In the

Supreme Court of Ohio

State ex rel. ELLIOT G. FELTNER :

:

Relator, : Case No. 2018-1307

:

v. : Original Action in Prohibition

: and Mandamus

CUYAHOGA COUNTY, OHIO :

BOARD OF REVISION, et al. :

:

Respondents. :

AMICUS CURIAE BRIEF OF OHIO ATTORNEY GENERAL DAVID YOST

IN SUPPORT OF RESPONDENTS

MARC E. DANN (0039425)

WHITNEY KASTER (0091540)

BRIAN D. FLICK (0081605)

The Dann Law Firm Co., LPA

P.O. Box 6031040

Cleveland, Ohio 44103

216-373-0539

notices@dannlaw.com

ANDREW M. ENGEL (0047371)

Andrew M. Engel Co., LPA

7925 Paragon Road

Centerville, OH 45459

937-221-9819

aengel@amengellaw.com

Counsel for Relator

DAVE YOST (0056290)

Ohio Attorney General

BENJAMIN M. FLOWERS* (0095284)

State Solicitor

*Counsel of Record

MICHAEL J. HENDERSHOT (0081842)

Chief Deputy Solicitor

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

bflowers@ohioattorneygeneral.gov

Counsel for Attorney General Dave Yost

Supreme Court of Ohio Clerk of Court - Filed May 29, 2019 - Case No. 2018-1307

ii

MICHAEL C. O’MALLEY

Cuyahoga County Prosecutor

CHARLES E. HANNAN * (0037153)

ADAM JUTTE (0081671)

Assistant Prosecuting Attorneys

The Justice Center, Courts Tower

1200 Ontario Street, 9th Floor

Cleveland, Ohio 44113

216.443.7800

channan@prosecutor.cuyahogacounty.us

ajutte@prosecutor.cuyahogacounty.us

Counsel for Cuyahoga County Respondents

STEPHEN W. FUNK

JOHN W. BREIG, JR.

Roetzel & Andress, LPA

222 S. Main Street, Suite 400

Akron, Ohio 44308

330-376-2700

sfunk@ralaw.com

jbreig@ralaw.com

Counsel for Cuyahoga County

Land Reutilization Corporation

i

TABLE OF CONTENTS

Table of Contents .......................................................................................................................... i

Table of Authorities ..................................................................................................................... ii

Introduction And Statement Of Amicus Interest .................................................................... 1

Statement of Facts ........................................................................................................................ 2

Argument ...................................................................................................................................... 4

I. Proposition Of Law: ..............................................................................................4

A. A writ of prohibition seeking to correct an error for

which there was an adequate remedy is proper only when

the government official patently and unambiguously lacked

jurisdiction. ............................................................................................................5

B. The Board of Revision did not patently and

unambiguously lack jurisdiction because Ohio’s expedited-

foreclosure process does not violate the separation-of-

powers doctrine. ....................................................................................................6

Conclusion .................................................................................................................................. 10

Certificate of Service .................................................................................................................. 11

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Agee v. Russell,

92 Ohio St.3d 540 (2001) .........................................................................................................6

Belden v. Union Cent. Life Ins. Co.,

143 Ohio St. 329 (1944) ............................................................................................................7

Blue Cross of Northeast Ohio v. Ratchford,

64 Ohio St. 2d 256 (1980) ........................................................................................................7

State ex rel. Enyart v. O’Neill,

71 Ohio St.3d 655 (1995) .........................................................................................................5

Exec. Bens. Ins. Agency v. Arkison,

573 U.S. 25 (2014) .....................................................................................................................9

State ex rel. Federle v. Warren Cty. Bd. of Elections,

2019-Ohio-849 ..........................................................................................................................9

State ex rel. Goldberg v. Mahoning Cty. Probate Court,

93 Ohio St.3d 3d 160, 162 (2001) ............................................................................................6

State ex rel. Kreps v. Christiansen,

88 Ohio St.3d 313 (2000) .........................................................................................................5

State ex rel. LTV Steel Co. v. Gwin,

64 Ohio St.3d 245 (1992) .........................................................................................................5

