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Council of Delegates

Meeting

April 28, 2017

1:00 PM

OSBA Headquarters

Columbus

1

Council of Delegates Meeting

Friday, April 28, 2017

1:00 p.m.

President Ronald S. Kopp, presiding

Table of Contents

Council of Delegates Meeting Agenda ............................................................... 3

Council of Delegates Roster ................................................................................ 5

Council of Delegates Bylaws ............................................................................... 21

Resolution from Board of Governors ................................................................ 23

Report of the Corporation Law Committee ..................................................... 25

Report of the Estate Planning, Trust

and Probate Law Section ................................................................................... 31

Report of Real Property Law Section Council ................................................. 37

Report of Taxation Law Committee .................................................................. 45

Report of Military and Veterans’ Affairs Committee...................................... 49

Report of Workers’ Compensation Law Committee........................................ 53

Committee Contacts and Presenters .................................................................. 55

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COUNCIL OF DELEGATES MEETING AGENDA

Friday, April 28, 2017

1:00 p.m.

President Ronald S. Kopp., presiding

I. Roll Call of the Council, Mary Amos Augsburger

II. Presentation of Awards

A. Eugene R. Weir Award for Ethics and Professionalism

B. Nettie Cronise Lutes Award

C. OLAF Presidential Award for Pro Bono Service

D. Lawyer-Legislator of the Year Award

III. Report of the President, Ronald S. Kopp

IV. Report of the Executive Director, Mary Amos Augsburger

V. Update on Proposed New Dues Model, Kristen J. Long

VI. Committee and Section Reports

A. Resolution from the Board of Governors

B. Report of the Corporation Law Committee

To amend section 1701.86 of the Revised Code to restore the long-standing

“notice and affidavit option” allowed for dissolutions and mergers from 1978 to

2013 - permitting, under certain circumstances, a certificate of dissolution or

merger of an Ohio corporation to be filed after providing notice to specified Ohio

agencies of the date of dissolution/merger along with an acknowledgment of the

applicability of Section 1701.95 of the Ohio General Corporation Law if the filing

is accompanied by an affidavit stating that such notices and acknowledgments

were made.

C. Report of the Estate Planning, Trust and Probate Law Section

1. To amend Section 313.14 of the Ohio Revised Code to make it consistent

and free from conflict with the right of disposition statutes found in

Sections 2108.70 to 2108.90 of the Ohio Revised Code.

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2. To amend Section 2107.05 of the Ohio Revised Code to clarify the

requirements for incorporating the terms of a trust into a testator’s will.

D. Report of the Real Property Law Section Council

To modify the Ohio Standards of Title Examination by amending Standard 2.1

dealing with discovery of a defect in title that was previously examined by

another and Standards 3.2, 3.3, 3.4, and 3.5 dealing with descriptions, delivery

of deeds, creation of survivorship estates and conveyances by partnerships.

E. Report of the Taxation Law Committee

To amend §5739.03 to provide that an exemption certificate is not required for

employment services if the services, by their nature, are such that they would

never be subject to tax.

F. Report of the Military and Veterans’ Affairs Committee

1. An amendment of Chapter 123 of the Ohio Revised Code adding a Veteran-

Owned Business preference to that chapter, modeled on the Minority

Business Enterprise language.

2. An amendment of Chapter 2901 of the Ohio Revised Code adding Post

Traumatic Stress Disorder (PTSD) as allowable testimony as it relates to

a claim of self-defense to that chapter, modeled on the Battered Woman

Syndrome provision in O.R.C. § 2901.06.

G. Report of the Workers’ Compensation Law Committee

To amend Section 4123.66 (A) to increase funeral expense benefits for workers'

compensation death claims from fifty-five hundred dollars ($5,500) to ten

thousand dollars ($10,000).

VII. Adjournment

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Ohio State Bar Association

2016-2017 Council of Delegates

Ronald S. Kopp, President

District 1

Counties: Butler, Clermont, Clinton, Hamilton and Warren

Board of Governors Representative:

William H. Kaufman, P. O. Box 280

Lebanon, OH 45036-0280 06/30/17

Council of Delegates (21):

Karen Buckley, 17 Peterson Place

Wilmington, OH 45177-2132 06/30/17

Terrence M. Donnellon, 9079 Montgomery Road

Cincinnati, OH 45242-7711 06/30/17

Tawanda J. Edwards, 7 W. 7th Street

Cincinnati, OH 45202-2471 06/30/17

Richard I. Fleischer, 810 Sycamore Street, 2nd Floor

Cincinnati, OH 45202 06/30/17

Gregory S. French, 1244 Padlock Hills Avenue

Cincinnati, OH 45229-1218 06/30/17

Michael L. Gay, 537 East Pete Rose Way, Ste. 400

Cincinnati, OH 45202-3502 06/30/17

Barbara J. Howard, 120 E. Fourth Street, Ste. 960

Cincinnati, OH 45202-4096 06/30/17

Stephen C. Lane, 7419 Kingsgate Way, Ste. A

West Chester, OH 45069-6517 06/30/17

Charles E. Strain, 4030 Mt. Carmel-Tobasco Road #103


John J. Williams, 2712 Observatory Avenue


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Edward P. Brueggeman, 312 Kings Mills Road

Mason, OH 45040-1853 06/30/18

Eric K. Combs, 255 E. 5th Street, Ste. 1900

Cincinnati, OH 45202-1971 06/30/18

Kendra L. Daugherty, 4529 Aicholtz Road

Cincinnati, OH 45245-1001 06/30/18

Stephanie M. Day, 600 Vine Street, Ste. 2700

Cincinnati, OH 45202-2409 06/30/18

Timothy A. Garry, Jr., 4645 Montgomery Road, Ste. 203

Norwood, OH 45212 06/30/18

Roger S. Gates, P. O. Box 515

Hamilton, OH 45012-0515 06/30/18

Doloris F. Learmonth, 3498 Forest Oak Court

Cincinnati, OH 45208-1842 06/30/18

David H. Lefton, 3074 Madison Road

Cincinnati, OH 45209-1723 06/30/18

Theresa L. Nelson, 150 E. 4th Street

Cincinnati, OH 45202-4018 06/30/18

Zachary D, Prendergast, 250 E. 5th Street, Ste. 310

Cincinnati, OH 45202-4150 06/30/18

James C. Shew, 16 N. Main Street

Middletown, OH 45042-1905 06/30/18

District 2

Counties: Darke, Miami, Montgomery, Preble and Shelby


Judge James F. Stevenson, P. O. Box 947

Sidney, OH 45365-0947 06/30/18

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Stephen R. Bruns, 123 W. Main Street

Eaton, OH 45320 06/30/17

Michael P. Brush, 2233 Miamisburg-Centerville Road

Dayton, OH 45459-3816 06/30/17

Thomas Guillozet, 9265 Brush Creek Drive

Piqua, OH 45356-9589 06/30/17

Robert A. McCarthy, P. O. Box 8

Troy, OH 45373-0008 06/30/17

Michael W. Sandner, 75 Trevor Lane

Springboro, OH 45066-8306 06/30/17

Andrew C. Storar, 40 N. Main Street, Ste. 2700

Dayton, OH 45423-2700 06/30/17

Danyelle S. Wright, 11067 Cold Spring Drive

Dayton, OH 45458 06/30/17

Magistrate Gary J. Carter, P. O. Box 947

Sidney, OH 45365-0947 06/30/18

Dalma C. Grandjean, 1 S. Main Street, Ste. 1590

Dayton, OH 45402-2024 06/30/18

District 3

Counties: Defiance, Fulton, Hancock, Henry, Paulding, Putnam,

Van Wert, Williams and Wood


R. Benjamin Franz, 539 S. Main Street

Findlay, OH 45840-3295 06/30/19


Steven J. Sondergaard, 116 Grand Avenue

Defiance, OH 43512-1646 06/30/17

Thomas P. Kemp, 510 S. Main Street

Findlay, OH 45840-3230 06/30/18

8

Tennille Newton, P. O. Box 178

Archbold, OH 43402-0178 06/30/18

District 4

Counties: Lucas, Ottawa and Sandusky


Louise A. Jackson, 1 SeaGate, 24th Floor

Toledo, OH 43604-1576 06/30/17


Deacon James D. Caruso, 1933 Spielbusch Avenue

Toledo, OH 43604-5360 06/30/17

Stuart F. Cubbon, P. O. Box 387

Toledo, OH 43697-0387 06/30/17

Judge Kathleen L. Giesler, 315 Madison Street

Port Clinton, OH 43452 06/30/17

John F. Hall, 1430 Oak Harbor Road

Fremont, OH 43420-2424 06/30/17

Sarah K. Skow, 4 SeaGate, Ste. 400

Toledo, OH 43604-2622 06/30/17

Paula S. Hicks-Hudson, 2633 Robinwood Avenue

Toledo, OH 43610-1354 06/30/18

Shelly R. Musshel-Kennedy, One Constitution Avenue

Toledo, OH 43604 06/30/18

Linde H. Webb, 4930 N. Holland Sylvania Road

Ste. 1, Sylvania, OH 43560-2149 06/30/18

District 5

Counties: Crawford, Delaware, Marion, Morrow, Seneca and Wyandot


Victor H. Perez, P. O. Box 101

Tiffin, OH 44883-0101 06/30/17

9


Grant B. Garverick, 126 S. Market Street

Galion, OH 44833 06/30/17

Sean A. Martin, 102 E. Findlay Street

Carey, OH 43316-1248 06/30/18

Robert J. Rice, 140 N. Sandusky Street

Delaware, OH 43015-1733 06/30/18

District 6

Counties: Champaign, Clark, Fayette, Greene, Logan, Madison and Union


Judge Denise L. Moody, 50 E. Columbia Street

Springfield, OH 45502 06/30/19


James F. Peifer, P. O. Box 1087

Springfield, OH 45501-1087 06/30/17

Douglas M. Smith, 112 N. Main Street

Bellefontaine, OH 43311-2089 06/30/17

William C. Hicks, P. O. Box 1687

Springfield, OH 45501-1687 06/30/18

District 7

(Lost one member per 2015 certification)

(Two vacancies – unexpired term of Stephanie Adams ending 06-30-17

and unexpired term of Rene Rimelspach ending 06-30-17)

Counties: Franklin


Judge Stephen L. McIntosh, 345 S. High Street, Court Room 4B

Columbus, OH 43215-4516 06/30/17

Kristin J. Long, 373 S. High Street, 25th Floor

Columbus, OH 43215 06/30/17

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Eleni A. Drakatos, 1243 S. High Street

