-
a substantial period of time without complaint tains ownership records for the land within its
by the owner; the non-owning person acquires geographical borders. A careful search of these
an easement by prescription. records will reveal the status of the record title
or ownership of any given parcel of land.
Encouraging Unrestricted Transfer
Feudal land laws in medieval times allowed Necessity for Land Records
the concentration and retention of land (and thus Just because someone lives in a house on a
wealth and power) in the hands of a few families, certain property does not mean that person is
thus stifling economic growth. In response, soci- the property owner. The actual owner may or
ety developed a policy that land should be freely may not live on the land. Further, the actual
transferable. The law gradually developed legal owner of the land may be an international
rules implementing this policy. The proper devel- corporation with headquarters outside of the
opment, use and transfer of land are essential to country. Consequently, some system of land
the health of our national economy. records is necessary to keep track of land titles
The law generally does not permit grantors and interests. The primary value of land records is
(those who transfer their property) to impose to give notice to anyone examining these records
restrictions that would unreasonably keep future of the existence and nature of interests in, and
owners from selling, leasing, mortgaging, or claims on, real property.
otherwise disposing of the property as the future An individual with an interest in real property
owners see fit. is responsible for filing documents to prove he or
The rule against perpetuities is another rule she has a right to that property (this filing is often
that encourages free transfer of property by called recording). Failure to record does not, in
limiting the period of time a property owner can itself, destroy the individuals interest in the prop-
delay a change of ownership. This rule states erty, but it may prevent the individual from taking
that any grant of interest in real property that is action against anyone who might subsequently
to occur in the future must take effect, if at all, challenge that interest.
within the period of the life or lives of benefici- For example, if a buyer has not recorded a
aries living at the time of the grant, plus 21 years. deed establishing the property transfer, he or she
(The rule against perpetuities is discussed in Part may not be able to make a valid claim against a
IX, Probate Law, at Limitations On Wills; third person who subsequently acquired the
Special Provisions.) property without knowing about the holders prior

117
claim. The reasoning behind this is clear. Since recording. Land registration requires a court pro-
the holders claim, while valid, was not recorded ceeding (a land registration suit) to establish the
in public records, others who might have a later status of the title. Once the status of the title is
potential interest in the property cannot be determined, a certificate of registration is filed
expected to know about the existing claim. In and all mortgages, liens, subsequent transactions
fact, the third person may acquire the real and other claims are noted on the certificate.
property innocently, relying on public records. The system is called the Torrens system, and
Or, lets suppose a landowner mortgages registered land is often described as Torrenized
the property as security for a loan, but the lender land. Such certificates are used in only a few
neglects to file the mortgage deed in the county Ohio counties today. Although the original goal
records. Later, the owner sells the property to a of land registration was to compile all records
third person who does not know about the unre- relating to a parcel on a single certificate, and
corded mortgage. The mortgagee (lender) is now thus to simplify recordkeeping, in actual practice
powerless to foreclose its mortgage on the real it has turned out to be more complex. Therefore,
estate, because its claimed lien on the property registration has become unpopular.
was not made a matter of public record. The The county recorders office is the repository
property that secured the mortgage has been for plats and surveys. A plat is a map of sub-
transferred to a third party who had no know- divided land, showing the various lots, the por-
ledge of the mortgage. If the mortgage had been tions of the land dedicated for roads or other
filed, it could have been foreclosed. In that case, public uses, and the easements for utilities and
the buyer legally would have been presumed to other features. Surveys are exact descriptions of
know about the filed mortgage, even if the buyer land parcels using compass calls and precise
neglected to examine the public record. measurements that come from actual observation
and measurement by means of instruments such as
Types of Land Records a compass, transit, theodolite or surveyors chain.
In Ohio, the county recorders office has Other county officials also keep important
records of mechanics liens, property bonds land records. For example, the county auditor and
posted for bail, deeds, mortgages and indexes county treasurer are responsible for keeping track
for these records. The most numerous are the of property taxes. (Taxes are mentioned here
records of deeds and mortgages. Mortgages and because they are liens, or charges, on real prop-
deeds to be filed with the recorders office are erty.) The auditors tax maps can be used to
copied in detail and bound. This information is identify property and are often the starting point
also maintained on computer databases. When for a title search. Also, records kept by the clerk
a deed or mortgage is recorded and placed in of common pleas courts must be searched because
its proper book, the volume and page where it lawsuits and judgments can affect the title to
appears is noted in a general index. The simplest property. Similarly, probate court records are
form of index is arranged alphabetically accord- extremely important in determining the status
ing to grantors (sellers), with a reverse index of of property ownership. The county sheriff also
grantees (buyers). In many counties, indexes keeps a record of foreign judgments filed in the
and copies of records are in electronic files or county (a foreign judgment being one rendered in
on microfilm, and books are no longer used for a court in another county). Thus, if a judgment is
new filings. issued in a lawsuit in Montana against someone
A land registry is another important set of who owns property in Ohio, the foreign judgment
land records kept in some counties, and is part can be recorded in Ohio and thereby becomes a
of an entirely different and separate system of lien on the Ohio property.

118
Descriptions of Property Beginning at a clump of black
There are several ways to describe a parcel locust located at the northeast corner of
of real property, but the most common method the Peter Schweitzer farm, then north-
includes some sort of map reference to locate the easterly 250 rods, more or less, to a
parcel in the county, plus a series of bearings and large flat rock on the southerly bank
distances called metes and bounds, describing of Moccasin Creek.
the exact boundaries of the parcel. If property is
subdivided and platted, a parcel can be accurately There are numerous potential difficulties with
described by giving the subdivision name, lot this description. For example, the surveyors
number and location of the recorded plat. compass was inaccurate; the locust trees died of
natural causes or were cut for fence posts; the
record of Peter Schweitzers farm was possibly
Title Examination; Marketable Title destroyed in the courthouse fire of 1831; and the
Searching land records and determining the
large flat rock could have been washed away in
status of land titles is a job for professionals
the 1913 flood when Moccasin Creek cut a new
because of the many different kinds of interests
bed, etc. Luckily, today we have legal descrip-
in real property, and the complexity of land
tions based on data from more accurate surveying
records. Any person interested in finding the title
instruments.
to a particular piece of property should contact
In Ohio, complete title examinations are
an attorney or a title agent.
usually unnecessary. Statutory or written laws
A typical title examination is a backward
set the rules about what constitutes a marketable
search of the records, beginning with the present
title (one that can be relied on when buying
owner and tracing back through each preceding
and selling property). Standards for searching
owner. The object of this examination is to estab-
titles have been established by the courts, title
lish the chain of title. The present owners claim
insurance companies, lenders and the Ohio State
is good if his or her title proves to be part of an
Bar Association. Under Ohio law, if a title search
unbroken chain of ownership.
shows that there is an unbroken chain of recorded
In a complete title examination, the chain of
title that goes back to a deed or other conveyance
title is taken back to the original source, which, in
document of record for at least 40 years, it is
Ohio, will vary depending on the location of the
considered proof of fee title. Further, it can be
property. The original sources of Ohio property
assumed that the current owner has fee title, that
usually date back to land grants from Congress
is, the right to pass title. This right to pass title is
or from various state legislatures (especially
established by the title document recorded at least
those of Virginia and Connecticut, both of
40 years before the search, called the root of title.
which granted land in the Ohio Country to
It must be noted that a title search often must
Revolutionary War veterans after the war as
go beyond the marketable root of title. For exam-
payment for their services).
ple, a 99-year lease, or easement, which was
A complete title examination is tedious and
effective in 1950 would be beyond 40 years of a
can be difficult or impossible to obtain. Many
search conducted in 2010, but still could affect
early records have been destroyed, since nearly
the title to the property if it falls within certain
every courthouse in Ohio has been damaged or
exceptions under the marketable title law. In such
destroyed by fire at least once. Further, older
a situation, fee title could be passed, because the
records are not reliable because the men who
chain of title is verified, but the title might be
created them generally used crude instruments.
subject to the lease or easement made in 1950.
Harsh environmental conditions did not help
Many title examiners follow a 65-year standard
matters. Old land descriptions can be vague.
to gain a more complete record.
They can read, for example:

119
Purchase and Sale
What the offer does...
of Real Estate identifies the premises, usually by street
address;
The most common real estate transaction is states the proposed terms of the purchase,
the purchase or sale of a home. This section out- such as amount of down payment, type of
lines some of the matters to be considered in pur- financing and maximum interest rate;
chasing or selling a home, including a contract specifies the type of evidence or proof of title
of sale, financing, title examination and closing. (certificate of title, abstract of title or title
insurance) to be furnished by the seller;
provides for payment of unpaid taxes and
Contract of Sale assessments (usually these will be prorated
Real estate brokers use one of several standard between buyer and seller, based on the
form contracts for the purchase and sale of resi- amount of taxes accrued but not yet payable
when the sale is completed);
dential property. The contract contains an offer by
lists the various kinds of personal property to
the prospective buyer, with a space for acceptance be included in the transaction, such as rugs,
by the seller. Frequently, offers are limited in drapes, dishwasher and other items; and
time: that is, the offer is automatically withdrawn states other terms and conditions.
if it is not accepted by a specified time.
The boxed text on the next page explains what
the offer does. Premises refers to land plus any In Ohio, certain transferors of real estate,
buildings upon the land. It can also refer to a including homesellers, must provide a disclosure
particular part of a building in the case of a form around the time the contract is signed. On
condominium. this form, sellers must summarize what they
Both parties are bound by the contract when know about any problems with the water supply,
the seller accepts it. If the buyer defaults, the the sewage system, the walls and the foundation,
seller may hold the buyer liable for the difference the presence of hazardous substances, such as
between the contract price and the price at which lead-based paint, asbestos, and radon gas and any
the seller is eventually able to sell the property other material defects. In certain situations, when
(assuming it is lower than the original contract undisclosed defects are discovered before the
price). If the seller defaults, the buyer may com- closing, the buyer may rescind the contract with-
pel the seller to specifically perform the contract, out any liability.
or may sue for damages. In either case, liability This law does not apply to a number of
can have serious consequences. A buyer should common transfers or sales. For example, it does
not sign an offer until he or she has read all of not apply to sales of new homes that have never
it and understands all of the terms. Similarly, a been inhabited, sales to persons who have already
seller should not accept a contract (the offer to inhabited the property for one year or more, or in
purchase) until he or she has read all of it and general, to transfers made as part of a court order.
understands all of the terms. If either party has Federal law also requires sellers to advise buyers
any questions, an attorney should be consulted if a home was built before 1978, and to allow the
before any paperwork is signed. buyers to inspect the home for lead-based paints.

120
Finally, buyers should understand their The federal government insures some kinds
relationship with a real estate agent, whether the of mortgages through agencies such as the Federal
agent is hired by the buyer or the seller. An agent Housing Administration (FHA) or the U.S.
may work for the seller or the buyer, and, in some Department of Veterans Affairs (VA).
cases, may represent both the buyer and seller. Mortgages by banks and other lending
This representation of both the buyer and seller companies are called conventional mortgages.
is referred to as dual agency. The agent must Usually, a purchase on an FHA or VA mortgage
give the client(s) (the buyer or seller or both) a will require a smaller down payment than pur-
Consumer Guide to Agency Relationships, which chase on a conventional mortgage, although the
explains the various relationships between brokers total costs in an FHA or VA transaction may be
and their clients. The agent also must provide an higher because of the increased risk involved
Agency Disclosure Statement, which describes in a high-ratio loan (a loan where the amount
the particular relationship between the agent and of the loan is high in relation to the value of
the client(s). the property).
Sometimes, when mortgage money is espe-
Financing the Purchase cially hard to find or interest rates are very high,
Most people borrow money to buy a house. a seller may sell a home on the condition that
The usual ways for financing are a conventional the buyer assumes and agrees to pay the sellers
mortgage, an FHA or VA mortgage, a mortgage existing mortgage. This arrangement is called a
assumption or a land contract. mortgage assumption. The buyer who assumes a
All buyers should ask themselves, Can I mortgage takes over the sellers mortgage and the
afford to buy this house? No matter how care- interest rate of that mortgage. If the mortgages
fully a family may budget its income and expen- interest rate is lower than the current market rate,
ditures, there are limits on how much housing it would be an advantage to the buyer, although
debt a family can afford. Other expenses, such as the mortgage assumption may require a higher
food, medical and automobile insurance, etc., also down payment than a conventional loan.
must be paid. One rule of thumb (though not the For a mortgage assumption to be legal, the
only one) is to limit monthly housing expense to sellers mortgage must allow assumption. Many
one weeks take-home pay. Housing expense mortgages do not allow assumption. Also, the
includes the mortgage payments (principal and seller generally remains liable on an assumed
interest), plus fire or homeowners insurance mortgage, so the seller must choose a buyer who
premiums and property taxes and assessments. can and will keep the payments current. A seller
For example, suppose the monthly payment also can accept a mortgage from the buyer. This
on a proposed mortgage is $600, the homeowners means that the seller, rather than a bank or other
insurance costs are $192 per year or $16 per financial institution, becomes the lender, and the
month, and the property taxes are $720 per year title is conveyed to the buyer subject to the mort-
or $60 per month. Adding these costs together, gage lien. This usually occurs only where the
the total monthly housing expense would be buyer cannot qualify for a loan from a bank or
$676 ($600+$16+$60). To handle this expense other commercial lender. However, it is more
comfortably, the buyer should earn at least $676 common for a seller to sell the property on an
per week. installment land contract rather than accept a
Money may be borrowed from various types mortgage, because, under a land installment
of financial institutions, including savings and contract, the seller does not have to give the
loan companies, banks, mortgage bankers and buyer title to the property until the full purchase
mortgage brokers. price is paid.

121
Title Examination and Evidence can reveal environmental concerns. Some of
these matters may be regulated by either the
of Title federal Environmental Protection Agency (EPA)
If a home purchase is to be financed through a
or the Ohio Environmental Protection Agency
bank or other financial institution, the lender will
(OEPA) or both.
require a title examination. If the lender does not
The EPA is the federal agency charged with
require it, or if there is no institutional lender, the
implementing the environmental laws passed by
buyer should contact an attorney or a title agent
Congress. The OEPA was created in 1972 to
to have the title examined. The sellers promise
implement Ohio laws and regulations regarding
to furnish a good title is not a guarantee that the
air and water quality standards; solid, hazardous
seller actually can, or will, furnish such a title.
and infectious waste disposal standards; water
In some parts of the state, the buyer is
quality planning, supervision of sewage treatment
responsible for protecting himself or herself by
and public drinking water supplies; and cleanup
securing the title examination. In other areas of
of unregulated hazardous waste sites.
Ohio, purchase contracts require that evidence
of title be furnished by the seller in one of three
ways. One way is to have an attorney give a Closing
certificate stating the title is good. The certificate A contract of sale is closed when:
often may list a series of exceptionsissues or a title has been examined and all necessary
areas the lawyer has not researched or cannot documents are signed;
research. Another way is to obtain an abstract closing costs and the purchase price are paid
of title, which is a chronological summary of all (either entirely by the buyer, or partially via
transactions concerning the property found in the mortgage lender);
the public records. the property is transferred to the buyer by the
The third and most common method is to sellers delivery of the deed; and
purchase title insurance. Title insurance provides the sellers mortgage and any other liens are
protection against claims arising from title prob- paid from the purchase price, to clear the
lems that may not be uncovered by a title search. buyers title.
If the buyer pays for a title insurance policy only
on the loan, then the title company would only This process is called a closing. There are
pay the mortgagee (lender) if the title to the prop- two kinds of closings: round table and escrow.
erty is successfully challenged in court. By paying A round table closing is an actual meeting where
an additional premium, the buyer can get an own- the buyer, seller, lender and their representatives
ers title insurance policy that will pay the buyer meet, make payments and adjustments and
if there is a title defect that the title insurance actually sign and exchange the various
company did not discover. documents. The deed is recorded shortly after a
round table closing. An escrow closing is not an
actual meeting. All the necessary documents,
Environmental Concerns payments and adjustments are delivered to a
Identifying certain potential environmental
neutral third party (called the escrow agent), and
risks or concerns before purchasing property
on the scheduled day, the escrow agent records
can alleviate future stress and expense. Home-
the deed and delivers money, with neither buyer
buyers may be concerned about lead-based
nor seller present. The purpose of both types of
paints, asbestos, radon gas and gases emanating
closings is similar, although which one is used
from fuel storage tanks, or the homes water
depends on local custom and the needs of the
supply and septic system, for example. A prop-
individual transaction.
erty inspection by a certified home inspector

122
During a closing, the balance of the purchase
price is paid and the deed signed and given to Landlord and Tenant
the buyer for recording. Various deductions and
adjustments are made in the amount paid to the The first time many people encounter aspects
seller. The buyer and seller each receive a closing of real property law is when they rent their first
statement, which is prepared before closing so apartment or house. Laws addressing real prop-
that the transaction can be completed. The state- erty transactions as well as certain aspects of the
ment lists the purchase price of the property and rights, obligations and remedies of residential
all adjustments to that price. landlords and tenants can be found in Chapter
The statement includes specific entries for the: 5321 of the Ohio Revised Code, the Ohio Land-
buyers down payment (or earnest money lord-Tenant Act.
deposits);
amount of cash, if any, that is to be paid to the What is a Rental Agreement?
seller; A rental agreement or lease is a written or
pay-off price of the sellers existing mortgage; oral contract between a lessee (tenant) and lessor
transfer tax the seller is required to pay to the (landlord). A properly written agreement will
county; eliminate most of the misunderstandings and
cost of the title examination and the cost of problems that commonly arise between a land-
the title insurance policy; lord and a tenant.
proration of real estate taxes between the A rental agreement benefits and protects
buyer and seller; both parties and is an efficient way of handling
cost of document preparation and recording a business transaction. A written agreement may
(the seller is usually required to pay for the create a tenancy for a fixed period of time or from
release of the existing mortgage and for the week to week, month to month or year to year.
preparation and recording of the documents To protect the landlord and the tenant, it is wise
necessary to cure defects in title); to specify the exact manner in which the rental
cost of the insurance and tax escrows that agreement may be terminated. If there is no writ-
lender may require of the buyer; and ten lease or rental agreement, the landlord or the
real estate commission. tenant may end a week-to-week tenancy by giving
the other party at least seven days notice prior to
The allocation of the fees and costs between termination. Either party may end a month-to-
the buyer and seller is determined by contract month oral tenancy by giving the other party at
or area custom. As stated above, the buyer also least 30 days notice before the end of the current
executes (signs) the promissory note and mort- monthly term.
gage to the lender. The buyer should make certain A landlord may not use a contract clause to
that all of the contracts terms are completed limit or escape certain types of responsibility,
before signing the mortgage. The contract of sale including repair and maintenance, which are
becomes merged in the deed when the deed is mandated by law. If such a clause is included
accepted and the parties may lose the right to in a signed rental agreement, it cannot legally
enforce any unperformed contract obligations. be used against the tenant.
Also, the buyer is theoretically entitled to pos- Ordinarily, the landlord prepares a rental
session of the property immediately upon closing, agreement. For this reason, any doubtful or
but it is not uncommon for the contract to provide ambiguous terms are decided against the landlord
for delayed possession (from one to five days and in favor of the tenant if a dispute arises and
after closing), which is usually one of the con- ends up in court.
tract provisions.