State ex rel. Ruessman v. Flanagan,

65 Ohio St.3d 464 (1992) .....................................................................................................1, 6

Stanton v. State Tax Com.,

114 Ohio St. 658 (1926) ................................................................................................1, 7, 8, 9

State v. Bloomer,

122 Ohio St. 3d 200, 2009-Ohio-2462 ....................................................................................9

iii

State v. Sterling,

113 Ohio St.3d 255, 2007-Ohio-1790 .....................................................................................8

Stetter v. R.J. Corman Derailment Servs., L.L.C.,

125 Ohio St.3d 280, 2010-Ohio-1029 .....................................................................................6

State ex rel. Tam O’Shanter Co. v. Stark Cnty. Bd. of Elections,

151 Ohio St. 3d 134, 2017-Ohio-8167 ....................................................................................5

State ex rel. Untied v. Ellwood,

131 Ohio St. 3d 37, 2011-Ohio-6343 ..................................................................................1, 4

Walker v. City of Toledo,

143 Ohio St. 3d 420, 2014-Ohio-5461 ....................................................................................8

Yee Bow v. Cleveland,

99 Ohio St. 269 (1919) ..............................................................................................................7

Statutes

R.C. 323.65 ..................................................................................................................................1, 2

R.C. 323.66 ......................................................................................................................................2

R.C. 323.79 ..........................................................................................................................1, 2, 5, 8

R.C. 365 ...........................................................................................................................................7

1

INTRODUCTION AND STATEMENT OF AMICUS INTEREST

This prohibition action challenges R.C. 323.65 through R.C. 323.79, which allow

county boards of revision to foreclose on unoccupied lands on an expedited basis.

Prohibition is an extraordinary remedy; when used in a corrective manner or in light of

an available remedy, the relator must show that official actors violated patent and

unambiguous limits on their jurisdiction. State ex rel. Untied v. Ellwood, 131 Ohio St. 3d

37, 2011-Ohio-6343, ¶ 1; State ex rel. Ruessman v. Flanagan, 65 Ohio St.3d 464, 466 (1992)

(quotation omitted). The realtor in this case—Elliott Feltner—has not made that

showing.

Feltner claims that the statutes violate the separation-of-powers doctrine because

they let boards of revision exercise judicial power. But, as this court held long ago,

executive actors may apply law to facts when making administrative decisions, so long

as a citizen can challenge those administrative decisions in court. See Stanton v. State

Tax Com., 114 Ohio St. 658, 662 (1926). The challenged statues allow full de novo review

in common pleas court. Accordingly, they do not infringe upon the separation of

executive and judicial powers.

Although this Court dismissed the Attorney General from this case, he retains an

interest in defending Ohio law. The Attorney General therefore, submits this amicus

brief in support of Respondents. He asks this Court to deny Feltner’s request for a writ

of prohibition.

2

STATEMENT OF FACTS

In 2006, the Ohio General Assembly passed laws “to provide an expedited-

foreclosure procedure for unoccupied lands that have delinquent tax charges.” H.B.

294, 126th Gen. Assemb. (2006); see R.C. 323.65-323.79. The General Assembly amended

these sections in 2009 “to authorize the creation of land reutilization corporation to

facilitate the reclamation, rehabilitation, and reutilization of vacant, abandoned, tax-

foreclosed or other real property [and] to revise the expedited, nonjudicial foreclosure

procedure for abandoned lands.” S.B. 353, 127th Gen. Assemb. (2009).

To help revitalize unoccupied and vacant land, the General Assembly

determined that, in lieu of judicial foreclosure proceedings, county boards of revision

should be able to “foreclose the state’s lien for real estate taxes upon abandoned land in

the county.” R.C. 323.66(A). The process works like this: The county files with the

clerk of courts, who provides summonses and notices of hearings to the land owner.

R.C. 323.66(C). The clerk of courts also keeps an official case file and docket similar to

civil cases. Id. The clerk makes these files available on her electronic docket.