Columbus, OH 43206-3445 06/30/18


Vacant 06/30/17

Vacant 06/30/17

Jennifer A. Adair, 30 E. Broad Street, 16th Floor

Columbus, OH 43215 06/30/17

Kathleen N. Battle, 650 Ackerman Road, Room 224

Columbus. OH 43202-4500 06/30/17

Thomas J. Bonasera, 191 W. Nationwide Boulevard, Ste. 300

Columbus, OH 43215-2569 06/30/17

Katherine S. Chappelear, 373 S. High Street, 14th Floor

Columbus, OH 43215-4591 06/30/17

Stephen E. Chappelear, 10 W. Broad Street, Ste. 2390

Columbus, OH 43215-3467 06/30/17

Donald B. Leach, Jr., 191 W. Nationwide Boulevard, Ste. 300

Columbus, OH 43215-2569 06/30/17

Scott R. Mote, 1650 Lake Shore Drive, Ste. 375

Columbus, OH 43204-4991 06/30/17

Jay G. Perez, 330 S. High Street

Columbus, OH 43215 06/30/17

Stacy V. Pollock, 175 S. 3rd Street, Ste. 1000

Columbus, OH 43215-5197 06/30/17

Andrea M. Salimbene, 167 W. Winter Street

Delaware, OH 43015-2451 06/30/17

Carl D. Smallwood, P. O. Box 1008

Columbus, OH 43216-1008 06/30/17

Beatrice K. Sowald, 125 Eastmoor Boulevard

Columbus, OH 43209-2017 06/30/17

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Chad M. Stonebrook, 1487 Westwood Avenue

Columbus, OH 43212-2768 06/30/17

E. Jane Taylor, 10 W. Broad Street, Ste. 950

Columbus, OH 43215-3483 06/30/17

Levi J. Tkach, 604 E. Rich Street

Columbus, OH 43215-5341 06/30/17

Thomas W. Weeks, 1108 City Park Avenue, Ste. 200

Columbus, OH 43206 06/30/17

Belinda S. Barnes, 471 E. Broad Street, 19th Floor

Columbus, OH 43215-3872 06/30/18

Sally W. Bloomfield, 100 S. Third Street

Columbus, OH 43215-4291 06/30/18

Robert L. Byrne, 2290 Breeze Hill Drive

Grove City, OH 43123-1567 06/30/18

Alphonse P. Cincione, 556 E. Town Street, Ste. 100

Columbus, OH 43215 06/30/18

Paul Giorgianni, 1588 Arlington Avenue

Columbus, OH 43212-2710 06/30/18

H. Ritchey Hollenbaugh, 366 E. Broad Street

Columbus, OH 43215-3876 06/30/18

Helen M. Mac Murray, 6530 W. Campus Oval, Ste. 210

New Albany, OH 43054 06/30/18

Cassandra L. Manna, 487 S. 3rd Street

Columbus, OH 43215 06/30/18

Kristen E. McKinley, 3656 Cannongate Drive

Columbus, OH 43228-9604 06/30/18

Heather G. Sowald, 400 S. Fifth Street, Ste. 101

Columbus, OH 43215-5430 06/30/18

Magistrate Elizabeth J. Watters, 345 S. High Street,

Room 5807, Columbus, OH 43215-4516 06/30/18

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Bradley B. Wrightsel, 3300 Riverside Drive, Ste. 100

Columbus, OH 43221-1726 06/30/18

District 8

Counties: Adams, Brown, Gallia, Highland, Jackson, Lawrence, Pickaway, Pike,

Ross, Scioto and Vinton


Judge Howard H. Harcha, III, 602 7th Street

Portsmouth, OH 45662-3948 06/30/18


George L. Davis, III, 602 Chillicothe Street, Ste. 802

Portsmouth, OH 45662 06/30/17

Frederick C. Fisher, 311 Park Avenue

Ironton, OH 45638-1525 06/30/18

District 9

Counties: Coshocton, Fairfield, Knox, Licking, Muskingum and Perry


Judge Dean L. Wilson, P. O. Box 207

Zanesville, OH 43702-0207 06/30/19


Linda L. Smith, P. O. Box 536

New Lexington, OH 43764-0536 06/30/17

Jan A. Baughman, 58 N. 5th Street, Ste. 102

Zanesville, OH 43701-3527 06/30/17

Wendi Fowler, P. O. Box 1270

Mount Vernon, OH 43050-1270 06/30/18

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District 10

Counties: Ashland, Erie, Holmes, Lorain, Medina, Richland, Huron and Wayne


Kevin W. Donovan, 5333 Meadow Lane Court

Elyria, OH 44035-1469 06/30/17


Christopher L. Brown, 30 N. Diamond Street

Mansfield, OH 44902 06/30/17

Andrew P. Lycans, P. O. Box 599

Wooster, OH 44691-0599 06/30/17

Richard R. Mellott, Jr., 5750 Cooper Foster Park Road W.,

Ste. 102, Lorain, OH 44053-4132 06/30/17

Luke T. Brewer, 88 S. Monroe Street

Millersburg, OH 44654-1436 06/30/18

Gowri V. Hampole, 401 Broad Street, Ste. 211

Elyria, OH 44035 06/30/18

Patricia A. Walker, 231 South Broadway

Medina, OH 44256-2601 06/30/18

District 11

Counties: Portage and Summit


Judge Linda Tucci Teodosio, 650 Dan Street

Akron, OH 44310-1256 06/30/18

Amanda M. Leffler, 388 S. Main Street, Ste. 500

Akron, OH 44311-4407 06/30/19


Cheri B. Cunningham, 784 Hampton Ridge Drive

Akron, OH 44313 06/30/17

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Stephen A. Fallis, 1321 Village Drive

Akron, OH 44313 06/30/17

Melissa A. Graham-Hurd, 333 S. Main Street, Ste. 301

Akron, OH 44308-1225 06/30/17

Jessica A. Lopez, 222 S. Main Street, Ste. 400

Akron, OH 44308-1500 06/30/17

Bruce H. Wilson, 120 E. Mill Street, Ste. 416

Akron, OH 44308 06/30/17

Frank J. Cimino, 250 S. Chestnut Street, Ste. 18

Ravenna, OH 44266-3199 06/30/18

William D. Dowling, 3800 Embassy Parkway, Ste. 300

Akron, OH 44333-8332 06/30/18

Montrella S. Jackson, 217 S. High Street, Ste. 713

Akron, OH 44308-1689 06/30/18

Maura E. Scanlon, 50 S. Main Street, Ste. 504

Akron, OH 44308-1830 06/30/18

District 12

(Lost one member per 2015 certification)

Counties: Cuyahoga


Aaron O’Brien, 127 Public Square, Ste. 2000

Cleveland, OH 44113 06/30/19


Keith A. Ashmus, 200 Public Square, Ste. 3000

Cleveland, OH 44114-2316 06/30/17

Howard R. Besser, 4917 Highland Place Court

Cleveland, OH 44143-2786 06/30/17

Eileen M. Bitterman, 323 W. Lakeside Avenue, Ste. 200

Cleveland, OH 44113-1099 06/30/17

15

Jeffrey A. Brauer, 200 Public Square, Ste. 2800

Cleveland, OH 44114-2303 06/30/17

Michael C. Brink, 950 Main Avenue, Ste. 1100

Cleveland, OH 44113-7213 06/30/17

Anne Owings Ford, 12211 Chestnut Circle

Brecksville, OH 44141-3608 06/30/17

Michael J. Frantz, Jr., 200 Public Square, Ste. 3000

Cleveland, OH 44114-2316 06/30/17

Stacy C. Hinners, 101 W. Prospect Avenue

Cleveland, OH 44115-1075 06/30/17

Donald N. Jaffe, 1301 E. 9th Street, Ste. 1900

Cleveland, OH 44114-1862 06/30/17

Alexandra B. Jeanblanc, 5247 Wilson Mills Road, Ste. 582

Cleveland, OH 44142-3016 06/30/17

Fredric E. Kramer, 123 West Prospect Avenue, Ste. 250

Cleveland, OH 44115-1027 06/30/17

David A. Kutik, 901 Lakeside Avenue

Cleveland, OH 44114-1190 06/30/17

Theodore M. Mann, Jr., 925 Euclid Avenue, Ste. 644

Cleveland, OH 44115-1493 06/30/17

Marlon A. Primes, 801 W. Superior Avenue, Ste. 400

Cleveland, OH 44113-1852 06/30/17

William L.S. Ross, 1405 E. 6th Street

Cleveland, OH 44114-1607 06/30/17

Daniel K. Ryan, 55 Public Square, Ste. 2121

Cleveland, OH 44113-1967 06/30/17

Nancy C. Schuster, 2913 Clinton Avenue

Cleveland, OH 44113-2940 06/30/17

Matthew D. Besser, 5885 Landerbrook, Ste. 302

Cleveland, OH 44124 06/30/18

16

Mary L. Cibella, 614 W. Superior Avenue, Ste. 1300

Cleveland, OH 44113 06/30/18

Joel D. Eagle, 127 Public Square, Ste. 3900

Cleveland, OH 44114-1291 06/30/18

Alicia N. Graves, P. O. Box 35518

Cleveland, OH 44135 06/30/18

Christa A.G. Heckman, 950 Main Avenue, 4th Floor

Cleveland, OH 44113-7201 06/30/18

Jacob A. H. Kronenberg, 635 W. Lakeside Avenue, Ste. 605

Cleveland, OH 44113-1093 06/30/18

William J. Price, 6105 Parkland Boulevard

Mayfield Heights, OH 44124-4188 06/30/18

Lisa A. Reid, 20 W. Federal Street 3rd Floor

Youngstown, OH 44503-1432 06/30/18

Karen E. Rubin, 127 Public Square, Ste. 3900

Cleveland, OH 44114-1291 06/30/18

Adam J. Russ, 200 Public Square, Ste. 3000

Cleveland, OH 44114-2316 06/30/18

Donald E. Worthing, 11500 Somerset Drive, Apt. 222

North Royalton, OH 44133-2671 06/30/18

Barbara Friedman Yaksic, 25550 Chagrin Boulevard

Ste. 406, Beachwood, OH 44122-4640 06/30/18

District 13

Counties: Columbiana and Mahoning


Stephen T. Bolton, 201 E. Commerce Street, Ste. 200

Youngstown, OH 45503-1657 06/30/17


Ronald E. Slipski, 131 W. Federal Street

Youngstown, OH 44503 06/30/17

17

Don W. Humphrey, 28849 State Route 172

Kensington, OH 44427 06/30/18

J. Michael Thompson, 6 Federal Plaza Central, Ste. 1300

Youngstown, OH 44503-1508 06/30/18

District 14

(One vacancy – unexpired term of Erick Bauer ending 6/30/18)

Counties: Carroll, Stark and Tuscarawas


Paul B. Hervey, P. O. Box 1014

New Philadelphia, OH 44663-1014 06/30/18


Thomas P. Moushey, 1844 W. State Street

Ste. A, Alliance, OH 44601-5713 06/30/17

D. Stephen Stone, Jr., 981 W. State Street

Alliance, OH 44601-4676 06/30/17

Jennifer L. Thomas, P. O. Box 235

Carrollton, OH 44615-0235 06/30/17

Vacant 06/30/18

Daniel R. Griffith, 211 Woodrow Street, NW

Canton, OH 44720-1935 06/30/18

District 15

Counties: Belmont, Guernsey, Harrison, Jefferson and Monroe


Costa D. Mastros, P. O. Box 608

Steubenville, OH 43952 06/30/18

Council of Delegate (1):