123
Under Ohio law, both tenants and landlords comply with housing, health and safety codes;
may recover damages and reasonable attorneys and
fees, in some situations, for certain unlawful acts allow the landlord reasonable access to the
of the other party. premises to inspect, make repairs, deliver
large parcels or show the property to pros-
Obligations of the Landlord pective buyers or tenants.
A landlord must keep the rented or leased
property (premises) decently habitable and may The tenant cannot change any of these legal
not unreasonably interfere with the tenants duties. However, the landlord may agree to
privacy. assume responsibility for fulfilling any of these
The landlord must ensure that common areas tenant duties as part of the lease agreement.
(parking lots, stairs, halls, sidewalks, etc.) are
clean and safe, and that the structure complies Security Deposits
with building and housing codes. Specifically, A landlord often will require a new tenant to
electrical, plumbing, heating and ventilating post a security deposit (commonly equal to one
equipment must be maintained. The landlord months rent). The purpose of the deposit is to
also must provide water and heat, unless these cover any damage to the rental property caused
utilities are under the tenants control. If the by the tenant, and, in some instances, unpaid rent.
building contains four or more dwelling units, If the deposit is more than $50 or one months
the landlord must provide trash containers and rent (whichever is greater), and the tenant is in
trash removal. The landlord cannot insist on possession of the property for six months or more,
having unreasonable access to the rental prem- the landlord must credit the deposit with five per-
ises and must give reasonable advance notice cent interest. Within 30 days after a tenancy ends,
(presumed to be 24 hours) of the intention to the landlord must itemize every deduction from
enter the tenants suite, apartment or area. the security deposit and give the tenant a copy. If
Finally, the landlord may not attempt to evict the tenant has furnished the landlord with a for-
a tenant by changing the lock, terminating warding address, the landlord must refund the
utility service or removing the tenants belong- deposit plus interest and minus any valid deduc-
ings without a court order. tions. If the landlord fails to provide a refund
and/or explanation of any deductions, it could
Obligations of the Tenant cost the landlord double the amount due, plus
Tenants have a variety of obligations beyond reasonable attorney fees should the tenant pursue
paying rent or lease payments on time. Specific- legal action.
ally, a tenant must:
keep the premises clean and safe; Rent Withholding
properly dispose of trash; A tenant living in a building with four or
keep plumbing fixtures as clean as their more dwelling units may place the rent in escrow,
condition permits; if the tenant reasonably believes the landlord has
properly use electrical and plumbing failed to live up to his or her obligations, or if the
equipment; landlord is found to be in violation of any law or
maintain appliances furnished as part of regulation affecting health or safety. However, if
the lease; the tenant does not do this properly, the tenant
cause no disturbance and forbid family, may face eviction for non-payment. To withhold
friends and guests to disturb other tenants; rent properly, the tenant must be current in rent
see that controlled substances (such as certain payments and give the landlord 30 days notice of
drugs) are not illegally used on the property;

124
the health or safety problem. The 30-day period specific language, including a recommendation
gives the landlord an opportunity to remedy the that the tenant seek legal advice.
problem. If the problem is not fixed, the tenant After the eviction suit is filed, the summons
may deposit the rent payment by the due date issued by the court to the tenant must state that
with the clerk of the local municipal or county the tenant:
court instead of paying it to the landlord. At the cannot be evicted unless the tenants right
direction of the court, the withheld rent may be to possession has terminated (a tenants
applied to correct the problem, or the court may right to remain on the premises is terminated
order the monthly rent reduced until the problem when, for example, the tenant has breached
is remedied. the agreement or the lease term has ended);
cannot be evicted in retaliation for an
Retaliatory Conduct assertion of rights covered by the law;
A landlord cannot raise the rent, withhold should continue depositing rent with the
services or attempt to evict a tenant when a tenant court if already doing so;
exercises his or her lawful rights, including right- has a right to jury trial in the eviction action;
fully withholding rent or properly complaining and
about living conditions. Acts of the landlord are has a right to legal assistance.
not considered retaliatory if:
the tenant created the problem that is the In an eviction case, the court determines who
basis for withholding rent payments; has the right to possession of the rented or leased
the tenant owes back rent; property. It may also determine all rights and
the tenant has failed to leave at the end of liabilities of the landlord and the tenant. For
the rental term; example, the court may order an appropriate
correction of the problem would require governmental agency to inspect the property and
demolition or remodeling of such major report if any condition of the property violates
proportions that the tenant would lose the the law. If such a condition exists and was caused
use of the premises; or or was allowed to occur by the tenant, the court
the rent increase is to cover improvements may order the tenant to pay the landlord the
or increased costs. reasonable cost of repairing the condition. Where
the tenant did not cause such a condition and the
If a landlord takes retaliatory action, the court decides the tenant should have possession,
tenant can recover possession of the premises the court may order the landlord to correct the
(if evicted), terminate the rental agreement or condition. If the tenant did not cause such a
use the retaliatory action as a legal defense when condition and the court decides that the tenant
protesting an eviction. The tenant also may should not have possession, the court may forbid
recover damages and reasonable attorney fees. the landlord from renting the property until the
condition is corrected.
Eviction
The technical name for an eviction action
in Ohio is forcible entry and detainer. Eviction
Other Real
actions allow landlords to recover rented or leased
premises, provided their tenants rights are not
Property Issues
violated.
Before bringing an eviction action, the land- Zoning
lord must give the tenant at least three days Zoning is the process by which political sub-
written notice to leave. The notice must include divisions (cities, villages, townships and counties)

125
regulate land use. These political subdivisions are or both. For example, a residential lot in the inner
further divided into districts or zones. Subdivision city might not be large enough, under current
officials enact regulations to control the types of zoning regulations, for a house to be built. Such
buildings and uses within each of these districts. a problem may be resolved by the granting of a
The primary purpose for zoning is to facilitate variance, or a special case change in zoning
planning and land development on a community- regulations. A board of zoning appeals, appointed
wide basis. Zoning legislation may regulate uses by the legislative body, hears and acts upon
of land. It also may regulate such things as the requests for variances from the zoning regu-
size of lots and buildings; minimum front, back lations. If a board agrees that applying a zoning
and side yard requirements; or the minimum regulation to a specific property is unreasonable,
number of parking spaces required for certain it will grant a variance. Generally, a board of
types of buildings, depending on the use. zoning appeals will try to grant the minimum
Planning commissions, appointed by the local variance necessary to resolve the conflict.
legislatures of political subdivisions, review land The two types of variances are an area vari-
use within the community and propose a compre- ance and a use variance. An area variance may
hensive land use plan. This plan serves as a guide permit a property owner to develop a property
for dividing the political subdivision into districts with narrower yard setbacks, smaller lot size,
or zones. The most common types of districts are larger building size, or fewer parking spaces than
residential, commercial and industrial. These those otherwise permitted in the zoning district
districts may be further divided. For example, where the property is located. A use variance may
a residential district may be restricted for only allow a property to be used in a way that is not
single-family homes, or an area may allow multi- permitted in a specific district (for example,
family buildings. a home-operated beauty parlor operating in a
A comprehensive plan may be adopted only residential district). Use variances tend to be
if the proposed zoning regulations are reasonable. more difficult to obtain because they are often
The local legislature, whether a city or village perceived as property re-zoning. In order to
council, board of township trustees or board of grant either type of variance, the board of zoning
county commissioners, is responsible for enact- appeals must apply standards that are incorporated
ing the plan and the zoning regulations that define into the zoning regulations. Zoning variances run
each zone. Because comprehensive plans and with the land and will not expire as long as the use
zoning regulations provide a blueprint for future continues.
growth and development, they should be period-
ically updated to reflect changes in the com- Planned Unit Development
munity. A planned unit development (or PUD) is a
Violation of a zoning regulation (for example, technique to provide flexibility for new construc-
establishing a commercial business in an area tion in a community. Instead of rigidly dividing
zoned for residential use only) is a civil rather land into exclusively residential, commercial and
than a criminal matter. Zoning inspectors may industrial zones, PUDs mix these and other uses.
issue orders to stop a violation. That might be Planners generally agree that a mix of residential
followed by a court action resulting in a penalty, and commercial development along with public
which might continue as long as the violation spaces such as parks can provide a very appealing
remains uncorrected. environment.
Because properties have different sizes, Planned unit developments are often part of a
shapes and topographies, applying a zoning zoning code. If they are not, many communities
regulation to a specific property may be unrea- allow them by variance or with a conditional use
sonable for either the property owner or the city permit. However, courts can view PUDs as re-

126
zonings, so local government officials must be as input from the public. In some communities,
careful about using the variance or conditional public input may include a ballot vote to approve
use procedure to allow PUDs to be implemented. or disapprove the development in question.
It is better for local governments to enact zoning Additionally, some sites are large and must be
provisions if they want to allow for PUDs, so that developed in phases. Thus, the approval process
standards are uniform throughout the community. can be ongoing.
Some common characteristics of a PUD
include: Covenants, Conditions and
a large plot of land that is developed under
unified control and planned and developed as
Restrictions
In addition to government land use restric-
a whole;
tions, private party agreements and other
a mix of compatible uses such as commercial,
restrictions also may control how owners use
residential, governmental (e.g., schools) and
their property. For example, certain restrictions
public spaces, or mixed single-family and
in a private purchase contract may dictate how
multiple-family units;
a home in a subdivision or a condominium may
comprehensive plans for developing the par-
be built, designed or used. These restrictions are
ticular piece of land from the utilities to the
typically referred to as covenants, conditions and
aesthetics and relationship of the buildings to
restrictions (CC&Rs); they set forth conditions
one another (which can be so detailed as to
on uses, lot size, architectural design, setbacks
include predetermined site plans, floor plans
from the street, fence design or vehicle parking.
and building elevations);
If the terms of a private party agreement are vio-
a program for the occupants of the district to
lated, a suit may be brought against the violator.
maintain the common areas and facilities; and
The violator may have to pay money damages or
restrictive agreements to prevent incompatible
may be ordered to remove the violation (such as
changes to the structures and appearance of
a fence that was prohibited by the terms of the
the development.
private party agreement). The court injunction to
remove the violation also would prohibit future
The PUDs mixed uses can provide for a
violations.
more dynamic, vibrant community as well as
A unique type of covenant that may arise on
more green space and public areas. Green space
residential property is a transfer fee covenant.
is often gained by clustering residential areas to
This covenant requires a fee to be paid to a third
achieve open space and preserve natural features
party (often the original developer) upon each
of the land. Most PUDs require a unified exterior
conveyance of the property. As of 2010, a transfer
appearancesuch as the same color scheme
fee covenant cannot be placed on property in
and roofs on all units.
Ohio; however, such covenants may already
The process for getting a PUD approved is
exist in certain parts of the state. Although such
usually very complicated and extensive. The
covenants may be enforceable, FHA may not
approval process is likely to include a detailed
insure property burdened by such a covenant. A
review of the site plan by a local governments
lawyer should be consulted if a title search reveals
planning staff, planning commission, zoning
a transfer fee covenant on a residential property.
board and often the local legislative body as well

127
For Journalists: bodies. Through open records requests and
Covering Property Law attendance at government meetings, journalists
can learn and expose how governments regulate
and negotiate property disputes (See Media Law,
Because property law is often extraordinarily Part XV).
detailed and also more locally driven than other Many rookie journalists are often assigned to
aspects of the law, journalists are advised to make local property development stories, about which
time to understand state laws and guidelines. Many they may know very little. Or they find them-
local businesses and officials work hard to abide by selves covering a major dispute between a
state laws, and state officials work diligently to landlord and tenant. In such situations, it is often
regulate all these transactions, but occasionally easy for tempers to flare and the law may be lost
journalists are the first to expose and report impor- in the dispute. Journalists are cautioned to spend
tant abuses and problems in the system. Knowing the time researching Ohio guidelines on these
what the state requires of these parties is an impor- issues to present viewers and readers with what
tant first step in exposing abuses. A second step is the law requires of the parties in property
gaining access to government records and attending discussions and disputes. Resources are provided
the local meetings of planning boards, town under Web Links at the end of this chapter.
councils, city governments and other public

128
Chapter Summary
Real property law deals with land, fixtures on land, movable property that is not
associated with land, and rights and other intangible interests that may be owned.
The two main classifications of property are real property and personal property.
Real property, real estate and realty refer to land, buildings and other fixtures on land.
These terms also may refer to different kinds of interests in land and to various rights
that go along with land or some interest in it.
Personal property is anything that can be moved by its owner or possessor. Personal
property can be tangible or intangible.
Full ownership of real property is called fee simple ownership, fee simple title or
sometimes just ownership in fee.
A fee simple owner can grant ownership of his or her property to another person for
the duration of the other persons life. This type of ownership is called a life estate.
The person who holds the life estate is called a life tenant.
In Ohio, there are two different forms of property ownership where two or more own
the property: tenancy in common and survivorship tenancy.
Ohio also recognizes transfer-on-death (TOD) affidavits that allow an owner to
designate one or more persons to whom the property will be transferred automatically
upon the owners death.
A property owner may give temporary possession and use of a particular property to
another individual in return for the payment of rent or something else of value. If the
owner does this by means of a written agreement called a lease, the party to whom
possession of the property is given acquires a leasehold interest or leasehold estate.
A lien is an enforceable claim against property to secure the payment of a debt or the
performance of some act. A mortgage is a lien on the real estate. Three other types of
liens are tax, judgment and mechanics liens.
Sometimes a landowner will grant another person permission to use a portion of his
or her property for a specific purpose. Such permission may be either an easement or
a license.
Rights to explore for and develop minerals and harvest timber are among important
real property interests that may be owned separately from the real estate itself.
Property is a commodity, meaning it often changes hands from one individual to
another. There are many methods individuals use to acquire interests in real property.
Fee interest in land is granted through a deed. A leasehold estate is granted by means
of a lease.
Continued on page 130

129
Chapter Summary continued
A mortgage is an interest in land where the land is pledged to secure or guarantee
payment; it is created by a document called a mortgage deed or, simply, a mortgage.
A conveyance is the transfer of an interest in real property.
When someone dies owning or holding some interest in real property, that individuals
interest must be transferred to another person or to an entity. That other individual may
be a beneficiary named by the original owners will, or entitled by law to the property
when there is no will. The other individual also may acquire the property of the deceased
because he or she owns the remainder interest to a life estate or because of a right of
survivorship. The transfer may also be made to the named beneficiary in a transfer-on-
death affidavit.
Sometimes the title to real property or an interest in real property is transferred because
the original owner neglects his or her rights. Adverse possession is simply taking
possession and keeping possession continuously for 21 years, provided that the
possession is obvious and open, and that the landowner does nothing significant to
assert his or her rights as owner.
Ownership of real property is a matter of public record. Every state maintains public
records of land and transactions and events affecting the ownership of land. In Ohio,
the county recorder of each of the states 88 counties maintains these records for the
land within its geographical borders.
The most common real estate transaction is the purchase or sale of a home. The
elements involved in the purchase or sale of a home include a contract of sale,
financing, title examination and closing.
The Environmental Protection Agency (EPA) is the federal agency charged with
implementing the environmental laws passed by Congress and the Ohio Environmental
Protection Agency (OEPA) implements state laws and regulations regarding air and
water quality standards; solid, hazardous and infectious waste disposal standards; water
quality planning, supervision of sewage treatment and public drinking water supplies;
and cleanup of unregulated hazardous waste sites. Any property purchase should
include an environmental inspection.
The first time many people encounter aspects of real property law is when they rent
their first apartment or house. The law respecting such transactions is addressed by
sections of the Ohio Revised Code reviewing particular aspects of the rights,
obligations and remedies of landlords and tenants.
A rental agreement or lease is a written or oral contract between a landlord (lessor)
and tenant (lessee).
A rental agreement benefits and protects both parties and is an efficient way of
handling a business transaction. A written agreement may create a fixed term or a
tenancy from week to week, month to month, or year to year.
Zoning is the process by which political subdivisions (cities, villages, townships
and counties) regulate land use by dividing themselves into districts or zones and
enacting regulations to control the buildings and uses within each district.
A planned unit development (or PUD) is a technique to provide flexibility for new
construction in a community. Instead of rigidly dividing land into exclusively
residential, commercial and industrial zones, PUDs mix these and other uses.

130
Web Links:
From the OSBAs Law Facts pamphlet series:
www.ohiobar.org/lawfacts (search by title)
What you should know about Tenant/Landlord Rights and Obligations

From the OSBAs Law You Can Use column:


www.ohiobar.org/lawyoucanuse (search by title or topic)
After Foreclosure: What You Should Know
Agricultural Districts Protect Farms and Farmers
Agricultural Easements Help Protect Farmland
Ask Questions When Using Title Insurance Agencies
Be Careful When Using Home Equity Loans
Before Foreclosure: What You Should Know
Brownfields Development on the Rise But Theres Good Reason for Caution
Circumstances Determine When Tenants Can Terminate Lease Agreements
Eminent Domain: What Every Property Owner Should Know
Home-Buyers Should Determine Asbestos and Lead Paint Risks
Home-Buyers Should Determine Environmental Risks
Home-Buyers Should Investigate Water and Septic Systems
Homeowners Insurance Covers Wide Range of Goods and Services
Joint Economic Development Districts Aid Local Development
Joint Ownership of Property: Common Sense Advice for Older Persons
Know about Eviction Procedures in Ohio
Know about Evictions of Month-to-Month Tenants in Ohio
Know Basics of Condominium Law
Land Contracts Provide Financing Alternative for Some Homebuyers
Landowner or Tenant Could Be Responsible for Harm to Trespassing Children
Laws Govern Gardening
Medicaid Recipients Should Know Rules before Making Real Estate Decisions
Mold: An Old Contaminant Creates New Concerns for Homeowners
Ohio Law Protects Property Owners from Recreational User Liability
Ohio Law Says Private Property Sometimes Can Be Taken for Economic Development
Ohio Line Fence Law Says Who Is Responsible for Fences
Planned Unit Developments Provide Flexibility for New Construction
Quitclaim Deed Transfers Property Without Ownership Guarantee
Realtors May Act as Agents for Both Buyers and Sellers
Reverse Mortgages Convert Home Equity into Cash
Continued on page 132

131
Web Links continued
Sorting Out Housing Options for Seniors
State Law Regulates Most Ohio Cemeteries
Tax Abatements Exempt Real Estate Taxes for Improvement Projects
Tenants Have Security Deposit Rights
Tenants Should Look Out for Intent-To-Vacate Clauses
Title Insurance Protects Owners and Lenders
Transfer-on-Death Affidavit Avoids Probate of Real Estate
Understand How Joint Economic Development Districts Work
Understanding Landowners Water Rights
Use Caution When Considering Foreclosure and Debt Mitigation
What College Students Should Know about Apartment Leasing
What You Need to Know about Renters Insurance
What You Should Consider When Granting an Oil and Gase Lease on Your Land
What You Should Know about Fracking in Ohio
What You Should Know about Annexation
What You Should Know about Buying and Keeping a Home
What You Should Know Before Using Free Gas
When the Rains Come What You Should Know about Surface Water Laws
Zoning Laws Aid Community Planning

132
Part IX___________________________
probate law
Men may die, but the fabrics of free institutions remain unshaken.
Chester A. Arthur

he probate division of the court of appoints guardians for both minors and adults,

T common pleas (often referred to


simply as the probate court) in
each of Ohios 88 counties is one
of the busiest in the court system.
Most people think of probate law as governing
the administration of estates left behind when
manages adoptions and handles applications to
hospitalize persons for treatment of mental
illnesses.

Safeguarding Personal and


Property Rights
people die. Such administration includes, among
When an individual dies, his or her property
other things, the payment of debts and taxes, and
must be transferred to:
the transfer of estate property to the appropriate
the person or persons named in that individ-
individuals or entities.
uals last will and testament;
But probate law is much more than that.
heirs designated according to Ohio law, when
Generally, the probate division is responsible
there is no will; or
for protecting people who need care, safeguard-
the person(s) identified in a will substitute,
ing personal and property rights, and supervising
such as the survivor designated in a survivor-
people in positions of trust. For example, the
ship deed or the person(s) designated in a
probate division handles:
payable-on-death or transfer-on-death
the issuance of marriage licenses;
arrangement.
adoption;
appointment of guardians to care for children
and other persons who cannot care for them- Supervising Those in Positions
selves or their property; of Trust
proper care and treatment for the mentally ill, Individuals serving in positions of trust,
mentally retarded, or persons suffering from whether they are executors, administrators,
developmental or physical disabilities; and guardians, conservators, trustees, attorneys-in-
name changes. fact or other persons who act on behalf of third
persons, are called fiduciaries. Fiduciaries owe
Protecting Individuals in Need of a special duty to those whose interests and prop-
Care erty they control or manage. When, for example,
an executor or administrator is appointed to settle
Some people need special protection, includ-
an estate, or when a guardian is appointed to look
ing children who are orphaned or whose parents
after the affairs of a child or a person who has
are unable to care for them, and individuals
become incompetent, it is important that the fidu-
suffering from mental illness, developmental
ciarys conduct be supervised. Fiduciaries must
disabilities and physical disabilities. Age or ill-
regularly report their activities to the probate
ness also can affect a persons physical ability
court, particularly their financial activities. How-
or mental capacity, or both, including the ability
ever, trustees serving under trust agreements
to care for ones self or ones property. In Ohio,
created outside a will generally wont need to
the probate court has the jurisdiction (the obli-
regularly report to the probate court; their acts
gation and authority) to supervise the protection
are reviewed by the court only upon request of
of minors and those with physical or mental
a beneficiary or other interested party.
disabilities. For example, the probate court

133
the next page.) Also, the signing must be con-
Wills firmed by two competent and impartial witnesses.
(These witnesses do not have to know the contents
As we explained in Part VIII, the current of the will, but only that the testator signed it vol-
owner of private property can dictate who will be untarily.) These basic requirements are strictly
the future owner of the property when he or she enforced, although there is some leeway in how
dies. The most common device to transfer owner- the requirements can actually be met.
ship upon death is a will, or more formally, a last 2) The will may be typed or handwritten, or
will and testament. Increasingly, people are using both. Another individual may sign the will for
will substitutes, such as revocable (living) trusts the testator, provided this person does so at the
or joint accounts to transfer private property to testators specific direction and in the presence
surviving spouses, children or other beneficiaries of the testator and the two independent witnesses.
without going through the probate process. Please note that a will does not have to be
notarized.
Who Can Make a Will? 3) There may be a problem with potential
Under Ohio law, any person age 18 or older beneficiaries under a will serving as witnesses
who has a sound mind and memory and is not to that will. The problem is that a witness to a
under restraint can make a valid will. will may not receive more under the will than
The requirement of sound mind and memory he or she would have received as an heir if there
does not mean that the testator (the individual were no will. This could significantly reduce the
making the will) must be in total possession of his amount the witness/beneficiary receives in com-
or her faculties. The testators mind may be dulled parison to what the testator had intended to leave
by pain or sickness or enfeebled by age. He or she that person. This rule affects only the particular
may even suffer, to some extent, from mental witness/beneficiary; it does not mean that the
deficiency or mental illness. The testator has the entire will becomes invalid simply because a
legal capacity to make a will as long as the testa- witness is named in the will to receive a gift.
tor knows who his or her family members are, Further, a murderer cannot inherit from his
generally knows the nature and extent of what he or her victim. A gift to such a murderer in the
or she owns and understands that the document deceased persons will is ignored when the estate
is a will. is distributed.
The fact that a will makes an apparently unfair 4) While people can draft their own wills,
or unequal distribution of a testators property certain precise concepts and legal language must
does not necessarily indicate that the testator be used to ensure that the will is valid and com-
lacked the mental capacity to make the will. A plete. Some do-it-yourself forms and computer
testators will may disregard family and friends programs may be adequate, but these one-size-
of long standing and still be valid. fits-all documents often are prepared for nation-
The requirement that a testator not be under wide distribution, and they may not fully conform
restraint means that testator must be free to choose to Ohio law or to the testators wishes. Clearly,
to make a will and to make it the way he or she use of such forms does not give the testator the
wants, and is not coerced, defrauded or improp- benefit of the interview process and the ideas that
erly influenced to do so. a professional can bring to the estate planning pro-
cess. Therefore, an individual should consult a
lawyer about writing and signing a will. It should
Requirements for Making a Will be noted that lawyers who draft wills are under
1) For a will to be valid, it must be in writing
professional limitations similar to those of wit-
and signed by the testator. (A narrow exception to
nesses. In general, the lawyer who drafts a will
this requirement is explained in item number 5 on

