Ohio
Ohio Const. Art. 1, § 7
Ohio Const. Art. 1, § 7; Art. 2, §§ 15(D) and § 26; Art. 6, § 2
Ohio Admi. Code § 128-4-01 et seq.
Ohio Admin. Code § 901:9-2-05
Ohio Code of Judicial Conduct, Canon 3(B)(5)
Ohio Rev. Code § 1.02(C)
Ohio Rev. Code § 102.03(J)
Ohio Rev. Code § 5.06
Ohio Rev. Code § 519.14
Ohio Rev. Code § 1702.12
Ohio Rev. Code § 1702.14
Ohio Rev. Code §§ 1702.16, 1702.17 and 1702.18
Ohio Rev. Code §§ 2305.10, 2305.15, 2305.16, 2305.111
Ohio Rev. Code § 2307.382
Ohio Rev. Code §§ 2317.02
Ohio Rev. Code §§ 2744.09(E)
Ohio Rev. Code § 2901.01(L)
Ohio Rev. Code §§ 2903.06(A) and 2903.09
Ohio Rev. Code §§ 2907.02(A)(1)(b); 2907.321(A)(5)
Ohio Rev. Code § 2911.21
Ohio Rev. Code § 2911.29
Ohio Rev. Code §§ 2923.31 et seq.
Ohio Rev. Code §§ 2929.11(C); 2929.12; 2929.13
Ohio Rev. Code § 3105.01
Ohio Rev. Code § 3109.04
Ohio Rev. Code § 3109.05
Ohio Rev. Code § 3109.051
Ohio Rev. Code § 3111.09
Ohio Rev. Code § 3113.215
Ohio Rev. Code §§ 3313.974 – 3313.979
Ohio Rev. Code § 3317.06
Ohio Rev. Code § 3767.30
Ohio Rev. Code, Ch. 4112
Ohio Rev. Code § 4112.02
Ohio Rev. Code § 4112.06(E)
Ohio Rev. Code § 4112.99
Ohio Rev. Code § 4117.09
Ohio Rev. Code 4123.56
Ohio Rev. Code § 4141.01(B)(3)(h)(i)
Ohio Rev. Code §§ 5709.07, 5709.12 and 5709.121

Ohio Const. Art. 1, § 7

At his own expense, Judge hung a copy of the Ten Commandments in a gilded frame in his courtroom. On the opposite wall he hung a copy of the Bill of rights in a guilded frame. The presence of the poster of the Ten Commandments violated both the Establishment Clause of the First Amendment and Article I, § 7 of the Ohio Constitution. Under the facts the poster had a religious purpose and even if it had a secular purpose it had the primary effect of endorsing or promoting religion. Court also discusses issues of standing and its jurisdiction to entertain the suit    Case # 1319N (N.D. Ohio), affirmedCase # 1697 (6th Cir.).  Sometime after complying with the injunction the defendant judge created another poster, signed by him, entitled “Philosophies of Law in Conflict,” and hung it in his courtroom. This display discussed what defendant saw as a conflict between two different legal philosophies, moral absolutism rooted in the Ten Commandments (the text of which was set forth) and moral relativism founded on what defendant characterized as “Humanist Precepts.” The poster described what defendant perceived as the negative result of society moving toward moral relativism and explained that America’s founders recognized the need to ground legal philosophy on moral absolutes instead of on moral relatives. The poster declared that “Ultimately there are only two views: Either God is the final authority and we acknowledge His unchanging standards of behavior. Or man is the final authority, and standards of behavior change at the whim of individuals or societies.” The poster said that the Judge joined the Founders in “personally acknowledging the importance of Almighty God’s fixed moral standards for restoring the moral fabric of this nation.” The display invited readers to obtain a pamphlet from the court receptionist that further explained defendant’s philosophy. Finding that the new poster was not identical to the previous poster of the Ten Commandments, the district court refused to hold the defendant in contempt for violating its injunction. Consequently, the ACLU filed a new action against defendant on behalf of its members in the county, including attorney X who frequently appeared in defendant’s courtroom and found the new display offensive. The defendant argued that attorney X – and through him the ACLU – did not have standing to bring suit because attorney X never in fact suffered an injury. In an affidavit, defendant declared that X had appeared in defendant’s court numerous times and defendant had never referred to the poster in question, nor the opinions expressed therein, in any proceeding in which X had been involved. The Judge declared that he believed X “would testify that I have never done or said anything in my role as a judge that a reasonable attorney or litigant would consider demeaning, offensive, or be construed as having my or anybody else’s religious views thrust upon him.” The Judge declared that he was unaware of X “ever having made a request that one of his cases be reassigned away from me, or that I recuse myself from any of his cases due to any poster hanging in my courtroom.” The court found, however, that X had standing to sue because defendant’s affidavit did not refute that X appeared in his courtroom and was offended by the poster. Defendant’s opinions as to how X would testify to certain matters were irrelevant. Applying the Lemon test, as modified over the years, the district court proceeded to grant plaintiff summary judgment declaring defendant’s new display to be in violation of the First Amendment’s Establishment Clause and Article I, Section 7 of the Ohio Constitution. The court issued an injunction against continued display of the new display, rejecting defendant’s argument that, inter alia, he had a First Amendment free speech right to display the poster in his courtroom in order to express his moral and judicial philosophy. The court, in a detailed analysis, also rejected defendant’s argument that the holding by the Sixth Circuit addressing defendant’s earlier display had been undermined by subsequent U.S. Supreme Court opinions addressing Ten Commandment displays.   Case # 3819 (N.D. Ohio). The Sixth Circuit affirmed. After affirming that plaintiff ACLU had standing in its new suit by virtue of the claimed psychological damage suffered by its member attorney X, the panel, applying the Lemon test, as modified, held that the new display violated the Establishment Clause both because its predominant purpose was religious and because it had the effect of endorsing religion. Although defendant stated that his purpose for hanging the new poster was for the secular purpose of expressing his own personal views, the panel found that defendant’s attempt to veil his religious purpose by casting his religious advocacy in philosophical terms was defeated by the blatantly religious content of the display. But even assuming for the sake of argument that defendant stated a facially secular purpose, defendant’s history of Establishment Clause violation demonstrated that any purported secular purpose was a sham. The new display also violated the Establishment Clause because a reasonable observer acquainted with its text, history, and implementation would view it as a state endorsement of religion. By stating that the “moral absolutes” of “the God of the Bible” are the “fixed moral standards for restoring the moral fabric of this nation,” that should triumph in the “conflict of legal and moral philosophies raging in the United States,” the poster specifically linked religion and civil government. The panel rejected defendant’s contention that his hanging of the poster in his courtroom constituted protected speech under the First Amendment. Defendant’s hanging of the poster in his courtroom was not private judicial speech protected by the First Amendment. The new display was situated in a courtroom, a public space, and placed on the wall by a sitting judge charged with the decoration of that space while in office and presiding in the same courtroom. As such, the display did not constitute private religious expression falling beyond the bounds of Establishment Clause scrutiny. Rather, it constituted government speech subject to the strictures of the Establishment Clause   Case # 4205 (6th Cir.)

For purposes of determining paternity, the trial court had ordered defendant to submit to genetic testing. A buccal swab, inserted into the mouth and run along the cheek or gum line, was used to collect the DNA sample. The trial court provided that defendant could be held in contempt if he declined to submit to the testing. Held: (1) The swab was not taken by an unconstitutional threat or use of force. (2) The genetic testing did not violate defendant’s religious rights as guaranteed by the First Amendment or Ohio Const. Art. I, § 7. Under the Ohio Constitution, the state action must serve a compelling state interest and must be the least restrictive means of furthering that interest. The State had a compelling interest in ensuring that the children of the state were financially supported by their natural parents. The DNA was obtained through a buccal swab, a minimally invasive procedure. And given that defendant asserted that numerous other individuals could be the father of the child, there was no less intrusive alternative to the genetic testing to resolve the issue of paternity   Case # 2783 (Ohio Ct. App.)

Entry of divorce decree over the Catholic husband’s religious objections affirmed. Act of granting a divorce did not impermissibly impinge upon husband’s right to free exercise of religion under federal or state constitutions. Trial court properly issued a divorce decree upon demonstration that the parties have lived separate and apart without interruption for one year.    Case # 1030N (Ohio Ct. App.)

Court holds constitutional provisions of Ohio criminal law that (1) provided that “no person, while operating or participating in the operation of a motor vehicle . . . shall recklessly cause the unlawful termination of another’s pregnancy”, (2) defined the “unlawful termination of another’s pregnancy” as “causing the death of an unborn . . . who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and that continues . . . until live birth occurs”, (3) provided that the definition of unlawful termination of another’s pregnancy is not to be applied to consensual abortions, and (4) exempted pregnant women from prosecution; provisions did not violate equal protection, due process, or the establishment clause of the First Amendment; defendant’s sentence of one year did not constitute cruel and inhuman punishment    Case # 815 (Ohio Ct. App.)

Father of out of wedlock child ordered to pay for parochial school education of minor child with special needs    Case # 982 (Ohio Ct. App.)

Divorce decree ordering noncustodial parent to pay one-half of the parochial school tuition for his minor child did not violate federal or Ohio constitutions, Case # 1343 (Ohio Ct. App.)

See also Case # 316 (S.D. Ohio), Case # 326 (Ohio Ct. App.)

Ohio Const. Art. 1, § 7; Art. 2, §§ 15(D) and § 26; Art. 6, § 2

Ohio school voucher program aided low income students. For students attending a private school the checks were made payable to the parents, but sent to the school where they were indorsed by the parents. Program, with one exception, held by the Ohio Supreme Court not to violate Establishment Clause of the federal or state constitutions, but provision allowing a participating sectarian school to grant priority in admission under the program to a student whose parents belonged to a religious group that supported the sectarian school violated the Establishment Clause. Program did not violate Section 2, Article VI of the Ohio Constitution. Although only the Cleveland school district qualified under the plan, the program did not violate the Uniformity Clause of Section 26, Article II of the Ohio Constitution. However, the School Voucher Program, which was a rider to a general appropriations bill, violated the one-subject rule of Section 15(D), Article II of the Ohio Constitution    Case # 546 (Ohio).