Charles H. Bean, P. O. Box 96

St. Clairsville, OH 43950-0096 06/30/17

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District 16

Counties: Allen, Auglaize, Hardin and Mercer


Judge Glenn H. Derryberry, P. O. Box 419

Lima, OH 45802-0419 06/30/18


Patrick J. Potts, 218 W. Columbus Street

Kenton, OH 43326 06/30/17

Mark A. Van Dyne, 121 W. High Street, Ste. 905

Lima, OH 43604 06/30/18

District 17

Counties: Athens, Hocking, Meigs, Morgan, Noble and Washington


Michael L. Barr, P. O. Box 686

Pomeroy, OH 45769-0686 06/30/19


Scott Robe, 14 W. Washington Street

Athens, OH 45701 06/30/17

District 18

Counties: Ashtabula, Geauga, Lake and Trumbull


Stuart W. Cordell, P. O. Box 2300

Ashtabula, OH 44005-2300 06/30/19


Cory C. Funk, 25 W. Jefferson Street

Jefferson, OH 44047-1092 06/30/17

19

Anna M. Parise, 60 S. Park Place

Painesville, OH 44077-3417 06/30/17

Judge Terri L. Stupica, 8899 Sherman Road

Chesterland, OH 44026 06/30/18

Matthew G. Vansuch, 6550 Seville Drive, Ste. B

Canfield, OH 44406 06/30/18

At-Large Delegates

Joseph S. Gallagher, 41 N. Perry Street

Dayton, OH 45402-1431 06/30/17

Carol Seubert Marx, 106 Starrit Street, Ste. 210

Lancaster, OH 43130-3993 06/30/17

Melissa A. Schiffel, 150 E. Gay Street, 16th Floor

Columbus, OH 43215-3130 06/30/17

Martin E. Mohler, 405 Madison Avenue, Ste. 1000

Toledo, OH 43604-1276 06/30/18

Carmen V. Roberto, 23 South Main Street, 3rd Floor

Akron, OH 44308 06/30/18

John S. Stith, 250 E. 5th Street, Ste. 2200

Cincinnati, OH 45202-5118 06/30/18

Parliamentarian

Michael B. VanBuren, 1405 E. 6th Street

Cleveland, OH 44114-1601 06/30/17

At-Large Board of Governors Appointees

Kristen J. Long, 373 S. High Street, 25th Floor

Columbus, OH 43215 06/30/17

Eleni A. Drakatos, 1243 S. High Street

Columbus, OH 43206-3445 06/30/18

Amanda M. Leffler, 388 S. Main Street, Ste. 500

Akron, OH 44311-4407 06/30/19

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OSBA Elected Officers and Past Officers

Ronald S. Kopp, President, 222 S. Main Street, Ste. 400

Akron, OH 44308-1522 06/30/17

Randall M. Comer, President-elect, 1 S. Limestone Street,

Suite 800, Springfield, OH 45502-1269 06/30/18

John D. Holschuh, Jr., Immediate Past President, 600 Vine

Street, Ste. 2700, Cincinnati, OH 45202-2409 06/30/17

21

OHIO STATE BAR ASSOCIATION

BYLAWS OF THE

COUNCIL OF DELEGATES

Section I

In the absence or disability of both the president and president-elect of the Association, the

meetings of this Council shall be presided over by a chairperson pro tempore, elected by a

majority vote of the Council members present, which chairperson, when elected, shall serve in

that capacity only during the sessions of the meeting at which he or she is elected. The

secretary shall convene the first session of any meeting from or at which both the president

and president-elect are absent or unable to preside, and preside during the election of such

chairperson pro tempore.

Section II

No action shall be taken upon reports of committees or sections of the Association unless they

are submitted in writing; and no such committee or section report, which has been published

in the Ohio State Bar Association Report or other publication of the Association that is

distributed to all regular members, as directed by the Board of Governors, prior to the date of

the meeting of the Council, shall be read orally to the meeting unless, by motion adopted by

two-thirds vote of the delegates present, such a reading be ordered.

Section III

No person shall, without the consent of two-thirds of the delegates present, be entitled to speak

more than once or for more than five minutes on any issue before the Council. Reports

presented by committees and sections shall be limited to ten minutes, provided, however, that

the ten-minute restriction shall not apply to the discussion of a proposal subsequent to its initial

presentation. A member of the council or person presenting a report or resolution shall be

entitled to open and close the discussion on the matter under consideration.

Section IV

Voting on all matters shall be by voice vote unless the presiding officer is in doubt concerning

the result, or a division of the house is requested by any member, in either of which events a

standing vote shall be taken.

Section V

The president of the Association shall, with the advice and consent of the Board of Governors,

appoint a parliamentarian to aid and assist him or her or the chairperson at all meetings of the

Council of Delegates. Said parliamentarian, whose term of office shall be concurrent with that

of the president, shall not be a member of the current Board of Governors or the Council of

Delegates.

22

Section VI

The order of business of all meetings of the Council of Delegates shall be the following:

i. Roll call.

ii. Action of minutes of previous meetings.

iii. Unfinished business from preceding day, if any.

iv. Special order of business for the day, as previously prepared by the

president, president-elect and secretary of the Association.

v. New business.

Section VII

Roberts’ Rules of Order shall govern the Council of Delegates in all its proceedings, except to

the extent to which these bylaws are, or the constitution of the Association is, inconsistent

therewith.

Section VIII

These bylaws may be amended by the majority vote of the delegates present at any meetings,

provided the proposed amendment has been published in the Ohio State Bar Association

Report or other publication of the Association that is distributed to all regular members as

directed by the Board of Governors at least once, not less than one week prior to the date of

the meeting at which action on said amendment is taken.

As amended by the Council of Delegates November 7, 2003

23

RESOLUTION FROM THE BOARD OF GOVERNORS 1

2

To the Council of Delegates: 3

4 WHEREAS, the United States Supreme Court held in the case of Gideon v. Wainwright, 372 5

U.S. 335 (1963) that persons accused of crimes, but unable to afford legal 6 representation, have a Sixth Amendment right to counsel provided by the state; and 7

8 WHEREAS, while progress has been made in Ohio since this landmark ruling to adequately 9

fund legal representation for indigent criminal defendants; and 10

11 WHEREAS, the federal government has failed to adequately support state and local efforts to 12

uphold the constitutional right to counsel guaranteed for all persons accused of a crime; 13

and 14

15 WHEREAS, public defense systems across Ohio lack the funding and resources that are needed 16

to provide adequate representation of indigent defendants; and 17

18 WHEREAS, a common refrain from OSBA district meetings is that there is insufficient 19

funding to provide adequate representation for indigent defense; and 20

21

WHEREAS, the county governments in Ohio state they have inadequate resources to improve 22

the funding for indigent defense; 23 24 NOW, THEREFORE, BE IT RESOLVED that the OSBA supports the increase of federal and 25

state funding for indigent defense to ensure that state and local governments comply 26

with the constitutional right to counsel for indigent criminal defendants; and 27 28 BE IT FURTHER RESOLVED that the OSBA use its legislative resources to urge the federal 29

and state government to adequately fund indigent defense representation. 30

31

Respectfully submitted, 32

33

Ronald S. Kopp 34

President, Ohio State Bar Association 35 36

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REPORT OF THE CORPORATION LAW COMMITTEE 37 38 To the Council of Delegates 39 40

The Corporation Law Committee respectfully requests your favorable consideration of the 41 following proposed amendments to Chapter 1701 of the Revised Code: 42 43

To amend section 1701.86 of the Revised Code to restore the long-standing “notice and 44 affidavit option” allowed for dissolutions and mergers from 1978 to 2013 - permitting, under 45

certain circumstances, a certificate of dissolution or merger of an Ohio corporation to be filed 46 after providing notice to specified Ohio agencies of the date of dissolution/merger along with 47 an acknowledgment of the applicability of Section 1701.95 of the Ohio General Corporation 48 Law if the filing is accompanied by an affidavit stating that such notices and 49

acknowledgments were made. 50 51

Respectfully submitted, 52 53

Jeffrey R. Wahl, Columbus 54 Chair, Corporation Law Committee 55

56

57

Rationale for Proposal 58 59 When an Ohio corporation is to be voluntarily dissolved or merged or converted into an entity 60 that is not registered in the State of Ohio, Section 1701.86 of the Ohio Revised Code addresses 61

how to handle the corporation’s potential liabilities for personal property taxes, state taxes, 62

unemployment taxes and workers’ compensation payments. 63 64 For approximately thirty-five years, from October 20, 1978 until September 29, 2013, Section 65

1701.86 permitted the dissolving or merging corporation to proceed to dissolve or merge by 66 either (i) obtaining certifications of payment from the Ohio Department of Taxation and other 67

state agencies or (ii) providing notice to those agencies of the date of dissolution along with an 68 acknowledgment of the applicability of Section 1701.95 of the Ohio General Corporation Law 69

and filing an affidavit with the Ohio Secretary of State to that effect. This second approach, 70 the “notice and affidavit approach,” was commonly used over this period by Ohio businesses 71 and attorneys to remove the uncertainty and delay created by the need to wait for receipts 72 issued by various state agencies. While this approach permitted dissolution or merger without 73 a final payment receipt in hand, the state had, and continues to have, adequate guarantees of 74

payment of any outstanding obligations in the case of dissolutions as well as in mergers. In 75 the case of a dissolution, Section 1701.95 of the Ohio General Corporation Law provides that 76

the dissolving corporation’s directors are jointly and severally liable for obligations of the 77 dissolving corporation that are not paid or adequately reserved for in the plan of liquidation of 78 the corporation. In the case of a merger, or other conversion, with and into an entity that is not 79 registered in the State of Ohio, the successor entity, by operation of law, remains liable for all 80 the obligations and liabilities, including tax and other payment obligations to the state, 81 following the merger or conversion. 82

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83

Unfortunately, via an amendment included in the 2013 budget bill, this long-standing process 84 was changed to remove the notice and affidavit option with respect to the Ohio Department of 85 Taxation, having the result that a dissolving or merging Ohio corporation must obtain a tax 86

clearance certificate from the Ohio Department of Taxation before its dissolution or merger 87 can become effective. This means that a process that previously was very streamlined and 88 could be accomplished without regulatory delay can now be delayed as long as the Department 89 of Taxation takes to process a tax clearance request and finally issue a tax clearance certificate. 90 The Department of Taxation process is not quick and there is no required time period in which 91

the Department of Taxation must complete its work. As a result, a dissolution or merger can 92 be delayed for several weeks or longer, sometimes beyond a critical time deadline for those 93 involved in the transaction. The Department of Taxation indicates that they will try to process 94 requests within thirty days, but that is not required or assured. 95

96 Additionally, at present, without the proposed amendments, Ohio corporations and their 97

owners are subjected by the State of Ohio to a longer and more costly dissolution or merger 98 process than are out-of-state corporations (Section 1703.17) or even Ohio limited liability 99

companies (Section 1705.43) or Ohio taxable nonprofit corporations (Section 1702.47), none 100 of which are required to obtain tax clearance certificates prior to dissolution or merger. 101 Similarly, the current approach is inconsistent in its treatment of Ohio state agencies, allowing 102

the notice and affidavit approach for unemployment and workers’ compensation, but making 103 a special exception for the Department of Taxation. The current state of Ohio law in this area 104

provides an incentive for new corporations to be formed in states other than Ohio. 105 106 The proposed amendments to Section 1701.86 will restore the long-standing notice and 107

affidavit option used for dissolutions and mergers from 1978 to 2013. The amendments are a 108

return to a thirty-five year practice, not a novel or new approach. The amendments have the 109 potential to prevent unnecessary delays in time-sensitive corporate transactions, delays that 110 can sometimes have a detrimental financial impact on the owners of Ohio corporations. 111