134
cannot be a beneficiary of it, unless related to will was valid and was the last will of the testator,
the testator. and that the testator did not know the will had
5) There is only one exception to the been misplaced, damaged or destroyed.
requirement that a will be in writing. An oral
(or nuncupative) will is valid to transfer personal How Wills Are Revoked
propertynot real propertyunder certain A will can be revoked in a number of ways.
conditions. The conditions are: The most common way is by making a new will.
the will is made in a deathbed situation by One of the standard statements in a will is that
a testator who knows he or she is dying; the testator revokes all previous wills.
the testator states his or her intended property A testator also can revoke a will by purposely
distributions to two competent, impartial cancelling it, tearing it up, obliterating it or
witnesses of the testators choosing; destroying it. The testator must personally take
the witnesses write out the will and sign it such an action, be present when such an action is
within 10 days of the testators statement; and taken or give another person written instructions
the written will is filed with the probate court to take such an action on the testators behalf. A
within six months after the testators death. will can be revoked by cancelling, tearing, des-
troying or obliterating only when there is proof of
A testator can modify the terms of an earlier the testators actions and intent to revoke the will.
written will (for example, to change the benefi- If the testator is competent, the revocation of
ciary of a particular item of personal property) by a prior will is absolute. The best way to explain
making an oral will during his or her last illness, this concept is by example: Tom writes a will.
but he or she cannot revoke a written will by Later, he writes, CANCELLED, or words
making an oral will. having a similar meaning, on all the pages of the
will and through his signature. Tom then makes
A Will Must Be Probated a second will. Later, he tears up the second will
Ohio law states that a will cannot govern the and makes a third will, which he subsequently
distribution of the testators property unless the obliterates with permanent black marker. Tom
will is filed with the probate court. Because the then makes a fourth will, which he later burns.
court must admit a will to probate before it can Assuming that Tom was competent at all times,
control the distribution of a testators property, and that he clearly took the above actions to
a will left in a drawer at home is not effective. revoke the various wills, Tom does not have a
Under the law, anyone knowing of a deceaseds will. If Tom dies, none of the wills he made can
will is required to notify the probate court of its be revived.
existence and location. Under Ohio law, a divorce or dissolution can
affect the provisions of a will. When a court issues
Lost, Damaged or Destroyed Wills its decree or order in a divorce case, or approves
People usually keep wills in safe places. a settlement in the dissolution of a marriage, the
Sometimes these places are so safe that wills can- courts order automatically revokes the provisions
not be found, or sometimes a will is destroyed in a will for a former spouse, unless the testator
or damaged in a fire or flood. If a will cannot be has indicated a clear intent in the will that the
found, or is totally or partially destroyed, copies former spouse should remain a beneficiary des-
of the original often are available. Attorneys gen- pite the end of the marriage.
erally keep copies of the wills they have prepared. Wills may be amended by a codicil, a docu-
When an original will is misplaced or des- ment that meets the same requirements as an
troyed in some way, a copy can be admitted to original will. That is, the amendment must be in
probate, provided it can be proven that the lost writing, signed by the testator and witnessed by

135
two competent and impartial people. A will can- the family house. (The surviving spouse is not
not be amended by writing changes on it. always entitled to the entire $40,000 living
allowance. The probate court is required to make
Limitations on Wills; Special an equitable distribution of the allowance among
the surviving spouse and any minor children.
Provisions Therefore, the surviving spouse receives the entire
The general rule is that a testator can use a
amount if the children are also the deceaseds
will to dispose of his or her property in any way,
children. However, if, for example, there are
to any persons. There are some important excep-
children of a previous marriage, a portion of
tions to this general rule. Further, the law makes
the money may go to those children or to their
special provisions for circumstances that are often
surviving parent for the childrens benefit
overlooked by people when they make wills or
according to their needs.)
when circumstances change after they have made
In addition to the living allowance, the
their wills.
surviving spouse also has the right to have two
The law gives a surviving spouse certain
automobiles (or trucks, if used for family trans-
choices that prevent total disinheritance of pro-
portation), provided they were not specifically
bate assetsthat is, assets subject to probate
bequeathed and the combined value of both
administration. (Certain assets that do not have
vehicles is less than $40,000. These vehicles
to be administered through probate court are
are not subject to probate administration. The
called non-probate assets. For example, assets
surviving spouse is also entitled to claim one
derived from contractual agreements, such as
watercraft and one outboard motor not specif-
revocable (living) trusts, insurance policies,
ically given in the will. He or she also has the
payable-on-death accounts, joint and survivorship
right to be reimbursed for the deceased spouses
accounts, pensions or security accounts with
funeral expenses.
transfer-on-death or joint and survivorship pro-
The surviving spouse may have a dower
visions, function independently of wills and may
(widows or widowers) interest of one-third of
not be subject to probate administration. These
any real property owned by the testator during the
devices are sometimes called will substitutes.)
marriage for the balance of the surviving spouses
While a testator can disinherit others in a will,
life. This dower interest also can be claimed by
a testator cannot entirely disinherit his or her
the surviving spouse with regard to real property
spouse, or leave only a token inheritance. The
that was sold or disposed of during the deceaseds
surviving spouse can accept the will and take
life without the spouses consent. Today, the
whatever share of the estate the will provides, or
possibility of a dower interest is limited because
reject the will and take whatever share he or she is
buyers rarely buy real property without requiring
entitled to under the law. Generally, a surviving
the release of the dower interest in the deed.
spouse is entitled to one-half or one-third of a
The law has special provisions that auto-
testators net estate, depending on the number
matically change a will in some situations, such
of testators children who survive the testator.
as when:
(See the Statute of Descent and Distribution
an additional child is born after the will was
section, page 137.)
made;
A surviving spouse and surviving children
a person named as a beneficiary in the will
also are entitled to a living allowance of $40,000
dies before the death of the testator or within
(which is treated as one of the debts of the estate)
30 days of the testators death; or
and to live in the family home for one year. If the
the testator is divorced or granted dissolution
family home is sold to pay debts, the surviving
of marriage after the will was made.
spouse may be entitled to the fair rental value of

136
When children are born to the testator after a mentioned in the will. Of course, if the testator
will has been made, the general rule is that these does not own the specifically mentioned property
children (called after-born children or pretermit- or have any interest in it when he or she dies,
ted heirs) are entitled to share in the estate the then a gift of that property would be invalid. For
same as the testators other children. The testator, example, if Peters will states, Mary will receive
however, is not bound by this general rule, since my 1920 Rolls Royce, and the Rolls Royce was
testators are not required to leave anything to sold before the testators death, Mary obviously
their children. Like children who were alive when would not be able to receive that Rolls Royce
the will was made, after-born children can be through Peters will.
specifically disinherited or treated differently
from their siblings. A testators directions will be
followed by the court if the will clearly shows What Happens When
that after-born children are not to share in the
estate, or are to share in a different way from the There Is No Will?
children who were alive when the will was made.
Similarly, when an individual named as a Some individuals choose not to make a will.
beneficiary in a will dies before the testator The reasons vary: perhaps they are concerned
(called a predeceased beneficiary), the gift is about offending their relatives or they believe that
not automatically invalidated (or lapsed) unless the distribution required by law is appropriate for
the will makes it clear that the beneficiary must their situations. Others may feel wills are impor-
survive the testator. Ohios anti-lapse statute tant, but never get around to writing them. Some
says that, if the will does not specifically state people make wills that dispose of only part of
that a gift to a predeceased beneficiary is invalid, their property, while some wills are invalid in
then the gift goes to the lineal descendants of whole or in part. Even when a valid will exists,
the predeceased beneficiary, as long as that a named beneficiary may choose not to take the
beneficiary is a relative of the testator. If the share that the will provides.
predeceased beneficiary is not related, no gift In any case, when an individual dies owning
passes to his or her lineal descendants. property not governed by a valid will, Ohio law
The property of a lapsed gift becomes part dictates how his or her property must be
of the residuary estate, to be distributed to the distributed.
(other) residuary beneficiariesthose people
who are named to receive the balance of the Statute of Descent and Distribution
estate after all debts are paid and specific The basic provisions governing inheritance
bequests are distributed. of intestate property (or property not governed
When an individual named in the will dies by a will or will substitutes) are found in a law
within 30 days of the testator, that individual is called the statute of descent and distribution. For
considered to have died before the testator, unless the most part, the statute (Ohio Revised Code
the testator says otherwise in his or her will. 2105.06) favors the nearest relatives surviving
A will does not take effect until the testators the deceased. It provides for distribution of
death and addresses only property that the testator intestate property as follows in the chart on page
owned at death. The fact that the testator disposed 139.
of some property and acquired other property after Those who are entitled to inherit from a tes-
the will was made does not necessarily affect the tator by intestacy are called the testators heirs.
will. A will can still be valid and control distri- If a testator leaves a will, then the testator has will
bution of estate assets even though, at death, the beneficiaries as well as heirs; these two groups
testator owned none of the specific property might or might not consist of the same people.

137
Share of Descendants and Next-of- children would each get one-eighth of the estate,
since their mother (Diane) is said to represent
Kin or Heirs them.
In all of the above cases in which lineal
The members of the nearest generation of
descendants inherit part of an estate, their
descendants with a living member inherit equally.
respective shares are determined according to
For example, if Marys only living relatives
their place in the family tree and through the
were seven grandchildrenAbe had one, Ben had
ancestor who represents them (this repre-
none, Carol had four and Diane had twoMarys
sentation is known as per stirpes). For this
estate would be divided into seven equal portions.
example, assume Mary and Peter have four
But if Ben and the seven grandchildren all sur-
children, Peter dies. Three years later, Mary
vived Mary, then Marys estate would be divided
dies without a will (intestate). Three of her four
into four equal portions: one share for Ben, one
children (Abe, Ben and Carol) are alive at her
share for Abes child, one share to split four ways
death. A daughter (Diane), who died before
among Carols children, and one share to divide
Mary, had two children who are alive.
equally between Dianes two children.
In this instance, the estate would be divided
You can see that whether Abes child receives
into fourths. Marys three surviving children
one-fourth or one-seventh of Marys estate
would each take one-fourth and her two grand-
depends on whether his Uncle Ben survives Mary,
children would share equally in their deceased
which might be by as little as 30 days.
parents (Dianes) one-fourth. These grand-

138
Statute of Descent and Distribution
Situation Heirs and Distribution
1. No surviving spouse, but a surviving child or Each living child receives an equal share
children or the lineal descendants of a of the estate and the descendants of a
deceased child. deceased child will divide that deceased
childs share.

2. A surviving spouse (who is the natural or The entire estate goes to the surviving
adoptive parent of all of the decedents spouse.
children) and one or more children of the
decedent or the lineal descendants of a
deceased child.
3. A surviving spouse (who is not the natural or The first $20,000 goes to the surviving
adoptive parent of the decedents child) and spouse plus one-third of the balance of the
one child or the lineal descendants of a estate; the remainder goes to the child or
deceased child. the childs lineal descendants.

4. A surviving spouse (who is the natural or The spouse receives $60,000 plus one-
adoptive parent of one but not all of the third of the balance of the estate and the
decedents children) and two or more remainder goes to the children, equally;
children or the lineal descendants of any the lineal descendants of a deceased child
such deceased child. divide the deceased childs share.

5. A surviving spouse (who is not the natural or The spouse receives $20,000 plus one-
adoptive parent of any of the decedents third of the balance of the estate and the
children) and two or more children or the remainder to the children equally; the
lineal descendants of any such deceased child. lineal descendants of a deceased child
divide the deceased childs share.

6. A surviving spouse, but not surviving children The entire estate passes to the surviving
or lineal descendants of a deceased child. spouse.
7. Surviving parents, but no surviving spouse, The estate goes to the parents in equal
children or lineal descendants of a deceased shares or the entire estate goes to the
child surviving. surviving parent.

8. Surviving siblings of the decedent, but no The estate goes to the surviving siblings
surviving spouse; no children nor lineal (whether whole or half blood) with the
descendants of a deceased child and no lineal descendants of a deceased sibling
parents surviving. dividing the deceased siblings share.

9. One or more grandparents surviving, but no One-half of the estate goes to the paternal
surviving spouse; no child nor the lineal grandparents, equally, and one-half goes
descendants of a deceased child; no parents to the maternal grandparents, equally.
and no siblings surviving.
10. No surviving spouse, no children or Estate goes to the next of kin, if living, or
deceased children, no parents, no siblings, to the step-children of the decedent with
no grandparents and no lineal descendants the lineal descendants of a step-child
of grandparents. taking the step-childs share, or, if none,
then escheat (pay) to the state.

139
cannot be located, their signatures may be vali-
Administration of dated by other testimony. The court will accept
the will, (i.e., admit it to probate) if and when it
Estates is satisfied that the will is valid.

The purposes of the administration of estates Appointing an Executor or


are to ensure that all of a deceased individuals
property is identified and assembled, that his or
Administrator
Once the will is admitted to probate, the court
her debts are paid, and that the balance of his or
appoints an executor (named in the will) of the
her property is distributed to those entitled to it.
estate. The executor is responsible for seeing that
the estate is properly settled according to law. If
Estates Subject to Administration an individual dies without a will (i.e., dies intes-
All estates must be settled according to the tate) or if the will fails to appoint an executor who
standard probate procedures for administering is able to serve, the court appoints an adminis-
estates, established by Ohio law. However, estates trator, whose duties are essentially the same as
totaling $35,000 or less (or $100,000 or less if those of an executor. Executors and administrators
everything is going to a surviving spouse) may be are fiduciaries, meaning that they are authorized
relieved from most of the formal steps of admin- to act on behalf of others and are entrusted to
istration when the probate court is satisfied that properly handle others estate assets. Although the
the deceased individuals debts will be paid and probate court is not bound to appoint the person
his or her property will be given to those entitled named by the testator, the court will normally
to it. Relief from administration can mean sub- appoint that person if the person is qualified to
stantial savings in time and court costs. Similarly, act as executor.
estates totaling $5,000 or less (or $40,000 or less For intestate estates, the court prefers that a
if everything is going to a surviving spouse) may relative of the deceased act as administrator. In
be summarily released from administration. For addition, an administrator must live in the state
a non-spouse to obtain such a summary release where the estate is being settled. Residency in
from administration, the amount of the funeral bill the state is usually not technically required for
must exceed the value of the assets being released. an executor, but the court often prefers it.
Estate administration also can be streamlined Appointment of an executor or administrator
when the sole executor and the sole beneficiary is complete when the appointee accepts and
of the estate are the same person, regardless of acknowledges his or her duties and liabilities and
the size of the estate. posts a bond for the faithful performance of those
duties. The purpose of the bond is to protect the
Probating the Will estates beneficiaries and creditors against the
When a person dies leaving a will (i.e., dies possibility that the executor or administrator will
testate), the first step in administering the estate is not honestly administer the estate. Wills often
to admit the will to probate. Under this procedure, contain a provision specifically asking the court
the will is filed in the probate court. The court to dispense with the bond for the named executor,
then examines the document to determine if it is indicating trust in the executor named in the will
a valid will. It may admit the will or, if there is to faithfully perform the necessary duties. While
some doubt about the validity, the court may order the court is not bound by such a request, it will
the witnesses to the will to appear and testify, for usually grant it. If a bond is required, the premium
example, about the genuineness of the deceased is paid out of the estates assets.
individuals signature or the deceaseds condition When the appointment is complete, the court
at the time the will was signed. If the witnesses will send the executor or administrator a written

140
authorization to act on behalf of the estate. This another party. The executor or administrator
authorization is called letters testamentary or must see that the pending lawsuit is prosecuted,
letters of authority when issued to an executor defended or settled. Similarly, where the deceased
and letters of administration when issued to an had a claim or cause of action, which was not
administrator. asserted or only partially asserted, the executor or
If an executor or administrator dies, becomes administrator must finally assert the claim and, if
ill, otherwise is unable to complete his or her necessary, file a lawsuit in a timely manner. For
duties or does not properly perform those duties, example, if the deceased was killed in a traffic
he or she must be replaced. A successor or accident, the executor or administrator may have
replacement executor is often named in a will. to file a lawsuit to collect damages for wrongful
If the will does not name a successor, or if death.
individuals named in the will as successors can
not serve or are not suitable to serve as executor, Paying Debts, Taxes, Costs and
the court will name an individual, called an
administrator, W.W.A., or administrator with
Other Expenses
The executor or administrator must determine
the will annexed, to perform those duties.
what, if any, debts the deceased owed. Creditors
have six months after the deceaseds death to
Finding, Assembling and Appraising present claims against the estate. Most claims
the Estate Property not made within six months are barred forever.
The first duties of the executor or adminis- Tax obligations, funeral expenses and other
trator are to locate all estate property, take an obligations incurred after death in administering
inventory of the property and, if necessary, have an estate are not subject to the six-month bar on
the property appraised or valued by one or more claims.
impartial appraisers. Although professional Debts of the estate may include debts the
appraisers are not required if the property is deceased incurred before death or debts incurred
easy to value (stocks, bank accounts, etc.), their by the estate after death, such as utility bills, real
services may be required when the estate includes estate taxes and other expenses for maintaining
real estate, jewelry, antiques, etc. When the estate assets. Examples of common estate debts
inventory and appraisal is complete, it is filed are hospital and funeral expenses. Common estate
with the probate court. administration expenses and taxes also include
Most of the deceaseds assets include non- probate court costs, attorney fees, accountant fees,
probate assets. These assets include revocable appraiser fees, income taxes with respect to the
(living) trusts, insurance policies, joint and deceased final income tax returns (as well as taxes
survivorship and payable-on-death (POD) with respect to income earned during the estate
accounts, transfer-on-death (TOD) affidavit, administration) and the compensation the executor
and deeds and securities or pension plans with or administrator may take for his or her services.
named beneficiaries. The proceeds of these assets Depending on the net value of the estate (includ-
are part of the gross estate for federal and ing, for this purpose, all assets or accounts in
(usually) Ohio estate tax purposes, but generally which the deceased had a financial interest or
are not part of the probate estate and need not control at death), federal or state estate taxes
be listed on the inventory filed with the court. may be payable.
The executor or administrator also has other Certain debts have priority. Generally, taxes,
duties. For example, the deceased may have been funeral expenses, and costs and expenses of
involved in a lawsuit as a plaintiff or defendant at administering the estate must be paid first.
the time of death, or the deceased (or the estate) Usually, debts, costs and expenses will be paid
may have a legal claim or cause of action against out of cash in the estate. If there is not enough

141
cash, it will be necessary to sell some of the estate time. Partial distribution, however, should not be
property. Personal property will be sold first. If made unless the administrator or executor is sure
there is not enough personal property, then real that enough property will be left in the estate to
property (house/land) will be sold. The sale of pay debts, taxes, costs and expenses.
personal property may be conducted in various The administrator or executor must notify
ways. The sale might be a public or private sale those who receive partial distribution of estate
of individual items or it might be some form of assets that they might have to return those assets
auction. Unless the deceased authorized the or their value if funds are later needed to satisfy
executor to sell assets, the probate court must a claim against the estate. For example, creditors
grant permission to conduct a sale. have six months to make a claim against an estate.
If a partial distribution is made before the six-
Distribution of Estate Assets month deadline and then an unexpected large
When all debts, taxes, costs and expenses claim is made against the estate, beneficiaries of
have been paid, the balance of the estate must the partial distribution may have to return those
be distributed to the individuals named in the assets or their value so the claim can be paid.
will or, if there is no will, to those identified in
the statute of descent and distribution (the heirs). Accounting of Estate Assets
Distribution may be in cash or in kind, if the The executor or administrator is required
will authorizes the executor to distribute in kind. to file an account showing the estate assets,
Distributions may be made in kind in intestate income, costs, expenses and distribution within
estates if the administrator gets court permission six months. This period is extended to 13 months
to do so. in certain circumstances, including cases subject
In-kind distribution refers to the transfer of to a will contest or other litigation, or if the estate
something in particular to a beneficiary. For is required to file an Ohio or federal estate tax
example, the will may state that the deceaseds return. When the probate court approves the final
daughter is to receive a wedding ring and a silver account of an executor or administrator, some
tea service. If a sale is not necessary to obtain courts will explicitly release the executor or
funds to pay debts, taxes, costs and expenses, administrator from his or her fiduciary duties.
the executor or administrator may transfer the
wedding ring and tea service directly to the
daughter. Sometimes a will explicitly authorizes Estate, Health and
the executor to make distribution in kind. The
executor or administrator will usually consult Financial Planning
the heirs to determine if they want cash or the
particular property. Estate Planning
When authorized by the will or by the probate Estate planning is the process of preparing for
court, partial distribution of the estate property the disposition of a persons assets and execution
may be made to one or more heirs before the of his or her wishes during life or at death, as well
estate is completely settled and closed. Partial as preparing for alternate decision-makers in the
distribution is often made when the property event of ones incapacity. Wills, trusts, powers
involved is such that it should not go unused of attorney, life insurance policies, pension plans
until the estate is settled. Automobiles are often and bank accounts are some tools used in estate
transferred under a partial distribution because planning. The general purposes of estate planning
they lose their value quickly and may suffer if not are to:
driven. Also, partial distribution is common in transfer an owners assets to the people or
large estates, which may remain open for some organizations selected by the owner;

142
minimize the effects of taxes; and of a testamentary trust generally must be filed by
allow the owner to choose an agent or trusted the trustee with the court every two years.
person who will carry out the owners plan. Revocable trusts have become popular in
recent years because they have many advantages,
In general, trusts are legal agreements in including:
which the trust maker (called a grantor or some- avoiding the cost and difficulties of probate
times a settlor) transfers property to himself or administration and accountings;
herself, or to another person (a trustee) who avoiding the costs and court intrusions of
manages the trust for the grantors benefit and traditional guardianships during the grantors
for the benefit of third persons. life if the grantor should become incompetent;
A revocable trust, sometimes also known as providing a vehicle for implementing a tax
a living trust, is created (signed and funded) plan to reduce or defer estate taxes; and
when the grantor is alive and may be amended permitting confidentiality regarding the trust
(changed) or revoked (cancelled) at any time assets and financial transactions.
during the grantors life. Through the terms of the
revocable trust, the grantor keeps all the benefits However, these advantages can be overstated.
of any property placed into it for the rest of his Estate planning requires individuals to make
or her life. The grantor also can be the trustee, informed choices. They must investigate the
but the grantors spouse or a trust company also various tools available and understand their
often serves as trustee. In general, a court-filed effects. For example, while revocable trusts are
accounting for a revocable trust is not required very flexible, they are not cure-alls, nor are they
unless a beneficiary requests one, so the trustee applicable in every situation. For example,
customarily reports the financial transactions of consider that while there are expenses involved
a revocable trust solely to the grantor (during his in the probate administration of a deceaseds
or her life) and then to the beneficiaries once the assets, expenses also are involved in establishing
trust becomes irrevocable at the grantors death. and administering either a revocable trust or a
A revocable trust can be funded with any prop- testamentary trust. In addition, a will and, thus,
erty such as bank and brokerage accounts, stocks some probate administration, is necessary for
and bonds, a home and other real estate. Some most individuals who have a revocable trust
revocable trusts may not be funded initially, but because some assets are not placed in a revocable
rather at a later time or at the grantors death. An trust. Also, probate administration can be helpful
attorney can help advise when a revocable trust in some estates and guardianships because of the
should funded and with what property. The terms probate courts supervision and required regular
of a trust are described in writing in a document reports, and the court can replace fiduciaries that
often called the declaration of trust or trust do not do their jobs.
agreement. This document is signed by both the One thing that a revocable trust cannot
grantor and the trustee. do, contrary to some advertising, is to help an
A revocable trust is the opposite of a testa- individual qualify for public assistance programs,
mentary trust, which is only created after the such as Medicaid and Supplemental Security
grantors death. A testamentary trust is a trust Income (SSI). These programs create special
that is established by the grantors will. Because estate-planning considerations for individuals
a testamentary trust is only created after the who are trying to provide for themselves as senior
grantors death, it cannot be amended or revoked. citizens, or are trying to provide for someone with
Unlike a revocable trust, a testamentary trust is a disability. Public assistance programs have strict
subject to the ongoing supervision of the probate and complex asset and income requirements. To
court, and accountings for the financial activities meet these requirements, individuals sometimes