Subsequent to the holding in Case # 546 (Ohio), the 1999, the Ohio Legislature enacted a new version of of the voucher pla. Although held held to be in violation of the establishment cause by the district court and the Sixth Circuit Court of Appeals, see Case # 694 (N.D. Ohio), affirmed, Case # 885 (6th Cir.), the U.S. Supreme Court reversed and upheld the constitutionality of the 1999 voucher program. See Case # 1236 (U.S.), where by a vote of 5 to 4 the U.S. Supreme Court held that a State of Ohio voucher program designed to provide educational choices to families with children who resided in the Cleveland City School District did not offend the Establishment Clause, even though  96% of the children participating in the voucher program enrolled in religious schools and the amount of the voucher covered, in most instances, almost the full cost of tuition, hence paying for the sectarian component of the education in addition to the secular component. Over vigorous dissents, the majority held that the program was entirely neutral with respect to religion, that it provided benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district, and that it permitted such individuals to exercise genuine choice among options public and private, secular and religious

Ohio Admin. Code § 128-4-01 et seq.

The capitol grounds surrounding the Ohio State Capitol Building was available on a permit basis for speeches and public gatherings advocating various causes, both secular and religious. The property was open to ingress and egress by the general public so long as they were not engaging in activity requiring a permit. Plaintiff, sought to communicate a religious message on the capital grounds via open-air proclamations, written literature, and sandwich boards, but because he did not have a permit he was asked to leave by State Highway Patrol officers. Plaintiff, who had never applied for a permit – it being against his religious conscience to obtain a permit to speak on religious issues in public – peacefully left the capitol grounds because he feared arrest. The district court held the permit scheme set forth in Ohio Admin, Code Chapter 128-4 unconstitutional and permanently enjoined defendants from enforcing against individual speakers the existing permit scheme. The district court expressed no opinion on the constitutionality of the permit scheme as it pertained to groups and did not enjoin continued application of the scheme in that regard. Capitol grounds were at least a designated, or limited, public forum entailing an intermediate scrutiny inquiry. The district court found that the permit scheme (1) lacked any meaningful time limit on the permitting process; (2) granted the responsible agency overly broad discretion to waive its $20 permit fee; and (3) lacked precise standards to guide the responsible agency’s discretion in determining whether to grant or deny a permit. It further found that (4) the requirement that permit seekers identify themselves on the permit application might deter speakers who prefer to remain anonymous; that (5) the permit scheme would chill a substantial number of religious speakers who might opt to remain silent rather than to ask the Government’s permission to engage in evangelical activities; that (6) the permit scheme eliminated a substantial amount of spontaneous speech because the advance notice requirement precluded the expression of speakers who wished to express themselves at the moment the speech became ripe; and that (7) the permit scheme proscribed more speech than necessary to effectuate the government interests in preserving the historical site, maintaining order and safety, ensuring that adequate support services were available, and maintaining the primary use of Ohio’s Statehouse to carry out the business of state government. The Third Circuit panel was largely unpersuaded by parts of the district court’s reasoning, but affirmed on the ground that the injunction was warranted because (a) the regulation, by its ambiguity, swept too broadly with respect to when an individual must obtain a permit and (b) the permit scheme effectively banned spontaneous speech on the Capitol grounds. The dissenting member of the Third Circuit panel did not think that the permit regulations were vague, overbroad or not narrowly tailored   Case # 1751N (6th Cir.), affirming Case # 1478N (S.D. Ohio)

Plaintiff pastor, who was preaching and handing out religious literature on the Ohio Statehouse grounds without a permit was charged with criminal trespass after refusing to leave the grounds upon the request of the police. Plaintiff’s moved n state court to dismiss the state criminal charges on the ground that Ohio Revised Code § 2911.21(A)(2), the criminal trespass statute under which he was charged, and Ohio Administrative Code § 128-1 et seq., governing the requirement that all persons who wished to use the Ohio Statehouse grounds first obtain a permit, violated due process, freedom of speech, and the free exercise of religion. On November 17, 2000, the Franklin County Municipal Court held that the challenged statutes were constitutional and denied the motion to dismiss. The state court denied the motion to dismiss and plaintiff was eventually found guilty of criminal trespass and fined $100. Plaintiff appealed the decision to the Court of Appeals of Ohio, but later filed a motion to dismiss his appeal, which was granted. Thereafter plaintiff filed suit in federal district court challenging the constitutionality of Ohio Administrative Code § 128-4 Plaintiff alleged, inter alia, that the permit requirements were unconstitutionally overbroad, vague, and discriminatory in violation of his rights to free speech and free exercise of religion. He claimed that the continued threat of enforcement of Ohio Administrative Code § 128-4 chilled and deterred plaintiff from exercising his constitutional rights, causing irreparable harm to plaintiff. Defendant’s sought dismissal of the suit in federal court under the Rooker-Feldman doctrine barring U.S. district courts from hearing challenges to state court judgments and claims that are “inextricably intertwined” with state court judgments. However, because plaintiff did not seek to have the federal district court overturn his state conviction for criminal trespass, the Rooker-Feldman doctrine was inapplicable to the federal lawsuit. Plaintiff was simply seeking to clear away the allegedly unconstitutional permit requirement so that he could preach and hand out religious tracts on Capitol grounds in the future unimpeded by the permit requirement. However, the fact that plaintiff raised the same constitutional issue in the state court proceeding could potentially justify dismissing the federal suit on the ground of issue preclusion. But this matter was left to the district court on remand. Compare the dissent, arguing that the Rooker-Feldman doctrine barred the federal district court from exercising subject matter jurisdiction over plaintiff’s constitutional challenge to the permit scheme    Case # 1479N (6th Cir.)

Ohio Admin. Code § 901:9-2-05

Regulation banning fortune telling, phrenology, and horoscope concessions at state fair is unconstitutional    Case # 174 (N.D. Ohio)

Ohio Code of Judicial Conduct, Canon 3(B)(5)

Petitioner had been indicted on ten counts of rape of a minor and for pandering obscenity involving a minor. After pleading guilty to all the charges, petitioner was sentenced to 51 years imprisonment. In Case # 818 (Ohio), the Ohio Supreme Court held that even though the sentencing judge had consulted a religious text during her deliberations and quoted a portion of that text on the record in the sentencing proceeding, such conduct was not per se impermissible and did not violate the offender’s right to due process, because the judge adhered to the sentencing procedures outlined in the applicable statutes. While a sentencing judge’s religious comments may violate an offender’s due process rights when they reveal an explicit intrusion of personal religious principles as the basis of a sentencing decision, in the opinion of the Ohio Supreme Court no such constitutional violation occurred in this case. However, on the petitioner’s application to the federal district court for a writ of habeas corpus, the district court, in Case # 1536 (S.D. Ohio), held that petitioner was entitled to conditional habeas relief and was to be resentenced in proceedings presided over by a different judge. In the view of the district court, the impropriety in this case did not stem from the fact that the sentencing judge may have held personal religious beliefs that implicitly may have guided her in her judgments, or even that she may have referred to or quoted Biblical passages during sentencing proceedings. The impropriety lay in the trial judge consulting and relying on a particular Biblical passage as the final source of authority to resolve her “struggle” in determining whether to impose a harsh or more lenient sentence. The Bible verse that served as a factor in the trial judge’s sentencing decision was Matthew 18:5-6, reading, “And whoso shall receive one such little child in my name, receiveth me. But, whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and he were drowned in the depth of the sea.” Said verse could, in the view of the district court, be understood to recommend that those who victimize children should be punished more severely and it appeared to the district court that the Biblical text convinced the trial judge to accord significant weight to the statutory factor of the victim’s age in determining the appropriate sentence. However, a divided Sixth Circuit panel reversed and remanded with instructions to dismiss the habeas petition, concluding that there was nothing in the totality of the circumstances to indicate that the trial judge used the Bible as her “final source of authority.” The Biblical principle of not harming children was fully consistent with Ohio’s sentencing consideration to the same effect and if the trial judge had actually imposed sentence upon a belief that God commanded that defendant be “drowned in the depth of the sea,” one would expect the sentence imposed to be the maximum length possible. In reality, the sentence was in the lower half of the sentencing range allowable under Ohio law. In addition to the Biblical reference, the sentencing judge referred to numerous factors – favorable and unfavorable – that she took into account. And the judge specifically designated the Biblical passage as “one additional source,” not her “final source.” But compare the dissent   Case # 1813 (6th Cir.)

Ohio Rev. Code § 1.02(C)

"Unsound mind"—which includes "all forms of mental retardation or derangement"—is to be equated with “insanity"    Case # 524 (Ohio Ct. App.)

Ohio Rev. Code § 5.06

State motto “With God All Things Are Possible” did not violate the First Amendment’s establishment clause and could be placed on the state seal, in front of the capitol building, and on official stationary and forms; however, the state did not challenge the lower court’s injunction barring the state from attributing the words of the motto to the text of the Christian New Testament    Case # 960 (6th Cir.) (en banc)

Ohio Rev. Code § 102.03(J)

Zoning; recusal; having been denied a zoning variance by the zoning board of appeals, a church/parochial school appealed to the city council; there was an insufficient showing that two of the councilmen who voted in favor of the variance should have recused themselves, despite the fact that, inter alia, one or both of the councilmen were members of the parish, sent their children to the parish school, gave a gift to the church intended for the project for which the variance was sought, and was a member of the law firm which was currently representing the diocese and had, in the past, represented the local church/school    Case # 264 (N.D. Ohio)

Ohio Rev. Code § 519.14

Religious congregation, which owned cemetery running out of space, wished to purchase adjacent lot so as to increase the number of available burial plots and expand the parking area to alleviate traffic problems during funerals; the adjacent lot was zoned for single family residential use and a variance was necessary; held, the congregation was not entitled to the variance because it could not show unnecessary hardship; a finding of unnecessary hardship must relate to the property for which the variance is sought    Case # 399 (Ohio Ct. App.)

Ohio Rev. Code § 1702.12

Congregational churches are free from secular court scrutiny of their internal practices and discipline regarding the membership of the congregation; nor do the courts have jurisdiction over a member’s complaint that he was subject to defamation at a meeting to determine his continued membership in the church; courts do, however, retain jurisdiction in cases involving congregational churches to determine whether the proper authority made the decision about church discipline or policy    Case # 388 (Ohio Ct. App.)