112

Text of the Proposal 113 114 Section 1. That section 1701.86 of the Revised Code be amended to read as follows: 115

116 Sec. 1701.86. (A) A corporation may be dissolved voluntarily in the manner provided in this 117 section, provided the provisions of Chapter 1704. of the Revised Code do not prevent the 118 dissolution from being effected. 119 120

(B) A resolution of dissolution for a corporation shall set forth that the corporation elects to 121 be dissolved. The resolution also may include any of the following: 122

123 (1) The date on which the certificate of dissolution is to be filed or the conditions or events 124 that will result in the filing of the certificate; 125 126 (2) Authorization for the officers or directors to abandon the proposed dissolution before the 127 filing of the certificate of dissolution; 128

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129

(3) Any additional provision considered necessary with respect to the proposed dissolution 130 and winding up. 131 132

(C) If an initial stated capital is not set forth in the articles then before the corporation begins 133 business, or if an initial stated capital is set forth in the articles then before subscriptions to 134 shares shall have been received in the amount of that initial stated capital, the incorporators or 135 a majority of them may adopt, by a writing signed by each of them, a resolution of dissolution. 136 137

(D) The directors may adopt a resolution of dissolution in any of the following cases: 138 139 (1) When the corporation has been adjudged bankrupt or has made a general assignment for 140 the benefit of creditors; 141

142 (2) By leave of the court, when a receiver has been appointed in a general creditors' suit or in 143

any suit in which the affairs of the corporation are to be wound up; 144 145

(3) When substantially all of the assets have been sold at judicial sale or otherwise; 146 147 (4) When the articles have been canceled for failure to file annual franchise or excise tax 148

returns or for failure to pay franchise or excise taxes and the corporation has not been reinstated 149 or does not desire to be reinstated; 150

151 (5) When the period of existence of the corporation specified in its articles has expired. 152 153

(E) The shareholders at a meeting held for such purpose may adopt a resolution of dissolution 154

by the affirmative vote of the holders of shares entitling them to exercise two-thirds of the 155 voting power of the corporation on such proposal or, if the articles provide or permit, by the 156 affirmative vote of a greater or lesser proportion, though not less than a majority, of such voting 157

power, and by such affirmative vote of the holders of shares of any particular class as is 158 required by the articles. Notice of the meeting of the shareholders shall be given to all the 159

shareholders whether or not entitled to vote at it. 160 161

(F) Upon the adoption of a resolution of dissolution, a certificate shall be prepared, on a form 162 prescribed by the secretary of state, setting forth all of the following: 163 164 (1) The name of the corporation; 165 166

(2) A statement that a resolution of dissolution has been adopted; 167 168

(3) A statement of the manner of adoption of such resolution, and, in the case of its adoption 169 by the incorporators or directors, a statement of the basis for such adoption; 170 171 (4) The place in this state where its principal office is or is to be located; 172 173

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(5) The internet address of each domain name held or maintained by or on behalf of the 174

corporation; 175 176 (6) The name and address of its statutory agent; 177

178 (7) The date of dissolution, if other than the filing date. The date of dissolution shall not be 179 more than ninety days after the filing of the certificate of dissolution. 180 181 (G) When the resolution of dissolution is adopted by the incorporators, the certificate shall be 182

signed by not less than a majority of them. In all other cases, the certificate shall be signed by 183 any authorized officer, unless the officer fails to execute and file such certificate within thirty 184 days after the date upon which such certificate is to be filed. In that latter event, the certificate 185 of dissolution may be signed by any three shareholders or, if there are less than three 186

shareholders, all of the shareholders and shall set forth a statement that the persons signing the 187 certificate are shareholders and are filing the certificate because of the failure of the officers to 188

do so. 189 190

(H) Except as otherwise provided in division (I) of this section, a certificate of dissolution, 191 filed with the secretary of state, shall be accompanied by all of the following: 192 193

(1) An affidavit of one or more of the persons executing the certificate of dissolution or of an 194 officer of the corporation containing a statement of the counties, if any, in this state in which 195

the corporation has personal property or a statement that the corporation is of a type required 196 to pay personal property taxes to state authorities only; 197 198

(2) A certificate or other evidence from the department of taxation showing that the 199

corporation has paid all taxes administered by and required to be paid to the tax commissioner 200 that are or will be due from the corporation on the date of the dissolution or that the department 201 has received an adequate guarantee for the payment of all such taxes an affidavit of one or 202

more of the persons executing the certificate of dissolution or of an officer of the corporation 203 containing a statement that the corporation is not required to pay or the department of taxation 204

has not assessed any tax for which such a certificate or other evidence is not provided; 205 206

(3) A certificate or other evidence showing the payment of all personal property taxes accruing 207 up to the date of dissolution or showing that such payment has been adequately guaranteed, or 208 an affidavit of one or more of the persons executing the certificate of dissolution or of an officer 209 of the corporation containing a statement that the corporation is not required to pay or the 210 department of taxation has not assessed any tax for which such a certificate or other evidence 211

is not provided; 212 213

(4) A receipt, certificate, or other evidence from the director of job and family services 214 showing that all contributions due from the corporation as an employer have been paid, or that 215 such payment has been adequately guaranteed, or that the corporation is not subject to such 216 contributions; 217 218

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(5) A receipt, certificate, or other evidence from the bureau of workers' compensation showing 219

that all premiums due from the corporation as an employer have been paid, or that such 220 payment has been adequately guaranteed, or that the corporation is not subject to such premium 221 payments. 222

223 (I) In lieu of the receipt, certificate, or other evidence described in division (H) (2), (3), (4), or 224 (5) of this section, a certificate of dissolution may be accompanied by an affidavit of one or 225 more persons executing the certificate of dissolution or of an officer of the corporation 226 containing a statement of the date upon which the particular department, agency, or authority 227

was advised in writing of the scheduled effective date of the dissolution and was advised in 228 writing of the acknowledgment by the corporation of the applicability of the provisions of 229 section 1701.95 of the Revised Code. 230 231

(J) Upon the filing of a certificate of dissolution and such accompanying documents or on a 232 later date specified in the certificate that is not more than ninety days after the filing, the 233

corporation shall be dissolved. 234 235

Section 2. That existing section 1701.86 of the Revised Code is hereby repealed. 236 237

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31

REPORT OF THE ESTATE PLANNING, TRUST AND PROBATE LAW SECTION 238 239 To the Council of Delegates: 240 241

The Estate Planning, Trust and Probate Law (“EPTPL”) Section hereby respectfully requests 242 your favorable consideration of two legislative proposals, which may be summarized as 243 follows: 244 245

1. To amend Section 313.14 of the Ohio Revised Code to make it consistent and free 246

from conflict with the right of disposition statutes found in Sections 2108.70 to 247 2108.90 of the Ohio Revised Code. 248

249 2. To amend Section 2107.05 of the Ohio Revised Code to clarify the requirements for 250

incorporating the terms of a trust into a testator’s will. 251

252

253 254 PROPOSAL 1: TO AMEND OHIO LAW GOVERNING A CORONER’S 255

OBLIGATIONS OF NOTIFICATION TO MAKE IT CONSISTENT AND FREE OF 256 CONFLICT WITH THE LAW CONCERNING RIGHT OF DISPOSITION. 257

258

Summary and Rationale for Proposal: 259 260

Sections 2108.70 to 2108.90 of the Ohio Revised Code were added, effective October 12, 2006, 261 in order to assign to certain persons the right of disposition (burial or cremation) of a deceased 262

person’s body. Under Section 2108.72 of the Ohio Revised Code, a person, known as the 263 declarant, may sign a written declaration conferring such rights on another person upon the 264 declarant’s death. If there is no such declaration, or if all named persons are deceased or 265

otherwise unable to act, then there is a detailed statutory order of priority assigning the right 266 of disposition under Section 2108.81(B) of the Ohio Revised Code. 267 268 Section 313.14 of the Ohio Revised Code governs the duties of a coroner to notify certain 269 persons of possession of a deceased body. That statute was amended effective August 31, 270

2016 by House Bill 240 of the 131st General Assembly. The current proposal would update 271 the statute further by changing the persons given notice, and the persons to whom custody of 272 the body is released, from the decedent’s next of kin, other relatives or friends, to the person 273 assigned rights of disposition under Sections 2108.70 to 2108.90 of the Ohio Revised Code. 274

275 Sections 2108.70 to 2108.90 of the Ohio Revised Code provide specific detailed persons with 276 the right of disposition. Since this may or may not be the decedent’s next of kin, failure to 277 amend Section 313.14 of the Ohio Revised Code could create some lack of clarity or 278

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uncertainty. This is true because “next of kin” can be unclear or unknown in sufficient time. 279

More importantly, a conflict could arise where the coroner determines the next of kin to be a 280 certain person under existing Section 313.14 of the Ohio Revised Code, but another person 281 actually has the right of disposition under a written declaration. 282

283 The Section has communicated with and discussed this change with the Ohio State Coroners 284 Association, which has approved the final draft below. 285 286

Text of the Proposal: 287 288 313.14 289 290 (A) The coroner shall make a reasonable effort to notify any known relatives of a deceased 291

person who meets death in the manner described by section 313.12 of the Revised Code 292 by letter or otherwise. After the coroner has completed performance of the coroner’s 293

legal duties with respect to the body, the coroner shall return the body to the person 294 who has been assigned the rights of disposition for the deceased person under the 295

provisions of sections 2108.70 to 2108.90 of the Revised Code. The coroner shall make 296 a reasonable effort to determine said person's identity and notify said person. The next 297 of kin, other relatives, or friends of the deceased person, in the order named, shall have 298

prior right as to disposition of the body of such deceased person. If relatives of the 299 deceased are unknown, the coroner shall make a diligent effort to ascertain the next of 300

kin, other relatives, or friends of the deceased person. The coroner shall take charge 301 and possession of all moneys, clothing, and other valuable personal effects of such 302 deceased person, found in connection with or pertaining to such body, and shall store 303

such possessions in the county coroner's office or such other suitable place as is 304

provided for such storage by the board of county commissioners. If the coroner 305 considers it advisable, the coroner may, after taking adequate precautions for the 306 security of such possessions, store the possessions where the coroner finds them until 307

other storage space becomes available. 308 309

(B) In cases in which the cost of the burial is paid by the county, after using such of the 310 clothing as is necessary in the burial of the body, the coroner shall sell at public auction 311

the valuable personal effects of such deceased persons, found in connection with or 312 pertaining to the unclaimed dead body, except firearms, which shall be disposed of as 313 provided in division (C) of this section. The coroner shall make a verified inventory of 314 such effects and they shall be sold within eighteen months after burial, or after delivery 315 of such body in accordance with section 1713.34 of the Revised Code. All moneys 316

derived from such sale shall be deposited in the county treasury. A notice of such sale 317 shall be given in one newspaper of general circulation in the county, for five days in 318

succession, and the sale shall be held immediately thereafter. The cost of such 319 advertisement and notices shall be paid by the board upon the submission of a verified 320 statement therefor, certified to the coroner. 321