143
transfer assets to their children or to irrevocable various legal devices. The health care power of
trusts so that their children will receive an inherit- attorney and the living will are among these
ance. The federal government has responded to devices.
this kind of transfer by establishing a period after
such a transfer in which an individual is ineligible Durable Power of Attorney
for public assistance (for example, the look-back The word attorney simply means represent-
period for Medicaid eligibility after a transfer is ative agent. A power of attorney is a document
five years). that appoints someone as an agent, either for
On the other hand, government rules make it limited purposes or for very broad, all-inclusive
possible for an individual, with proper planning, purposes.
to go to a nursing facility without impoverishing Effective in March 2012, Ohio law makes
his or her spouse. In addition, the state of Ohio all powers of attorney durable, meaning that
has made it possible to create a supplemental the agent can act even if the principal becomes
services trust for an individual with mental illness incapacitated (for example, when injury, age or a
or mental retardation, or other developmental condition such as Alzheimers disease takes away
disability. The trust allows certain assets to be the persons ability to handle his or her own
sheltered for limited purposes but, upon the death financial affairs and make medical decisions),
of the beneficiary of the trust, a portion of the unless the power of attorney document says
assets goes to the state of Ohio to be used by other otherwise.
Ohioans who have disabilities.
A revocable trust (as opposed to an irrevoc- Health Care Power of Attorney (HCPOA)
able trust) is not directly relevant to public One type of durable power of attorney is
assistance planning because it can be revoked called the health care power of attorney (HCPOA,
or cancelled. For this reason, the trust assets are also sometimes called a DPOA). An HCPOA
considered to belong to the trust owner for public permits an agent to make health care decisions if
assistance planning purposes. A revocable trust the principals physician has determined that he
might, however, be very useful to, say, a mother or she is unable to make and communicate his or
who wishes to use it as part of a general estate her own health care decisions. Anticipating the
plan to provide a trust for the care of her disabled inability to make health care decisions at some
son after her death. time in the future, the principal grants this power
Estate planning is a detailed process that must in the HCPOA and gives the agent guidance on
be tailored to the needs of particular individuals. what to do.
An individual who is contemplating the use of a Unlike a living will, discussed on page 145,
revocable trust, or other estate-planning device, the agents powers are not limited to the time of
should consult an attorney for assistance in this the principals terminal illness or permanently
complex area. unconscious state. The agent may be given broad
powers over every type of medical, or medically
Incapacity and Health Care related, situation or decision (provided that the
Planning principal is unable to make and communicate his
While advanced medical techniques have or her own health care decisions). However, the
made it possible to prolong the lives of individuals law imposes certain restrictions. For example, the
with health conditions, they also raise practical, agent cannot authorize the removal of treatment
moral, and legal questions. Concern for these that the principal has previously authorized unless
life-and-death issues, as well as the burden and circumstances have changed substantially. Also,
potential liability they place on the family and the agent cannot authorize the removal of life-
medical providers, has led to the development of sustaining treatment unless the principal is in a

144
terminal condition or permanently unconscious they state an individuals wishes about medical
state. and end-of-life treatment before such treatment
To be a valid document, the HCPOA must be: may be needed. Anyone interested in creating
executed by a competent adult; an HCPOA or a living will should review the
signed and dated by the person granting the forms for each that were developed by the Ohio
power; and State Bar Association with the Ohio State Med-
witnessed by two disinterested and legally ical Association, the Ohio Hospital Association,
competent individuals OR acknowledged the Ohio Osteopathic Association and the Ohio
before a notary public who will attest the Hospice & Palliative Care Organization. The
individual appears to be of sound mind and forms conform to the requirements of the law
not under or subject to duress, fraud or and are available from the Ohio Hospice &
undue influence. Palliative Care Organization (now Midwest
Care Alliance) through its website at www.
Living Will midwestcarealliance.org (click on advance
The living will is an individuals own state- directives box at the bottom of the home page).
ment and choice about the specifics and the extent It is not necessary to use the standard forms.
of treatment he or she wishes to receive when in However, for either document to be valid, it must
a terminal condition and/or permanently uncon- include certain specific language spelled out in
scious state and no longer able to make and com- the Ohio Revised Code and included in these
municate those decisions. The living will does not forms. Physicians and attorneys will have copies
appoint another person to make such decisions. of the standard forms, as will many organizations.
As with the HCPOA, a living will has certain A persons advance directives should be
limitations. A living will becomes operative only updated every few years, for changes in both the
when: law and in personal circumstances. In September
the attending physician and a second 2010, new standard forms were issued to conform
physician determine that the person to changes in Ohio law. Documents executed
(declarant) is in a terminal condition or a before 2010 are still valid, but those signed since
permanently unconscious state; and 2010 should use the current standard forms or
the attending physician determines the per- have met with an attorney to make sure changes
son is not able to make informed decisions in the law are reflected in the documents. Other,
regarding treatment, and there is no reason- less common, types of advance directives are
able possibility that he or she will regain described below.
the capacity to make these decisions.
Mental Health Declaration
Any competent adult may execute a living A Declaration of Mental Health Treatment
will with the same formalities described above for is a document that allows an individual to state
the HCPOA. his or her own preferences regarding mental
A living will may include the declarants health treatment and to appoint a person to make
intent to make an anatomical gift (such as organs mental health care decisions when he or she is
or tissues) upon his or her death. The declarant unable to do so.
with this intent also should complete a Donor A regular HCPOA can address both physical
Registry Enrollment Form and send it to the Ohio and mental health issues and is sufficient for
Bureau of Motor Vehicles so his or her name can many Ohioans. In comparison to physical health
be added to Ohios official donor registry. care issues, however, mental health issues can
Both the HCPOA and living will documents be more complex and their specific treatments
are also known as advance directives because (e.g., medications and therapies) generally are not

145
addressed in a general HCPOA. Those who would stitute an actual DNR order. Such an order is
benefit from creating a mental health declaration actually in place ONLY when a physician has
include people who have been diagnosed with specifically written a DNR order into the patients
mental illness or people who think they might medical records at the time of the patients ter-
need mental health treatment at some point (for minal illness or permanent unconsciousness.
example, those of advanced age or those who Because a living will takes effect only if and
have a progressive illness that is likely to involve when a person is terminally ill or in a permanently
mental health issues). unconscious state, a DNR order that is authorized
The mental health declaration lets health by a living will cannot be issued until the person
care professionals know the principals own is determined to be so afflicted in the opinion of
preferences regarding mental health treatment. two physicians, one of whom must be a specialist.
It also allows the agent (or proxy) to advocate Similarly, a person may give an agent the author-
for these choices and make other decisions in the ity, through an HCPOA, asking a physician to
principals best interest if no preference is stated. issue a DNR order, but that authority takes effect
only when the patient is unable to communicate
DNR Orders his or her own wishes.
In medical terminology, DNR stands for
do not resuscitate. A DNR order is a physician
order written into a patients medical records that Other Duties of the
says cardiopulmonary resuscitation (CPR) is not
to be administered. Doctors are required by their Probate Court
code of ethics to do everything they can to keep
a patient alive, unless the patient will not be able Commitment of the mentally ill and retarded,
to recover any kind of meaningful life and the appointment and supervision of guardians, super-
patient specifically requests that he or she should vision of adoptions, and the issuance of marriage
not be revived in the event of a catastrophic licenses are among the important duties of the
illness. probate court.
A person can obtain a DNR order by asking
his or her physician to write such an order. If, Commitment of the Mentally Ill or
after consulting with the patient, a physician Retarded
determines that both of the necessary conditions
When an individual suffering from mental
exist, the physician will write the DNR order
illness or mental retardation poses a danger to
into the patients medical records. It will go into
himself or herself or others, or needs special care
effect immediately.
that he or she refuses or is unable to get, then
A person also can preauthorize a physician
that individual may be asked to come before the
to write a DNR order in the event that he or she
probate court for the purpose of being committed
becomes terminally ill or permanently uncon-
to a hospital or institution for care or treatment.
scious. A person may use the following two
The probate judge may commit such an individual
documents to authorize and request that his or
to a public or private hospital or institution only
her physician write a DNR order:
after carefully assessing the evidence of that
a living will; or
persons mental status.
a health care power of attorney authorizing
an agent to request such action.
Guardianships
It is important to understand, however, that A guardian is an individual appointed by the
a persons authorization or request does not con- probate court to be responsible for another person,

146
or for another persons property, or both. (The removed and the injured person was able to
individual for whom the guardian is appointed is resume control.
called the ward.) A guardian will be appointed The court also may appoint an interim
if the ward is unable to handle his or her affairs. guardian or an emergency guardian in special
The disability may be due to youth, advanced age, situations, such as a temporary disability, or
mental condition or physical condition. A guard- until a full hearing can be arranged to deter-
ianship may be voluntary (that is, the guardian mine whether a full guardianship is necessary.
is appointed at the wards request) or it may be Interim and emergency guardians only serve
involuntary. A guardian is a fiduciary and must for short periods.
take charge of his or her wards property and
give a periodic accounting of the wards condition Adoptions
and financial affairs to the probate court. Adoption is the legal method by which a
Under the law, the court must take the least single adult, a husband and wife, or life partners
restrictive alternative in establishing the appro- gain full responsibility for rearing and caring for
priate care for the ward. someone elses minor child. Through adoption,
Ohio allows the probate court to appoint the child legally becomes the child of the adop-
limited guardians and conservators. In general, tive parent or parents following approval by the
when a person is legally incompetent, but the probate court.
nature of what he or she owns or his or her per- The probate court evaluates the prospective
sonal situation does not require the guardian parents (or parent) to determine if the proposed
to perform all of the duties of living, the court adoption is in the childs best interest. If so, the
can appoint a limited guardian to perform only probate court approves the adoption. A child of
those functions that are necessary. This might any age up to 18 can be adopted. (Under certain
be the case, for example, when a person has only circumstances a disabled adult can be adopted.)
an interest in real estate that needs to be managed, Adoptions occur in various situations. For
and the cost and mechanics of his or her personal example, a stepchild may be adopted by his or
care is being covered by a spouse. In such a case, her stepparent. Also, orphans, abandoned child-
the court might appoint a limited guardian who is ren, children placed for adoption by their parents,
only responsible to take care of the real estate and and children whose legal relationship with their
does not have to handle other affairs. A family parents has been ended by a court may be
member or friend might be willing to assume this adopted.
kind of limited duty, but not other duties that a
guardian normally would have to perform.
When an individual is mentally capable but
Marriage Licenses
The probate court supervises the issuance
physically infirm, the court can appoint a conserv-
of marriage licenses. (Marriage licenses are
ator to assist the individual in handling his or her
examined in more detail in Part X at The
affairs, either temporarily or permanently. Where
Marriage License.) In summary, the probate
a conservatorship is established, the judge sets
court will not issue marriage licenses to a pro-
forth the particular duties that the conservator is
spective married couple if either:
to perform. Thus, if someone were injured in an
is underage;
automobile accident and were in a full body cast
is under the influence of alcohol or a
for four months, the court might appoint a con-
controlled substance at the time of
servator to make deposits, sign checks, handle
application; or
mail and do other day-to-day things (with input
suffers from a communicable form of syphilis.
from the injured person) until the cast was

147
Blood tests are not required to obtain a mar-
riage license in Ohio. If an applicant is underage, record, traditional journalists have generally
a license can be issued if appropriate parental consulted with their editors, producers and legal
consent is provided and the court is satisfied that counsel because of concerns about privacy and
prevailing journalistic ethics.
suitable counseling has been received. If a girl is
Non-traditional journalists, citizen journalists,
under 16 and pregnant, the juvenile court may bloggers and those without formal training or
grant permission to marry. education in journalism and journalism ethics
may not know or care about the ethics of pub-
lishing stories regarding probate legal matters.
For Journalists: When it comes to disclosing legitimately private
Covering Probate Law information, courts to date have not offered any
additional protections for the new and emerging
Journalists and other writers who cover pro- categories of journalists in the Internet age. (For
bate law issues should understand the respon- more detail on privacy and reporting, see Part
sibilities of the probate court. Covering families XV.) The Supreme Court of Ohio has, however,
involved in probate conflicts requires special attempted to address general privacy concerns in
attention to detail and to the impact such stories its Rules of Superintendence. As a result, most
may have on those whose lives are affected by probate courts now have personal identifier/
these disputes. confidentiality forms that provide for Social
Since probate matters generally involve Security numbers and bank account numbers
families and disputes may be matters of public (and, in some instances, the names and addresses
of beneficiaries) to be kept private.

Chapter Summary
The probate division (or probate court) of the court of common pleas in each of Ohios
88 counties is one of the busiest in the court system.
Probate law covers the proper administration of the estates of individuals who have
died, including the payment of taxes and court-approved debts, and the transfer of all
probate estate property to the appropriate individuals or entities.
Probate law also governs the issuance of marriage licenses, adoptions, appointment of
guardians to care for children and other persons who cannot care for themselves or
their property, and proper care and treatment for persons suffering from mental illness,
mental retardation, or from developmental or physical disabilities.

Continued on page 149

148
Chapter Summary continued
Individuals serving in positions of trust, whether they are executors, administrators,
guardians, conservators, trustees, attorneys-in-fact or other persons who act on behalf
of third persons, are called fiduciaries.
The current owner of private property can determine who is to be the future owner
when the current owner dies. The most common device to transfer ownership upon
death is a will, or more formally, a last will and testament. An individual making a
will is called a testator.
A will cannot govern the distribution of the testators property unless it is filed with
the probate court.
When an original will is misplaced or destroyed in some way, a copy can be admitted
to probate, provided it can be proven that it is the last will of the testator, and that the
testator did not intentionally damage or destroy it in order to revoke it.
A will can be revoked in a number of ways. The most common way is by making a
new will.
The basic provisions governing inheritance of intestate property (or property not
governed by a will or will substitutes) are found in a law called the statute of descent
and distribution. For the most part, the statute favors the nearest relatives surviving
the deceased.
Estates are administered through the probate process to ensure that all of a deceased
individuals property is identified and assembled, his or her debts are paid and the
balance of his or her property is distributed to those entitled to it.
Once the will is admitted to probate, the court appoints an executor of the estate. An
executor is someone who is responsible for seeing that the estate is properly settled
according to law.
If there is no will, the court appoints an administrator to handle the estates
administration.
Estate executors and administrators must locate and take inventory of all estate prop-
erty, determine and pay any debts owed by the deceased, pay any estate taxes that are
required, and distribute the balance of the estate to individuals named in the will or
designated by the statute of descent and distribution. When an estate is closed, the
executor or administrator must file an account of assets, income, costs, expenses and
distribution with the court.
Estate planning is the process of managing a persons assets and decisions during life
or at death. Wills, trusts, powers of attorney, life insurance policies, pension plans
and bank accounts are some tools used in estate planning.
Concern for life-and-death issues and the burden and potential liability they place
on the family and medical providers have led to the development of various legal
devices. The health care power of attorney, the revocable (living) will and the mental
health declaration are among these devices.
Commitment of those with mental illness or retardation, appointment and supervision
of guardians, supervision of adoptions and the issuance of marriage licenses are
among other important duties of the probate court.

149
Web Links:
From the OSBAs Law You Can Use column:
www.ohiobar.org/lawyoucanuse (search by title or topic)
Ask Questions To Decide if a Revocable (Living) Trust is Right for You
Consumers Should Seek Legal Advice before Establishing Trusts
Keep DNR Orders Where Emergency Squads Can Find Them
Know Legal Steps To Take after Someone Dies
Know Risks before Using Joint and Survivor Bank Accounts
Make Sure Your Assets Go To Intended Beneficiaries
Ohio Law Helps You Provide for Fido After Youre Gone
Ohios Income Tax on Trusts Is Here To Stay
Probate Court Screens Prospective Parents in Private Adoptions
Recognized Advance Directive Forms Simplify Health Care Planning
State Recovers Medicaid Costs from Estates
Transfer-on-Death Designation Affidavit Avoids Probate of Real Estate
Trust-Owned Life Insurance Policies Help Avoid Federal Estate Taxes
Using Trusts To Improve Quality of Life for Individuals with Disabilities
What Are the Residency Requirements for Ohio Guardians?
What Is Charitable Planning?
What You Should Know about the Declaration of Mental Health Treatment
What You Should Know about Do Not Resuscitate (DNR) Orders
What You Should Know about Guardianships and Advance Care Planning
What You Should Know about Health Care Powers of Attorney
What You Should Know about Living Wills
What You Should Know about Organ and Tissue Donation
What You Should Know about the Declaration of Mental Health Treatment
When A Loved One Dies Who Pays the Bills?

From the OSBAs Law Facts pamphlet series:


www.ohiobar.org/lawfacts (search by title)
Administering an Estate without a Will
Do Not Resuscitate (DNR) Orders
Financial Powers of Attorney
Guardianships
Living Wills and Health Care Powers of Attorney
Revocable (Living) Trusts
Probate
Wills

From Cornell Law School Legal Information Institute:


http://law.cornell.edu/wex (type key words in search box)

150
Part X____________________________
family law
Character is the only secure foundation of the state.
Calvin Coolidge

he family is the basic unit that and from professional marriage or family coun-

T ensures the biological and cultural


continuation of society. So that
families function as well as pos-
sible, the law establishes rights
and duties for family members (generally parents
and their children) and a method to enforce these
selors. The probate court also might provide
information about local sources for pre-marriage
counseling.

Marriage as a Three-Way Contract


Marriage is a three-way contract involving
rights and duties. For example, the state sets rules the state and the two people who are joined in
for creating marriages and, through a court, the marriage. The parties marriage vows create a
state approves (or grants) a divorce or dissolution binding contract. Under Ohio law, the state is
of marriage. automatically a party to the contract because of
The rights and duties of the people involved the importance of the family, and because the
in the family and the process of enforcing these methods generally used to enforce other types of
rights and duties are often grouped together under contracts do not work with a marriage contract.
the term family law. For example, a court can order payment of child
support or grant visitation rights, but the orders
Marriage likely would be unenforceable without the power
of the state. The states presence helps protect the
interests of the state, society and any third-party
Marriage involves a man and a woman who beneficiaries, such as children.
are responsible for each others well-being and
the well-being of their children. Because the
relationships between spouses and between
Who May Marry
Under Ohio law, unmarried men 18 or older
parents and their children are so important to
and unmarried women 16 or older are legally
a healthy society, the state encourages people
permitted to marry. A person under 18 years of
considering marriage to be cautious and wise.
age must obtain the consent of his or her parents,
guardian, or custodian. Parental consent is
Pre-Marriage Counseling unnecessary in situations where the parent
Pre-marriage counseling is advisable for all whose consent is required:
couples, regardless of their ages or any previous lives in a foreign country;
marriages. Conferences with an experienced has neglected or abandoned the minor who
counselor help prepare the couple to manage the wishes to marry;
problems that arise in any marriage. However, is an inmate in a mental or penal institution; or
if both of the prospective spouses are 18 or older, has been deprived of custody of the minor by
pre-marriage counseling is not mandatory. If the court.
either of the parties is under 18, Ohio law requires
the couple to have pre-marriage counseling. In addition, a woman who is under 16 and
Couples who belong to a religious organiza- pregnant may obtain permission to marry from
tion can arrange counseling with their religious or the juvenile court. (Note that the juvenile court
spiritual leader. (Some religious bodies require is not required to grant permission.) Someone
pre-marriage counseling.) Pre-marriage counsel- who already is married cannot legally enter into
ing is also available from many social agencies another marriage. A married person who know-

151
ingly enters into another marriage is a bigamist. Further, a religious society may perform a
Bigamy is a crime that automatically makes any marriage. The provision allowing a religious
later marriage(s) invalid. Even so, Ohio law society to perform a marriage ceremony recog-
permits the later spouse to get a court-ordered nizes the practice of having couples publicly
divorce or annulment, which officially ends a exchange marriage promises and then proclaim
bigamous relationship and helps resolve questions to the congregation that they are wed. The per-
of spousal support, legitimacy of children and son officiating at a marriage ceremony must sign
child support. the marriage certificate and file the certificate
with the probate court within 30 days after the
The Marriage License ceremony.
A marriage cannot occur unless the parties
have a license. A couple may apply for a license Ceremonial Versus Common-Law
in the probate court of the county where either Marriages
party lives, or in the county where the ceremony Historically, the law has recognized two
is to be performed. Before February 2001, Ohio methods of establishing the marital relationship:
couples had to wait at least five days from the date ceremonial marriage and common-law marriage.
of application for their marriage licenses to be In a ceremonial marriage, the couple obtains a
issued unless, for a good reason, the probate judge license from the probate court and a person autho-
waived this waiting period. Now, couples no rized by the state conducts the marriage. Once
longer have to go through a waiting period before the ceremony is finished, the authorized person
obtaining a marriage license. completes the certificate of marriage and files it
A blood test is not necessary to obtain a with the probate court within 30 days.
marriage license. However, probate courts do Common-law marriage, recognized in Ohio
not issue a marriage license to any person who, until 1991, was established by the conduct of
at the time of the application, is under the influ- the parties and was not dependent on an official
ence of alcohol or a drug of abuse, or who is license, ceremony or certificate. Before 1991,
suffering from a communicable form of syphilis. Ohio allowed persons who claimed to have
Once issued, a marriage license is valid for 60 entered into a common-law marriage the oppor-
days. If the couple does not marry within that tunity of proving that such a marriage did exist.
time, they must get a new license. Once a courtor sometimes an agencydecided
that a person claiming marriage had offered
The Marriage Ceremony sufficient proof, the common-law marriage was
The law does not prescribe the actual words established, at least for the purposes of that court
of the marriage ceremony. In Ohio, only a person or agency.
authorized to perform marriage ceremonies can Couples claiming to have entered into a
solemnize a marriage. Authorized persons common-law marriage must prove:
include: competence to marry (each party must have
anyone who produces credentials as a been the appropriate age and not married to
regularly ordained or licensed minister of any another person);
religious society or congregation, and is cohabitation;
licensed by the secretary of state to solemnize that they have conducted themselves publicly
marriages; as a married couple;
municipal, county and probate court judges; that they have developed a reputation in the
mayors; and community as a married couple; and
the superintendent of the state school for
the deaf.