Ohio Rev. Code § 1702.14

A church was an Ohio nonprofit corporation whose articles of incorporation did not list corporate members or the requirements for membership. The articles only listed the 3 original trustees. Under Ohio statutory law, where neither the articles of incorporation nor the regulations of the nonprofit corporation identify the members of the corporation, or where a corporation has no members other than the directors, the directors are considered the members of such corporation, with all the rights and privileges of members. In the instant case, the congregants of the church held a meeting and elected trustees. The trustees in turn appointed the pastor as “CEO” and authorized him to file certain property related claims on behalf of the church against members of the family which founded the church. The suit also sought a declaration that, inter alia, certain defendants were not trustees of the church. Held: The church congregants were not members of the corporation and had no authority to elect trustees. Consequently, the “elected” trustees were not trustees of the church and could not authorize the pastor/CEO to file the complaint on behalf of the corporation against the defendant family members   Case # 4184 (Ohio Ct. App.)

Ohio Rev. Code §§ 1702.16, 1702.17 and 1702.18

Constitution of congregational church vested ruling power in an elected executive board; the board discharged the pastor; dissenting members called a special meeting, voted out the board, elected a new board, which then rehired the pastor; held, in calling the special meeting, the dissenting members did not comply with the provisions of Ohio Revised Code 1702.18 which governed notice of meetings of an Ohio non-profit corporation in the absence of provisions to the contrary adopted by the corporation; consequently, the original board was not displaced and the board had a right, on behalf of the church, to seek injunctive relief against the pastor and the dissenting members; the dissenting members were not entitled to have the church joined as a defendant, as the board represented the church; nor could the board’s counsel be disqualified on the ground that he had previously represented the congregation, because, as stated, the church was not in opposition to the board, but was represented by the board    Case # 785 (Ohio Ct. App.)

The bylaws of plaintiff church provided that its pastor and elders had to be reaffirmed on an annual basis. The Church notified its members in writing that its annual meeting would be on January 28, 2007, following the morning worship service. At the beginning of that morning’s service, the pastor announced that the time for the meeting had been changed to 1 p.m. He then abruptly ended the service. A group of members that opposed the pastor’s retention held a meeting following the service anyway. Those members did not attend the afternoon meeting, at which the pastor and church elders were reaffirmed for another year. After the group in opposition to the pastor began holding its own services, the church filed a complaint requesting a declaratory judgment that the pastor and elders affirmed at the afternoon meeting were its lawful governing body. The trial court dismissed the complaint, concluding that the church had failed to establish that the afternoon meeting was conducted in accordance with its bylaws, the notice it had sent, and state law. The Court of Appeals affirmed by holding that although the trial court erred by “dismissing” the church’s complaint, the error was harmless because the trial court had actually correctly determined the legal issue to be resolved by determining that the church did not give its members proper notice of the rescheduled meeting and thus the vote at the rescheduled meeting was invalid   Case # 3402 (Ohio Ct. App.)

Ohio Rev. Code §§ 2305.10, 2305.15, 2305.16, 2305.111

Plaintiff alleged that he was abused as a minor from approximately 1980 through 1983, during which time he knew that the alleged perpetrator was a Catholic priest, and that the priest was employed by the Archdiocese of Cincinnati. The statutes of limitations in plaintiff’s actions against the Archdiocese and its Archbishop for, inter alia, breach of fiduciary duty; negligence; and corrupt activities under Ohio Rev. Code (R.C.) § 2923.31 et seq., did not commence to run in April 2002 when plaintiff learned of the existence of other alleged victims of the priest; rather the actions accrued at the time of the sexual abuse and the limitations periods began to run when plaintiff achieved his majority. The Ohio Supreme Court held that where a complaint alleges that a church concealed its involvement in the sexual abuse of the plaintiff by one of its priests and that only until recently, after expiration of the statute of limitations, did plaintiff have sufficient knowledge to be apprised of the independent claims he may have against the church, the plaintiff’s allegations against the church are subject to dismissal on statute of limitations grounds, because, plaintiff’s notice of the sexual abuse by the abusive priest constitutes apprisal of the possibility of any other independent claims against the church as a matter of law, so that all relevant statutes of limitations against both the priest and the church are triggered by the acts of sexual abuse. More succinctly stated, if a minor who is the victim of sexual abuse by clergy knows, at the time of the abuse, the identity of the perpetrator, the employer of the perpetrator, and that a battery has occurred, any claims against the church employer accrue at the time of the sexual battery and the relevant statutes of limitation commence to run when the minor achieves his majority. Neither the discovery rule, nor equitable estoppel, acted to save plaintiff’s claims under the facts of this case. The dissent was of the opinion that plaintiff should be allowed to bring causes of action against the Diocese for breach of fiduciary duty and conspiracy, because, at the time of the sexual abuse, even though plaintiff may have known that the abuser was in the employ of the Diocese, plaintiff alleged he had no knowledge, and had no reason to have knowledge, of the very separate wrong of being victimized by a priest whom the diocese knew to be a serial sexual predator, and yet had reassigned again and again to work in parishes, making the plaintiff the victim of a well-thought-out conspiracy. The dissent was also of the opinion that, based on the allegations in the complaint, plaintiff’s claim against the Archdiocese under the Ohio Corrupt Activities Act was not subject to dismissal on limitations grounds. The majority was of the opinion that plaintiff’s knowledge, at the time of the sexual abuse, that the priest was an employee and agent of the diocese, placed upon plaintiff an obligation to investigate, starting from the time of the abuse, or no later than the age of majority, whether the diocese may have breached some duty to plaintiff owing to its relationship with the priest and that consequently the statute of limitations on the claims against the diocese started to run as soon as plaintiff reached his majority. In addition, the majority held that not only was plaintiff’s action under the Ohio Corrupt Activities Act not saved by a discovery rule, the Act was not even applicable, because the Act did not come into effect until after the end of the sexual abuse; but compare the dissent which stressed that the allegations of the complaint were that there was a conspiracy to hide the diocese’s actions that continued even after the Act was enacted   Case # 2510 (Ohio), reversingCase # 1852 (Ohio Ct. App.)

Catholic priest allegedly abused plaintiffs in Ohio during the 1950s and 1960s when they were minors. The priest left the employ of the Archdiocese in 1970 and moved to Florida. Plaintiffs sued the Archdiocese in 2002 and 2003 for respondeat superior; respondeat superior by ratification or agency; negligent hiring, retention or supervision; breach of fiduciary duty; negligent infliction of emotional distress; intentional infliction of emotional distress; and negligent misrepresentation. The spouse of one plaintiff sued for loss of consortium. In addition, one plaintiff brought a cause of action against the priest for assault and battery and intentional infliction of emotional distress. All claims against the Archdiocese were dismissed on the ground that the statute of limitations had expired. In addition, a person is not entitled to bring a claim for loss of consortium based upon events that occurred before marriage. Court discusses, inter alia, Ohio statutes of limitations applicable to sexual-abuse claims and why the “discovery rule” was not applicable. However, the action against the priest was tolled because of his absence from the state; but see the constitutional concerns of the concurring opinion. Concurring opinion also discusses conceptual distinction between use of the discovery rule and the equitable doctrine of fraudulent concealment   Case # 1723 (Ohio Ct. App.)

Claims of eight adult women who alleged they were sexually abused as children by a parish priest and who sued the diocese 18 years after the end of the abuse were time-barred; the statute of limitations was not tolled either by plaintiffs’ delayed discovery of their injuries or their mental disabilities; the defendant diocese was not equitably estopped from asserting the statute of limitations as a defense    Case # 524 (Ohio Ct. App.)

Claims for sexual battery, intentional infliction of emotional distress, clergy malpractice, breach of fiduciary duty as a counselor and clergyman all governed by one year limitations period governing assault and battery; discovery rule did not apply; actions against church for negligent supervision of pastor and against pastor for fraudulent use of church funds dismissed    Case # 139 (Ohio Ct. App.)

Ohio Rev. Code § 2307.382

 Plaintiff, while he and his family were parishioners in a Michigan parish under the authority of the Diocese of Detroit, was sexually abused for many years by a Roman Catholic priest under the supervision and control of said diocese. The abuse occurred in Michigan and also in Florida, Arizona, Ohio, and Europe while on trips with the priest. Plaintiff sued the Archdiocese alleging that the Archdiocese had actual and/or constructive notice that the priest had sexually abused children in the past, but had concealed the priest’s conduct from plaintiff and his parents; that the Archdiocese fraudulently represented that the priest was qualified to be around children and failed to closely monitor and supervise the priest despite his known inappropriate sexual contact with children. Plaintiff, while a resident of Missouri, commenced a diversity suit against the Archdiocese of Detroit, Michigan in U.S. District Court in Ohio. Plaintiff alleged that the Archdiocese had the following contacts with Ohio: In 1983, the priest took plaintiff on a two-day trip to Ohio to reward plaintiff for his work as an altar boy, where he sexually abused plaintiff. Plaintiff contended that the trip was within the scope of the priest’s pastoral duties, given that the trip was to reward plaintiff for his work as an altar boy, and one of the priest’s duties was to counsel, supervise, and train altar boys. Plaintiff contended that not only was the tortious act of sexual abuse committed in Ohio, but that the act arose out of what was in essence a “business” trip in furtherance of the Archdiocese’s interests. Plaintiff also asserted that the Detroit Archdiocese had a continuous presence in Ohio because its priests visited sick congregants housed in Ohio hospitals, counseled the elderly in Ohio rest homes, judged nullity cases for the Diocese of Toledo, Ohio and periodically gave lectures in Ohio. In addition, the Detroit Archdiocese exchanged priests with dioceses located in Ohio and congregants in Ohio attended services at churches located in the Archdiocese of Detroit. Plaintiff claimed that Ohio’s long-arm statute gave the court jurisdiction over the Archdiocese because (1) the cause of action against the Archdiocese arose from the Archdiocese’s transaction of business in Ohio state (the priest’s “business” trip to the state with plaintiff); or because (2) the cause of action against the Archdiocese arose from the Archdiocese causing a tortious injury in Ohio by an act or omission in the state (the alleged omission being the failure to supervise the priest in Ohio, the duty to supervise being a continuing one that does not stop at the Michigan state border ); or (3) the cause of action against the Archdiocese arose from the Archdiocese causing a tortious injury in Ohio by an act or omission outside the state (in Michigan) and the Archdiocese regularly did business in Ohio or engaged in a persistent course of conduct in Ohio. The U.S. Magistrate held that the asserted contacts of the Archdiocese with Ohio were insufficient to give the court long-arm jurisdiction, that jurisdiction was neither authorized under Ohio’s long-arm statute, nor would the exercise of jurisdiction by the Ohio court over the Detroit Archdiocese satisfy the requirements of due process under the Fourteenth Amendment. Further, under the facts, plaintiff was not entitled to discovery to help him establish the necessary jurisdictional facts   Case # 3777 (N.D. Ohio)

