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11th District: Portage County Sunshine Laws case not ‘frivolous’
TRACEY BLAIR
Legal News Reporter
Published: August 21, 2019
An appellant’s lawsuit alleging the Portage County Board of Commissioners violated state Sunshine Laws was not frivolous, the 11th District Court of Appeals recently ruled.
In his January 2016 suit, Brian M. Ames sought statutory damages for 15 alleged violations of Ohio’s Open Meetings Act, R.C. Chapter 121, as well as an injunction ordering the board to amend its procedural rules. A Portage County trial court found Ames’ complaint raised no genuine issues of material fact and that the filing of the complaint constituted frivolous conduct.
He later filed an amended complaint alleging 40 motions, as well as a separate motion to disqualify the trial judge, claiming she had personal knowledge of facts in the dispute.
He then filed a motion to strike the amended complaint.
Ames claimed five alleged special meetings in 2014 were held without the required 24-hour notice mandated by Resolution 14-0025. He also claimed the trial court erred by relying on an unproven statement that no news media requested notification of any of the board’s meetings.
In March 2016, the trial judge recused herself and requested the Supreme Court assign a judge on the matter. A different judge was assigned to the case granted the motion to strike and ordered the case to proceed on the original complaint.
In 2018, the trial court granted summary judgment to the county on all 15 counts. The judge also found Ames committed frivolous conduct in filing the complaint.
On appeal, Ames claimed the trial court violated procedures set forth under R.C. 2323.51(B) by failing to set a hearing not more than 30 days after the entry of judgment on liability.
The appellant panel had differing opinions on this argument.
In her majority opinion, 11th District Judge Cynthia Westcott Rice wrote that R.C. 121.22(I)(2)(b) states that a claim under Ohio’s Open Meetings Act may be found frivolous if it supports a finding under R.C. 2323.51(A).
In addition, Judge Rice stated the board is correct in that there is no provision requiring a hearing on the issue and that R.C. 2323.51(B)’s statutory due process provisions do not apply because the court must make a frivolous conduct determination “at that time” it denies injunctive relief.
“… These points fail to appreciate, however, the overarching import of a litigant’s constitutional right to due process,” she wrote. “… The statute plainly states that a court must make a frivolousness finding and award costs and reasonable fees simultaneously with its decision to deny an injunction. As such, the plain language of the statute would ostensibly require the trial court to proceed to make a finding of frivolousness and a cost/reasonable-fee determination without a hearing. Because plain language would negate a plaintiff’s constitutional right to due process, however, such a result is unworkable and absurd.”
Therefore, the appellate court reversed the trial court’s finding of frivolousness on due process grounds.
“On remand, the trial court may elect to do nothing, and leave the finding of frivolousness vacated, or conduct a hearing on the issue of frivolousness,” Judge Rice added. “If it elects to proceed with the latter, it must provide notice to the parties, schedule a hearing, and conduct the same.”
Eleventh District Judge Thomas R. Wright concurred, with fellow appellate Judge Mary Jane Trapp concurring in part and dissenting in part.
In her concurring/dissenting opinion, 11th District Judge Mary Jane Trapp said she believes the court does not need to analyze whether the trial court was required to follow all R.C. 2323.51’s procedures before it could enter a finding of frivolous conduct because the trial court did not award attorney fees.
“The failure to award fees and costs was not appealed and thus is res judicata,” Judge Trapp added.
Judge Trapp agreed with her fellow appellate judges on to affirm the remaining assignments of error in the board’s favor.
For instance, Ames had argued that the trial court erroneously found that five meetings that were held were regularly scheduled meetings rather than special meetings.
The panel disagreed with Ames’ contentions that a delay in a regular meeting’s starting time changes that meeting into a special meeting, and that inadequate notice was provided for the meetings.
The case is cited State ex rel. Ames v. Portage Cy. Bd. of Commrs., 2019-Ohio-3237.