152
their intentor their agreement, at some point rights to same-sex couples, including Colorado,
during their relationshipto live as husband Hawaii, Maine, Maryland, New York and
and wife. Wisconsin.
Although there has been no reported decision
Ohio no longer accepts proof of common-law as of December 2011, it is doubtful that the state
marriage in relationships that were entered into in of Ohio would recognize the civil unions of same-
Ohio on or after Oct. 10, 1991. In some circum- sex couples from other states. However, some
stances, however, Ohio will accept proof of a trial-level decisions have permitted same-sex
common-law marriage if the couple entered into couples who were married or had established civil
such a relationship in another state that recognized unions in other states or abroad to terminate their
common law marriages at the time the couple marriages or civil unions in Ohio courts. In these
committed themselves to one another. cases, the couples agreed about the terms of term-
The question of the existence of a common- ination. It is questionable whether any Ohio courts
law marriage usually arises when one of the would permit contested litigation to determine the
parties dies and the surviving party claims the rights and obligations of the parties who seek to
rights of a surviving spouse. For example, the terminate marriages and civil unions established
surviving party may make a claim for inheri- elsewhere between same-sex couples.
tance, Social Security, insurance or workers Because same-sex couples in Ohio have few
compensation. or no legal rights through the family law statutes,
Just as with a ceremonial marriage, a divorce same-sex couples generally use private contracts,
or dissolution is necessary to end a common-law sometimes called partnership agreements or
marriage. cohabitation agreements, to define the financial
rights and obligations each party has to the other,
Same-Sex Marriage, Cohabitation particularly regarding property they may acquire
during their relationship.
Agreements, and Custody of A cohabitation agreement typically defines
Children each right and obligation, property, support and
Ohio is one of 30 states that excludes same- any other issue an unmarried couple may face
sex couples from marriage by state constitutional while living together and in the event of a dispute
amendment. Eleven states exclude same-sex or break-up. This type of agreement may address
couples from marriage by statute only. issues such as property ownership division, finan-
The following states issue marriage licenses cial resources, a partners death or disability and
to same-sex couples as of December 2011: sharing of household expenses. Such contracts
Massachusetts, Connecticut, Iowa, Vermont, cannot be enforced in domestic relations courts.
New Hampshire, New York and the District of However, they are generally enforceable in
Columbia. Marriage equality is also available in common pleas court as a contract or partnership
two tribal nations, the Coquille Indian Tribe and dispute, depending on all the circumstances of the
the Suquamish Tribe. Three states, California, case. At this time, a cohabitation agreement is the
Maryland and New Mexico, recognize out-of-state best available means for unmarried same-sex or
marriages between same-sex couples, even though heterosexual partners in Ohio to determine their
they dont issue their own marriage licenses. own legal future and protect their interests.
Ten jurisdictions make available civil unions Unmarried couples, whether same-sex or
or other comprehensive domestic partnership heterosexual, cannot jointly adopt children in
status, including California, Delaware, Illinois, Ohio. However, Ohio courts have, since 1997,
Hawaii, New Jersey, Nevada, Oregon, Rhode generally approved shared custody agreements
Island and Washington. Six others provide limited submitted to establish a legally recognized

153
relationship in the context of same-sex parents potentially available to same-sex couples in Ohio
between the child and the parent who is not the is available without formally establishing such
childs legal parent. Such agreements were spe- protections, preferably well in advance of any
cifically sanctioned by the Supreme Court of disputes or difficulties that may arise.
Ohio in 2002. The rights of a same-sex partner
who is not a childs legal parent to maintain a
relationship with a child born to or adopted by the Family Rights and
other partner in the absence of formal agreement
are in flux, with conflicting decisions arising from Obligations
Ohio courts depending upon the factual circum-
stances. Ohio law establishes a variety of rights and
Persons in same-sex partnerships who want duties for married couples concerning their rela-
their partners or children to inherit from them are tions with one another and with their children.
strongly encouraged to prepare standard estate Similarly, the law establishes a variety of rights
planning documents, such as wills, nominations and duties for children concerning their relations
of guardian, designation of remains and powers with their parents.
of attorney. Without such planning, same-sex
couples do not inherit through each other under Rights and Obligations of a Married
the statutes of descent and distribution, and their
children do not inherit through a parent figure
Couple
According to Ohio law, married partners
who is not their legal parent. In the absence of
are expected to give each other mutual respect,
a designation of remains, the partner may not
fidelity and support. Each spouse must support
be able to determine funeral arrangements or, in
himself or herself, the other spouse and any minor
some cases, may even be barred from attending
children. This support is described in the law as
funeral services organized by traditional next
the provision of necessaries. Necessaries gener-
of kin. These results are not changed by the
ally are defined as food, clothing, shelter and
establishment of shared custody.
medical care.
In addition, persons in same-sex relation-
Providing support is considered so important
ships who want their partners to make medical
that spouses or parents found guilty of neglecting
decisions for them in the event they are not
their duties may face civil and criminal liability
competent to do so (such as in the event of
with stiff penalties. For example, a spouse may
emergency, debilitating illness or other significant
be held liable for the enormous medical expenses
medical problem), can prepare health care powers
incurred during a lingering illness of his or her
of attorney and living wills naming the partner.
spouse, even though the healthy spouse had no
Without such formal designations, treatment of
contract with the medical providers.
the same-sex partner by medical providers and
Historically, a wife had few rights apart from
family members in time of medical difficulty will
her husband. When a woman married, most of
be unpredictable.
her property became her husbands and she was
Because of the complexity of these issues and
almost totally under his control. Under older ver-
the uncertainty surrounding this constantly chang-
sions of the common law, a husband could, within
ing area of law, same-sex couples are strongly
certain limits, physically assault his wife.
advised to consult an attorney who has experience
Today, married partners are on equal footing
working with same-sex couples to discuss the
with respect to personal and property rights. With
legal options available to them, especially if the
certain limited exceptions, each may own and
couple plans to own real property or raise children
dispose of property as if unmarried. Each has the
together. None of the rights and planning options

154
right to enter into contracts without the other. divorce, dissolution of marriage, annulment or
Neither can be excluded from the family home, spousal support lawsuits. In some cases, a welfare
except by court order. Also, physically assaulting agency will file lawsuits. The state of Ohio also
a spouse is currently punishable as a crime helps enforce the support obligations of out-of-
(domestic violence). state parents. Each county maintains a child
support enforcement agency to establish and
Obligations of Parents to Their enforce child support orders administratively.
Objections to the agencys actions are heard
Children in court.
Parents are obliged to support their children.
This obligation includes:
Note: The Family and Medical Leave Act of
ensuring that the children have food, clothing,
1993 (FMLA) provides certain employees with up
shelter and medical care;
to 12 weeks of unpaid, but job-protected, leave
ensuring that they attend school;
per year. Employees may take leave for a number
supervising their behavior and using
of qualifying reasons, including the birth or care
appropriate discipline when it is necessary to
of a newborn, adopted child or foster child and the
achieve proper conduct; and
care of an immediate family member. To learn
fostering and protecting their physical, mental
more about the FMLA, see Part XI, Workplace
and moral well-being.
Law, page 174.
Failure to meet any of these obligations
may result in various kinds of criminal and civil Obligations of Children to Their
liability for the parents. Parents
In a practical sense, parents are obligated Children have certain responsibilities to their
to provide adequate support to their children, at parents. Children are obligated to respect their
least until the children are through high school. parents and perform, within their abilities, the
The question of what is adequate support is family duties that are asked of them. They must:
answered on an individual basis. Adequacy obey their parents, teachers and other
depends upon the parents ability and financial authority figures;
resources. Support may be considered to be apply themselves the best they can to master
adequate if the parents are doing the best they the instruction and schooling given them; and
can, given their particular circumstances. behave according to acceptable standards.
The legal obligation to support children
applies whether the parents are married to each An adult child also is obliged to provide sup-
other, married to a subsequent spouse or were port if a parent is financially unable to support
never married at all. This obligation applies to himself or herself, either due to sickness or old
both parents regardless of who has custody of the age. As with parents obligation to support minor
children. Non-support of children is a criminal children, this obligation is conditioned by the
offense. adult childs ability and financial means. An adult
This obligation to provide child support may childs obligation to support a parent does not
be enforced through a variety of court actions. An apply if the parent has abandoned the child or
action may be brought by the mother of an illegit- failed in his or her obligation of support to the
imate child to force the father to provide support. child.
Other actions may be brought in connection with

155
such as to marry or to obtain medical treatment.
Minors and While minors can own property, it is often
necessary that a guardian hold and manage
Their Rights such property. The right of minors to enter
into contracts also is limited. (See Part VI,
For most purposes, a person is considered Contracts, for a discussion of a minors
an adult at age 18. Persons under 18 are called capacity to enter into a contract.)
children, minors or juveniles. While minors have Minors are barred from certain occupations
many personal rights, they do not have all the and their employment in other occupations is sub-
rights of adults. ject to legal limits on child labor. For example,
minors may not engage in occupations that are
The Age of Majority hazardous or detrimental to their health and
The age at which a child (minor or juvenile) safety, such as meat packing and slaughtering,
becomes an adult is known as the age of majority. mining, and the manufacture of chemicals,
Under federal law, every person is allowed to explosives or radioactive material. Certain
vote at age 18. In Ohio, 18 is the age of majority licenses cannot be granted to minors. For
for voting and most other purposes. The major example, to obtain a license to practice law in
exception to that rule involves liquor control laws. Ohio, an applicant must be at least 21 years
Persons under 21 are not permitted to purchase of age. Other licenses, such as a drivers license,
any alcoholic beverage. can be granted to minors only under certain con-
ditions. The ability of minors, especially very
young children, to act as witnesses in court also
Minors in General is limited. Under the Ohio Rules of Evidence,
The law often treats minors differently from
a child under age 10 cannot be a witness unless
adults, since minors frequently lack the know-
the judge determines, after separately questioning
ledge, experience and judgment to truly fend for
him or her, that the childs testimony is likely to
themselves.
be honest and truthful and not the result of what
Some rights and obligations do not apply to
someone else may have instructed the child to say.
minors the same way that they apply to adults.
Parents can be held responsible or liable for
For example, society does not hold very young
up to $10,000 if their children willfully damage
children responsible for criminal acts. Older
property or willfully and maliciously assault
children who commit criminal acts are also
another person. Moreover, an adult who signs for
treated differently from adults in most cases.
a minors drivers license may be held liable for
For instance, a person under age 18 is allowed a
any amount of damage the minor causes in an
substantially lower blood alcohol concentration
accident if the minor is driving without insurance.
than an adult when operating a motor vehicle.
(While persons under 21 may not buy any alcohol,
they are permitted to consume it for ceremonial Constitutional Rights of Minors
purposes within the family.) One rationale for While minors do have rights under the con-
allowing a lower alcohol concentration for minors stitution, they are somewhat restricted. For
is that a combination of alcohol and judgment that example:
already may be reduced due to their age makes Minors do not have complete freedom of
juveniles more likely to be involved in accidents. speech and assembly under the First Amend-
Apart from the criminal law, minors may be ment to the U.S. Constitution. For instance,
subject to more, and different, controls on their the state can limit access to books, magazines,
behavior than adults. For example, minors must movies and other materials adults can freely
have parental permission to do certain things,

156
obtain, view or possess. Ohio law places if committed by an adult. For example, a
restrictions on matter that is not obscene minor who engages in sexual relations may
from an adult viewpoint, but is considered be committed to a juvenile institution as an
unsuitable for juveniles. unruly child.
Minors cannot freely keep and bear arms. Finally, a minor does not have the right to a
Under federal and Ohio law, a minor cannot jury trial in juvenile proceedings.
buy any kind of firearm and a person under
21 cannot buy a handgun. A minor under 16 Contractual Rights of Minors
years of age cannot hunt without an accom- Minors do not have full rights to enter into
panying adult. Except for lawful hunting, no contracts. A minor who enters into a contract with
minor of any age can possess a firearm unless an adult has the option to either honor or cancel
it is used for instruction in firearms safety, the contract before complying with (or perform-
care, handling or marksmanship under com- ing) the terms of the contract. By complying with
petent adult supervision. the terms, the minor is acting in a way that honors
Searches and seizures that would be uncon- the contract, so the contract will be binding on the
stitutional if they involved an adult may be minor as well as the adult.
constitutional when they involve a juvenile. A minor who chooses to cancel a contract
For example, it may be proper, under certain must take action to cancel the contract before
circumstances, to search a school locker. becoming 18 years of age. However, a minor
Schools have a duty to take weapons, drugs cannot cancel a contract if the cancellation would
and other dangerous items away from cause an unfair result or allow the minor to benefit
students. from his or her own wrongdoing. For example, a
A minor accused of juvenile delinquency may minor cannot purchase a car, wreck it, and then
be held without bail before trial if the court cancel the contract and expect not to have to pay
finds there is a serious risk that the minor may for the car.
commit an act that would be a crime if com- Finally, in some situations, a minor can enter
mitted by an adult. (A minor does not have the into a binding contract and not have the right of
right to bail in a juvenile proceeding.) cancellation. These situations generally involve
Minors have certain other rights that, at least contracts for necessaries such as food, clothing,
partially, make up for the fact that they dont shelter and medical care. The minors parents
have the right to bail. For example, the law may be held liable on contracts for necessaries.
favors releasing minors into the care of their Contracts for medical care raise special questions
parents. In such a case, the minor does not and are addressed below.
have to stay in jail while awaiting trial and the
minors parents do not have to pay bail for the
minors release. Also, a minor who is held in
Seeking Medical Aid
While the general rule is that minors cannot
jail while awaiting trial must be kept separate
be given medical treatment without the consent of
from adults and must be given a detention
a parent, guardian or custodian, there are major
hearing within 12 hours of admission or the
exceptions to the rule, such as the following:
next court day after admission. Further, a
Permission for treatment of a minor need not
minor who is held after the detention hearing
be obtained in an emergency.
must be kept separate from adults and is
A minor age 16 or over may voluntarily enter
entitled to a court hearing within 10 days
a mental hospital for treatment for a mental
of the filing of the complaint.
illness arising from drug abuse.
A minor may lose his or her liberty for actions
that would not be considered criminal offenses

157
A minor of any age can obtain medical the application must specify who should
treatment for any condition arising from drug receive notice. Also, the child must sign an
abuse or for venereal disease. affidavit stating that the applicant is in fear of
Pregnant minors may have abortions in certain physical, sexual or severe emotional abuse
circumstances. from her parent, guardian or custodian and
that her fear is based on a pattern of physical,
Ohio has a parental notification law covering sexual or severe emotional abuse exhibited
the rights of unemancipated pregnant minors seek- by the parent, guardian or custodian.
ing an abortion. (Unemancipated minors are still Similarly, if the minor wishes to avoid
under the authority of their parents.) A simplified giving any notice at all, the application must
summary of that law is stated below. be accompanied by an affidavit stating that
The Ohio parental notification law defines she is in fear of physical, sexual or severe
an unemancipated, pregnant minor as a emotional abuse from her parent, guardian,
woman under 18 years of age who has not custodian or any other person who would
entered the armed services, has not been otherwise be entitled to receive notice. The
employed and self-subsisting or has not been juvenile court must consider any application
otherwise independent from the care and requesting that notice not be given to the
control of her parents, guardian or custodian. parent, guardian or custodian. The entire pro-
Under the law, an unemancipated pregnant cess is confidential and the applicant is not
minor must notify at least one parent, or her required to pay filing fees or court costs.
guardian or custodian, of an intention to The juvenile court will issue an order
have an abortion. If the parent, guardian or authorizing an abortion without notice to the
custodian consents in writing, the minor may parents, guardian or custodian in cases where:
have the abortion. In certain circumstances, 1) the court finds that the minor is sufficiently
the minor may avoid notifying her parents, mature and well enough informed to intel-
guardian or custodian by requesting that ligently decide to have an abortion without
notice be given to a sister or brother who is 21 notifying a parent, guardian or custodian; or
years old, or to a stepparent or a grandparent. 2) the minors parents, guardian or custodian
Notice is not necessary if the minor is found have demonstrated a pattern of physical,
to be mature and well enough informed to sexual or emotional abuse, and that, under
intelligently decide for herself whether or not the circumstances, notification would not be
to have an abortion. Further, in certain cir- in the best interest of the minor. If the court
cumstances, such as in cases where the minor does not hold a hearing within five business
fears abuse from whoever would normally days after the filing of the application, then it
receive notice, the minor may avoid giving is assumed that the court has consented to
notice to anyone. the abortion. Further, the court must make its
Where notice is to be given to a sister, decision immediately after the hearing. If the
brother, stepparent or grandparent, or where court does not grant consent it must dismiss
no notice will be given to anyone, the minor the application. The applicant may appeal
must file an application with the juvenile such a dismissal.
court. Application forms are available from
juvenile courts without charge. This area of the law is in flux and federal
Where notice is to be given to someone legislation may be enacted. Because of the con-
other than the parent, guardian or custodian fidential relationship between doctor and patient,
because the minor fears harmful consequences a doctor does not have to inform the parents that
of notifying the parent, guardian or custodian, he or she is treating their child. However, the

158
parents are not bound to pay for treatments charged with protecting the public interest and
unless they consent to them. safety, holding the offender accountable for his or
Finally, there is some case law in Ohio her actions, restoring the victim and rehabilitating
establishing that a minor can consent to any kind the offender. The juvenile court has exclusive
of medical treatment as soon as he or she has jurisdiction over delinquent and unruly children;
reached sufficient age and discretion to under- juvenile traffic offenders; and neglected, depen-
stand the consequences of consent. This case law dent and abused children.
applies to necessary as well as elective treat- When a minor is accused of a crime, whether
ment, such as cosmetic surgery. As a practical serious or petty, the general rule is that the minor
matter, doctors seldom treat a minor without par- can be tried and dealt with only in the juvenile
ental consent, except in the situations described court. Under certain circumstances involving very
above. serious offenses, however, a minor over age 14
may be transferred to the common pleas court for
trial and punishment as an adult. Adults accused
Juvenile Delinquency, of contributing to the delinquency or neglect of a
minor are tried in the juvenile court. Other adult
Unruly Children crimes against minors, such as non-support, may
be tried in the juvenile court as well as in other
and Juvenile courts.
In addition to addressing criminal matters,
Traffic Offenders the juvenile court has the power to determine
and provide for custody and care of neglected,
In Ohio, the juvenile court has jurisdiction dependent or abused children. This power is
over minors who commit offenses that would be subject to the authority of the domestic relations
crimes if committed by adults and over minors court to determine custody and support questions
who present behavioral problems. The court in divorce and similar cases, and to the authority
also has jurisdiction over abused, neglected and of the probate court in guardianship and adoption
dependent children. The juvenile court has a wide proceedings. The juvenile court also has the
range of options in dealing with children and power to consent to the marriage of pregnant
usually can tailor its dispositions (sentences, fines, minors under 16 and to consent to abortions for
treatment orders, to name a few) to meet the needs unemancipated, pregnant minors.
of the particular child. In addition, the juvenile
court may deal with adults guilty of neglecting, Detention of Juveniles
abusing or contributing to the delinquency or Minors may be taken into custody for various
unruliness of minors. reasons. For example, they may be taken into
custody because:
The Juvenile Court they are accused of committing offenses that
In 1902, Ohio became the fifth state to create would be crimes if committed by adults;
a juvenile court. Before the juvenile court existed, a juvenile court orders them to appear and
children as young as age seven were considered they fail to do so;
criminally responsible for their actions and, if there is reason to believe they are runaways;
convicted, were treated as adult offenders. The they are suffering from illness or injury and
main emphasis of the juvenile courts work is are not receiving proper care; or
providing for the care, protection and mental and they are in immediate danger from their
physical development of children, as opposed to surroundings.
punishing them. In certain cases, the court is also

159
After being taken into custody, a minor may Juveniles have most of the rights of adults
be released to his or her parents, guardian or charged with criminal offenses. For example, in
custodian on their written promise to bring the delinquency proceedings, a minor has the right to:
minor to court when required. If the minor is not be represented by counsel (if the minor or the
brought to the court hearing, the court may issue minors parents cannot afford an attorney, the
a warrant compelling the parents, guardian or cus- state will provide one at no cost to the family);
todian to bring the child to court. If it appears that have a clear and explicit statement of the
a minor taken into custody should be detained or offense;
given shelter care, the minor may be placed tem- have the state prove each of the elements of
porarily in a detention home, childrens home, the offense beyond reasonable doubt; and
juvenile shelter or other suitable facility, or with have applicable rights explained at significant
a temporary custodian. stages of the proceeding.
Detention is not favored under juvenile law.
Detention (including shelter care) is used only A major way in which the law governing
where: children differs from the law governing adults
it is necessary to protect the person or is that minors traditionally have not had the right
property of the minor or of others; to jury trial or the right to bail. However, with
the minor may run away or be removed blended sentencing (discussed on page 162),
from the courts jurisdiction; certain juveniles accused of serious offenses have
there is no suitable person to supervise the right to bail and a jury trial.
and care for the minor; or A child who the court finds has committed
the court determines that detention is in the acts as charged is classified as delinquent.
the minors best interest. Because juvenile courts seek to rehabilitate child-
ren rather than to punish them, judges impose
A minor alleged to be delinquent, unruly, or a dispositions rather than to hand down sentences
juvenile traffic offender may be detained in a jail in juvenile cases. The seriousness of an offense
only if there is no available juvenile detention comes into play when the court imposes its
home or similar facility. In such cases, the minor disposition (fine, order for treatment or other dis-
must be kept in a separate room where he or she position order). For example, a minor who has
cannot come in contact with adult offenders. A been classified delinquent for disorderly conduct
neglected or dependent minor who is detained may only be required to perform community
cannot be kept in jail under any circumstances service, whereas the minor who has been clas-
without a specific court order authorizing such sified delinquent for robbery may serve a term
detention. in a state-run juvenile facility. Beginning in
2004, a juvenile could be sent to a local juvenile
Delinquent Children detention facility for up to 90 days. If the offense
A delinquent child is one who commits any would be considered a felony if committed by
act (other than a juvenile traffic offense) that an adult, the juvenile can be sent to a state-run
would be a crime under state, municipal or fed- juvenile facility. Where there is a heinous offense,
eral law if committed by an adult, or who fails to such as murder, the court may transfer the child
obey an order of a juvenile court. For example, to the common pleas court to be tried and pun-
a child is charged with delinquency whether the ished as an adult, provided that the child was at
offense in question is murder or merely disor- least 14 years old when the act occurred.
derly conduct.