Ohio Rev. Code §§ 2317.02

Clergyperson rendering marital counseling to plaintiff husband revealed to plaintiff’s wife and others plaintiff’s confidential confession that he was having a marital affair; clergyperson told wife that plaintiff was an untrustworthy liar planning to abduct the children and advised wife to change the locks, file for divorce and obtain a restraining notice; trial court issues directed verdict in favor of defendants (the clergyperson and the church) after plaintiff’s opening statement; on appeal held: (1) plaintiff did not state a claim for statutory negligence based on the statute prohibiting clergy from testifying concerning information confidentially communicated during religious counseling; (2) plaintiff stated a claim for common law negligence and punitive damages; (3) plaintiff’s claim was not to be classified as one for clergy malpractice and therefore the appellate court did not have directly address the issue of whether such an action was to be recognized in Ohio, although court did state in dicta that public policy favored recognizing an action for breach of confidentiality by a minister; (4) plaintiff’s common law negligence action was not to be classified as an action for alienation of affection, an action that had been abolished; plaintiff did not state a cause of action for intentional infliction of emotional distress or invasion of privacy    Case # 394 (Ohio Ct. App.)


Ohio Rev. Code §§ 2744.09(E)

Under Ohio’s auxiliary local services program, local public school boards, using public funds, could, inter alia, purchase secular textbooks and loan them to parochial school students; plaintiff, who was hired by board of education to help administer the lending program at a catholic school, claimed that her contract was not renewed in retaliation for her objections to the directions of the catholic school principal that she process purchase orders on behalf of the school that were not related to the auxiliary services program; held, action under 42 U.S.C. § 1983 against the principal dismissed because his conduct was not attributable to the state; plaintiff’s direct supervisor’s at board of education were not entitled to statutory or qualified immunity, but the supervisors and board of education were entitled, under the facts, to summary judgment dismissing the action against them    Case # 316 (S.D. Ohio)

Ohio Rev. Code § 2901.01(L)

Portions of a College Green had been opened up as a non-traditional public forum, but a portion of the Green, on which stood a Civil War Monument, was reserved by the University as a nonpublic forum at which only private speech was allowed; defendant preacher who became involved at the Monument in heated discussion with students was asked by campus police to leave the University grounds and when he refused he was arrested; conviction for criminal trespass upheld; the Monument area was a nonpublic forum, not a traditional public forum, or an area opened up as a non-traditional public forum; college police did not discriminate against defendant in enforcement of the college’s policies, nor was the college’s policy void for vagueness    Case # 1017 (Ohio Ct. App.)

Ohio Rev. Code §§ 2903.06(A) and 2903.09

Court holds constitutional provisions of Ohio criminal law that (1) provided that “no person, while operating or participating in the operation of a motor vehicle . . . shall recklessly cause the unlawful termination of another’s pregnancy”, (2) defined the “unlawful termination of another’s pregnancy” as “causing the death of an unborn . . . who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and that continues . . . until live birth occurs”, (3) provided that the definition of unlawful termination of another’s pregnancy is not to be applied to consensual abortions, and (4) exempted pregnant women from prosecution; provisions did not violate equal protection, due process, or the establishment clause of the First Amendment; defendant’s sentence of one year did not constitute cruel and inhuman punishment    Case # 815 (Ohio Ct. App.). See also Coleman v. DeWitt, 282 F.3d 908 (6th Cir. 2002), upholding the conviction, and 9 year sentence of petitioner under Ohio Rev. Code §  2903.04 for involuntary manslaughter after having kicked a pregnant woman in the abdomen and causing her to suffer a miscarriage. Court rejects, inter alia, that §  2903.04 was unconstitutional because it did not require proof of the terminated fetus's viability.

Ohio Rev. Code §§ 2907.02(A)(1)(b); 2907.321(A)(5) 

Petitioner had been indicted on ten counts of rape of a minor and for pandering obscenity involving a minor. After pleading guilty to all the charges, petitioner was sentenced to 51 years imprisonment. In Case # 818 (Ohio), the Ohio Supreme Court held that even though the sentencing judge had consulted a religious text during her deliberations and quoted a portion of that text on the record in the sentencing proceeding, such conduct was not per se impermissible and did not violate the offender’s right to due process, because the judge adhered to the sentencing procedures outlined in the applicable statutes. While a sentencing judge’s religious comments may violate an offender’s due process rights when they reveal an explicit intrusion of personal religious principles as the basis of a sentencing decision, in the opinion of the Ohio Supreme Court no such constitutional violation occurred in this case. However, on the petitioner’s application to the federal district court for a writ of habeas corpus, the district court, in Case # 1536 (S.D. Ohio), held that petitioner was entitled to conditional habeas relief and was to be resentenced in proceedings presided over by a different judge. In the view of the district court, the impropriety in this case did not stem from the fact that the sentencing judge may have held personal religious beliefs that implicitly may have guided her in her judgments, or even that she may have referred to or quoted Biblical passages during sentencing proceedings. The impropriety lay in the trial judge consulting and relying on a particular Biblical passage as the final source of authority to resolve her “struggle” in determining whether to impose a harsh or more lenient sentence. The Bible verse that served as a factor in the trial judge’s sentencing decision was Matthew 18:5-6, reading, “And whoso shall receive one such little child in my name, receiveth me. But, whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and he were drowned in the depth of the sea.” Said verse could, in the view of the district court, be understood to recommend that those who victimize children should be punished more severely and it appeared to the district court that the Biblical text convinced the trial judge to accord significant weight to the statutory factor of the victim’s age in determining the appropriate sentence. However, a divided Sixth Circuit panel reversed and remanded with instructions to dismiss the habeas petition, concluding that there was nothing in the totality of the circumstances to indicate that the trial judge used the Bible as her “final source of authority.” The Biblical principle of not harming children was fully consistent with Ohio’s sentencing consideration to the same effect and if the trial judge had actually imposed sentence upon a belief that God commanded that defendant be “drowned in the depth of the sea,” one would expect the sentence imposed to be the maximum length possible. In reality, the sentence was in the lower half of the sentencing range allowable under Ohio law. In addition to the Biblical reference, the sentencing judge referred to numerous factors – favorable and unfavorable – that she took into account. And the judge specifically designated the Biblical passage as “one additional source,” not her “final source.” But compare the dissent   Case # 1813 (6th Cir.)

Ohio Rev. Code § 2911.21

Plaintiff pastor, who was preaching and handing out religious literature on the Ohio Statehouse grounds without a permit was charged with criminal trespass after refusing to leave the grounds upon the request of the police. Plaintiff’s moved n state court to dismiss the state criminal charges on the ground that Ohio Revised Code § 2911.21(A)(2), the criminal trespass statute under which he was charged, and Ohio Administrative Code § 128-1 et seq., governing the requirement that all persons who wished to use the Ohio Statehouse grounds first obtain a permit, violated due process, freedom of speech, and the free exercise of religion. On November 17, 2000, the Franklin County Municipal Court held that the challenged statutes were constitutional and denied the motion to dismiss. The state court denied the motion to dismiss and plaintiff was eventually found guilty of criminal trespass and fined $100. Plaintiff appealed the decision to the Court of Appeals of Ohio, but later filed a motion to dismiss his appeal, which was granted. Thereafter plaintiff filed suit in federal district court challenging the constitutionality of Ohio Administrative Code § 128-4 Plaintiff alleged, inter alia, that the permit requirements were unconstitutionally overbroad, vague, and discriminatory in violation of his rights to free speech and free exercise of religion. He claimed that the continued threat of enforcement of Ohio Administrative Code § 128-4 chilled and deterred plaintiff from exercising his constitutional rights, causing irreparable harm to plaintiff. Defendant’s sought dismissal of the suit in federal court under the Rooker-Feldman doctrine barring U.S. district courts from hearing challenges to state court judgments and claims that are “inextricably intertwined” with state court judgments. However, because plaintiff did not seek to have the federal district court overturn his state conviction for criminal trespass, the Rooker-Feldman doctrine was inapplicable to the federal lawsuit. Plaintiff was simply seeking to clear away the allegedly unconstitutional permit requirement so that he could preach and hand out religious tracts on Capitol grounds in the future unimpeded by the permit requirement. However, the fact that plaintiff raised the same constitutional issue in the state court proceeding could potentially justify dismissing the federal suit on the ground of issue preclusion. But this matter was left to the district court on remand. Compare the dissent, arguing that the Rooker-Feldman doctrine barred the federal district court from exercising subject matter jurisdiction over plaintiff’s constitutional challenge to the permit scheme    Case # 1479N (6th Cir.)

Ohio Rev. Code § 2911.29

Portions of a College Green had been opened up as a non-traditional public forum, but a portion of the Green, on which stood a Civil War Monument, was reserved by the University as a nonpublic forum at which only private speech was allowed; defendant preacher who became involved at the Monument in heated discussion with students was asked by campus police to leave the University grounds and when he refused he was arrested; conviction for criminal trespass upheld; the Monument area was a nonpublic forum, not a traditional public forum, or an area opened up as a non-traditional public forum; college police did not discriminate against defendant in enforcement of the college’s policies, nor was the college’s policy void for vagueness    Case # 1017 (Ohio Ct. App.)

Ohio Rev. Code §§ 2923.31 et seq.

