State ex rel. Hicks v. Clermont Cnty. Bd. of Comm'rs
| Decision Date | 01 December 2022 |
| Docket Number | 2021-0611 |
| Citation | 2022 Ohio 4237 |
| Parties | The State ex rel. Hicks, Appellee, v. Clermont County Board of Commissioners, Appellant. |
| Court | Ohio Supreme Court |
2022-Ohio-4237
The State ex rel. Hicks, Appellee,
v.
Clermont County Board of Commissioners, Appellant.
No. 2021-0611
Supreme Court of Ohio
December 1, 2022
Submitted April 26, 2022
Appeal from the Court of Appeals for Clermont County, No. CA2020-06-032, 2021-Ohio-998.
Barron, Peck, Bennie & Schlemmer Co., L.P.A., and Matt Miller-Novak; and Kinsley Law Office and Jennifer M. Kinsley, for appellee.
Isaac, Wiles & Burkholder, L.L.C., Mark Landes, Aaron M. Glasgow, and Dale D. Cook, for appellant.
Faruki, P.L.L., Erin E. Rhinehart, and Christopher C. Hollon, urging affirmance for amicus curiae Ohio Coalition for Open Government.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Zachery P. Keller, Deputy Solicitor General, urging reversal for amicus curiae Ohio Attorney General Dave Yost.
Frost Brown Todd, L.L.C., Philip K. Hartmann, Yazan S. Ashrawi, and Charles B. Galvin; and Garry E. Hunter, General Counsel, Ohio Municipal League, urging reversal for amici curiae Ohio Municipal league, Ohio Township Association, Coalition of Large Ohio Urban Townships, County Commissioners Association of Ohio, Ohio School Boards Association, Ohio Association of School Business Officials, and Buckeye Association of School Administrators.
Fischer, J.
{¶ 1} Ohio's Open Meetings Act, R.C. 121.22 ("the OMA"), requires public bodies in Ohio to conduct all deliberations on official business in meetings that are open to the public. And the OMA states that it "shall be liberally construed" to meet that end. Id. However, no construction of the OMA, even a liberal one, changes the default rule that a plaintiff alleging violations of the OMA bears the burden of proving the violations.
I. Facts and procedural history
{¶ 2} Appellee, Christopher Hicks, filed a complaint in the Clermont County Court of Common Pleas alleging that appellant, Clermont County Board of Commissioners, violated the OMA on multiple occasions in 2017. Hicks alleged that the board had repeatedly entered executive session after passing motions that included a "laundry list" of reasons for entering executive session rather than identifying the specific issues it intended to discuss in executive session.
{¶ 3} The parties engaged in discovery, and each moved for summary judgment. The evidence presented by Hicks demonstrated that the board convened nine executive sessions in 2017 on motions to consider "the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of one or more public employees" under R.C. 121.22(G)(1). Neither side presented evidence showing what was actually discussed during those executive sessions, other than evidence that the board discussed an employee, D.R., on March 1, 2017, and notes taken by one of the board commissioners on June 7, 2017, that included a list of hotels. During depositions, the commissioners could not remember who or what was discussed during any of the executive sessions.
{¶ 4} In ruling on the motions for summary judgment, the trial court determined that under the Twelfth District Court of Appeals' decision in State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 2012-Ohio-2569, 972 N.E.2d 115 (12th Dist), the board failed to carry its burden to produce evidence showing that
it entered the executive sessions for a valid statutory reason and did not discuss improper topics during the sessions. Because the board presented no evidence of what it had discussed in the executive sessions, the trial court granted Hicks's motion for summary judgment on his claim regarding nine of the executive sessions and awarded him nearly $80,000 in attorney fees under R.C. 121.22(I)(2)(a).
{¶ 5} Applying the burden-shifting framework that it established in Hardin, the Twelfth District affirmed the trial court's judgment. 2021-Ohio-998, 171 N.E.3d 358, ¶ 25-40, 46. In Hardin, the Twelfth District created a burden-shifting framework for claims alleging violations of the OMA. The court required the plaintiff bringing an action under the OMA to initially carry the burden of production "by showing that a meeting of the majority of the members of a public body occurred and that the general public was excluded." Hardin at ¶ 25. If the plaintiff made that showing, the burden then shifted to the public body "to produce or go forward with evidence that the challenged meeting fell under one of the exceptions of R.C. 121.22(G)." Id. Finally, if the public body met its burden, the burden shifted back to the plaintiff to "come forward with evidence that the exception claimed by the public body is not applicable or valid." Id.