A party aggrieved by a foreclosure made through this process may appeal. And

those appeals “proceed as an appeal de novo” would. R.C. 323.79. They “may include

issues raised or adjudicated in the proceedings before the county board of revision, as

well as other issues that are raised for the first time on appeal and that are pertinent to

the abandoned land that is the subject of those proceedings.” Id.

3

Feltner owned unoccupied real estate in Cuyahoga County—real estate on which

he owed over $40,000 in taxes. See Rel. Brief at 12 (“At the time the lawsuit was

commenced, certified delinquent taxes on the Property were $9,353.25, and total taxes

owed relative to the Property were $42,785.26.”). Feltner claims that he did not receive

a summons or notice of the complaint from the clerk of courts, but he did learn about

the board-of-revision proceedings before a final entry of foreclosure. Id.; Agreed

Statement of Facts, ¶ 13. The board scheduled the first hearing for March 15, 2017. See

Agreed Statement of Facts, ¶ 13. Feltner personally appeared at that hearing, where the

board granted a 90-day continuance until June 21, 2017. Id. Feltner did not attend the

June hearing, after which the board entered a foreclosure order. Id. ¶ 14. In the weeks

that followed, Feltner neither redeemed the property by paying the back taxes nor filed

an appeal with the court of common pleas. Id. ¶ 15. And, after his redemption period

ended, the Land Bank took title to the property and transferred it to East Side

Automotive Service in August 2017. Id. ¶¶ 16-17.

Over a year after the transfer to East Side Automotive, Feltner filed a complaint

for a writ of prohibition and mandamus against a number of respondents, including the

Ohio Attorney General. Feltner said that the Attorney General was “named for notice

purposes only.” Compl. ¶ 12. As for substance, Feltner claimed that the expedited-

foreclosure statutes violate the Ohio Constitution’s separation of powers. More

4

specifically, he argued that they unconstitutionally give boards of revision the power to

conduct judicial functions.

Every respondent, including the Attorney General, filed a motion to dismiss.

The Attorney General explained, among other things, that he was not a proper party

because he was not involved in any of the underlying actions. Further, while Ohio law

requires that the Attorney General be notified about constitutional challenges to Ohio

law, it does not require that he be made a party to such challenges. AG Mot. to Dismiss

at 5-6. This Court granted the Attorney General’s motion to dismiss, but it granted the

other respondents’ motions to dismiss only in part.

ARGUMENT

I. PROPOSITION OF LAW:

Because Ohio’s expedited-foreclosure process does not violate the separation-of-

powers doctrine, the board of revision did not patently and unambiguous lack

jurisdiction, and Relator is not entitled to a writ of prohibition.

The writ of prohibition is an extraordinary remedy. State ex rel. Untied v. Ellwood,

131 Ohio St. 3d 37, 2011-Ohio-6343, ¶ 1. Feltner is not entitled to this extraordinary

remedy because he cannot show that the board of revision patently and unambiguously

lack jurisdiction over the foreclosure of his property. The expedited-foreclosure statutes

provide for de novo review in the court of common pleas. That review defeats his

separation-of-powers argument.

5

A. A writ of prohibition seeking to correct an error for which there was an

adequate remedy is proper only when the government official patently

and unambiguously lacked jurisdiction.

A writ of prohibition requires proving: (1) that an actor “has exercised or is

about to exercise quasi-judicial power,” (2) “that the exercise of that power

is unauthorized by law,” and (3) “ no other adequate remedy exists in the ordinary

course of law.” State ex rel. Tam O’Shanter Co. v. Stark Cnty. Bd. of Elections, 151 Ohio St.

3d 134, 2017-Ohio-8167, ¶ 14. A couple of general propositions about prohibition

proceedings are critical here. First: “Prohibition is a preventative writ rather than a

corrective remedy, designed to prevent a tribunal from proceeding in a matter that it is

not authorized to hear and determine.” State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d

245, 248 (1992) (emphasis added). “It cannot be used to review the regularity of an act

already performed.” Id. Second, the right to an appeal constitutes an adequate remedy

at law. State ex rel. Enyart v. O'Neill, 71 Ohio St.3d 655, 656 (1995) (holding that an

appeal is an adequate remedy); State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 316

(2000) (same).