Plaintiff alleged that he was abused as a minor from approximately 1980 through 1983, during which time he knew that the alleged perpetrator was a Catholic priest, and that the priest was employed by the Archdiocese of Cincinnati. The statutes of limitations in plaintiff’s actions against the Archdiocese and its Archbishop for, inter alia, breach of fiduciary duty; negligence; and corrupt activities under Ohio Rev. Code (R.C.) § 2923.31 et seq., did not commence to run in April 2002 when plaintiff learned of the existence of other alleged victims of the priest; rather the actions accrued at the time of the sexual abuse and the limitations periods began to run when plaintiff achieved his majority. The Ohio Supreme Court held that where a complaint alleges that a church concealed its involvement in the sexual abuse of the plaintiff by one of its priests and that only until recently, after expiration of the statute of limitations, did plaintiff have sufficient knowledge to be apprised of the independent claims he may have against the church, the plaintiff’s allegations against the church are subject to dismissal on statute of limitations grounds, because, plaintiff’s notice of the sexual abuse by the abusive priest constitutes apprisal of the possibility of any other independent claims against the church as a matter of law, so that all relevant statutes of limitations against both the priest and the church are triggered by the acts of sexual abuse. More succinctly stated, if a minor who is the victim of sexual abuse by clergy knows, at the time of the abuse, the identity of the perpetrator, the employer of the perpetrator, and that a battery has occurred, any claims against the church employer accrue at the time of the sexual battery and the relevant statutes of limitation commence to run when the minor achieves his majority. Neither the discovery rule, nor equitable estoppel, acted to save plaintiff’s claims under the facts of this case. The dissent was of the opinion that plaintiff should be allowed to bring causes of action against the Diocese for breach of fiduciary duty and conspiracy, because, at the time of the sexual abuse, even though plaintiff may have known that the abuser was in the employ of the Diocese, plaintiff alleged he had no knowledge, and had no reason to have knowledge, of the very separate wrong of being victimized by a priest whom the diocese knew to be a serial sexual predator, and yet had reassigned again and again to work in parishes, making the plaintiff the victim of a well-thought-out conspiracy. The dissent was also of the opinion that, based on the allegations in the complaint, plaintiff’s claim against the Archdiocese under the Ohio Corrupt Activities Act was not subject to dismissal on limitations grounds. The majority was of the opinion that plaintiff’s knowledge, at the time of the sexual abuse, that the priest was an employee and agent of the diocese, placed upon plaintiff an obligation to investigate, starting from the time of the abuse, or no later than the age of majority, whether the diocese may have breached some duty to plaintiff owing to its relationship with the priest and that consequently the statute of limitations on the claims against the diocese started to run as soon as plaintiff reached his majority. In addition, the majority held that not only was plaintiff’s action under the Ohio Corrupt Activities Act not saved by a discovery rule, the Act was not even applicable, because the Act did not come into effect until after the end of the sexual abuse; but compare the dissent which stressed that the allegations of the complaint were that there was a conspiracy to hide the diocese’s actions that continued even after the Act was enacted   Case # 2510 (Ohio), reversingCase # 1852 (Ohio Ct. App.)

Ohio Rev. Code §§ 2929.11(C); 2929.12; 2929.13

Petitioner had been indicted on ten counts of rape of a minor and for pandering obscenity involving a minor. After pleading guilty to all the charges, petitioner was sentenced to 51 years imprisonment. In Case # 818 (Ohio), the Ohio Supreme Court held that even though the sentencing judge had consulted a religious text during her deliberations and quoted a portion of that text on the record in the sentencing proceeding, such conduct was not per se impermissible and did not violate the offender’s right to due process, because the judge adhered to the sentencing procedures outlined in the applicable statutes. While a sentencing judge’s religious comments may violate an offender’s due process rights when they reveal an explicit intrusion of personal religious principles as the basis of a sentencing decision, in the opinion of the Ohio Supreme Court no such constitutional violation occurred in this case. However, on the petitioner’s application to the federal district court for a writ of habeas corpus, the district court, in Case # 1536 (S.D. Ohio), held that petitioner was entitled to conditional habeas relief and was to be resentenced in proceedings presided over by a different judge. In the view of the district court, the impropriety in this case did not stem from the fact that the sentencing judge may have held personal religious beliefs that implicitly may have guided her in her judgments, or even that she may have referred to or quoted Biblical passages during sentencing proceedings. The impropriety lay in the trial judge consulting and relying on a particular Biblical passage as the final source of authority to resolve her “struggle” in determining whether to impose a harsh or more lenient sentence. The Bible verse that served as a factor in the trial judge’s sentencing decision was Matthew 18:5-6, reading, “And whoso shall receive one such little child in my name, receiveth me. But, whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and he were drowned in the depth of the sea.” Said verse could, in the view of the district court, be understood to recommend that those who victimize children should be punished more severely and it appeared to the district court that the Biblical text convinced the trial judge to accord significant weight to the statutory factor of the victim’s age in determining the appropriate sentence. However, a divided Sixth Circuit panel reversed and remanded with instructions to dismiss the habeas petition, concluding that there was nothing in the totality of the circumstances to indicate that the trial judge used the Bible as her “final source of authority.” The Biblical principle of not harming children was fully consistent with Ohio’s sentencing consideration to the same effect and if the trial judge had actually imposed sentence upon a belief that God commanded that defendant be “drowned in the depth of the sea,” one would expect the sentence imposed to be the maximum length possible. In reality, the sentence was in the lower half of the sentencing range allowable under Ohio law. In addition to the Biblical reference, the sentencing judge referred to numerous factors – favorable and unfavorable – that she took into account. And the judge specifically designated the Biblical passage as “one additional source,” not her “final source.” But compare the dissent   Case # 1813 (6th Cir.)

Ohio Rev. Code § 3105.01

Entry of divorce decree over the Catholic husband’s religious objections affirmed. Act of granting a divorce did not impermissibly impinge upon husband’s right to free exercise of religion under federal or state constitutions. Trial court properly issued a divorce decree upon demonstration that the parties have lived separate and apart without interruption for one year.    Case # 1030N (Ohio Ct. App.)

Ohio Rev. Code § 3109.04

Shared parenting agreement incorporated into judgment of divorce provided that both parents would reside in Ohio and that the child would receive a Jewish religious education and upbringing; the parties agreed to mutually agree on the extent of such education, upbringing and lifestyle; after mother became an Orthodox Jew and moved to New York, the court granted the father primary possession of the child during the school year; it was not error to further modify the agreement to provide, over the father’s objection, that the mother was to select three Jewish religious schools and that the father was to select one of the three; although the child was now to spend the majority of his time with his father, it was error to grant the mother possession during all of the holiday periods as such impeded the father's ability to share his religious holidays and traditions with his son    Case # 564 (Ohio Ct. App.)

Trial court did not commit error in ordering split custody, awarding the wife custody of the two daughters and the husband custody of the two boys; the court did not did not deny the wife custody of all the children based upon her affiliation with the World Harvest Church; rather, the trial court merely raised concerns about the quality of education the boys were receiving at a school which happened to be church affiliated    Case # 731 (Ohio Ct. App.)

Trial court did not err in awarding custody to Christian mother over Muslim father   Case # 3309 (Ohio Ct. App.)

Ohio Rev. Code § 3109.05

Father of out of wedlock child ordered to pay for parochial school education of minor child with special needs    Case # 982 (Ohio Ct. App.)

Ohio Rev. Code § 3109.051

Trial court did not abuse its discretion by denying defendant father’s motion to increase visitation and by ordering that his visitation be supervised and that he attend counseling. Father had refused to accept his divorce from plaintiff, and considered himself still biblically married to plaintiff. This belief was conveyed to the minor children, sometimes within the context of the biblical prohibition against adultery. The court’s decision was based on the bests interests of the children and not on defendant’s religious beliefs and the court’s decision placed no limitation on defendant’s exercise of his own religious beliefs    Case # 1385 (Ohio Ct. App.)

Ohio Rev. Code § 3111.09

Defendant’s religious belief that he could not break his vow not to engage in genetic testing was insufficient to overcome the compelling state interest in ordering genetic testing in proceeding to establish defendant’s paternity and support obligations; decided under Ohio Rev. Code 3111.09(A)(2)    Case # 1027N (Ohio Ct. App.)

For purposes of determining paternity, the trial court had ordered defendant to submit to genetic testing. A buccal swab, inserted into the mouth and run along the cheek or gum line, was used to collect the DNA sample. The trial court provided that defendant could be held in contempt if he declined to submit to the testing. Held: (1) The swab was not taken by an unconstitutional threat or use of force. (2) The genetic testing did not violate defendant’s religious rights as guaranteed by the First Amendment or Ohio Const. Art. I, § 7. Under the Ohio Constitution, the state action must serve a compelling state interest and must be the least restrictive means of furthering that interest. The State had a compelling interest in ensuring that the children of the state were financially supported by their natural parents. The DNA was obtained through a buccal swab, a minimally invasive procedure. And given that defendant asserted that numerous other individuals could be the father of the child, there was no less intrusive alternative to the genetic testing to resolve the issue of paternity   Case # 2783 (Ohio Ct. App.)

Ohio Rev. Code § 3113.215

Father of out of wedlock child ordered to pay for parochial school education of minor child with special needs    Case # 982 (Ohio Ct. App.)

Ohio Rev. Code §§ 3313.974 – 3313.979

Ohio school voucher program aided low income students. For students attending a private school the checks were made payable to the parents, but sent to the school where they were indorsed by the parents. Program, with one exception, held by the Ohio Supreme Court not to violate Establishment Clause of the federal or state constitutions, but provision allowing a participating sectarian school to grant priority in admission under the program to a student whose parents belonged to a religious group that supported the sectarian school violated the Establishment Clause. Program did not violate Section 2, Article VI of the Ohio Constitution. Although only the Cleveland school district qualified under the plan, the program did not violate the Uniformity Clause of Section 26, Article II of the Ohio Constitution. However, the School Voucher Program, which was a rider to a general appropriations bill, violated the one-subject rule of Section 15(D), Article II of the Ohio Constitution    Case # 546 (Ohio).