322 (C) If a firearm is included in the personal effects of a deceased person who meets death in 323

the manner described by section 313.12 of the Revised Code, the coroner shall deliver 324

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the firearm to the chief of police of the municipal corporation within which the body is 325

found, or to the sheriff of the county if the body is not found within a municipal 326 corporation. Upon delivery of the firearm to the chief of police or the sheriff, the chief 327 of police or sheriff shall give the coroner a receipt for the firearm that states the date of 328

delivery and an accurate description of the firearm. The firearm shall be used for 329 evidentiary purposes only. 330

331 The deceased person's next of kin or other relative may request that the firearm be given 332 to the next of kin or other relative once the firearm is no longer needed for evidentiary 333

purposes. The chief of police or the sheriff shall give the firearm to the next of kin or 334 other relative who requested the firearm only if the next of kin or other relative may 335 lawfully possess the firearm under applicable law of this state or the United States. The 336 chief of police or the sheriff shall keep a record identifying the next of kin or other 337

relative to whom the firearm is given, the date the firearm was given to the next of kin 338 or other relative, and an accurate description of the firearm. 339

340 If a next of kin or other relative does not request the firearm or is not entitled to possess 341

the firearm, the firearm shall be used at the discretion of the chief of police or the 342 sheriff. 343

344

(D) This section does not invalidate section 1713.34 of the Revised Code. 345 346

PROPOSAL 2: TO AMEND OHIO LAW TO CLARIFY THAT INCORPORATION 347 OF THE TERMS OF A WRITTEN TRUST INTO A TESTATOR’S WILL OCCURS 348

ONLY IF THE TESTATOR HAS PROVIDED CLEAR, EXPRESS INTENT TO DO SO 349 IN SUCH WILL, AND IN CASES WHERE SUCH INCORPORATION IS 350

CONDITIONED ON THE DETERMINATION THAT A BEQUEST OR DEVISE TO 351 THE TRUSTEE OF THE TRUST IS OTHERWISE INEFFECTIVE, TO EXTEND THE 352

DEADLINE FOR MAKING THE TERMS OF THE TRUST PART OF THE ESTATE 353 PROCEEDING. 354 355

Summary and Rationale for Proposal: 356 357 Section 2107.05 of the Ohio Revised Code is Ohio’s “incorporation by reference” statute. It 358 honors a testator’s incorporation into his will of external documents, books, records or 359 memoranda. Material incorporated into a will in this way becomes part of the testator’s will, 360 and property disposed of within the material becomes part of the testator’s probate estate. 361 Under the statute, the material is to be deposited in the probate court within thirty days after 362

the will is probated, or later if the court grants an extension for good cause shown. 363 364

Section 2107.63 of the Ohio Revised Code honors a testator’s devise or bequest to the trustee 365 of a written trust. Provisions devising a testator’s property to the trustee of a trust are generally 366 called “pourover” provisions. Under Section 2107.63, property passing in this way becomes 367 part of the trust estate, and is administered in accordance with the trust instrument. Until now, 368 it had been believed by practitioners that the trust instrument did not become part of the 369 testator’s will. 370

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371

In Gehrke v. Senkiw, 2016-Ohio-2657 (Ct. App.) (2016), the Second District Court of Appeals 372 altered practitioners’ long-standing beliefs. The court relied on Hageman v. Cleveland Trust 373 Company, 45 Ohio St. 2d 178 (1976), to hold that a standard “pourover” provision in a 374

testator’s will required the incorporation of the testator’s trust instrument into the testator’s 375 will. Incorporation of external material makes the material part of the testator’s will. 376 377 As a result, and because the Gehrke plaintiffs had not challenged the will within the three-378 month statute of limitations set forth in Section 2107.76 of the Ohio Revised Code, plaintiffs 379

were time-barred from challenging the trust instrument. Because the court concluded that the 380 testator had incorporated the trust instrument into his will, and the trust instrument therefore 381 became part of his will, the plaintiffs could not rely on Section 5806.04 of the Ohio Revised 382 Code which provides for a two-year (in some cases, six months) statute of limitations within 383

which to challenge an instrument creating or amending a revocable trust which was made 384 irrevocable at the settlor’s death. 385

386 These decisions create uncertainty for Ohio estate planners and probate litigators. The 387

decisions blurred the lines between language in a will that practitioners thought simply 388 distributed estate property to the trustee of a trust, per Section 2107.63 of the Ohio Revised 389 Code, and language in a will that incorporates the terms of a written trust into the will, per 390

Section 2107.05 of the Ohio Revised Code. 391 392

This uncertainty is troubling for litigators who want to be able to determine from the language 393 in testator’s will whether or not the testator’s trust instrument is incorporated by reference. If 394 the trust instrument is incorporated by reference, failure to challenge the will within the three-395

month statute of limitations will preclude a challenge to the trust. If the trust instrument is not 396

incorporated in settlor’s will by reference, the litigator may have the benefit of the longer 397 statute of limitation applicable to trusts under Section 5806.04 of the Ohio Revised Code. 398 399

This uncertainty is also troubling for estate planners who may find that they have inadvertently 400 incorporated the testator’s trust instrument into the testator’s will with what the planner 401

intended to be simply a pourover provision. Estate planners typically do not want to 402 incorporate the testator’s trust instrument and make it part of the testator’s will unless 403

necessary to save the disposition of the property under the terms of the trust. Frequently, wills 404 include language to incorporate the trust instrument contingent upon a determination that the 405 bequest or devise to the trustee of the trust would otherwise be ineffective. 406 407 An example of the language a testator might use is: 408

409 Example: I give my estate to the trustees then acting under my revocable trust 410

agreement under which I am the initial trustee, dated today. My estate shall be added 411 to the trust held under that agreement, and administered under its provisions in effect 412 at my death. If necessary to give effect to this gift, and not otherwise, the agreement as 413 it now exists is incorporated by reference.[From Bob Brucken, as published in the Ohio 414 Trust Code Manual, OSBA-CLE Reference Manual 14-157 at Sec 8:12]. 415

416

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The committee’s proposal leaves in place the current language of Section 2107.05 of the Ohio 417

Revised Code, now set forth in division (A), and adds new language by adding divisions (B), 418 (C), (D), and (E). 419 420

Division (B) of the proposal provides that a testator who incorporates a trust instrument into 421 the will only upon a determination that a bequest or devise to the trustee is otherwise ineffective 422 must deposit the trust with the probate court not later than thirty days after a final determination 423 that such bequest or devise would be otherwise ineffective. Without this addition, the testator 424 would be required to deposit the trust with the probate court within thirty days after the will is 425

probated pursuant to division (A) simply to protect against the possibility that the bequest or 426 devise was later ruled ineffective. Such an action would clearly compromise the privacy of 427 the trust. Therefore, the change allows the testator to protect the privacy of the trust if the trust 428 is not challenged, or challenged unsuccessfully, and eliminates an unintended trap for probate 429

attorneys where a trust is challenged, and the trust was not deposited with the court within the 430 thirty days after the will is probated. 431

432 Division (C) restores the distinction between the use of pourover language and language of 433

incorporation. If a testator intends to incorporate a trust as part of the will, or incorporate the 434 trust instrument only if the bequest or devise to the trust, the testator must do so by clear, 435 express language by use of “incorporate,” “made a part of,” or similar language. The typical 436

pourover language, by itself, is not sufficient cause the terms of the trust to be incorporated 437 into the will. 438

439 Division (D) applies divisions (B) and (C) to wills of testators dying on or after the effective 440 date of divisions (B) and (C). 441

442

Division (E), which is not intended to be codified, makes it clear that this Section is being 443 amended to reverse the holdings of Hageman and Gehrke. 444 445

Test of the Proposal: 446 447

2107.05 448 449

(A) An existing document, book, record, or memorandum may be incorporated in a will by 450 reference, if referred to as being in existence at the time the will is executed. That 451 document, book, record, or memorandum shall be deposited in the probate court when 452 the will is probated or within thirty days after the will is probated, unless the court 453 grants an extension of time for good cause shown. A copy may be substituted for the 454

original document, book, record, or memorandum if the copy is certified to be correct 455 by a person authorized to take acknowledgments. 456

457 (B) Notwithstanding division (A) of this section, if a will incorporates a trust instrument 458

only in the event a bequest or devise to the trust is ineffective, the trust instrument shall 459 be deposited in the probate court not later than thirty days after the final determination 460 that such bequest or devise is ineffective. 461

462

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(C) The testator’s will must manifest an intent to incorporate a trust instrument by reference 463

through the use of “incorporate,” “made a part of,” or similar language. Absent clear, 464 express intent, a trust instrument shall not be incorporated into or made a part of the 465 will. Language in the testator’s will that only identifies a trust shall not be sufficient to 466

manifest an intent to incorporate such trust instrument by reference. 467 468 (D) Divisions (B) and (C) of this section shall apply to wills of testators dying on or after 469

the effective date of said divisions (B) and (C). 470 471

(E) The purpose of amending this section is to reverse the holdings of the Ohio Supreme 472 Court in Hageman v. Cleveland Trust Company, 45 Ohio St. 2d 178 (1976) and the 473 Ohio Second District Court of Appeals in Gehrke v. Senkiw, 2016-Ohio-2657 (Ct. 474 App.) (2016). 475

476

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REPORT OF REAL PROPERTY LAW SECTION COUNCIL 477

478 To the Council of Delegates: 479 480

The Real Property Law Section Council respectfully requests your favorable consideration of 481 the following proposal: 482 483

To modify the Ohio Standards of Title Examination by amending Standard 2.1 dealing 484 with discovery of a defect in title that was previously examined by another and Standards 485

3.2, 3.3, 3.4, and 3.5 dealing with descriptions, delivery of deeds, creation of survivorship 486 estates and conveyances by partnerships. 487

488 Respectfully submitted, 489

490 John I. Cadwallader, Columbus 491

Chair 492 493

Rationale for Proposal 494 495 The Ohio Standards of Title Examination are prepared by the Real Property Law Section 496

Council of the Ohio State Bar Association, approved by the Council of Delegates, and 497 promulgated by the OSBA for the primary purpose of promoting uniformity of practice 498

pertaining to the marketability of title of real property in the State of Ohio. While not statutory, 499 these standards establish a custom and practice regarding the examination of title and 500 marketability of title based upon existing statutes and case law. This is done in the format of 501

a question, the answer to the question establishing the standard, and comments regarding the 502

standard. 503 504 The current version of Title Standard 2.1 deals with a current title examiner discovering a 505

matter that brings into question whether there is marketable title, when another attorney has 506 previously examined the title and has not objected to the possible defect. As before, the 507

standard encourages communication between the attorneys. Standard A of 2.1 has been 508 expanded and now includes reference to cooperation by the attorney being contacted. 509