160
If a minor is found to be delinquent, the goes) and limit the freedom of their inhabitants.
juvenile court has many options in its disposition Whatever the court decides to do can drama-
of the minor. For example, the court may: tically affect the freedom and life of the minor
allow the child to stay at home but place the and the minors family.
child on probation;
require restitution to the victim (to make up Transfer for Trial as an Adult
for the damage, loss or injury); The juvenile court may transfer a minor to the
send the child to a school, camp, institution common pleas court for trial and punishment as an
or other facility; adult in serious cases and under limited circum-
send the child (for certain offenses) to a stances. (This transfer is often called a bindover
facility operated by the Ohio Department because the child is bound over to the adult
of Youth Services (ODYS);* court.) The court has this option when:
revoke the childs drivers license; the minor was 14, 15, 16, or 17 when the
suspend or revoke the registration of all motor offense occurred;
vehicles registered in the childs name; the offense would be a felony if committed
impose a period of electronically monitored by an adult;
detention; there is probable cause to believe the minor
require that the child attend a drug or committed the offense; and
alcohol abuse program; after full investigation, including mental and
impose a fine plus court costs; and physical examinations, the juvenile court
order appropriate treatment or education finds either of the following:
for a child who suffers from physical, 1) that the minor will not comply with or
psychological, developmental or other benefit from rehabilitation offered by any
problems. facility or program in the juvenile system;
or
* Note: A child who commits an offense that is a 2) the safety of the community requires that
felony of the 3rd, 4th or 5th degree if committed the minor be placed under legal restraint,
by an adult can be committed to ODYS for a even after the person turns 21.
minimum period of six months. A child who com-
mits an offense that is a felony of the 1st or 2nd As a practical matter, juvenile courts exercise
degree if committed by an adult can be committed the discretion to transfer juveniles to adult courts
to ODYS for minimum period of one year. The only in serious cases where the accused minor has
maximum time a juvenile delinquent can be held a long history of delinquency. In no case can a
in an ODYS facility is until his or her 21st birth- minor under age 14 be transferred to adult court.
day. The juvenile courts jurisdiction over the Also, in no case can a minor of any age who is
person ends when that person turns 21. This is accused of a misdemeanor be transferred to adult
true not only for delinquents, but also for unruly, court. Once a minor has been bound over to, and
abused, neglected and dependent children and convicted in, a common pleas court, he or she will
juvenile traffic offenders. not go through the bindover process again. If later
Even though trial procedure in juvenile court charged with a felony while still a minor, he or
may be somewhat less formal than in other courts, she automatically will be treated as an adult and
the power of the court is obvious. The court tried in adult court.
building is a secure place served by the sheriff In addition to discretionary bindovers, juve-
and the police. Detention facilities, and some nile courts must transfer juvenile offenders who
shelter care facilities, are staff secure (meaning are accused of certain serious offenses to adult
a staff member keeps track of who comes and courts. This mandatory bindover occurs when:

161
a 16- or 17-year-old child is accused of Since 2002, juvenile courts have had the
aggravated murder, murder or attempted option to give both a juvenile disposition and
murder; an adult sentence to certain serious youthful
a 16- or 17-year-old child, with a prior com- offenders (SYOs). Eligibility for this blended
mitment to ODYS for a serious offense, is juvenile/adult sentence depends on the age of
accused of another serious offense (including the offender and the severity of the offense. In
manslaughter, aggravated robbery and rape) imposing a blended sentence, the juvenile court
or used, displayed, brandished or indicated a first gives a juvenile disposition (for example, a
firearm in committing the offense; term in an ODYS facility). Next, the court gives a
a 14- or 15-year-old child, with a prior com- sentence as if the offender were before an adult
mitment to ODYS for a serious offense, is court. However, the court must then suspend the
accused of aggravated murder, murder or adult sentence. If the offender makes it through
attempted murder. the juvenile disposition without serious incident,
that is the end of the sentence. However, if the
A special rule applies to minors who are offender commits certain other offenses and
accused of an offense that would be murder or engages in certain threatening conduct while
aggravated murder if committed by an adult. under the juvenile term, the court may invoke
Under the special rule, the court must transfer the adult sentence after a hearing on the new
the minor to the appropriate common pleas court violation.
for trial (and possible punishment) as an adult,
as long as the court finds, after an appropriate Unruly Children
hearing, that there is probable cause to believe A minor may be deemed an unruly child for
the minor committed the offense. This is also true a variety of reasons, including:
if the minor had been judged a delinquent before waywardness or persistent disobedience,
for an offense that would have been murder or including running away from home;
aggravated murder if committed by an adult. habitual truancy from school;
Under this special rule, the minors age is not conduct that injures or endangers the minors,
a factor. The current charge and the past judg- or anothers, health or morals; or
ment are the issues that matter. violating a law that applies only to minors
(such as a curfew).
Blended Sentencing
For years, when a juvenile court faced a child Unruly children are also sometimes referred
accused of a very serious offense, it had two to as status offenders because of their status as
choices. If the child was age-eligible, the court minors.
could transfer the child to adult court, essentially A child who is judged unruly may be dealt
admitting that the juvenile system could not help with in a number of ways. For example, the court
the child. Or, it could keep the child in the juve- may use any of the remedies available for neg-
nile system with the knowledge that the offender lected, dependent or abused children. These
would have to be released by age 21, even if still dispositions include, among others, placement
dangerous. This often was a quandary for courts, with parents under conditions designed to ensure
since the future conduct of a 14- or 15-year-old proper care, supervision and behavior, or place-
child is difficult to predict. Based on proposals ment in the temporary or permanent custody of a
from the Ohio Criminal Sentencing Commission, childrens services agency or approved private
the General Assembly enacted a third option in agency, community service work, probation with
2002: blended sentencing.

162
conditions established by the court, suspension placement of the child on community control
or revocation of the childs drivers license and sanctions (such as probation, community ser-
any vehicle registration that has been issued to vice, a drug and alcohol treatment program, a
the child. curfew or house arrest);
If the court finds that its original disposition is requirement that the child make restitution
not effective because the child has not responded for all or part of the damages caused by the
to treatment or rehabilitation, the court may use offense; and/or
any of the dispositions available for delinquents. placement of the child in the temporary
Further, if the offense would have been a drug- custody of an approved facility, such as a
abuse offense or a disorderly conduct while camp or school, for a period of not more
intoxicated offense if it had been committed by than five days, as long as the child was ruled
an adult, the court may require the child to par- a juvenile traffic offender for committing an
ticipate in a drug- or alcohol-abuse counseling offense which, if committed by an adult,
program. The court also may suspend or revoke would have been operating a motor vehicle
the childs drivers license until he or she turns 18 under the influence of alcohol or drugs or
or successfully completes an approved drug or alcohol and/or drugs.
alcohol abuse treatment program.

Juvenile Traffic Offenders Neglected, Dependent


A juvenile traffic offender is a child who
violates any traffic law or regulation of Ohio or
and Abused Children
any other state. For any moving violation that
occurs before the youths 18th birthday, the youth Neglected Child
is subject to a mandatory minimum drivers A neglected child is one:
license suspension as follows: who has been abandoned;
first moving violation before age 18: zero who lacks proper care because of the faults
days to two years; or habits of the childs parents, guardian or
second moving violation before age 18: three custodian;
months to two years; whose parents, guardian or custodian neglect
third moving violation before age 19: one year or refuse to provide proper or necessary
to two years. subsistence, education, medical or surgical
care or treatment or other care necessary for
While a youth may be entitled to driving priv- the childs health, morals or well-being;
ileges while serving a drivers license suspension, whose parents, guardian or custodian neglect
these likely will be limited to work and school. In or refuse to provide the special care required
addition to mandatory license suspensions, the by the childs mental condition;
court also may impose one of the penalties listed whose parents, guardian or custodian illegally
below, which are generally available in all traffic gave, or attempted to give, custody of the
cases: child to another; or
imposition of fines generally ranging from who suffers physical or mental injury that
$50 to $250 plus court costs; harms, or threatens to harm, the childs health
suspension or revocation of the childs or welfare because of the failure of the childs
drivers license or the registrations of any parents, guardian or custodian to perform their
motor vehicles that may be registered in duty according to Ohio law.
the childs name;

163
When a parent, guardian or custodian fails or welfare because of the acts of the parents,
refuses to provide adequate medical or surgical guardian or custodian; or
care or treatment to a child only because of relig- who is subjected to abuse outside the home.
ious belief, the law that defines a neglected child
does not consider this a criminal offense. How- Offenses that the law considers to be criminal
ever, the statute dictates that, in such instances, sexual offenses against minors include rape,
proper authorities must be notified so the state or sexual battery, corruption of a minor, and sexual
political subdivision, if necessary, can ensure that imposition. The person who committed the
the child is given the required medical or surgical offense does not have to be convicted before
care or treatment despite the parents, guardians the court can determine that the minor involved
or custodians religious beliefs. in the sexual activity is an abused child; the
child can come under the courts protection as
Dependent Child soon as the charge is made.
The concept of dependency is similar to that The definition of child abuse also incorporates
of neglect, except that the dependent childs the criminal offense of endangering children.
condition or situation is not, in general, the fault Under Ohio law, the offense of child endanger-
of the parents, guardian or custodian. This kind ment covers physical abuse as well as emotional
of dependency should not be confused with and psychological abuse, and may be committed
dependents that are named by parents for tax by:
purposes. A dependent child is one: a parent, guardian, custodian or person
who is homeless, destitute or without proper standing in place of a parentsuch as a
care or support; teacher, scoutmaster or babysitterwho
who lacks proper care or support because of places a child in imminent danger of serious
the mental or physical condition of the childs harm by violating a duty of care, protection
parents, guardian or custodian; or support;
whose condition or environment is such that anyone who inflicts torture or cruelty, or
the state must assume the guardianship of the creates an imminent risk of serious harm to
child; or the child by administering excessive physical
who is in danger of being abused or neglected punishment or restraint in a cruel manner or
because he or she lives in a household where for prolonged periods, or repeatedly admin-
another household member has abused or isters unwarranted discipline to the child that,
neglected a child who lives in the household. if continued, endangers the childs mental
health or development;
anyone who entices, permits, encourages,
Abused Child compels, employs or allows a minor to
An abused child is one:
participate in any way in the development,
who is the victim of a criminal sexual offense;
advertisement or presentation of any material
who is endangered as defined in the criminal
or performance that is obscene, sexually
law;
oriented or nudity oriented; or
who shows evidence of any intentionally
anyone who allows, encourages or forces a
caused physical or mental injury, or is the
child to solicit for prostitution, or to engage
victim of an injury for which there is no
in prostitution.
reasonable explanation;
who suffers physical or mental injury harmful
or potentially harmful to the childs health or

164
Child abuse based on the offense of endan- granting legal custody of the child to either
gering children is normally a misdemeanor. parent or another person;
However, endangerment that results in serious committing the child to the permanent custody
physical harm to the child is a felony. The stat- of an approved public or private agency;
utory definition of serious physical harm placing the child in long-term foster care with
includes mental illness as well as serious physical an approved public or private agency; or
illness or injury. The offense of child endanger- placing restrictions on the child, the childs
ment may be tried in any court having jurisdic- parents, guardian, custodian or any other
tion, including juvenile court. However, felony person.
cases must be tried in common pleas court. Just as
in a sexual abuse case, the person who committed Dealing with Adults Contributing to
an endangerment offense does not have to be con-
victed for the juvenile court to determine that the
Delinquency or Neglect
Under Ohio law, it is an offense for an adult
minor child involved is an abused child. A child
to contribute to, or encourage in any way, the
who has been physically disciplined by a parent,
delinquency, unruliness or neglect of a minor.
guardian or custodian is not considered abused if
The juvenile court has jurisdiction to try adults
child-endangering laws do not forbid the method
accused of this offense. Typically, contributing
of discipline. For example, spanking a child does
cases arise when parents fail to take reasonable
not automatically constitute abuse.
measures to control their childs delinquent or
The definition of child abuse also addresses
unruly behavior, or when an adult has sexual
the battered-child syndrome. For example, a child
relations with a minor or encourages or aids a
may show physical injury or mental injury that
minor in having sexual relations. Encouraging a
appears to have been intentionally inflicted or is
minor to frequent bars, brothels or places where
not adequately explained by the child, parent,
drugs are used also may constitute the offense
guardian, custodian or others. Doctors, dentists,
of contributing. Parents who fail to provide their
nurses and other health-care professionals, child-
child with food, clothing, shelter, medical atten-
care professionals, and teachers, attorneys and
tion and education may be charged with contrib-
others commonly in contact with children must
uting or with non-support of dependents. These
report suspected cases of child abuse to law
are only some of the possible ways of contributing
enforcement authorities. Further, Ohio law
to the delinquency or neglect of a minor. While
requires anyone who knows that a felony has
many contributing cases are handled in juvenile
been committed to report the basic facts to law
court, non-support cases may be tried in any court
enforcement authorities. Because child abuse is
having jurisdiction. Further, some non-support
a felony, anyone who observes a child suffering
cases are felonies and must be tried in the com-
from serious injury or illness and has substantial
mon pleas court.
reason to suspect child abuse must report the facts
to law enforcement authorities.
The court has multiple options in deciding
what to do with a child determined to be depen-
Divorce and
dent, neglected, or abused. The options include,
among others:
Related Matters
placing the child under protective supervision;
Society wants to protect the unity of the
committing the child to the temporary custody
family. The courts are interested in preserving
of an approved public or private agency, either
marriages when possible, and Ohios common
parent, a relative or a probation officer for
pleas courts include a process for hearing con-
further court-approved placement;

165
ciliation cases to help settle marital differences. cerning such matters as custody, parenting time
Courts also recognize, however, that sometimes and child support, depending on changes in the
relationships between spouses can deteriorate so familys circumstances. This is referred to as the
much that it is best to allow the orderly and fair courts continuing jurisdiction. A domestic rela-
termination of the marriage or marital relation- tions court generally does not, however, retain
ship. continuing jurisdiction to alter a property division
Under Ohio law, a marriage, or marriage that it has made.
relationship, may end through divorce, dissolu-
tion of marriage or annulment. Mediation, in Divorce
which a neutral third party assists couples to reach A long-recognized way to end a marriage is
voluntary agreements, has become an increasingly through divorce. Divorce is a civil lawsuit to end
popular method of resolving disputes arising from a marriage that arises when the husband and wife
domestic relations matters related to the termina- cannot resolve their problems and are asking the
tion of marriage. When spouses can agree about court to make final decisions and issue orders
their marriage termination and have signed a sep- concerning property division, spousal support and
aration agreement regarding all property, spousal matters regarding any children of the marriage.
support and any child-related issues, the court, if A divorce is started by one spouse, the plain-
satisfied that all issues have been resolved, will tiff, who files a complaint with the clerk of court.
grant a dissolution of marriage. For disputes that In this initial complaint, the plaintiff must claim,
cannot be resolved by voluntary agreement, Ohio and eventually prove, the appropriate statutory
law allows a spouse to bring a civil lawsuit called grounds against the other spouse, the defendant.
a divorce, in which the court will decide how any In Ohio, a divorce may be granted based on
unresolved disputes are to be addressed. While any of 11 separate reasons, or grounds. There are
divorce and dissolution end a valid marriage, grounds for divorce when:
annulment ends a union that, based on one of a 1) either party had a spouse living at the time
variety of grounds, is found not to have been a of the marriage from which the divorce is
valid marriage. sought (called bigamy);
Unlike divorce, dissolution and annulment, 2) a spouse has been willfully or deliberately
legal separation does not end the marriage, absent for one year or more;
although it suspends the duties of spouses to 3) a spouse commits adultery;
each other. In essence, legal separations allow the 4) the spouses are incompatible, unless one
husband and wife to live apart from one another of the spouses denies that this is true
once the court determines all of the parties rights (incompatibility is used frequently these
and responsibilities. days as a final ground for divorce);
Whether a couple seeks a divorce, dissolution 5) a spouse practices extreme cruelty;
of marriage, annulment or legal separation, the 6) the marriage was based on fraud;
domestic relations court terminates the marriage, 7) a spouse grossly neglects his or her duty as a
or marital relationship, and manages the issues of partner to the marriage;
child custody, support, parenting time, spousal 8) a spouse is habitually drunk;
support and property division. 9) a spouse is imprisoned in a penitentiary;
10) one spouse gets a divorce outside Ohio (for
Continuing Jurisdiction example, a quickie divorce) that ends the
In most situations, a case is over once a court marriage itself, but does not resolve issues
makes a decision. In domestic relations cases, relating to property division, payment of
the court retains the ability to change orders con- debt, parenting, support or other issues;

166
11) the spouses have been living apart, not valid. In Ohio, there are grounds for annul-
continuously and without cohabitation, for ment when:
one year. 1) the party seeking the annulment was under
age at the time of the marriage;
People in divorce cases most often use the 2) a former marriage of either party was and
grounds of incompatibility, extreme cruelty and still is valid (bigamy);
gross neglect of duty. Incompatibility recently 3) either party was mentally incompetent;
has been added as a ground for divorce. Its use 4) the consent of either party to the marriage
is growing among couples that agree the mar- was obtained by fraud;
riage should end, but cannot agree on the terms. 5) the consent of either party was obtained
Couples who do not wish to make public a more by force; and
offensive ground for divorce also may use incom- 6) even though the marriage was otherwise
patibility. Extreme cruelty includes both physical valid, the parties never consummated the
and mental cruelty. Gross neglect of duty takes in marriage (engaged in sexual relations as
a wide range of unacceptable conduct by a hus- husband and wife).
band or wife. Typical examples are the failure of
a spouse to contribute to the support of the family Bigamy is the only ground that makes the
or the failure of a spouse to meet his or her obliga- marriage void (invalid from the start). The other
tions to the family unit. grounds must be asserted within a specified time.
Further, grounds one, three, four, and five (above)
are lost if the parties live together after the party
Dissolution of Marriage who was underage reaches age 18, the party who
Dissolution is a substantial departure from the
was incompetent regains competence, the fraud by
traditional concept of divorce. In a dissolution, the
which consent was obtained was discovered or
parties agree to end the marriage. They also agree,
force was used to obtain consent. In an annulment
before filing any papers, to property division, pay-
action, just as in a divorce action, the court can
ment of debts, allocation of parental rights and
award temporary spousal support and can make
responsibilities and child and/or spousal support,
an order concerning custody, care, maintenance
and other such matters. In dissolution cases, the
and education of any children. Permanent child
parties do not have to allege or prove any grounds
custody and support may be granted and an annul-
for divorce. To obtain the courts approval for a
ment does not affect the legitimacy of children.
dissolution, the husband and wife must enter into
a separation agreement that both parties sign and
that is attached to the request for dissolution. Legal Separation
When the court reviews the separation agree- When a court grants a legal separation, a
ment and the dissolution request, it is concerned couple remains legally married, but most aspects
that the separation agreement is fair to both parties of the marital relationship are terminated. In this
and that the agreement makes appropriate provi- action, the court will settle all property rights
sions for any children. If the court approves the existing between the couple, address custody
separation agreement and the dissolution request, issues and may resolve all other issues relating
it issues an order dissolving the marriage. to the marriage, including spousal support and
child support issues. If spousal support and child
support are granted, the court may enforce the
Annulment support payment as if it had been granted in a
While divorce and dissolution end a valid
divorce action. The grounds for legal separation
marriage, annulment declares that a marriage is

167
are virtually the same as the grounds for divorce judge, a public or private marriage counselor,
with one exception: Procurement of a divorce a family service agency, a community health
outside Ohio, a ground for divorce, is not a service, a physician, a psychologist or a clergy
ground for legal separation. person. The underlying action for divorce,
Even if one spouse files for legal separation, annulment or legal separation cannot be heard
the other spouse still may seek a divorce or annul- or decided until the conciliation or family
ment. Once a legal separation has been granted, counseling has been completed and the results
there is nothing in the law that prevents either reported to the court.
spouse from seeking a divorce or annulment.
Mediation
Conciliation Mediation is any process in which a neutral
The law requires the common pleas courts third party, the mediator, facilitates communi-
to establish a process for hearing conciliation cation and negotiation between parties to assist
cases. In counties where a conciliation court them in reaching a voluntary agreement regarding
exists, either a husband or wife, or both, may their dispute. In Ohio, mediation is generally
file a petition asking the court to help settle mar- governed by the Uniform Mediation Act found in
ital controversies. While that action is pending, Chapter 2710 of the Ohio Revised Code (ORC).
neither spouse may file or proceed with an action Mediation has become the most common
for divorce, annulment or legal separation. alternative dispute resolution method for parties to
In Ohio, a husband or wife may file a legal attempt to resolve issues arising out of domestic
action asking that both spouses be ordered to relations matters. Under ORC 3109.052, the court
engage in a conciliation process in an effort to may order parties into mediation for issues con-
save the marriage. Spouses do not use this process cerning the parental rights and responsibilities of
often. Most people who are interested in saving minor children. Additionally, many courts, either
their marriage use private methods, such as mar- by local rule or with the consent of the parties,
riage counseling, before coming to the court. order domestic relations matters such as division
A second type of conciliation proceeding may of assets, division of debt and spousal support to
be started only after the first publication of the be mediated.
notice of a divorce, annulment or legal separation Rule 16 of the Rules of Superintendence for
action or 30 days following the service of a sum- the Courts of Ohio outlines the qualifications fam-
mons. A conciliation proceeding also may be ily law mediators are expected to possess. Those
started at any time after the filing of a petition for who serve as mediators in domestic relations mat-
dissolution of a marriage. The court may order ters for a court must meet these qualifications.
conciliation on its own initiative or based on These qualifications should also be considered
either spouses written request (called a motion). when hiring a mediator outside the court system.
The court that processes divorces handles this The ORC outlines the mediators privileges
second type of conciliation. The courts concil- as well as prohibited actions. Mediators are
iation order must detail the process and state prohibited from making a report, assessment,
how expenses will be paid. If children are evaluation, recommendation or finding, or from
involved, the court may require family counseling providing to the court any other communication
for a reasonable period of time. If there are no regarding a mediation. Mediators may, however,
children, the conciliation period cannot exceed disclose whether or not the mediation occurred
90 days. or has terminated, whether a settlement was
The court has wide discretion in specifying reached, who attended the mediation and certain
the details of the conciliation/family counseling other mediation communications specified in
process. The conciliator may be a conciliation ORC 2710.06. Parties wishing to keep their medi-