Subsequent to the holding in Case # 546 (Ohio), the 1999, the Ohio Legislature enacted a new version of of the voucher pla. Although held held to be in violation of the establishment cause by the district court and the Sixth Circuit Court of Appeals, see Case # 694 (N.D. Ohio), affirmed, Case # 885 (6th Cir.), the U.S. Supreme Court reversed and upheld the constitutionality of the 1999 voucher program. See Case # 1236 (U.S.), where by a vote of 5 to 4 the U.S. Supreme Court held that a State of Ohio voucher program designed to provide educational choices to families with children who resided in the Cleveland City School District did not offend the Establishment Clause, even though  96% of the children participating in the voucher program enrolled in religious schools and the amount of the voucher covered, in most instances, almost the full cost of tuition, hence paying for the sectarian component of the education in addition to the secular component. Over vigorous dissents, the majority held that the program was entirely neutral with respect to religion, that it provided benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district, and that it permitted such individuals to exercise genuine choice among options public and private, secular and religious

Ohio Rev. Code § 3317.06

Under Ohio’s auxiliary local services program, local public school boards, using public funds, could, inter alia, purchase secular textbooks and loan them to parochial school students; plaintiff, who was hired by board of education to help administer the lending program at a catholic school, claimed that her contract was not renewed in retaliation for her objections to the directions of the catholic school principal that she process purchase orders on behalf of the school that were not related to the auxiliary services program; held, action under 42 U.S.C. § 1983 against the principal dismissed because his conduct was not attributable to the state; plaintiff’s direct supervisor’s at board of education were not entitled to statutory or qualified immunity, but the supervisors and board of education were entitled, under the facts, to summary judgment dismissing the action against them    Case # 316 (S.D. Ohio)

Ohio Rev. Code § 3767.30

Plaintiff and other members of her church, the Westboro Baptist Church of Topeka, Kansas, picketed at funerals of American soldiers killed in Afghanistan and Iraq because of their belief that protesting at funerals was an effective way to convey the message of their church that God was punishing America for the sin of homosexuality by killing Americans, including soldiers. At these funerals, plaintiff and members of her church displayed signs containing such messages as “God Hates Fags,” “Thank God for Dead Soldiers,” and “Thank God for 9/11. Ohio’s “Funeral Protest Provision,” provided in part that no person shall picket or engage in other protest activities, nor shall any association or corporation cause picketing or other protest activities to occur, within 300 feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one hour before or one hour after the conducting of an actual funeral or burial service at that place. “Other protest activities” was defined as “any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service or a funeral procession.” The Sixth Circuit Court of Appeals, applying intermediate scrutiny, affirmed the district court’s summary judgment holding that these statutory provisions were facially constitutional, being a reasonable, content-neutral regulation of the time, place, and manner of plaintiff’s speech. The Court held that unwanted intrusion during the last moments mourners share with the deceased during a sacred ritual infringes upon the recognized right of a decedent’s survivors to mourn the deceased and the state has an important government interest, and is warranted, in protecting the mourners from unwanted communications that disrupt the mourner’s “privacy interests” when they are made “captive” to an offending message. Mourners cannot easily avoid unwanted protests without sacrificing their right to partake in the funeral or burial service. Attendance at a funeral or burial service cannot be dismissed as nothing more than a “voluntary” activity. Deep tradition and social obligation, quite apart from the emotional support the grieving require, compel individuals to attend a funeral or burial service. And individuals wanting to take part in an event memorializing the deceased, must go to the place designated for the memorial event. Friends and family of the deceased should not be expected to opt-out from attending their loved one’s funeral or burial service. The Funeral Protest Provision under discussion was also narrowly tailored to serve the government’s aforementioned important interest in the protection of funeral attendees. The provisions only restricted picketing or other protest activities directed at a funeral or burial service. If one’s communication is not directed at a funeral or burial service, the mere fact that one holds a picket sign within 300 feet of a funeral or burial service during the relevant time period, without more, will not support a conviction under the statute. Nor was the 300-foot buffer zone excessive. (See court’s opinion for extended discussion.) Outside of the buffer zone, plaintiff could say what she wanted, wherever she wanted, and when she wanted, with no limitation on the number of speakers or the noise level, including the use of amplification equipment, and no limitations on the number, size, text, or images of placards. Finally, the statute left open ample alternative channels of communication. The statute only restricted picketing for a limited temporal duration-from one hour before until one hour after a funeral or burial service. Plaintiff could protest at the funeral site during times of her choosing that were outside of the proscribed time period. She could also engage in “targeted” protests of the funeral site at all times outside of the 300-foot buffer zone. Additionally, she could share her message through her church’s website or other means. Plaintiff did not claim that funeral protests were her most effective channels of communication. Moreover, mourners at a funeral were not plaintiff’s primary audience; a funeral was the occasion of plaintiff’s speech, not her audience. The Ohio statute also restricted protest activities within 300 feet of a funeral procession, in effect creating a floating buffer zone, as the funeral procession moved. The district court held this portion of the statute was facially unconstitutional, because the provision was substantially overbroad when viewed in relation to the statute’s legitimate sweep. The court severed the floating zone provisions from the remainder of the statute. Defendant’s did not challenge this portion of the district court’s judgment on appeal   Case # 3301 (6th Cir.), affirming, Case # 2469 (N.D. Ohio)

Ohio Rev. Code, Ch. 4112

Plaintiff husband and wife, Sabbath-observant Orthodox Jews, resigned their positions as insurance agents with Allstate Insurance Company after Allstate announced plans to require offices to remain open on Friday evenings and Saturday mornings. Because they had not suffered discipline or discharge over this conflict, but instead resigned prior to the effectiveness of the new policy, their claims were dismissed for failure to make a prima facie case    Case # 1454 (6th Cir.)

Teacher in Catholic elementary school worked under one year contracts; her contract was not renewed, allegedly because she violated the school’s religiously motivated policy that teachers not engage in prematerial sex; the teacher alleged she was discharged in violation of Title VII and Ohio state law because of discrimination on the basis of pregnancy, a form of sex discrimination; while Title VII exempts religious organizations for discrimination based on religion, Title VII applies to a religious institution charged with sex discrimination; if a religious organization’s purported "discrimination" is based on a policy of preventing nonmarital sexual activity which emanates from the religious and moral precepts of the organization, and if that policy is applied equally to its male and female employees, then the organization has not discriminated based on pregnancy in violation of Title VII; however, a school violates Title VII if, due purely to the fact that women can become pregnant and men cannot, it punishes only women for sexual relations because those relations are revealed through pregnancy; a school cannot use the mere observation or knowledge of pregnancy as its sole method of detecting violations of its premarital sex policy; the district court fundamentally misapplied the burden shifting analysis of McDonnell Douglas in holding that plaintiff did not establish a prima facie case under Title VII or Ohio law; but while defendant was not entitled to summary judgment on plaintiff’s sex discrimination claims, it was entitled to summary judgment dismissing plaintiff’s claims for breach of contract and promissory estoppel    Case # 764 (6th Cir.)

Plaintiff, a Black Rastafarian with shoulder length dreadlocks,quit job after being told by a supervisor that he looked "radical" and needed to look like and act like the other African-American worker. Plaintiff was also asked if he went to church and had been saved. Plaintiff was told that those "dread things" were unacceptable, that the supervisor had to look out for the best interests of the company, and that plaintiff would not go anywhere with the company due to his looks. The incident lasted 20 to 30 minutes and ended with the supervisor saying that he might let plaintiff finish out the day. Although defendants did not qualify as “employers” subject to suit under Title VII of the Civil Rights Act of 1964, they were subject to suit under the Ohio Civil Rights Act. However, plaintiff, who was not an independent contractor, failed to make out a prima facie case for racial and religious discrimination as there was no proff that he suffered an adverse employment action. Nor was defendant’s conduct of sufficient severity to establish a hostile work environment    Case # 1304 (S.D. Ohio)

Under Ohio’s antidiscrimination statute, individual supervisors and managers are accountable for their own discriminatory conduct occurring in the workplace environment and accordingly may be held jointly and/or severally liable with her/his employer for discriminatory conduct    Case # 362N (Ohio)

Ohio Rev. Code § 4112.02

Clerical worker at Catholic church told to remove monk’s habit because his religious community was not officially recognized by the church was fired when he refused to do so; church was exempt from liability under Title 7 (see 42 U.S.C. 2000e-1) and such exemption was not subject to waiver; plaintiff stated case under Ohio law; Ohio Code 4112.02 does not provide for a blanket exemption of religious organizations from liability for religious discrimination; court did not have to impermissibly rule on church doctrine; plaintiff not entitled to punitive damages as there was no malice on defendant’s part   Case # 7 (Ohio Ct. App.)

Employee store manager who refused to stock adult magazines as required by employer and who was treated by the employer as if she had resigned her position, failed to state a claim for sexual harassment and sex discrimination, but did state a prima facie case for religious discrimination    Case # 162 (N.D. Ohio)

Plaintiff, a novice in a Roman Catholic order of nuns, was discharged from the order before the taking of her final vows on the ground that she was unsuited to become a member of the order. The discharge came less than 6 months after plaintiff was diagnosed with breast cancer. Upon discharge plaintiff lost her health insurance which was provided by the order through the local diocese. Plaintiff, suing under the Americans with Disabilities Act and Ohio's antidiscrimination statutes, alleged that she was discharged, not because of unsuitability to become a member of the order ( a constitutionally protected religious rationale), but because of the illegal consideration of her physical ailments. Held, the “ministerial exception” prevented the court from reviewing the motivation of the church in discharging plaintiff and all claims were dismissed    Case # 1356 (D. Ohio )

Ohio Rev. Code § 4112.06(E)

See Case # 1006 (Ohio Ct. App.)

Ohio Rev. Code § 4112.99

Under state law plaintiff was permitted to pursue independent civil action for religious discrimination without first exhausting administrative remedies   Case # 7 (Ohio Ct. App.)

