OSBA’s legal assistance fund (LAF) supports school districts and political subdivisions that are defending legal challenges with the potential to affect public schools statewide. In one such LAF case, Buddenberg v. Weisdack, Slip Opinion No. 2020-Ohio-3832, the Ohio School Boards Association, Ohio Transit Risk Pool and County Risk Sharing Authority submitted a joint amicus brief on behalf of defendant-petitioners on December 3, 2018.  On July 29, 2020, the Supreme Court of Ohio issued its decision.

Buddenberg involved a civil rights case brought by Rebecca Buddenberg against her former public employer and several of its officials and employees. Buddenberg’s claims for civil liability were based on alleged violations of three state criminal statutes – retaliation, intimidation and interfering with civil rights.  Two questions that were certified by the federal court to the Supreme Court of Ohio in connection with Buddenberg’s claims. 

1.     Does R.C. 2307.60’s creation of a civil cause of action for injuries based on a “criminal act” require an underlying criminal conviction? 

2.     Is a criminal conviction a condition precedent to a civil claim pursuant to R.C. 2921.03? 

R.C. 2307.60(A)(1) states, “Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law [and] may recover the costs of maintaining the civil action and attorney’s fees.” R.C. 2921.03(A) describes the elements required for the criminal offense of intimidation, a third-degree felony. R.C. 2921.03(C) provides: “a person who violates this section is liable in a civil action to any person harmed by the violation for injury, death, or loss to person or property incurred as a result of the commission of the offense.”

The court agreed with Buddenberg for both questions stating, “that the plain language of the statute does not require proof of an underlying criminal conviction.” In answering both questions, the court noted that the word “conviction” is noticeably absent. The court further stated that both statutes permit the use of a conviction as evidence, but neither statute requires it. The court answered the certified state-law questions in the negative, which means that 2921.03(C) does not require criminal conviction as a prerequisite for civil liability.

 If you have questions about the case or its impact on Ohio’s school districts, please contact the OSBA division of legal services, 1-855-OSBA-LAW.

Posted by Ralph Lusher III on 7/31/2020