Ohio Supreme Court justices must settle conflicting decisions centering on in absentia trials for corporations coming out of the state's 8th Appellate District in arguments this morning at the Ohio Judicial Center, downtown.

Individual panels of the Cuyahoga County appellate court have ruled on either side of the issue - whether a trial in which a defendant corporation fails to respond to a summons can occur for a misdemeanor violation.

In each of the cases, corporations that owned Cleveland residential properties - the former Washington Mutual Bank and Destiny Ventures LLC - were cited by the city housing inspector for multiple violations of the city building code and ordered to make specific repairs within a specified time period, a court summary provided.

The city has argued that Washington Mutual, now owned by JP Morgan Chase & Co., completed a "quickstep" around the most salient points in order to bolster an argument belying the plain language of the statutes involved.

"By its plain language, O.R.C. 2941.47 specifically sets out a procedure that allows a court to proceed with arraignment when no one from the corporate organization, neither an officer or attorney, is present to represent the corporation," Cleveland Assistant Law Director Karyn Lynn wrote for the city.

"The statute further provides that once that arraignment, in absentia, is held, despite the fact that no representative was present, the corporation is before the court until the matter is disposed of. The 8th District Court of Appeals decision that 2941.47 does not apply to misdemeanors filed by complaint ignores the existence of O.R.C. 2941.35. ..."

The specific section of state code provides "prosecutions for misdemeanors may be instituted by a prosecuting attorney by affidavit or such other method as is provided by law in such courts as have original jurisdiction in misdemeanors. Laws as to form, sufficiency, amendments, objections, and exceptions to indictments and as to the service thereof apply to such affidavits and warrants issued thereon."

Lynn argued that Washington Mutual attempted to limit the decisions of the various court findings with respect to that section by stating that those decisions only ruled on the determination of the sufficiency of a complaint by using the same standard as that for an indictment or information.

"Ironically, they ask for strict reading of 2941.47 while attempting to limit the reach of 2941.35 by ignoring the plain language of that code section," she stated.

After the citation deadlines had passed in each of these cases, the city's housing inspector returned to the properties and in both cases found that none of the required repairs had been made, summary continued.

The city subsequently filed complaints in the Cleveland Municipal Housing Court charging the property owners with misdemeanor criminal offenses for failing to comply with an order of the housing commissioner.

The property owners were served with a summons informing them of the charges and ordering them to appear for arraignment on a specified date. Neither company appeared on the scheduled arraignment date to enter a plea or otherwise respond to the charges.

The housing court invoked the authority granted by 2941.47 to schedule a trial in each case, and notified the defendant corporations that if they failed to send a corporate officer or attorney to appear on the specified trial date, the court clerk would enter a not guilty plea on their behalf and the court would proceed to hear the state's evidence and decide their cases in their absence, summary detailed.

In each case, the defendant failed to file a motion for a continuance or to send a qualified representative to appear on the scheduled trial date.

The court proceeded to hear the city's uncontested evidence, enter a judgment finding the defendant corporation guilty of the charged code violations, and impose a fine on the property owner.

Upon appeal to the 8th District, the panel in the Washington Mutual case overturned the housing court's judgment and vacated the fine against the property owner based on findings that the 'in absentia trial provision of 2941.47 refers only to charges brought through "an indictment or bill of information" used only in felony cases, the language in Ohio Criminal Rule 43(A) mandates a defendant's presence at trial only to be waived by defendant and that the proceedings were invalid for failure to comply with the provisions.

In Destiny Ventures' circumstance, a different panel upheld application of 2941.47 to conduct a trial in the absence of the defendant and rejected constitutional arguments advanced by the property owner.

In each instance, the non-prevailing party sought Supreme Court review of the 8th District's conflicting rulings.

On behalf of Washington Mutual, Columbus attorney Vladimir Belo, a partner in the firm Bricker & Eckler LLP, wrote that the city was construing state law in a manner different than the General Assembly had intended.

"... This case presents an especially cogent example of why such a reading of 2941.47 is not desirable," Belo explained in the brief. "In a case in which it is questionable, at best, as to whether a corporation was properly served with a criminal summons, the city's (and the attorney general's) proposed rule would uphold convictions of corporate entities that were given no reasonable opportunity to defend themselves against

"There is no statutory reason why a corporation should be able to be so easily convicted in its absence. ..."

Willoughby Hills attorney Michael Poklar, on behalf of Destiny Ventures has maintained his constitutional argument.

"The law on this subject is clear. Courts may proceed in absentia only where a criminal defendant either waives, or forfeits, its rights to counsel and confrontation ... ," he began in his client's brief.

"Given the vital rights at stake, legislatures and courts have long provided that defendants only waive their rights to counsel or confrontation where they make a voluntary, intentional and knowing decision to do so. Defendants forfeit these essential rights where they either have behaved so disruptively that the court cannot continue the trial in defendant's presence, or have abandoned the proceedings after trial had begun," he stated.

He concluded Destiny Ventures was denied that very right.

The cases are City of Cleveland v. Destiny Ventures, case No. 2008-2230 and City of Cleveland v. Washington Mutual Bank, case No. 2009-0441.

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