Ohio Rev. Code § 4117.09

Union and the public school system entered into a collective bargaining agreement under which plaintiff teacher was required to either join the union or pay an agency fee to the Union as a condition of employment. Although Ohio Rev. Code Ann. § 4117.09(C), permitted a “public employee who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion or religious body which has historically held conscientious objections to joining or financially supporting an employee organization” to pay her fair share fee to a qualified nonreligious charity instead of the union, plaintiff teacher, a Roman Catholic who religiously objected to the union’s support for abortion rights, was denied the right afforded by the statute because she was unable to provide documentation that her Church “historically held conscientious objections to joining or financially supporting an employee organization.” The district court held that the statute violated the establishment clause, because it was not facially neutral and failed strict scrutiny review. And even if facially neutral, under the modified Lemon test its effect was to unconstitutionally favor some religions over others. Although the union fully accommodated plaintiff after she commenced her action against the state defendants, said accommodation did not deprive plaintiff of standing or moot her action to have the statute declared unconstitutional and to secure injunctive relief enjoining the state defendants from applying the statute in the future. The fact that plaintiff might have secured relief via a Tile VII action also did not mean that plaintiff could not proceed as she did   Case # 2914 (S.D. Ohio)

Ohio Rev. Code § 4117.09(C) allowed the State Employment Relations Board (SERB) to exempt a public employee from having to join or financially support an employee organization (union) as a condition of employment upon submission of proof that the employee was a member of and adhered to established and traditional tenets or teachings of a bona fide religion or religious body which has historically held conscientious objections to joining or financially supporting an employee organization. The exempt employee is required, in lieu of the fair share fee, to pay an amount of money equal to the fair share fee to a nonreligious charitable fund exempt from taxation mutually agreed upon by the employee and a representative of the employee organization. In this case, a public employee opposed to abortion and gay marriage on religious grounds, asked the Union, which supported those issues, to redirect his fair share union fees to a charity. The Union directed the employee to apply to SERB for a statutory exemption pursuant to § 4117.09(C). SERB denied the application on the ground that the employee, a Presbyterian, failed show that his church historically held conscientious objections to joining or financially supporting an employee organization. The employee filed an administrative charge with the EEOC against the Union and requested of the Ohio Office of Collective Bargaining (OCB) that his fees be placed in escrow pending resolution of his dispute with the Union. OCB denied his request. The employee then proceeded to file a separate EEOC charge against the State Defendants, i.e., the State of Ohio, the Ohio Department of Administrative Services, the OCB, and the Ohio Environmental Protection Agency, the agency for which he worked. After the EEOC found merit in the employee’s claims, neither the Union nor the State Defendants accommodated him. As a result, the United States and EEOC filed separate suits against the Union and the State Defendants alleging that the State Defendants and the Union violated Title VII by not permitting the employee to redirect his union fees to a charity, although, allegedly, accommodating others on a discriminatory basis. The employee was allowed to intervene and file an Intervenor’s complaint in both suits. The two actions were subsequently consolidated. Eventually, the Union made a Fed R. Civ. P. 68 Offer of Judgment, which the employee accepted and filed with the court. The offer provided that the fees that the employee had paid after putting the Union on notice of his objection would be remitted by the Union to a mutually agreed upon charity and that future union fees would be sent to a charity of the employee’s choice for so long as the employee was represented by the Union. The offer of judgment also agreed to pay the employee’s expenses, costs, and attorneys’ fees for time directly attributable to the employee’s pursuit of the Title VII action against the Union. Thereafter, the State Defendants and the Union entered into a consent decree signed by the court, which provided that the employee was eligible to recover attorneys’ fees from both the State Defendants and the Union subject to the collective upper limit of $ 166,600. In the present action, the employee sought attorneys’ fees and expenses for his two attorneys in the amounts of (1) $ 123,202.70 and (2) $ 8,972.50, for a total of $ 132,175.20. Although the request for $ 8,972.50 in attorneys’ fees for the work of the second of the employee’s two attorney’s was uncontested, the request for $ 123,202.70 for the work of the first attorney was disputed. It was argued that the request was excessive because most of the hours spent were either (a) duplicative of the United States and EEOC’s efforts and therefore wasteful or irrelevant or (b) were expended for relatively routine tasks. It was also asserted that the hours spent by the employee’s attorney were disproportionate to the results obtained. The court rejected each of these contentions and concluded that the request $ 123,202.70 for the first attorney’s fees and expenses was reasonable. The court proceeded to allocated the responsibility for the attorneys’ fees evenly between the Union and the State Defendants. The court rejected the State Defendants’ claim that to the extent that they were liable for attorneys’ fees they were entitled to complete indemnification by the Union as a consequence of a provision in the Collective Bargaining Agreement, which stated that “[t]he Union agrees to indemnify and hold the Employer harmless against any and all claims, suits, orders, or judgments brought or issued against the Employer as a result of any action taken or not taken as a result of the Union under the provisions of this article.” Although an indemnification provision that insulates an employer from virtually all consequences of non-compliance with Title VII or other federal constitutional or statutory duties, including its defense costs, is void as a matter of public policy, the indemnification provision at issue was not invalid because it did not relieve the employer (the State Defendants) of its own costs and expenses in defending the legal actions against it. But although the indemnification agreement was valid, it was clear from the language of the provision that the State Defendants’ right to indemnification by the Union was contingent upon the Union being responsible for bringing about the litigation against the State Defendants. Therefore, the indemnification provision did not apply to the extent that the State Defendants brought about their own liability. Here the State Defendants’ brought about their own liability. First, they wrongly denied the employee’s initial application for an exemption based solely on Ohio Rev. Code § 4117.09(C), as if it also precluded the State Defendants from granting an accommodation pursuant to Title VII. The State Defendants, as the employer, had a duty to accommodate the employee under Title VII. Second, they initially failed to comply with the EEOC’s determination that the employee was entitled to an accommodation. The Union argued that it was not liable for the employee’s attorneys’ fees because it did not have a legal duty to grant an exemption under Ohio Rev. Code § 4117.09(C), nor did it have the independent ability to grant an exemption to the employee because the State of Ohio had not officially sanctioned the Presbyterian Church as a doctrinally appropriate belief that may receive an exemption. The Union contended that it fulfilled its statutory obligations by referring the employee to SERB when he requested an accommodation. However, the court rejected the Union’s contention that it did not have the legal duty or ability to grant the employee a religious exemption. Ohio Rev. Code § 4117.09(C) did not abrogate the Union’s duty to comply with Title VII and to take reasonable steps to accommodate the employee’s religious beliefs   Case # 2767 (S.D. Ohio)

Ohio Rev. Code 4123.56

Claimant had been receiving temporary total disability compensation (TTC) based on his medical inability to return to his duties. Ohio Supreme Court upholds the decision of the Industrial Commission terminating the TTC payments to claimant and declaring an overpayment. A claimant cannot receive TTC while receiving remuneration for work activities, including part-time or occasional activities. Here claimant served as a part-time pastor, preaching three times a week. Claimant received $60 to $70 per week. The Commission rejected claimant’s assertions that he was merely donating his time with no expectation of remuneration and that the payments were a gift offering   Case # 1908 (Ohio), affirming, Case # 1623 (Ohio Ct. App.) (Claimant had been receiving temporary total disability compensation (TTC) based on his medical inability to return to his duties. However, the court upheld the decision of the Industrial Commission terminating the TTC payments to claimant and declaring an overpayment. A claimant cannot receive TTC while receiving remuneration for work activities, including part-time or occasional activities. Even when remuneration is nominal or the hours of work are minimal, the remuneration precludes receipt of TTC. Here claimant served as a part-time pastor, preaching three times a week. Each service generally lasted about an hour and claimant received $60 to $70 per week. The Commission, as the finder of fact, could have given credence to claimant’s assertions that he was merely donating his time with no expectation of remuneration and that the payments were a gift offering. However, the Commission also had discretion to reject claimant’s interpretation of the evidence and to conclude that the weekly payments were not mere gifts but were remuneration for services rendered by a part-time pastor. Ohio law )

Ohio Rev. Code § 4141.01(B)(3)(h)(i)

Because the organization for which appellant worked, school was operated “primarily” for religious purposes and was operated, supervised, controlled, or principally supported by a church, she was not entitled to unemployment compensation; meaning of the word “primarily”    Case # 568 (Ohio Ct. App.)

Ohio Rev. Code §§ 5709.07, 5709.12 and 5709.121

Discussion of Ohio Rev. Code § 5709.12(B) providing tax exemption to real property belonging to “institutions” that is used “exclusively for charitable purposes”; previously in Case # 654 (Ohio) the court held that the applicant, a non-profit corporation whose purpose was to disseminate a religious message, qualified as an “institution”; Case # 654 held that under the statute an “institution” need not be charitable to be eligible for an exemption, it need only use the property for which the exemption is sought “exclusively for charitable purposes”; the case was remanded for a determination whether, under the facts, the property was used exclusively for charitable purposes; in Case # 1064 (Ohio) the court held that the applicant qualified for the exemption; the term “exclusively” means primarily, and the spread of a religious, evangelical message qualifies as a charitable purpose.

A Church owned a tract of land on which was located a church building, a school, and a print shop. The print shop was not used by the Church, but by a separate nonprofit corporation, BPS. The trustees of the Church and BPS were the same. There was no written agreement between the Church and BPS for BPS’s use of the print shop, and BPS did not pay any rent. BPS had its own staff, paid its own employees, and paid the utilities for the print shop. Two apartments attached to the print shop were occupied by persons associated with either the Church or BPS. BPS used the print shop to conduct its primary business, printing Bibles and distributing them free of charge. BPS was financed by gifts and contributions from churches and individuals. In addition to its primary business, BPS also conducted a second operation under the name JB Printing. JB was not a separate legal entity, but operated within BPS, using the same employees and equipment to do custom printing for churches or persons affiliated with a church. BPS also printed Sunday school materials for a separate entity named Master Ministries. Finally, BPS printed school catalogs for Biblical School World of Evangelism. All of these additional printing activities of BPS were accounted for under JB. JB paid for its printing activities through sales and contributions. The Ohio Supreme Court affirmed denial of a tax exemption for the print shop and apartments under Ohio Rev. Code 5709.12(B), which provides that:: “Real and tangible personal property belonging to institutions that is used exclusively for charitable purposes shall be exempt from taxation.” Under R.C. 5709.12, ownership of the property for which an exemption is sought by a charitable or educational institution and the use of said property must coincide. Where, as here, the owner (the Church) is seeking an exemption based on a use of its property by a separate corporation, BPS, and the owner does not justify exemption by establishing any of the situations described in Ohio Rev. Code 5709.121, the property is not exempt under § 5709.12. In order for its property to be considered for exemption under R.C. 5709.12, the religious institution must itself be using the property exclusively for charitable purposes. The dissent, while agreeing that the residential apartments were not entitled to an exemption, would have found the print shop property exempt from taxation under R.C. 5709.12(B) because the Church used the print shop exclusively for a charitable purpose, printing Bibles. Although the majority held that the Church failed to qualify for an exemption under § 5709.12 because BPS, not the Church, used the print shop, the dissent believed that the majority’s conclusion exalted form over substance. While BPS, which paid no rent to the Church, was a separate nonprofit corporation, the Church and BPS were run by the same trustees and the Church considered BPS to be an extension of its own ministry to print scriptures for free distribution worldwide. Under the facts, the dissent would have found BPS to be an alter ego of the Church   Case # 2588 (Ohio)