510 Title Standard 3.2 addresses errors with respect to descriptions in deeds in the chain of title. 511 Beyond minor changes in word choices, the changes to this standard include an expansion of 512 Standard B to include acceptance of a suitable Affidavit from a person with personal 513 knowledge explaining a minor error, irregularity, or deficiency in a description. Comment B 514

adds the concept of a description being sufficient “to place the world on notice of the precise 515 real property that was intended to be conveyed.” Problem C has been added, in light of recent 516

court cases, to reflect that, if a deed includes multiple descriptions, the legal description would 517 be controlling over such other descriptions as a street address or parcel number. 518 519 Title Standard 3.3 addresses proof of delivery of deeds. It is subject to limited revisions for 520 the sake of clarity. The changes are basically ones of language. 521 522

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Title Standard 3.4 addresses the language necessary to create an estate with the right of 523

survivorship. Standard A has been amended to remove requirement of the phrase “his or her 524 heirs or assigns.” Examples of language that does not create an estate with right of survivorship 525 have also been eliminated. Problem B has been revised to take into account the possibility of 526

a survivorship deed with more than two grantees. 527 528 Title Standard 3.5 addresses conveyances by a partnership and evidence of authority to execute 529 conveyances on behalf of a partnership. Ohio’s adoption of the Revised Uniform Partnership 530 Act, or portions thereof, as applicable to transfer of partnership property and establishment of 531

partnership authority, and the basis for the proposed revisions. 532 533

Text of Proposal 534 535

OTS 2.1 536 537

2.1 EXAMINATION-—DISCOVERING DEFECT IN TITLE PREVIOUSLY 538

EXAMINED BY ANOTHER 539 540 Problem A: 541

542 When an attorney examines a title which he that is believed to be unmarketable or brings into 543 question whether there is a marketable record title, what steps should not be approved and he 544

knows that be taken if the attorney has knowledge that the same title has been examined by 545 another attorney has approved it, should he, and the examining attorney has not objected to the 546 defect? 547

548

Should the attorney communicate with the other attorney? 549 550 Standard A: 551

552 Yes, if practicable, it is recommended that the Attorney should communicate with the previous 553

examiner, explain the matter objected to and an opportunity should be afforded for discussion, 554 explanation, and correction. The attorney contacted should cooperate fully and promptly in 555

investigating his/her records and taking whatever steps are necessary to explain and/or correct 556 the title defect complained of. 557 558 (Effective as amended April 28, 2017; originally effective November 1, 1952) 559

560

3.2 CONVEYANCES-DESCRIPTIONS 561 562 Problem A: 563 564 Should an objection to the title be raised because one or more deeds in the chain of the title 565 contains an error with respect to the reference to the propercorrect plat book and plat book 566 page of platted land? 567 568

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Standard A: 569

570 If the deed refers to a subdivision by an exclusive descriptive name, an objection should not 571 be raised because of an error in the reference to the plat book and the plat book page where 572

saidthat subdivision is recorded. 573 574 (Effective November 1, 1952) 575 576 Problem B: 577

578 Should objection be made on account of minor typographical errors, irregularities or 579 deficiencies in a description of land? 580 581

Standard B: 582 583

Such an objection should not be made when a subsequent conveyance contains a correct 584 description. , or when the minor error, irregularity or deficiency is explained by a person with 585

personal knowledge in a suitable affidavit of facts related to title from a person with personal 586 knowledge pursuant to Revised Code Section 5301.252 (B)(4) or (5). 587 588

(Effective May 19, 1955) .) 589 590

Comment B: 591 592 Errors, irregularities and deficiencies in property descriptions in the chain of title do not impair 593

marketability unless, after all circumstances of record are taken into account, a substantial 594

uncertainty exists as to the land whichthat was conveyed or intended to be conveyed, or the 595 description falls beneath the minimal requirement of sufficiency and definiteness which is 596 essential to an effective conveyance. Lapse of time, subsequent conveyances, the 597

manifestobvious or typographical nature of errors or omissionomissions, accepted rules of 598 construction and other considerations should be relied upon to approve marginallydescriptions 599

that are sufficient or questionable descriptions. to place the world on notice of the precise real 600 property that was intended to be conveyed. 601

602 Problem C: 603 604 If multiple descriptions are provided in a deed, such as a street address, parcel number, and 605 legal description, then which description is controlling? 606

607 Standard C: 608

609 Legal description. 610 611 (Effective as amended April 28, 2017; and as amended and supplemented November 12, 1960; 612 originally effective May 19, 1955) 613 614

40

3.3 CONVEYANCES-DELIVERY 615 616 Problem A: 617 618

Should a title be considered unmarketable when it appears from the county records that the 619 grantor died before the deed was filed for record? 620 621 Standard A: 622 623

Yes, unless waived for lapse of time or unless there is satisfactory proof of delivery before 624 death. 625 626 An affidavit of the notary public or the witnesses, if any, of an attorney at law for a party in 627

the transaction, or of other responsible persons who were present at the time of delivery, setting 628 forth specific facts concerning sufficient to confirm the delivery of the deed to the named 629

grantee(s), should be deemed satisfactory proof if setting forth sufficient facts. . 630 631

Delivery should be presumed after the deed has been of record for twenty-one years, in the 632 absence of other facts raising a doubt. 633 634

Comment A: 635 636

See Kniebbe v. Wade, 161 Ohio St. 294, 118 N.E. 2d 833 (1954). This The Kniebbe case was 637 decided after the above standard was adopted. 638 639

(Effective as amended April 28, 2017; originally effective November 1, 1952; Comment A 640

added November 21, 1964.) 641 642

3.4 CONVEYANCES-SURVIVORSHIP 643 644 Problem A: 645

646 What language creates an estate with right of survivorship? 647

648 Standard A: 649 650 Where the operative words of a deed clearly express an intention to create the right of 651 survivorship, such expressed intention will be given effect and the survivor will take by force 652

of the terms of the grant. Upon the death of the other grantee or grantees, the survivor acquires 653 the entire estate, subject to the charge of death taxes. 654

655 A conveyance is sufficient to create an estate with right of survivorship when it contains "“to 656 A and B for their joint lives, remainder to the survivor of them, his or her heirs or assigns" or 657 the like.” or substantially similar language. To be sufficient the conveyance should contain 658 the names of the grantees and a reference that the survivor is entitled to the remainder. A 659 conveyance is not sufficient to create an estate with right of survivorship when it contains "“to 660

41

A or B"; "”; “to A or B, their heirs or assigns"; "”; “to A or B or his heirs and assigns"; "”; “to 661

A and B or the survivor";”; or the like. 662 663 Any deed or will containing language that shows a clear intent to create a survivorship tenancy 664

shall be liberally construed to do so. Use of the word "“or"” between the names of two or more 665 grantees or devisees does not by itself create a survivorship tenancy, but shall be construed and 666 interpreted as if the word "“and"” had been used between the names. (R.C. Sec. 5302.20) . 667 668 Comment A: 669

670 Revised Code Section 5302.20 became effective on April 4, 1983. 671 672 (Effective as amended November 11, 1989; originally adopted November 1, 1952, and 673

amended May 8, 1969) .) 674 675

Problem B: 676 677

What shall be sufficient proof of the first death of a grantee of a survivorship deed? when one 678 or more other grantees set forth in a survivorship deed remain alive? 679 680

Standard B: 681 682

A certificate of transfer as provided in Section 2113.61 under the Revised Code or an affidavit 683 accompanied by a certificate of death. For contents of the affidavit see Revised Code Section 684 5302.17. 685

686

Comment B: 687 688 For property affected by Revised Code Section 5309.09 (Torrenized Property) the procedure 689

for the transfer of the interest of the decedent shall be pursuant to Section 5309.081 of the 690 Revised Code. 691

692 Problem C: 693

694 Does subsequent incompetency of one or more of such owners alter the interests so created? 695 696 Standard C: 697 698

No. 699 700

Comment C: 701 702 The incident of survivorship is not destroyed. 703 704 (Effective November 15, 1969; replaces Problem C of May 21, 1953.) 705 706

42

Problem D: 707

708 What is the effect of a deed that contains the names of the grantees and a reference that the 709 survivor is entitled to the remainder that does notfailingnot failing to state the marital status of 710

the grantees when following the survivorship deed form that is set forth in Revised Code 711 Section 5302.17? 712 713 Standard D: 714 715

The failure to cite the grantees’ marital status when utilizing the form set forth in Revised Code 716 Section 5302.17 does not make the survivorship tenancy defective. 717 718 (Effective as amended April 28, 2017; originally effective November 15, 1969; replaces 719

Problem C of May 21, 1953) 720 721

3.5 CONVEYANCES-PARTNERSHIP 722

723 Problem A: 724 725 What should be required to show the authority of partners to execute conveyances inon behalf 726

of the partnership? 727 728

Standard A: 729 730 A conveyance from a partnership holding the title is sufficient if it recites that the partners 731

executing it are all the partners, in the absence of information to the contrary. When it does 732

not appear that all the partners executed the conveyance, satisfactory evidence of authority, 733 such as a resolution or a certified copy of a Statement of Partnership Authority pursuant to 734 1776.33(D)(2), should be required. Any such evidence of authority should be signed by all 735

the partners in order to be considered satisfactory. 736 737

Authority of the partner or partners executing the conveyance should be presumed after it has 738 been of record for five years. 739

740 Problem B: 741 742 Should an objection be made to the title because a deed to a partnership does not disclose that 743 the grantee is a partnership? 744

745 Standard B: 746

747 No, but if the partnership name does not contain the names of all of the partners, then a 748 fictitious name certificate must may be filed in any county where the partnership owns real 749 property. (Revised Code Section (R.C. § 1777.02) , former 1777.02 was repealed in 2010.) 750 751

43

(Effective as amended April 28, 2017; originally effective November 1, 1952; Standard B 752

amended 10/27/86; effective 11/15/86) 753 754

44


45

REPORT OF THE TAXATION LAW COMMITTEE 755 756 To the Council of Delegates: 757 758

The Taxation Law Committee respectfully requests your favorable consideration of the 759 following proposal: 760 761

To amend §5739.03 to provide that an exemption certificate is not required for employment 762 services if the services, by their nature, are such that they would never be subject to tax. 763

764 765 Respectfully submitted, 766 767

Richard B. Fry, III, Akron 768 Chair, Taxation Law Committee 769

770

Rationale 771 772 Vendors should be permitted to establish an employment service is not taxable when the nature 773 of the service is such that it is never taxable, without regard to whether the vendor obtained an 774

exemption certificate. This is necessary due to a recent amendment to R.C. 5739.03(B)(1)(a) 775 which requires the vendor to obtain an exemption certificate for services claimed to be exempt 776

under R.C. 5739.01(JJ)(1) to (5). However, there are many circumstances where such services 777 are clearly exempt from tax based upon the nature of the service and do not necessitate an 778 exemption certificate. For example, a vendor providing medical or health care personnel (R.C. 779