There is no dispute here that the county board of revision already exercised quasi-

judicial power and that Feltner is not seeking preventative relief. Nor is there any

dispute that Feltner had a remedy through de novo appeal. See R.C. 323.79. As such, he

can satisfy neither of the general propositions that govern prohibition proceedings.

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But that does not automatically mean he loses because the general propositions

come with an exception. Specifically, a relator who cannot satisfy the two general

requirements will nonetheless be entitled to relief if he can show “a patent and

unambiguous restriction on the jurisdiction of the [respondent] which clearly places the

dispute outside the [respondent’s] jurisdiction.” State ex rel. Ruessman v. Flanagan, 65

Ohio St.3d 464, 466 (1992) (quotation omitted) (emphasis added); State ex rel. Goldberg v.

Mahoning Cty. Probate Court, 93 Ohio St.3d 3d 160, 162 (2001). Such a showing requires

much more than a showing that the respondent exercised unauthorized power. The

violation must be flagrant. Cf. Agee v. Russell, 92 Ohio St.3d 540, 547 (2001) (“[O]ur

holding in Hanning does not warrant a finding that the juvenile court lacked

jurisdiction, much less that it patently and unambiguously lacked jurisdiction . . . .”).

B. The Board of Revision did not patently and unambiguously lack

jurisdiction because Ohio’s expedited-foreclosure process does not

violate the separation-of-powers doctrine.

Feltner must show that the Board of Revision patently and unambiguously

lacked jurisdiction over the foreclosure. To be sure, he posits that the Board plainly had

no power over his foreclosure because its activities violate the Ohio Constitution’s

separation of powers. But he is wrong. At the very least, he is neither patently nor

unambiguously right, which defeats his claim to relief.

The separation-of-powers doctrine represents the division of power among the

three branches of government. Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio

7

St.3d 280, 2010-Ohio-1029, ¶ 87. While the distribution of government power is

“theoretically” distinct, “in practice it is not so and never was so.” Stanton v. State Tax

Com., 114 Ohio St. 658, 662 (1926) (quotation omitted). Indeed, “it is recognized to be

practically impossible to distinctly define the line of demarcation between the different

departments of government. Id. at 662-63.

The Board’s quasi-judicial power to determine certain types of foreclosures does

not cross the line between executive and judicial power because the Board’s decisions

are exposed to full de novo review in the courts. “[T]his court has consistently

recognized that the General Assembly can delegate discretionary functions to

administrative bodies or officers so that they can apply the law to various sets of facts or

circumstances.” Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St. 2d 256, 259 (1980).

As the Court put it a century ago, it “is now generally held that quasi-judicial duties

and administrative functions may be imposed upon administrative officers for the

purpose of ascertaining the conditions under which the law or ordinance becomes

effective.” Yee Bow v. Cleveland, 99 Ohio St. 269, 273 (1919). Today, just as in 1919, laws

may grant boards or administrative agencies quasi-judicial power. Belden v. Union Cent.

Life Ins. Co., 143 Ohio St. 329, 340 (1944) (collecting cases).

Here, the General Assembly delegated quasi-judicial power to boards of revision.

That delegation set standards for exercising that power, e.g., R.C. 365(F)(2) (factors for

8

deciding whether land is unoccupied), and subjected the power to de novo judicial

review in the courts of common pleas, R.C. 323.79.

Stanton illustrates why judicial review defeats any claim to a separation-of-

powers problem. There, the state tax commission addressed questions of a company’s

domicile, whether a company’s assets should be taxed under provisions applicable to

banking corporations, discrimination, and the overvaluation of taxable property.