Under the “prospective use” exemption for real property, where an entity, which under the law is entitled to have its property exempted from taxation, acquires real property with the intention of devoting it to a use exempting it from taxation, such property is entitled to be exempted from taxation as long as it is not devoted to a nonexempt or commercial use, even though actual physical use of the property for the exempt purpose has not yet begun. Prior Ohio Supreme Court cases recognized that a property owner may obtain a “prospective use” exemption for real property during a year in which the owner is developing the property for the exempt use. Now the Ohio Supreme Court, in a case involving a religious school, holds that the applicant’s ultimate failure to accomplish its exempt purpose does not result in a denial of the prospective use exemption for a prior tax year. In addition, the Court holds that a “prospective use” exemption from real property taxation should be granted if, as of the January 1 lien date of the tax year, the applicant acquired the property with the intention of devoting it to an exempt use, so long as the applicant had not devoted the property to any nonexempt or commercial use as of the tax lien date. The reasonable prospect of exempt use must exist only on the tax lien date, it need not also subsequently exist on the date the exemption application is filed and the applicant, at the time the application for exemption is made, need not be actively working toward the actual use for the public benefit. In this case, the plan to use the site for an Episcopal school in Cincinnati that would be located near the city center, would be religiously based, and would serve inner-city and other children in greater Cincinnati, had effectively been abandoned by the time the application for the tax exemption was filed (December 21, 2001). In addition, the property was sold in November 2002 to a for-profit entity, thereby rendering the tax exempt purpose impossible of ever being fulfilled. Nevertheless the property was entitled to a tax exemption for the year 2001, because the property had been acquired for the express purpose of being developed into a school that would qualify for exemption as a public schoolhouse under Ohio Rev. Code (R.C.) 5709.07 or as a charitable use of property under R.C. 5709.12 and 5709.121. Although the plan for the school began to unravel beginning in February 2001, as of January 1, 2001, the Episcopal diocese and the school’s trustees had taken substantial steps to secure financing to renovate the building, had hired a principal, were reviewing teacher applications, and had announced the school’s opening. Thus, as of the January 1 lien date the applicant clearly had the intention of devoting it to an exempt use. The dissent believed that a prospective use exemption from real property taxation should be granted if the applicant (1) has acquired the property as of the date of the tax lien for the tax year and (2) produces evidence as of the date of its application for tax exemption that the property is intended to be devoted to an exempt use    Case # 3125 (Ohio)

Tax exempt status for church realty is not determined on the date the exemption application is filed. To be exempt, the property must have been owned by the applicant and used for an exempt purpose as of the tax lien date, January first, in the year in which the exemption is sought. Here the property was acquired and first used for a tax exempt purpose on January 26, 2005, hence the church was not entitled to a tax exemption for the 2005 tax year. Ohio law   Case # 3208 (Ohio)

Divided Ohio Supreme Court holds that the property used as the administrative headquarters for a church or congregation is taxable and that property primarily used to support public worship that is conducted at other locations by local congregations does not constitute a charitable use of real property. The Church of God in Northern Ohio (COGNO) owned a building which was used as an administrative office building used by regional church officials to oversee and assist its member congregations. The building contained conference rooms and classrooms used for church leadership meetings and ministerial teaching and training. The following activities were conducted at the building: materials regarding prayer were prepared and sent out to local churches; information regarding worship was transmitted from the international organization to the local churches; participation of local congregations in global outreach programs was facilitated; help was rendered in the start of new churches; meetings were held for purposes of the continuing education and development of local pastors; arrangements were made for donations and services among churches in the region. Ohio Rev. Code § 5709.07(A)(2), granting a tax exemption to “[h]ouses used exclusively for public worship . . . and the ground attached to them that is not leased or otherwise used with a view to profit,” was not applicable because the property was not used “exclusively for public worship.” Rather, the property was being used for purposes that were merely supportive of public worship at other locations. The exemption under § 5709.07(A)(2) extends only to property that “facilitates the public worship occurring on the premises” for which the exemption is sought. Nor did Rev. Code § 5709.12(B), exempting property “belonging to institutions that is used exclusively for charitable purposes” apply because, in the view of the majority, charitable activity did not take place in the Church’s administrative building. Although the presence of administrative activity on a property does not by itself defeat a claim of exemption under § 5709.12(B), if the activity is ancillary to endeavors which are primarily charitable, in the present case the necessary charitable activity was absent. Here, the property was used by office and support staff for the Administrative Bishop, who oversaw 121 congregations, including 400 ordained ministers and 27,000+ parishioners, a use properly characterized as “supporting public worship.” But the public worship conducted at the local churches did not constitute a charitable activity and thus its support did not constitute a charitable activity. Charity involves the provision of goods or services or knowledge “to advance and benefit mankind in general, or those in need of advancement and benefit in particular”; in other words, charity looks outward toward a general and indefinite public that the institution will serve. But although a religious congregation may welcome all to join in its worship services, the worship service itself does not constitute a charitable activity, because the worship of any particular church, synagogue, mosque, or other temple inevitably focuses on serving the spiritual needs of those participants who are already to a greater or lesser degree members of the congregation, or at least of the larger denomination. If COGNO’s contention that public worship may be equated with a charitable dissemination of religious information or viewed as equivalent to the charitable provision of spiritual edification to mankind in general were correct, there would be no need for a separate exemption for “[h]ouses used exclusively for public worship,” because such buildings would already be exempt as “real property used exclusively for charitable purposes” and the limited scope the legislature prescribed for the exemption of houses of public worship could be avoided simply by claiming exemption under the charitable-use statute rather than the house-of-public-worship provision itself. Compare the dissent which believed that COGNO’s used its property exclusively for the charitable purposes of providing public worship and community programs and was therefore exempt from taxation under § 5709.12(B)   Case # 3851 (Ohio)

Appellant nonprofit corporation – which was jointly operated by the National Baptist Convention and a local church – owned and operated a federally subsidized apartment complex for low-income handicapped and aged tenants in Ohio. The local church sponsored the project pursuant to a memorandum of understanding with the National Convention. In spite of the nonprofit status of the owner and the charitable and religious minded motives behind the endeavor, the property at issue did not qualify for exemption from taxation under Ohio Revised Code (R.C.) § 5709.12(B), which grants an exemption to property used exclusively for charitable purposes. Real property owned by a nonprofit corporation for the purpose of operating residential apartments for aged and needy persons is not exempt from taxation under § 5709.12, even where the rent charged is at or below cost, persons unable to pay the full rental will be assisted by subventions from the corporation, and there is no profit to the owner. In Ohio, a distinctly residential use of real property defeats a claim of charitable exemption, even where attendant circumstances indicate the existence of charitable motives. Appellant could not escape this rule simply because (a) it provided services to its tenants over and above the rental of apartments (such as Bible study and social events and blood-pressure and diabetes screening), (b) the operation of the subject property was part of a religious mission, and (c) the existence of “public policies” may have favored its activities. Carrying out a religious mission and conferring a spiritual benefit upon the tenants did not by itself entitle the property owner to a charitable exemption. Entitlement of a particular parcel to exemption depends on the use of the property, not the nature of the institution. Here, the dissemination of religious messages was secondary to the property’s primary use: the provision of low-cost residential apartments. Appellant’s argument that it was entitled to exemption under Ohio R.C. § 5709.121 based on its status as a charitable institution was jurisdictionally barred. Appellant did not raise the argument in its application for an exemption or in its notice of administrative appeal to the Board of Tax Appeals (BTA). When a taxpayer has not specified a particular error in the notice of appeal to the BTA, the court has no jurisdiction on appeal to grant relief based on said error. The concurring opinion argued that providing subsidized housing for the underprivileged should qualify as a charitable use exempt from taxation; however, the concurring Judge reluctantly concurred because the court was bound by a long line of cases holding otherwise   Case # 4064 (Ohio)

On a 79.8+ acre plot, appellant built a church building with classrooms on part of the property. 57.9+ acres of the lot was associated with the church building. The remaining acreage consisted of recreational facilities, including softball diamonds, a soccer field, and a jogging path. Although one area was intended to be developed into a ball field, it had not yet been developed. Appellant viewed itself as conducting a sports ministry in connection with the recreational portions of the property and the recreational areas were opened up to the public, thereby providing public recreational facilities that the city would otherwise have had to pay for itself. Primary use of the recreational areas was by the public, not members of the church congregation. Appellant did not charge for use the recreational facilities and the property did not generate income for the church. Appellant was granted an exemption for the 57.9+ acres associated with the church building pursuant to Ohio Rev. Code (R.C.) 5709.07(A)(2), which exempts “[h]ouses used exclusively for public worship . . . and the ground attached to them . . . that is necessary for their property occupancy, use, and enjoyment.” Appellants request for an exemption for the remaining 20.9+ acres dedicated to recreational use under R.C. 5709.12(B) as “[r]eal . . . property belonging to institutions that is used exclusively for charitable purposes” was denied. The Ohio Supreme Court held that this was error. Under R.C. 5709.12(B), property owned by an institution that is accessible without charge to the public for recreational use is a charitable use of the property and the property is exempt from taxation. Although the recreational areas did not qualify for the exemption afforded a house of worship by R.C. 5709.07(A)(2), because the recreational areas were at most an ancillary use of the church buildings and uses which are merely supportive of public worship are not exempted from taxation under R.C. 5709.07(A)(2), that did not prevent the recreational areas from qualifying for the charitable exemption afforded by R.C. 5709.12(B). The religious ownership of the recreational areas of the property and appellant’s religious motives in opening up the recreational areas to public use did not defeat the claim for the charitable exemption. The Court also held that the tax commissioner waived his objections to appellant’s prospective-use argument for a portion of the recreational acreage. For details of the waiver, see the Court’s opinion. (Under the “prospective use” exemption for real property, where an entity, which under the law is entitled to have its property exempted from taxation, acquires real property with the intention of devoting it to a use exempting it from taxation, such property is entitled to be exempted from taxation as long as it is not devoted to a nonexempt or commercial use, even though actual physical use of the property for the exempt purpose has not yet begun.)   Case # 4214 (Ohio)

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