5739.01(JJ)(2)) or personnel to a member of an affiliated group (R.C. 5739.01(JJ)(4)) should 780

not be required to obtain an exemption certificate because these services, simply by their 781 nature, are never subject to tax. Likewise, if the service provider is not under the direct 782 supervision and control of the purchaser, these services are nontaxable without regard to 783

whether the consumer provides an exemption certificate. The proposed amendment would 784 ensure that, in these circumstances, the focus on establishing tax exemption is properly on the 785

nature of the service, not on whether the vendor obtained an exemption certificate. 786 787

Text of Proposal 788 789 5739.03 Consumer to pay tax - report of tax - exemption certificates. 790

791 (A) Except as provided in section 5739.05 or section 5739.05 of the Revised Code, the tax 792

imposed by or pursuant to section 5739.02, 5739.021, 5739.023, or 5739.026of the Revised 793 Code shall be paid by the consumer to the vendor, and each vendor shall collect from the 794

consumer, as a trustee for the state of Ohio, the full and exact amount of the tax payable on 795 each taxable sale, in the manner and at the times provided as follows: 796 797 (1) If the price is, at or prior to the provision of the service or the delivery of possession of the 798 thing sold to the consumer, paid in currency passed from hand to hand by the consumer or the 799

46

consumer's agent to the vendor or the vendor's agent, the vendor or the vendor's agent shall 800

collect the tax with and at the same time as the price; 801 802 (2) If the price is otherwise paid or to be paid, the vendor or the vendor's agent shall, at or prior 803

to the provision of the service or the delivery of possession of the thing sold to the consumer, 804 charge the tax imposed by or pursuant to section 5739.02, 5739.02, 5739.021. 579.023, 805 or 5739.026 of the Revised Code to the account of the consumer, which amount shall be 806 collected by the vendor from the consumer in addition to the price. Such sale shall be reported 807 on and the amount of the tax applicable thereto shall be remitted with the return for the period 808

in which the sale is made, and the amount of the tax shall become a legal charge in favor of 809 the vendor and against the consumer. 810 811 (B) (1)(a) If any sale is claimed to be exempt under division (E) of section 5739.01of the 812

Revised Code or under section 5739.02 of the Revised Code, with the exception of divisions 813 (B)(1) to (11) or (28) of section 5739.02 of the Revised Code, or if the consumer claims the 814

transaction is not a taxable sale due to one or more of the exclusions provided under divisions 815 (JJ)(1) to (5) of section 5739.01 of the Revised Code the consumer must provide to the vendor, 816

and the vendor must obtain from the consumer, a certificate specifying the reason that the sale 817 is not legally subject to the tax. The certificate shall be in such form, and shall be provided 818 either in a hard copy form or electronic form, as the tax commissioner prescribes. 819

820 (b) A vendor that obtains a fully completed exemption certificate from a consumer is relieved 821

of liability for collecting and remitting tax on any sale covered by that certificate. If it is 822 determined the exemption was improperly claimed, the consumer shall be liable for any tax 823 due on that sale under section 5739.02, 5739.021, 5739.023, or 5739.026 or Chapter 5741. of 824

the Revised Code. Relief under this division from liability does not apply to any of the 825

following: 826 827 (i) A vendor that fraudulently fails to collect tax; 828

829 (ii) A vendor that solicits consumers to participate in the unlawful claim of an exemption; 830

831 (iii) A vendor that accepts an exemption certificate from a consumer that claims an exemption 832

based on who purchases or who sells property or a service, when the subject of the transaction 833 sought to be covered by the exemption certificate is actually received by the consumer at a 834 location operated by the vendor in this state, and this state has posted to its web site an 835 exemption certificate form that clearly and affirmatively indicates that the claimed exemption 836 is not available in this state; 837

838 (iv) A vendor that accepts an exemption certificate from a consumer who claims a multiple 839

points of use exemption under division (D) of section 5739.033 of the Revised Code, if the 840 item purchased is tangible personal property, other than prewritten computer software. 841 842 (2) The vendor shall maintain records, including exemption certificates, of all sales on which 843 a consumer has claimed an exemption, and provide them to the tax commissioner on request. 844 845

47

(3) The tax commissioner may establish an identification system whereby the commissioner 846

issues an identification number to a consumer that is exempt from payment of the tax. The 847 consumer must present the number to the vendor, if any sale is claimed to be exempt as 848 provided in this section. 849

850 (4) If no certificate is provided or obtained within ninety days after the date on which such sale 851 is consummated, it shall be presumed that the tax applies. Failure to have so provided or 852 obtained a certificate shall not preclude a vendor, within one hundred twenty days after the tax 853 commissioner gives written notice of intent to levy an assessment, from either establishing that 854

the sale is not subject to the tax, or obtaining, in good faith, a fully completed exemption 855 certificate. 856 857 (5) Notwithstanding division (B)(1)(a) of section 5739.03 of the Revised Code, Ccertificates 858

need not be obtained nor provided where the identity of the consumer is such that the 859 transaction is never subject to the tax imposed or where the item of tangible personal property 860

sold or the service provided is never subject to the tax imposed, regardless of use, or when the 861 sale is in interstate commerce. 862

863 (6) If a transaction is claimed to be exempt under division (B)(13) of section 5739.02 of the 864 Revised Code, the contractor shall obtain certification of the claimed exemption from the 865

contractee. This certification shall be in addition to an exemption certificate provided by the 866 contractor to the vendor. A contractee that provides a certification under this division shall be 867

deemed to be the consumer of all items purchased by the contractor under the claim of 868 exemption, if it is subsequently determined that the exemption is not properly claimed. The 869 certification shall be in such form as the tax commissioner prescribes. 870

871

(C) As used in this division, "contractee" means a person who seeks to enter or enters into a 872 contract or agreement with a contractor or vendor for the construction of real property or for 873 the sale and installation onto real property of tangible personal property. 874

875 Any contractor or vendor may request from any contractee a certification of what portion of 876

the property to be transferred under such contract or agreement is to be incorporated into the 877 realty and what portion will retain its status as tangible personal property after installation is 878

completed. The contractor or vendor shall request the certification by certified mail delivered 879 to the contractee, return receipt requested. Upon receipt of such request and prior to entering 880 into the contract or agreement, the contractee shall provide to the contractor or vendor a 881 certification sufficiently detailed to enable the contractor or vendor to ascertain the resulting 882 classification of all materials purchased or fabricated by the contractor or vendor and 883

transferred to the contractee. This requirement applies to a contractee regardless of whether 884 the contractee holds a direct payment permit under section 5739.031 of the Revised Code or 885

provides to the contractor or vendor an exemption certificate as provided under this section. 886 887 For the purposes of the taxes levied by this chapter and Chapter 5741. of the Revised Code, 888 the contractor or vendor may in good faith rely on the contractee's certification. 889 Notwithstanding division (B) of section 5739.01 of the Revised Code, if the tax commissioner 890 determines that certain property certified by the contractee as tangible personal property 891

48

pursuant to this division is, in fact, real property, the contractee shall be considered to be the 892

consumer of all materials so incorporated into that real property and shall be liable for the 893 applicable tax, and the contractor or vendor shall be excused from any liability on those 894 materials. 895

896 If a contractee fails to provide such certification upon the request of the contractor or vendor, 897 the contractor or vendor shall comply with the provisions of this chapter and Chapter 5741. of 898 the Revised Code without the certification. If the tax commissioner determines that such 899 compliance has been performed in good faith and that certain property treated as tangible 900

personal property by the contractor or vendor is, in fact, real property, the contractee shall be 901 considered to be the consumer of all materials so incorporated into that real property and shall 902 be liable for the applicable tax, and the construction contractor or vendor shall be excused from 903 any liability on those materials. 904

905 This division does not apply to any contract or agreement where the tax commissioner 906

determines as a fact that a certification under this division was made solely on the decision or 907 advice of the contractor or vendor. 908

909 (D) Notwithstanding division (B) of section 5739.01 of the Revised Code, whenever the total 910 rate of tax imposed under this chapter is increased after the date after a construction contract 911

is entered into, the contractee shall reimburse the construction contractor for any additional tax 912 paid on tangible property consumed or services received pursuant to the contract. 913

914 (E) A vendor who files a petition for reassessment contesting the assessment of tax on sales 915 for which the vendor obtained no valid exemption certificates and for which the vendor failed 916

to establish that the sales were properly not subject to the tax during the one-hundred-twenty-917

day period allowed under division (B) of this section, may present to the tax commissioner 918 additional evidence to prove that the sales were properly subject to a claim of exception or 919 exemption. The vendor shall file such evidence within ninety days of the receipt by the vendor 920

of the notice of assessment, except that, upon application and for reasonable cause, the period 921 for submitting such evidence shall be extended thirty days. 922

923 The commissioner shall consider such additional evidence in reaching the final determination 924

on the assessment and petition for reassessment. 925 926 (F) Whenever a vendor refunds the price, minus any separately stated delivery charge, of an 927 item of tangible personal property on which the tax imposed under this chapter has been paid, 928 the vendor shall also refund the amount of tax paid, minus the amount of tax attributable to the 929

delivery charge. 930 931

49

REPORT OF THE MILITARY AND VETERANS’ AFFAIRS COMMITTEE 932 933 To the Council of Delegates 934 935 The Military and Veterans’ Law Committee respectfully requests your favorable consideration 936 of: 937 938

1. An amendment of Chapter 123 of the Ohio Revised Code adding a Veteran-Owned 939 Business preference to that chapter, modeled on the Minority Business Enterprise 940

language. 941 942 2. An amendment of Chapter 2901 of the Ohio Revised Code adding Post Traumatic 943

Stress Disorder (PTSD) as allowable testimony as it relates to a claim of self-944 defense to that chapter, modeled on the Battered Woman Syndrome provision in 945

O.R.C. § 2901.06. 946

947 Respectfully submitted, 948

949 Stephen T. Lynch, Cleveland 950

Co-Chair, Military and Veterans 951

Affairs Committee 952

953

Proposal 1: An amendment of Chapter 123 of the Ohio Revised Code adding a Veteran-954

Owned Business preference to that chapter, modeled on the Minority Business Enterprise 955 language. 956

957

Summary and Rationale for Proposal 958

959 Consistent with federal procurement policy, the amendment would add Section 123.154 to 960 require the Department of Administrative Services, the principal procurement agency for 961

the State, to write rules for a new category of State-recognized business entities, Veteran-962 Owned Small Businesses. The rationale is that those who have served the nation in the 963

armed forces deserve the assistance of the State of Ohio in growing the businesses they have 964 started since being discharged. 965

966


PROPOSED LANGUAGE FOR RC 123.154 969 970

(A) There are hereby created veteran-owned businesses. 971 972 (B) 973 974

(1) The Director of Administrative Services shall make rules in accordance with Chapter 975 119 of the Revised Code establishing procedures by which veteran-owned businesses 976 may apply to the Department of Administrative Services for certification as veteran-977

owned businesses. 978

50

979

(2) The Director shall approve the application of any veteran-owned business that 980 complies with the rules adopted under this division. Any person adversely affected by 981 an order of the Director denying certification as a veteran-owned business may appeal as 982

provided in Chapter 119 of the Revised Code. The Director shall prepare and maintain 983 a list of certified veteran-owned businesses and shall furnish that list to the Departments 984 of Commerce and Veterans’ Services. 985