Stanton, 114 Ohio St. at 659 (1926). All of these questions, this Court explained, were “of

judicial nature,” and “[b]y every test[,] involve[d] matters which [were] usually classed

as of judicial cognizance.” Id. at 659-60, 663, 672. Because these were judicial inquires,

the Court continued, they could not, “under any circumstances[,] be left to the final

determination of an administrative board.” Id. at 663-64. But, the Court concluded,

because those decisions were reviewable in court, the administrative process accorded

with the separation-of-powers doctrine. Specifically, the Court observed that “matters

usually classed as of judicial cognizance may be submitted for determination to

administrative boards” so long as “provision is made for a judicial review.” Id. at 675; see

also Walker v. City of Toledo, 143 Ohio St. 3d 420, 2014-Ohio-5461, ¶¶ 5-6, 21 (holding that

a system that assessed civil penalties for red-light violations and that had an appellate

procedure “complements the work of the courts”); cf. State v. Sterling, 113 Ohio St.3d

255, 2007-Ohio-1790, ¶ 35 (holding that a statute giving county prosecutors sole

discretion on whether to grant an inmate’s request for DNA testing violated separation

9

of powers because that decision posed a judicial question not reviewable in court); Exec.

Bens. Ins. Agency v. Arkison, 573 U.S. 25, 31 (2014) (finding no violation of federal

separation-of-powers principle when bankruptcy courts’ resolutions of claims are

reviewed de novo on appeal).

Stanton’s principle controls here. Under the challenged statutes, boards of

revision have the authority to issue foreclosure orders for abandoned and unoccupied

lands. But any aggrieved party may appeal a foreclosure order to the court of common

pleas for a de novo review. The appeal eliminates any separation-of-powers problem

because the executive administrative body—the board of revision—does not fully

possess the judicial power for the foreclosure. In Stanton’s words, “the separate powers

of the government are not required to be kept entirely separate and distinct, in the sense

that there must be no common link of connection or dependence, but rather that the

whole power of one of these departments should not be exercised by the same hands

which possess the whole power of either of the other departments.” 114 Ohio St. at 664

(quotation omitted).

Any doubt about this conclusion should shut the door on prohibition. The writ

is available only if the relator shows entitlement to it by “clear and convincing

evidence,” State ex rel. Federle v. Warren Cty. Bd. of Elections, 2019-Ohio-849, ¶ 10, and

“every presumption in favor of the enactment’s validity should be indulged.” State v.

Bloomer, 122 Ohio St. 3d 200, 2009-Ohio-2462, ¶ 48 (quotation omitted). Feltner himself

10

recognizes the difficultly in “draw[ing] a clear line distinction between the proper

legislative delegation of quasi-judicial power and the improper delegation of purely

judicial power.” Rel. Br. at 17. The Board did not unambiguously lack jurisdiction over

Feltner’s foreclosure. That ends this case.

CONCLUSION

This Court should dismiss Relator’s complaint.

Respectfully submitted,

DAVE YOST (0056290)

Ohio Attorney General

/s Benjamin M. Flowers

BENJAMIN M. FLOWERS* (0095284)

State Solicitor

*Counsel of Record

MICHAEL J. HENDERSHOT (0081842)

Chief Deputy Solicitor

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@ohioattorneygeneral.gov

Counsel for Attorney General Dave Yost

11

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing was served by first

class mail via the U.S. Postal Service on May 29, 2019, upon the following:

MARC E. DANN

The Dann Law Firm Co., LPA

P.O. Box 6031040

Cleveland, Ohio 44103

notices@dannlaw.com

ANDREW M. ENGEL

Andrew M. Engel Co., LPA

7925 Paragon Road

Centerville, OH 45459

aengel@amengellaw.com

Counsel for Relator

Michael C. O’Malley

Cuyahoga County Prosecutor

The Justice Center, Courts Tower

1200 Ontario Street, 9th Floor

Cleveland, Ohio 44113

channan@prosecutor.cuyahogacounty.us

ajutte@prosecutor.cuyahogacounty.us

Counsel for Cuyahoga County Respondents

STEPHEN W. FUNK

Roetzel & Andress, LPA

222 S. Main Street, Suite 400

Akron, Ohio 44308

sfunk@ralaw.com

Counsel for Cuyahoga County

Land Reutilization Corporation

/s/ Benjamin M. Flowers

Benjamin M. Flowers

State Solicitor