168
ation confidential should enter into a confiden- explains in writing why an equal division would
tiality agreement before the mediation session. not be fair. In making the award, the court must
Because mediators cannot make orders, apply the eight specific factors listed in the statute
mediation is successful only if the parties are and any other factor it finds relevant and equi-
able to reach a voluntary resolution of the issues table. The eight statutory factors are:
to be mediated. However, even when there is the duration of the marriage;
substantial disagreement, proper use of mediation the assets and liabilities of husband and wife;
techniques has been shown to be very effective whether it is appropriate to award the family
in helping people to reach voluntary agreements. home (or the right to live there for a certain
It can be especially beneficial for parties who period of time) to the spouse who will have
must continue to work together in parenting principal custody of the children;
their minor children. whether the property can be easily converted
For information about court mediation, into cash, if necessary (liquidity);
contact the Supreme Court of Ohio, Dispute whether it would destroy the value of a certain
Resolution Section at (614) 387-9420. type of asset (such as a set of fine china) to
divide it;
Property Division and Spousal the tax consequences of the division;
the cost of sale of any asset that has to be
Support soldsuch as real estate commissions,
Ohio statutes define how property is divided
advertising, etc.; and
when a marriage is terminated. Marital property is
any agreement that the parties might have
property acquired during the marriage, including
reached between themselves.
real estate, personal property or intangible prop-
erty such as stocks and bonds, bank accounts
The court also has the authority to make a
and retirement plans. Marital property also may
distributive award from separate property of either
include increases in the value of separate property
party to the other to achieve equity between the
due to either spouses work effort, labor or contri-
parties. When a party has engaged in financial
bution of marital money that helped to increase
misconduct such as hiding property, dissipating
the propertys value. Separate property is property
money or funds or disposing of funds fraudu-
owned by only one of the spouses, and includes:
lently, the court may make an award out of the
all real, personal and intangible property from
separate property of the offending spouse or
an inheritance;
make a greater award of marital property to
property owned before the marriage;
compensate the other party.
income or appreciation from separate property
In determining whether spousal support
that did not come from the labor or substantial
(formerly called alimony) is appropriate and rea-
effort of either party during the marriage;
sonable, and in determining the amount, terms
a gift after the marriage date that is proved to
of payment and duration of spousal support, the
be made to only one spouse; and
court must consider the following factors:
an award for personal injury, except any part
income and relative earning abilities of the
of the award that compensates for lost wages
parties;
occurring during the marriage or medical bills
ages and physical, mental and emotional
from the injury paid with marital funds.
conditions of the parties;
retirement benefits of the parties;
By applying the rules in the statute as well
length of the marriage;
as appropriate case law, the court determines what
standard of living established during the
is and what is not marital property. The marital
marriage;
property is to be divided equally, unless the court

169
extent to which it would be inappropriate for parents wants shared parenting, a good shared
the custodian of a child to seek work outside parenting plan is difficult to achieve. Although
the home; the parties do not have to agree on shared parent-
educational background of the parties; ing, if the parents cannot cooperate, the courts
property and debts of the parties, including frequently reject the shared parenting plan and
any court-ordered payments; determine childcare arrangements based on the
contribution of each party to the education, childs best interests.
training or earning ability of the other; When a court decides a custody issue, its
time and expense needed for the person primary focus is, What is in the best interests of
seeking spousal support to acquire education, the child? The court must decide whether, under
training or job experience; all circumstances, it would be in the childs best
lost income production capacity of either party interests to be placed with the father or with the
resulting from that partys marriage mother, or whether a shared parenting arrange-
responsibilities; or ment would be more appropriate. When trying to
tax consequences for each party of an award decide the best interests of a child, the court must
of spousal support. consider all relevant factors including the various
guidelines specified in state law.
The court may also consider any other factor State law instructs the courts to consider,
that it finds to be relevant and fair. in determining the best interests of a child for
custody purposes:
Parental Rights and Responsibilities the parents wishes;
the childs wishes;
(Child Custody) and Child Support the childs interaction with parents, siblings
When a couple is married and living together,
and others who significantly affect the child;
both parties share parenting responsibilities
the childs adjustment to home, school and
equally. In the eyes of the law, both parents have
community;
equal authority to make decisions concerning the
the mental and physical health of all
care, discipline and support of their children.
concerned;
When the court terminates a marriage, one
which parent will promote court-ordered time
spouse will have primary responsibility over the
between the child and the other parent;
children unless a court orders shared parenting.
whether a parent has made court-ordered
The parent with primary responsibility is called
support payments;
the residential parent and the other parent is
whether a parent has been convicted of abuse,
called the non-residential parent. If the couple
neglect or domestic violence;
cannot agree who will be the residential parent or
whether a parent has purposely denied the
upon a parenting time schedule, the court will
other parent court-ordered time with the child;
decide for them or require them to mediate the
and
issue under the procedures adopted by the court.
whether a parent has moved or plans to move
(See Mediation on page 168.)
from the state.
Shared parenting involves a plan where the
parents both have a role in making decisions for
While a childs wish about custody is one of
their children. Although the parents sometimes
the factors used to determine the best interests of a
share parenting time equally, most often one
child, Ohio law forbids people from trying to get
parent has physical custody of the children more
any type of statement from the child setting forth
often than the other, even when the parties have
the childs wishes and concerns regarding parental
shared parenting. Both parents or either parent
rights and responsibilities. If a person does obtain
may request shared parenting. If only one of the

170
such a statement, the court will not consider it. deviation factors (such as extraordinary medical
Nevertheless, a court may interview the child expenses or support of other children) can be
(usually in private) to determine the childs proven or the parents agree to modify the amount
wishes and concerns about custody. While the based on one of these factors. In a contested
court considers the childs preference, the court hearing, any party presenting a worksheet has
determines how the child will be cared for based the burden of proving that the numbers used
on what will be best for the child. are accurate.
When custody is granted to one parent, par-
enting time (formerly called visitation, a term that Visitation Rights of Grandparents
now applies to grandparents rights) is normally
granted to the non-residential parent. Each court
and Other Persons
In general, a court will not interfere with an
is required to adopt standard guidelines to decide
intact family to settle disagreements about the
parenting time issues, but individual situations
right to see or visit a child. For example, a court
(such as one parent who travels for a living) may
will not become involved in a conflict between
dictate a non-standard parenting time schedule.
parents and grandparents (mother, father-in-
Under Ohio law, a husband and wife are
law, mother-in-law, etc.) if a parent refuses to
equally charged with providing for their childrens
let a grandparent see the minor grandchildren.
care, welfare and education. The obligation of
However, the court may grant reasonable com-
both parents to support their children normally
panionship or visitation with minor children to
continues until each child turns 18 or as long as
grandparents, relatives or other persons if:
the child attends high school on a full-time basis
there is a pending divorce, dissolution, legal
until the child reaches the age of 19. The obli-
separation, annulment or child-support
gation can end earlier if the child marries, joins
proceeding;
the armed forces or leaves home and becomes
the court has continuing jurisdiction over
self-supporting. It can also be extended in a
the proceedings listed above;
separation agreement, by court order or if the
a parent has died and left a minor child;
child has a disability.
an unmarried woman has a minor child; or
To help courts and parents decide how much
a father, who is not married to his childs
support a child needs, the Ohio General Assembly
mother, either has acknowledged paternity or
has established the Ohio Child Support Guide-
has been found to be the father of the child.
lines. Ohio courts use these guidelines, along
with other factors spelled out in state law, to help
In determining whether to grant any of the
establish or modify child support. Under the Ohio
above requests for companionship or visitation,
Child Support Guidelines, a parent can calculate
the court considers all relevant factors. The best
the amount of child support that he or she should
interests of the child is the paramount factor, but
pay, given all the factors the law requires the court
the court also considers, among other things,
to consider, by filling out a child support work-
blood and social relationships, interactions,
sheet. Courts require parents involved in domestic
geographical location and distance, the character
relations matters to complete and file such work-
of the requester, the availability of parents and
sheets. The amount determined by the worksheet
schedules.
is presumed to be correct unless certain limited

171
a minor is being tried as an adult or why and how
For Journalists: the state is taking custody of children from their
parents. While many family law issues or disputes
Covering Family Law may be matters of public record, journalists are
advised to consult with their editors, producers and
Journalists regularly present issues of family law legal counsel on issues of privacy and standard
in the news and often are the sources of information journalistic ethics. Covering families involved in
about the law for families. As with other parts of legal conflicts requires special attention to detail
the law, journalists should familiarize themselves and to the impact of such stories on the minors
with Ohios specific regulations so that readers and whose lives are affected by these disputes.
viewers can fully understand why, for instance,

Chapter Summary
Recognizing the importance of the family, the law establishes rights and duties for family
members (generally parents and their children) and ways to enforce these rights and duties.
The rights and duties of the people involved in the family and the process of enforcing
these rights and duties are often grouped together under the term family law.
Marriage is a three-way contract involving the state and the two people who are joined in
marriage. A couples marriage vows create a binding contract.
The law states that only males 18 years old (or older) and females 16 years old (or older)
may enter into marriage.
A marriage cannot be solemnized (that is, completed by means of a marriage ceremony)
unless the parties have a license. A license is obtained by applying in the probate court of
the county where either party lives or in the county where the ceremony is to be
performed.
Ohio law establishes a variety of rights and duties for married couples concerning their
relations with one another and with their children. Similarly, the law establishes a variety
of rights and duties for children concerning their relations with their parents.
The age at which a child (minor or juvenile) becomes an adult is known as the age of
majority. Under federal law, every citizen is allowed to vote at age 18. In Ohio, 18 is the
age of majority for voting and most other purposes.
Under the law, minors are treated differently from adults in many situations, chiefly to
protect both minors and society from the minors lack of experience, skill and judgment.
In Ohio, the juvenile court has jurisdiction over minors who commit offenses or present
behavioral problems. The court also has jurisdiction over neglected and dependent
children, and has a wide range of options in dealing with children.

Continued on page 173

172
Chapter Summary continued
In 1902, Ohio became the fifth state to create a juvenile court. Before the
juvenile court existed, children as young as age seven were considered
criminally responsible and, if convicted, were treated as adult offenders.
A delinquent child is one who commits any act (other than a juvenile traffic
offense) that would be a crime under state, municipal or federal law if
committed by an adult, or who fails to obey an order of a juvenile court.
The juvenile court may transfer a minor to the common pleas court for trial
and punishment as an adult in serious cases and under limited circumstances.
A juvenile traffic offender is a child who violates any state, municipal or
other law or regulation governing motor vehicle use.
Under Ohio law, the marriage, or marriage relationship, may be ended
through divorce, dissolution of marriage or annulment. A legal separation
suspends the duties of spouses to each other but does not end the marriage.
The domestic relations court is interested in preserving marriages when
possible. When that is not possible, the court is concerned with the orderly
and fair termination of the marriage relationship and with the associated
questions of parenting time, visitation, child and spousal support and
division of property.
When a couple is married and living together, both partners have equal
custody of their children. When the court terminates a marriage, one spouse
will have primary responsibility over the children unless a court finds that
circumstances are appropriate for the success of shared parenting, which is
the favored approach to rearing children.

173
Web Links:
From the OSBAs Law You Can Use column:
www.ohiobar.org/lawyoucanuse (search by title or topic)
A Guardian Ad Litem Protects Best Interest of the Child
Adoptions Raise Right to Know Questions
Alternative to Divorce Court Hearing: Hire a Private Judge
Child Support Enforcement Agencies Assist Parents
Child Support: How Is It Enforced?
Child Support Orders Are Terminated for many Reasons
Child Support Orders Can Be Modified
Children Services Places Protection of Children First
Childrens Wishes Are Considered in Custody Matters
Circumstances Say Whether Minors Are Emancipated
Collaborative Family Law Promotes Divorce with Dignity
Commonly Asked Questions about Divorce
Courts May Order Custody Evaluation When Parents Cannot Agree
Divorce and Dissolution: Whats the Difference?
Divorce Courts Divide Assets and Liabilities Equitably
Divorce Decrees Enforced in Several Ways
Divorce, Separation Raise School-Related Concerns
Family Support Act Standardizes Handling of Child Support Cases
between States
Federal Tax Refunds Can Be Intercepted to Pay Back Child Support
Grandparents Can Exercise Authority When Caring for Grandchildren
Guns at Home Can Make Parents Liable for Childs Criminal Actions
How Do Courts Determine Child Support?
How Does a Legal Separation Differ from a Divorce or Dissolution?
How to Avoid an Adoption Scam
Insurance May Cover Medical Expenses in Adoption Cases
Know Legal Requirements to Marry
Know Rights and Duties of Marriage
Law Requires Parental Consent for Treatment of Minors
Ohio Law Allows Attorney-Arranged Adoptions
Ohio Law Does Not Recognize Same-Sex Marriages
Ohio Law Permits Adult Adoptions
Parents Have Rights When Dealing with Children Services
Caseworkers
Parents May Be Liable for Childs Actions
Parents May Network To Find Child Available for Adoption

Continued on page 175

174
Web Links continued
From the OSBAs Law You Can Use column:
www.ohiobar.org/lawyoucanuse (search by title or topic)
Pending Divorce Does Not Change Marital Status for Income Tax Filing
Power of Attorney Can Help Grandparents Get Authority To Care for
Grandchildren
Prenuptial Agreements Protect Pre-Marital Assets
Probate Court Screens Prospective Parents in Private Adoptions
Relationship Agreements Provide Protection
Retirement Benefits Are Divided at Divorce
Social Networking and Your Divorce: What You Need to Know
Spousal Support Determined Case by Case
Surrogate Parenting Provides Alternative to Adoption
Terminating Your Marriage: Litigation and Settlement
Terminating Your Marriage: The Discovery Process
Unhappy with the Terms of Your Divorce Decree? You Have Options
U.S. and Ohio Law Make Adoption More Affordable
What Birth Parents Should Know about Adoption Process
What Rights Do Grandparents Have after Divorce?
What You Should Know about Alternative Dispute Resolution Options in
Divorce
What You Should Know about Termination of Parental Rights in Ohio
Working with your Divorce Lawyer Can Save You Money and Enhance
Your Settlement

From the OSBAs Law Facts pamphlet series:


www.ohiobar.org/lawfacts (search by title)
Divorce, Dissolution & Separation
Divorce Mediation
Ohios Marriage Laws
Sharing Responsibilities After Separation

From Nolo.com:
www.nolo.com
Click on Divorce & Family Law tab

175
Part XI___________________________
workplace law
The right to work, I had assumed, was the most precious liberty that man possesses. Man has
indeed as much right to work as he has to live, to be free, to own property.
Barsky v. Board of Regents, 347 U.S. 442, 472 (1954)(Douglas, J. dissenting)

n modern society, many people spend State and federal laws interrelate in other

I as much or more time at work than they


do at home. Therefore, no legal hand-
book would be complete without an
examination of the laws governing the
workplace. This section will examine various
aspects of workplace law, including the rights and
ways:
Preemption: Federal law may preempt states
attempts to regulate certain conduct. Where
preemption exists, states cannot pass any laws
that regulate conduct already regulated by
federal law. For example, under the federal
responsibilities of employers, employees and even Employee Retirement Income Security Act
job applicants. (ERISA), states are preempted from regulating
pensions.
Supplementation of coverage: Some federal
The Relationship laws set a floor of protections below which
states cannot go, but allow states to provide
Between State greater protections. For example, the federal
Family and Medical Leave Act requires
and Federal employers subject to the law to provide 12
weeks of unpaid leave to employees under
Workplace Laws certain circumstances. State law could require
the same employers to provide 12 weeks of
Employment is regulated to a great extent by paid leave or to provide more than 12 weeks
both state and federal laws. In many instances, or some other benefit.
federal laws are limited in the scope of their cov- Absence of federal law: States are free to
erage. Some federal workplace laws may apply to enact laws that regulate an activity that is
companies of a certain size or dollar volume of unregulated by any federal law. For example,
business while others are limited to a particular there are no federal laws that prohibit the
industry. For example, Title VII, a federal statute dismissal of employees called for jury duty.
prohibiting discrimination in employment, applies States can and do step in to protect these
only to employers with 15 or more employees employees.
and the Surface Transportation Assistance Act
(STAA) applies to the entire trucking industry.
It is not practical to write about every federal Major Workplace
law regulating employment. Please keep in mind
that the laws addressed here are not exhaustive. Laws: Statutory
States have authority to adopt workplace
regulations affecting employers of any size, so and Case (or
long as they do not intrude into areas of exclusive
federal jurisdiction or conflict with federal laws Common) Law
covering the same subject matter. States may
enact laws that provide employees with more Both state and federal laws regulate the con-
rights than federal law gives, but they may not duct of employers and, in so doing, give rights
take away federal rights. and protections to employees. There are two

176
sources for these laws. Some, such as Title VII Title VIIs Prohibition on Harassment
and the Ohio Civil Rights Act, are statutory, that Title VII makes it illegal to harass an individ-
is, laws enacted by the legislature. The second ual based on race, color, religion, sex, pregnancy,
type evolves from case law as decided by the childbirth or national origin. Sexual harassment is
courts. Court-created laws are called common law. any unwelcome, unwanted or uninvited sexual
advance, any conduct of a sexual nature, or any
Federal Law conduct based on sex that is severe or pervasive
Federal law covers a variety of employment and creates an intimidating, hostile or offensive
issues, including discrimination and harassment working environment. Any such conduct that an
based on age, race, religion, color, sex, national employee finds unwelcome has the potential to be
origin or physical or mental disabilities. Ohio sexual harassment. The harasser can be a super-
law also addresses civil rights issues that arise visor, a manager, a co-worker or even a non-
in the work place; some of these are discussed employee who is on the premises with permis-
later in this chapter. These laws are intended to sion. The U.S. Supreme Court ruled, in 1998,
prevent discrimination and to make victims of that Title VII also bars sexual harassment
discrimination whole (so that, insofar as pos- between members of the same sex. Harassment
sible, the victims might regain what they had based on age is prohibited by the Age Discrim-
lost). They are not intended to regulate behavior ination in Employment Act of 1967, as amended.
or to be a civility code for the workplace. Harassment based on disability is prohibited by
the Americans with Disabilities Act.
Title VII of the Civil Rights Act of 1964
Title VII prohibits employers from discrim- Employers Subject to Title VII
inating against applicants and employees on the Title VII applies to:
basis of race, color, religion, sex, pregnancy, private employers with 15 or more employees;
childbirth or national origin. It also prohibits state governments and their political sub-
employers from retaliating against job applicants divisions and agencies;
or employees who assert their rights under the the federal government;
law. Title VIIs prohibition against discrimination employment agencies;
applies to all terms, conditions and privileges of labor organizations; and
employment, including hiring, firing, compensa- joint labor-management committees and other
tion, benefits, job assignments, shift assignments, training programs.
promotions and discipline.
Title VII also prohibits employer practices or The Civil Rights Act of 1964 established
qualifications that appear neutral, but dispropor- the U.S. Equal Employment Opportunity Com-
tionately impact those individuals protected by the mission (EEOC) to enforce Title VII and other
law. For example, requiring a high school diploma principal federal statutes prohibiting employment
for a janitorial job may hurt racial minorities or discrimination.
other protected classes. Such a practice is only
legal if the employer has a valid reason for using Genetic Information
it. That is, a job qualification must be a bona fide Nondiscrimination
occupational qualification (for example, requiring Title II of the Genetic Information Nondis-
that someone being hired to play a male character crimination Act of 2008 (GINA) generally
in a play actually be male, or hiring only females prohibits employers from making employment
to conduct body searches on female passengers at decisions based on the genetic information of
the airport).

177
an employee or applicant or the employees/ information on notice of GINA. (The reg-
applicants family members. Generally, an em- ulations provide an example of specific
ployer with 15 or more employees is also pro- language that can be used to give notice; see
hibited from requesting, requiring or purchasing below.) Clarification that, while general
such genetic information. inquiries about health or wellbeing by super-
There are limited exceptions to GINA. For visors or managers are not prohibited in casual
example, in the process of complying with the conversation or social media interactions,
certification provisions of the Family and Med- follow-up questions are probably prohibited.
ical Leave Act (FMLA), employers may learn of
genetic information through public documents There are some exceptions to the prohibition
other than court and medical records or an on requesting, requiring or purchasing genetic
employee voluntarily may give written author- information. One of those is the exception for
ization for the employer to receive such infor- wellness and disease management programs that
mation. If, however, an employer obtains the are voluntary. GINA also expressly includes an
genetic information of an employee or his/her exception that allows employers to ask for family
family member, that information must be kept medical history when seeking certification of a
in a separate and confidential medical file. family members serious health condition for
Effective Jan. 10, 2011, the EEOCs final FMLA purposes.
regulations implementing the employment pro- Employers should therefore not use the safe
visions of Title II of GINA went in effect. Some harbor language when they are requesting infor-
of the key provisions of the final regulations mation to certify a family members serious health
include: condition under the FMLA. This is because the
Clarification that no specific intent to acquire employer needs the information to determine
genetic information is required in order to whether an employee is entitled to FMLA. The
establish a GINA violation. exception does not apply when seeking informa-
Creation of a safe harbor1 exception for tion with respect to the employees own serious
those responding to a request for medical health condition.
In addition, while GINA permits employers to
require employees to submit to medical examin-
1
The regulations create a safe harbor for employers ations, it does impose new limitations on these
who use the following language when requesting rights. For example, although the Americans with
medical information to certify an employees own Disabilities Act (ADA) allows employers to
serious health condition under the FMLA: The Genetic require a post-offer medical examination for all
Information Nondisclosure Act of 2008 (GINA) employees for a particular job, an employer may
prohibits employers and other entities covered by no longer ask for family medical history or
GINA Title II from requesting or requiring genetic genetic information as part of the examination.
information of an individual or family member of the
The same rule applies for fitness-for-duty or
individual, except as specifically allowed by this law.
To comply with this law, we are asking that you do not
return-to-work exams. GINAs prohibition against
provide any genetic information when responding to the acquisition of genetic information will also
this request for medical information. Genetic govern an employers ability to ask specific
Information, as defined by GINA, includes an questions during the ADAs interactive process.
individuals family medical history, the results of an As such, an employer should not proactively ask
individuals or family members genetic tests, the fact questions or seek information from a physician
that an individual or an individuals family member
sought or received genetic services, and genetic
information of a fetus carried by an individual or an by an individual or family member receiving assistive
individuals family member or an embryo lawfully held reproductive services.