986 (C) The Department of Administrative Services, every other State Agency authorized to enter 987

into contracts for purchases of equipment, materials, supplies, insurance, or services, and every 988 Port Authority, shall file compliance reports consistent with the rules published by the Director 989 of Administrative Services under this Section. 990 991

Proposal 2: An amendment of Chapter 2901 of the Ohio Revised Code adding Post 992 Traumatic Stress Disorder (PTSD) as allowable testimony as it relates to a claim of self-993

defense to that chapter, modeled on the Battered Woman Syndrome provision in O.R.C. 994

§ 2901.06. 995 996

Summary and Rationale for Proposal 997

998 Consistent with O.R.C. § 2901.06 addressing testimony regarding Battered Woman Syndrome 999 as evidence relevant to a claim of self-defense, the amendment would add Section 2901.061 1000

which would allow the more general use of Post Traumatic Stress Disorder (PTSD), of which 1001 Battered Woman Syndrome is a subcategory. The rationale is that those who have served the 1002 nation in the armed forces should not be barred from introducing their combat related PTSD 1003

when seeking to prove their state of mind when offering a self-defense claim. Ohio courts and 1004

attorneys need clarity in the law when presented with the question of whether PTSD testimony 1005 is allowed to prove a self-defense claim. 1006 1007

Text of Proposal 1008

1009

PROPOSED LANGUAGE for RC 2901.061 1010

1011

§ 2901.061 Post Traumatic Stress Disorder (PTSD) testimony as evidence relevant to claim 1012

of self-defense by current or former members of the Armed Forces of the United States 1013

who have served in combat. 1014

1015

(A) The general assembly hereby declares that it recognizes both of the following, in relation 1016

to the “Post Traumatic Stress Disorder” for persons who have served in combat as a member 1017 of the Armed Forces of the United States: 1018 1019

(1) That the Post Traumatic Stress Disorder syndrome currently is a matter of commonly 1020 accepted scientific knowledge; 1021

1022 (2) That the subject matter and details of the syndrome are not within the general 1023

understanding or experience of a person who is a member of the general populace and 1024

51

are not within the field of common knowledge. 1025

1026 (B) If a person who has served in combat as a member of the Armed Forces of the United 1027 States is charged with an offense involving the use of force against another and the person, as 1028

a defense to the offense charged, raises the affirmative defense of self-defense, the person may 1029 introduce expert testimony of the “Post Traumatic Stress Disorder” and expert testimony that 1030 the person suffered from that syndrome as a result of their combat experience. Said testimony 1031 may be introduced as evidence to establish the requisite belief of an imminent danger of death 1032 or great bodily harm that is necessary, as an element of the affirmative defense, to justify the 1033

person’s use of the force in question. The introduction of any expert testimony under this 1034 division shall be in accordance with the Ohio Rules of Evidence. 1035 1036 (C) Expert testimony of the “Post Traumatic Stress Disorder” under this section is allowed to 1037

prove an element of the affirmative defense of self-defense, in other words, it is allowed to 1038 prove a defendant’s state of mind. Expert testimony is not allowed to prove a defendant’s 1039

diminished capacity or lack of capacity to form mens rea. 1040

1041

52


53

REPORT OF THE WORKERS’ COMPENSATION LAW COMMITTEE 1042 1043 To the Council of Delegates 1044 1045

The Workers’ Compensation Law Committee respectfully requests your favorable 1046 consideration of the following proposed amendment: 1047 1048

To amend Section 4123.66 (A) to increase funeral expense benefits for workers' 1049 compensation death claims from fifty-five hundred dollars ($5,500) to ten thousand 1050

dollars ($10,000). 1051 1052 Respectfully submitted, 1053 1054

Barbara A. Knapic, Canton 1055 Chair, Workers’ Compensation Law Committee 1056

1057

Summary and Rationale of Proposal 1058 1059 The last modification for a funeral expense benefit for a death claim went into effect on 1060 September 10, 2007. The cap is currently fifty-five hundred dollars ($5,500) pursuant to R.C. 1061

4123.66 (A). Funeral costs have risen significantly in the past decade. The Workers' 1062 Compensation Law Committee unanimously voted to seek legislative action to increase the 1063

funeral expense benefit for workers' compensation death claims to more sufficiently cover the 1064 costs under the current economy. 1065 1066

Information obtained from the Ohio Funeral Directors Association shows the benefit currently 1067

being allowed does not cover the costs for traditional funeral and cremation services. The 1068 median cost even for a funeral with cremation is over the current funeral expense benefit under 1069 Ohio law for death claims. 1070

1071 The Committee recommends that the funeral expense benefit be increased to a maximum of 1072

ten thousand dollars ($10, 000). The ten thousand dollar ($10,000) amount recognizes the 1073 current economy and also provides for economic increases for funeral expenses in the future. 1074

An annual legislative amendment each year is not feasible so the ten thousand dollar ($10,000) 1075 recommendation takes into account the current economy and allows for expected increases for 1076 funeral expenses based on economic trends for the foreseeable future. 1077 1078


4123.66 Making additional payments for medical or funeral expenses. 1081

1082 (A) In addition to the compensation provided for in this chapter, the administrator of workers' 1083 compensation shall disburse and pay from the state insurance fund the amounts for medical, 1084 nurse, and hospital services and medicine as the administrator deems proper and, in case death 1085 ensues from the injury or occupational disease, the administrator shall disburse and pay from 1086 the fund reasonable funeral expenses in an amount not to exceed fifty-five hundred ten 1087

54

thousand dollars. The bureau of workers' compensation shall reimburse anyone, whether 1088

dependent, volunteer, or otherwise, who pays the funeral expenses of any employee whose 1089 death ensues from any injury or occupational disease as provided in this section. The 1090 administrator may adopt rules, with the advice and consent of the bureau of workers' 1091

compensation board of directors, with respect to furnishing medical, nurse, and hospital service 1092 and medicine to injured or disabled employees entitled thereto, and for the payment therefor. 1093 In case an injury or industrial accident that injures an employee also causes damage to the 1094 employee's eyeglasses, artificial teeth or other denture, or hearing aid, or in the event an injury 1095 or occupational disease makes it necessary or advisable to replace, repair, or adjust the same, 1096

the bureau shall disburse and pay a reasonable amount to repair or replace the same. 1097 1098 (B) The administrator, in the rules the administrator adopts pursuant to division (A) of this 1099 section, may adopt rules specifying the circumstances under which the bureau may make 1100

immediate payment for the first fill of prescription drugs for medical conditions identified in 1101 an application for compensation or benefits under section 4123.84 or 4123.85 of the Revised 1102

Code that occurs prior to the date the administrator issues an initial determination order under 1103 division (B) of section 4123.511 of the Revised Code. If the claim is ultimately disallowed in 1104

a final administrative or judicial order, and if the employer is a state fund employer who pays 1105 assessments into the surplus fund account created under section 4123.34 of the Revised Code, 1106 the payments for medical services made pursuant to this division for the first fill of prescription 1107

drugs shall be charged to and paid from the surplus fund account and not charged through the 1108 state insurance fund to the employer against whom the claim was filed. 1109

1110 (C) 1111 1112

(1) If an employer or a welfare plan has provided to or on behalf of an employee any benefits 1113

or compensation for an injury or occupational disease and that injury or occupational disease 1114 is determined compensable under this chapter, the employer or a welfare plan may request that 1115 the administrator reimburse the employer or welfare plan for the amount the employer or 1116

welfare plan paid to or on behalf of the employee in compensation or benefits. The 1117 administrator shall reimburse the employer or welfare plan for the compensation and benefits 1118

paid if, at the time the employer or welfare plan provides the benefits or compensation to or on 1119 behalf of employee, the injury or occupational disease had not been determined to be 1120

compensable under this chapter and if the employee was not receiving compensation or 1121 benefits under this chapter for that injury or occupational disease. The administrator shall 1122 reimburse the employer or welfare plan in the amount that the administrator would have paid 1123 to or on behalf of the employee under this chapter if the injury or occupational disease 1124 originally would have been determined compensable under this chapter. If the employer is a 1125

merit-rated employer, the administrator shall adjust the amount of premium next due from the 1126 employer according to the amount the administrator pays the employer. The administrator shall 1127

adopt rules, in accordance with Chapter 119. of the Revised Code, to implement this division. 1128 1129 (2) As used in this division, "welfare plan" has the same meaning as in division (1) of 29 1130 U.S.C.A. 1002. 1131 1132

55

COMMITTEE CONTACTS AND PRESENTERS

Board of Governors

Ronald S. Kopp, Esq.

Roetzel & Andress LPA

222 S. Main Street, Suite 400

Akron, OH 44308-1500

(330) 849-6644

[email protected]

Judge Howard Harcha, III

Scioto County Common Pleas Court

602 7th Street

Portsmouth, OH 45662-3948

(740) 355-8207

[email protected]

Corporation Law Committee

Jeffrey R. Wahl, Esq.

Squire Patton Boggs (US) LLP

41 S. High Street, Suite 2000

Columbus, OH 43215-6106

(614) 365-2700

[email protected]

Estate Planning, Trust and Probate Law Section

Roy A. Krall, Esq.

Cavitch Familo & Durkin Co., LPA

1300 E. Ninth Street, 20th Floor

Cleveland, OH 44114

(216) 472-4629

[email protected]

John F. Furniss, III, Esq.

Brickler & Eckler LLP

100 S. Third Street


(614) 227-8919

[email protected]

mailto:[email protected]





56

Real Property Law Section Council

John I. Cadwallader, Esq.

Frost Brown Todd LLC

10 W. Broad Street, Suite 2300


(614) 559-7212

[email protected]

Sheila Nolan Gartland, Esq.

Vorys Sater Seymour & Pease

52 E. Gay Street

Columbus, OH 43215

(614) 464-8225

[email protected]

John M. Liming, Esq.

Clemens Korhn Liming & Warncke Ltd

419 5th Street, Suite 2000

Defiance, OH 43512

(419) 782-6055

[email protected]

Taxation Law Committee

Richard B. Fry, III, Esq.

Buckingham, Doolittle & Burroughs, LLC

3800 Embassy Parkway, Suite 300

Akron, OH 44333-8398

(330) 376-5300

[email protected]

Military and Veterans Affairs Committee

Stephen T. Lynch, Esq.

U. S. Coast Guard

1240 E. 9th Street, Suite 2075

Cleveland, OH 44199

(216) 902-6042 [email protected]

[email protected]







57

Col. Duncan D. Aukland, Esq.

2825 W. Dublin-Granville Road

Worthington, OH 43235-2789

(614) 336-7475

[email protected]

Workers’ Compensation Law Committee

Barbara A. Knapic, Esq.

Morrow & Meyer LLC

4580 Stephen Circle NW, Suite 300

Canton, OH 44718

[email protected]

(330) 433-6000

Grace A. Szubski, Esq.

Garson Johnson LLC

101 W. Prospect Avenue, Ste. 1610

Cleveland, OH 44115

[email protected]

(216) 696-9330




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