{¶ 6} Relying on the Hardin framework, the Twelfth District determined that Hicks had met his initial burden of production by submitting evidence that the nine executive sessions were meetings from which the public was excluded. See 2021-Ohio-998 at ¶ 14, 27-28. The appellate court then shifted the burden to the board and considered whether the board had produced evidence that the subjects discussed in the meetings fell within the statutory exceptions stated in its motions to enter executive session. Id. at ¶ 27, 40. Because the board commissioners could not recall what was discussed during the executive sessions, the court determined that the board did not meet its burden. Id. Further, the court said it would require the board to present evidence that it had discussed all the topics listed in its motions. See id. at ¶ 38, 41. The court held that R.C. 121.22(G)(1) and caselaw prohibited
the board from listing multiple purposes for entering executive session in an effort to ensure that it was "covered for all employment-related discussions." 2021-Ohio-998 at ¶ 38, 41. Therefore, the court concluded that the board had violated R.C. 121.22(G)(1), and it affirmed the trial court's summary-judgment award. 2021-Ohio-998 at ¶ 46.
{¶ 7} The Twelfth District also determined that the trial court did not abuse its discretion in awarding attorney fees to Hicks. Id. at ¶ 50-66. The appellate court noted that R.C. 121.22(I)(2)(a) authorizes a court to award reasonable attorney fees to a party who establishes a violation of the OMA. And it noted that a court may choose not to award attorney fees if it determines that a well-informed public body would reasonably believe that it was not violating the OMA and that the conduct that was the basis of the violation served public policy. 2021-Ohio-998 at ¶ 63; see also R.C. 121.22(I)(2)(a). The Twelfth District held that it was not reasonable for the board to believe that its conduct had complied with the OMA because, in the appellate court's view, R.C. 121.22(G)(1) required the board to "be specific when describing the reasons for moving into executive session instead of perfunctorily covering all possibilities." 2021-Ohio-998 at ¶ 64.
{¶ 8} We accepted the board's appeal, which raises three propositions of law. See 163 Ohio St.3d 1504, 2021-Ohio-2401, 170 N.E.3d 894.
II. Analysis
A. First proposition of law: Burden of proof
{¶ 9} In its first proposition of law, the board argues that "[w]hen a public body goes into executive session for a permitted reason under R.C. 121.22(G)(1), the burden remains throughout on the Relator to prove a violation of the [OMA]." Hicks argues that even if he ultimately bears the burden of persuasion on his claim, this court should adopt a burden-shifting rule that shifts the burden of production of evidence to the government, as the Twelfth District did in this case and in Hardin, 2012-Ohio-2569, 972 N.E.2d 115.
1. Common law and statutory language
{¶ 10} The "burden of proof" 'encompasses two different aspects of proof: the burden of going forward with evidence (or burden of production) and the burden of persuasion.'" Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 20, quoting Chari v. Vore, 91 Ohio St.3d 323, 744 N.E.2d 763 (2001); see also State v. Robinson, 47 Ohio St.2d 103, 107, 351 N.E.2d 88 (1976). "[T]he 'burden of persuasion' 'refers to the risk * * * borne by a party if the jury finds that the evidence is in equilibrium.'" (Ellipsis added in Welsh-Huggins) Welsh-Huggins at ¶ 22, quoting Robinson at 107. And the burden of persuasion remains on one party throughout the entire case. See id. at ¶ 34. By contrast, the "burden of production" can shift between the parties. See id. at ¶ 33-35. The burden of production in a civil case requires that the plaintiff produce sufficient evidence to support his or her claims and that the defendant produce sufficient evidence of any affirmative defenses. Id. at ¶ 21.
{¶ 11} Furthermore, in accordance with common-law principles, the statutory provision authorizing citizens to sue public bodies for violations of the OMA clearly places the burden of proof, or at least the burden of persuasion, on the plaintiff. That provision states: "Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions." (Emphasis added.) R.C. 121.22(I)(1). Therefore, to receive relief, the plaintiff must prove a violation of the OMA. There is no requirement for the public body to conversely prove that no violation occurred.
{¶ 12} Nor does the clause in R.C. 121.22(A) stating that the statute "shall be liberally construed" change the clear language of the statute. The liberal-construction clause states that the OMA shall be "liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings." Id. So the OMA clearly requires this court to
construe its language liberally when determining what must be discussed in open meetings and narrowly when determining what may be discussed in executive session. But...
To continue reading
Request your trial