178
during the interactive process which may involve The ADEAs prohibition against discrim-
genetic information. The safe harbor language ination applies to all terms and conditions of
should therefore be included when requesting employment, including hiring, firing, compen-
information for these purposes. sation, job assignments, shift assignments,
discipline and promotions. The ADEA applies
Americans with Disabilities Act to the federal and state governments and its
The Americans with Disabilities Act (ADA) agencies, private employers with 20 or more
prohibits most employers from discriminating employees, employment agencies and labor
against a person perceived as disabled or against unions. The ADEA does not apply to private
a person with a non-disqualifying disability (a employers with fewer than 20 employees.
disability that does not affect the persons qual-
ifications for or ability to perform the job). The Equal Pay Act
ADA applies to private employers with 15 or The Equal Pay Act requires that employers
more employees, state and local governments give men and women equal pay for equal work.
and their agencies, employment agencies and To be considered equal, a job must require
labor unions. It does not apply to the federal substantially equal skill, effort and responsibility
government and its agencies. The ADA protects and be performed under similar working condi-
qualified individuals with disabilities (QUID), tions. An employer may, however, pay different
that is, people who have disabilities and are salaries to a man and a woman for equal work if
qualified for the jobs they are either seeking or the difference is based on a bona fide seniority,
holding and are able to perform it with or with- merit or an incentive system, or factors other
out a reasonable accommodation. than gender.
The ADA prohibits such discrimination in any All employers must comply with the Equal
aspect of employment, including job application, Pay Act, including all public and private
interviewing, testing, hiring, job assignments, employers (regardless of the number of
evaluations, disciplinary actions, training, pro- employees).
motion, medical exams, layoffs, firing, compen-
sation, leave and benefits. The ADA requires Immigration Reform and Control
every covered employer to provide reasonable
accommodations to a qualified individual with
Act of 1986
The Immigration Reform and Control Act
a disability. In addition, the ADA prohibits
(IRCA) prohibits employers from discriminating
employers from refusing to hire someone or
against applicants or employees on the basis of
discriminating against someone because that
their citizenship or national origin. It prohibits
person has a record of having a disability or is
discrimination with regard to the terms, conditions
related to or associates with someone with a
and privileges of employment, including hiring,
disability.
firing, compensation, benefits, job assignments,
shift assignments, harassment, promotions and
Age Discrimination in Employment discipline. The IRCA applies to all persons or
Act entities that hire, recruit or refer employees.
The Age Discrimination in Employment The IRCA also makes it illegal for employers
Act (ADEA) prohibits discrimination against to knowingly hire or continue to employ people
employees who are age 40 or older. It also who are not authorized to work in the United
prohibits employers from retaliating against States. Employers must keep records verifying
applicants or employees who assert their rights that their employees are authorized to work in the
under the ADEA. United States.

179
Uniformed Services Employment they have worked for their employer for at
least 12 months; and
and Reemployment Rights Act they worked at least 1250 hours during the 12
The Uniformed Services Employment and
months before the beginning of the leave.
Reemployment Rights Act (USERRA) prohibits
discrimination based on an employees or appli-
Employees may take an FMLA leave for:
cants past, current or future military obligations.
the birth or care of a newborn, adopted child
It also requires employers to reinstate employees
or foster child;
to their former jobs, upon honorable completion
the care of an immediate family member
of their military duty in the uniformed services.
(spouse, child or parent) with a serious health
USERRA applies to all public and private
condition; or
employers.
their own serious health condition that
Uniformed service includes active duty, active
prevents them from performing their job; and
duty for training, inactive duty training (such as
the care of an injured or ill service member
drills) and initial active duty training, as well as
(up to 26 weeks leave in any 12-month
the period an individual is absent from a job for
period).
examinations to determine fitness to perform his
or her military duty.
The FMLA also provides for exigency leave,
USERRA guarantees pension plan benefits
a type of military family leave available for a
that accrued during military service, as well as
spouse, parent or child of a service member
health benefits for military personnel and their
who is on active duty or has been notified of an
families during military service for up to 18
impending call or order to active duty. Exigency
months.
leave can be used for handling matters such as
Separately, the Servicemembers Civil Relief
child care (up to 12 weeks in a single 12-month
Act of 2003 (SCRA) requires a delay of any legal
period), tending to financial arrangements, and
proceeding if military service impairs a military
rest and relaxation when the service member is
members ability to appear in the proceeding.
home.
Recent regulations make it clear that calling
Family and Medical Leave Act of in sick without providing more information will
1993 not be considered sufficient notice to trigger an
The Family and Medical Leave Act (FMLA) employers obligations under FMLA. Employees
provides certain employees with up to 12 weeks must comply with the employers call-off proce-
of unpaid, but job-protected, leave per year. While dures unless it is not practicable to do so.
the FMLA does not require the employer to pro- An employee may be able to take intermit-
vide paid leave, it does require the employer to tent FMLA leave in small blocks of time that
continue group health benefits during the leave, are spaced apart. For example, an employee may
provided that the employee pays its portion of need to take one week per month of leave time
the premium. for treatment of an illness. The employee must
Employees are entitled to family and medical demonstrate that taking intermittent leave is
leave under the FMLA if: medically necessary.
their employer employs 50 or more Upon an employees return from FMLA
employees, their employer has 50 or more leave, he or she must return to the same job, or
employees within 75 miles of the work site be given an equivalent job. If an employee takes
or they work for a public agency or private intermittent leave, he or she may be transferred
elementary or secondary school; temporarily to a position that better accommo-
dates the need for short blocks of leave time.

180
The FMLA does not cover key employees no duty to treat employees fairly, only lawfully.
(top executives, for example). These key By the same token, an at-will employee is free to
employees must be given leave but not resign at any time, for no reason or for any reason,
reinstatement when it would cause substantial with or without notice.
economic harm to the employer. The theory Employees who do not have a contract with
behind this is that key employees are essential the employer, are not in a union, or are not in the
to the smooth functioning of the workplace. If classified service of public employment are at-will
key employees take leave anyway, they are still employees subject to termination at any time,
eligible for continuing health benefits. However, regardless of fairness. For example, an employer
the employer is not obligated to take them back can retain a bad employee or terminate a good
or guarantee that a job suited to their experience employee, as long as the employer does not use
will be available if they do return. age, race, national origin, physical or mental dis-
ability or some other protected status as the reason
Worker Adjustment and Retraining for the termination.
An employers ability to terminate an
Notification Act employee can be restricted through the use of a
The Worker Adjustment and Retraining
contract. A contract can be verbal or even implied
Notification Act (WARN) is a federal statute
from the circumstances of the parties. For
that requires employers of 100 or more full time
example, an employer may be bound by promises
employees to provide written notice to employees
made to an employee with respect to termination
subject to a mass layoff or plant closing. This
procedures, reasons for termination or length of
notice must be given in writing 60 days before the
employment. If the employee reasonably relies
layoff or closing. The law defines a mass layoff
on these promises and is harmed as a result, the
as a reduction in force that results in an employ-
employer may be held responsible. Generally, the
ment loss at the site of employment of at least 33
burden is on the employee to prove he or she is
percent of the employees during any 30-day
not an employee at will or that an enforceable
period for at least 50 employees. In interpreting
promise has been made. A written employment
the scope of the WARN Act, federal circuit courts
contract may make a clearer statement that the
have held that it applies to quasi-public employers
employee is not an employee at will.
such as housing authorities as well as private
There are exceptions to employment at will. As
employers.
mentioned earlier, an employer cannot terminate
an employee for any reason prohibited by law,
State Laws such as on the basis of race, national origin, gen-
der, religion, disability, age or other protected
Employment at Will status. There are also laws that prohibit termina-
In Ohio, an employee is an employee at will tion based on retaliation in certain circumstances.
unless the employees relationship with the For instance, an employer may not retaliate
employer is governed by a contract or protected against an employee who exercises his or her
by law. Most employee handbooks contain a legal right to file for workers compensation
notice that employment is considered at will. or to report workplace abuses such as overtime
At will means the employee serves at the will violations, discrimination or sexual harassment.
of the employer, and the employer is free to ter- An employees exercise of legal rights is pro-
minate the employee at any time, for no reason or tected conduct and retaliation is a tangible,
for any lawful reason, with or without notice. It is adverse employment action an employer might
not necessary for the employer to have cause to take against an employee for engaging in any
terminate an at-will employee. The employer has form of protected conduct. Whistleblowing, or

181
turning in an employer for breaking the law,
describes a certain kind of protected conduct. Labor Law
(Retaliation and protected conduct are discussed
more fully in the next section.) Some trace the origins of the labor movement
An employer also may not terminate an to the guilds in medieval Europe. Trade unions,
employee at will when the reason for termination as we know them, started in the 19th century
would violate public policy. For example, an during the Industrial Revolution, when groups of
employer may not terminate an employee for, employees would band together to demand better
among other things, serving on a jury, refusing wages and working conditions. Employers fought
to break the law, exercising a legal right to hire back with injunctions and legislation. In 1935,
an attorney to represent the employee in an Congress passed the National Labor Relations
employment matter or having his or her wages Act.
garnished for child support or Chapter 13 bank- In 1984, the State Employment Relations Act
ruptcy payments. gave public employees (who did not previously
have the right to bargain collectively or strike) the
Ohios Employment Discrimination right to organize and bargain collectively.
Laws
Ohios employers, employment agencies, National Labor Relations Act
employees and job applicants must comply with The National Labor Relations Act (NLRA)
all applicable federal laws regarding discrim- imposes rights and obligations on employers,
ination. However, Ohio also addresses some employees, and employees bargaining rep-
discrimination issues in its state laws. The Ohio resentatives. Section 7 of the NLRA gives
Revised Code makes it illegal for employers, employees the right to form and join unions,
labor unions or employment agencies to discrim- to bargain collectively, to engage in concerted
inate against an employee or applicant based on activity and to refrain from all such activities,
race, color, religion, sex, national origin, non- except to the extent that such rights may be
disqualifying disability, age or ancestry. In fact, affected by the provisions of a collective bargain-
it is unlawful, for those reasons, to discriminate ing agreement that requires union membership as
against any person directly or indirectly with a condition of employment. The existence of a
respect to hiring, tenure, employment terms, union is not necessary for NLRA protection.
conditions or privileges or by firing any person While a single employee complaining about job
without just cause. conditions is not protected, an employee who
The law contains a number of provisions complains on behalf of himself and others about
designed to prevent such discrimination in job conditions is protected by the NLRA.
employment or union membership. One provision The NLRA is enforced by the National Labor
prevents employers from trying to get information Relations Board (NLRB), whose main functions
about race, color, religion, sex, national origin, are to determine appropriate bargaining units,
handicap, age or ancestry from job applicants, conduct representation elections and handle
except when such information is related to a leg- unfair labor practice charges brought by unions
itimate job skill certified in advance by the Ohio and employers.
Civil Rights Commission. An example of this Once a union is recognized or certified by the
exception would be a job for which the employer NLRB as the exclusive bargaining representative
wishes to require a female to monitor a womans of a group of employees, both the union and the
dressing room at a department store or a male to company are obligated to bargain in good faith
monitor a mens locker room at a school. over wages, hours and conditions of employment.

182
Each side has the right to pick its negotiators. If and other employment decisions. Some jobs,
bargaining reaches an impasse, either side may however, are exempt from civil service laws,
engage in economic action. For example, the including high-level policy-making positions.
union may strike and the employer may lock Those without protection, called unclassified
out its employees or replace strikers with other employees, are those higher-level employees who
workers. are appointed by the governor or state agency
Most collective bargaining agreements director or whose responsibilities include carrying
contain certain key elements: out the policies of a current political adminis-
the jurisdiction of the union (both geograph- tration. The thinking is that the governor, director
ically and with respect to the types of work or other officeholder ought to be able to select
affected); those high-level employees who will implement
a requirement that covered employees either their particular policies and terminate those who
join or pay dues to the union; will not.
a management rights provision; Civil service systems include guidelines for
provisions covering wages, hours and recruiting and screening applicants, job classifica-
conditions of employment; tions based on job duties and protection against
a grievance and arbitration provision; and arbitrary discipline and discharge. A civil service
a no-strike clause. employee who has completed a probationary
period may usually be fired only for cause (for
The grievance procedure and the no-strike a good reason, such as failing to carry out the
clause help to maintain labor peace during the duties of the job or violating a workplace rule).
term of the collective bargaining agreement. This differs from employment at will, where an
Both employers and unions are prohibited employer may fire an employee for any lawful
from discriminating or retaliating against reason or for no reason.
employees for exercising their Section 7 rights.
Unions are prohibited from engaging in certain Ohio State Employment Relations
types of activities, such as secondary boycotts
and mass picketing, and they are obligated to
Act
The Ohio State Employment Relations Act
represent their members fairly.
(OERA) is substantially similar to the NLRA and
is enforced by the State Employment Relations
Government Board (SERB). The major difference between the
OERA and the NLRA is that certain Ohio public
Employment employees (including police, fire and other safety
forces) are prohibited from striking. If agreement
cannot be reached with these employees, the
Government or public employees are
matter is submitted to a conciliator to attempt
those who work for the federal, state or local
to mediate the dispute. If mediation fails, then
government. Public employees have additional
the conciliator conducts a hearing and resolves
protections in civil service laws as well as the
the disputed issues.
U.S. and Ohio constitutions.

Civil Service Laws State Employment Relations Board


The State Employment Relations Board
Federal and state civil service laws require
(SERB), established by statute in 1983, has the
that employment decisions are based on merit.
exclusive right to remedy alleged unfair labor
Such laws attempt to eliminate political con-
siderations that might be factors in hiring, firing

183
practices between Ohios public employers and Federal Wage and Hour Laws
employees unions. The federal Fair Labor Standards Act (FLSA)
Where an employees claims are founded on establishes minimum wage, overtime pay, record
rights created or addressed in a collective bargain- keeping and child labor standards affecting full-
ing agreement (union contract), the employee may time and part-time workers in the private sector
file a grievance seeking a remedy. Employees can and in federal, state and local governments. The
challenge a failure to promote, wrongful discharge FLSA covers employees who produce, handle or
or retaliation. If a union refuses to pursue a griev- sell goods moved in interstate commerce.
ance, the employee may have a claim against the The Wage and Hour Division of the U.S.
union for breach of the duty of fair representation. Department of Labor administers and enforces
the FLSA for private, state and local government
Constitutional Protections employees, and most federal employees. Special
All public employees in Ohio are protected by rules govern the use of compensatory time off in
the U.S. and Ohio constitutions. Public employees place of overtime pay.
have rights to freedom of speech, association,
religion and freedom from unlawful search and Minimum Wage
seizure. In some cases, a government employee Covered, nonexempt workers in Ohio are
also may have a property interest, such as a entitled to a minimum wage of no less than
continuing employment contract or tenure, in his $7.70 per hour as of 2012. The 2012 federal
or her position, which the government cannot take minimum wage is $7.25 per hour, but since the
away without due process. Due process requires Ohio minimum wage is higher, it trumps the
notice to the public employee about any disci- federal minimum wage.
plinary action to be taken against him or her and Different rules apply to tipped employees.
a chance to answer charges before the discipline Nonexempt employees who work more than 40
is administered. hours in a work week generally are entitled to
Workplace rules lawfully limit a public overtime pay at the rate of one-and-one-half
employees speech or conduct only when the times their regular rates of pay. However, some
governments interest in establishing the rules alternative pay plans are available in specific
outweighs the interest of the individual. For circumstances.
example, if the speech or conduct disrupts the Some employees are exempt from coverage
efficient operation of the government, the under the FLSA. To be exempt, the employee
employee may lawfully be disciplined. must meet certain duty requirements and typically
be paid a salary. The white collar exemptions
include executive, administrative or professional
Wages and Hours workers whose salaries, with some exceptions, are
at least $455 per week. Also, certain outside sales
Both federal and state laws govern minimum people and professionals are considered exempt
wages and overtime pay for Ohio employees. employees even though they are not paid a salary.
When federal law does not cover an employees For example, computer specialists can either be
claim, state law applies. When both state and paid a salary of at least $455 per week or earn at
federal laws cover a claim, the law with the higher least $27.65 per hour, and outside sales people can
standard prevails. For instance, if the state sets a be paid on a commission basis, as long as certain
minimum wage that is higher than the federal requirements are met. Exempt employees are not
minimum wage, the states minimum wage would entitled to overtime pay under federal law.
prevail.

184
There are a number of employment practices The FLSA also does not require breaks or meal
that FLSA does not regulate. These include: periods.
vacation, holiday, severance or sick pay;
meal or rest periods; Child Labor
premium pay for weekend or holiday work; The FLSA requires that children must be at
pay raises or fringe benefits; and least 14 years old before they can work at a real
discharge notices, reasons for discharge or job. Those younger than 14 can work around the
immediate payment of final wages to home, baby-sit on an informal basis and deliver
terminated employees. newspapers. Children ages 14 and 15 cannot work
in manufacturing, mining, construction or the
The FLSA does not limit the number of hours transportation industries. Further, children under
in a day or days in a week an employee may be the age of 18 cannot work around machinery or in
required or scheduled to work, including overtime certain unsafe jobs. Unsafe jobs include cooking
hours, as long as the employee is at least 16 years or baking in restaurants and working on ladders or
old and the employer pays one-and-one-half times scaffolds. The FLSA limits both the number of
the regular rate for overtime work. hours and the time of day that 14- or 15-year-old
children can work. Those children may not work
Tip Credit during school hours or more than 18 hours per
An Ohio employer may credit tips that week during the school year. However, they may
employees receive against the employers work:
minimum wage obligation. In such cases, the up to three hours on a school day;
employers cash-wage obligation must be at eight hours on a non-school day;
least $3.85 an hour. If an employees tips and 18 hours a week while in school; and
cash wages do not equal the minimum hourly up to 40 hours in a week when school is not in
wage ($7.70), the employer must make up the session.
difference.
Children ages 14 and 15 may not work before
Overtime 7 a.m. or after 7 p.m., except between June 1 and
An employer must pay a nonexempt employee Labor Day, when they may work until 9 p.m.
premium pay for overtime work. Employees cov-
ered by the FLSA generally must receive overtime Ohio Wage and Hour Laws
pay for time worked in excess of 40 hours in a The Wage and Hour Bureau of the Ohio
single workweek at a rate not less than one-and- Department of Commerce administers and
one-half times their regular rate of pay. Some enforces Ohios minimum wage, child labor and
alternative pay plans are available in certain cir- prevailing wage laws. When the FLSA does not
cumstance, however. There is no legal limit on cover a matter, then state law applies. When the
the number of hours employees aged 16 and older FLSA sets a higher standard than the state, the
may work in any workweek. The FLSA does not FLSA prevails. Likewise, if a state sets a higher
require overtime pay for work on Saturdays, standard than federal law, the state law prevails.
Sundays, holidays, or regular days of rest. This
means that the federal law does not require extra Ohio Minimum Wage
pay just because the employee works on a partic- Ohio sets a separate minimum wage rate for
ular day. Overtime is only required by the FLSA employees. Effective in 2012, Ohio employers
if the non-exempt employee works more than 40 must pay a minimum wage of $7.70 per hour,
hours in a one-week period. There are exceptions which is to be increased by the rate of inflation
for certain employees (firefighters, for example).

185
annually. Almost every Ohio employer is covered The Act protects a worker who refuses to per-
by the Ohio minimum wage law since it is higher form a job that is likely to cause imminent death
than the federal minimum wage. The law also has or serious injury. An employer may not discipline
new record-keeping requirements for employers. an employee who, in good faith, refuses to work
Employees covered by only the Ohio minimum if:
wage and not the federal minimum wage are a reasonable person in the employees position
entitled to the Ohio minimum wage. Employees would also conclude that there is a real,
covered by both the Ohio and federal minimum immediate danger of death or serious injury;
wages are generally entitled to the higher of the there is insufficient time to eliminate the
two minimum wages. danger through regular OSHA channels; and
the employer does not respond to the
Prevailing Wage Law employees requests to fix the problem.
Ohios prevailing wage law applies to con-
struction projects undertaken by certain public The Act also protects a worker from retalia-
authorities and requires that the public authorities tion for reporting unsafe conditions.
pay the locally prevailing rate of wages to workers
on the project. The director of the Ohio Depart- Surface Transportation Assistance
ment of Commerce determines Ohios prevailing Act
wage rate.
The Surface Transportation Assistance Act
(STAA) is a federal law that says an employer
Workplace Safety may not fire or discipline an employee for refus-
ing to operate a commercial motor vehicle (CMV)
if the employee reasonably believes that, by
Federal and state laws protect the safety and
operating the vehicle, he or she would violate
health of workers while on the job. They also exist
a federal regulation, standard or order regarding
to ensure that no job causes long-term health or
commercial motor vehicle safety or health.
safety complications.
The regulations, which are issued by the
Department of Transportation, require:
Occupational Safety and Health Act specific marking of cargo containing
The Occupational Safety and Health Act hazardous materials;
(OSHA) is a federal law designed to ensure, to hazmat training for employees;
the extent possible, safe and healthful working marking of vehicles with identifying
conditions for all employees. The act applies to information; and
almost all private-sector employees and federal limits on the number of hours a driver may
workers, except military personnel. State work.
employees are covered by PERRP, as explained
below. Ohio Workplace Safety Laws
The Act requires employers to:
The Public Employment Risk Reduction
provide a workplace that is free of known
Program (PERRP) ensures that public employees
hazards that are likely to (or do) subject
in Ohio are provided with a safe and healthful
employees to death or serious physical harm;
working environment. The law does not cover
comply with the safety and health standards
peace officers, firefighters or correctional officers
adopted by OSHA; and