author: Per Curiam.

text:
    The STATE EX REL. ESPEN v. WOOD COUNTY BOARD OF ELECTIONS et al.
    No. 2017-1313
    Supreme Court of Ohio.
    Submitted October 11, 2017 Decided October 19, 2017
    McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, Derek S. Clinger, Columbus, and Ben F.C. Wallace, Cleveland, for relator.
    Paul A. Dobson, Wood County Prosecuting Attorney, and Linda F. Holmes and David T. Harold, Assistant Prosecuting Attorneys, for respondent.
    Terry J. Lodge, Toledo, for intervening respondents.
    Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes, Columbus, urging issuance of the writs for amici curiae, Affiliated Construction Trades Ohio Foundation, the Ohio Chamber of Commerce, and the American Petroleum Institute.
   Per Curiam.

{¶ 1} In this expedited election case, relator, David W. Espen, seeks a writ of mandamus and/or a writ of prohibition to compel respondent, the Wood County Board of Elections, to remove a charter amendment petition from the November 2017 ballot. We deny the writs.

Background and procedural motions

{¶ 2} On August 7, 2017, the city of Bowling Green received a petition proposing an amendment to the city charter adding a new Article I, Section 1.05, titled "Community Rights to a Healthy Environment and Livable Climate." On September 6, the Wood County Board of Elections certified the proposed amendment to the November 2017 ballot.

{¶ 3} Espen filed a letter of protest on September 11. The board held a hearing, and on September 19, issued a written decision overruling the protest.

{¶ 4} Espen filed the present expedited election complaint the same day. The board of elections filed an answer on September 25, 2017. On October 2, the board filed a motion for leave to file an amended answer, after noticing that its original answer had inadvertently admitted the factual averments in paragraph 21 of the complaint, which the board wished to deny. We grant that motion.

{¶ 5} The members of the Committee of Petitioners for the Bowling Green Charter Amendment, Lisa Kochheiser, Jennifer Karches, Joseph R. DeMare, and Bradley M. Holmes ("the committee"), filed an unopposed motion for leave to intervene, a proposed answer, and an amicus brief in support of the board of elections. We construe Civ.R. 24 liberally to permit intervention. State ex rel. Merrill v. Ohio Dept. of Natural Resources , 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41. Pursuant to Civ.R. 24(B)(2), we grant the motion to intervene and accept the amicus brief as the committee's brief on the merits.

Legal analysis

{¶ 6} Espen raised two issues in his protest before the board of elections. First, he challenged the validity of the petition, alleging that it exceeded the municipal powers of self-government set forth in the Ohio Constitution. And second, he alleged that the petition had insufficient valid signatures to qualify for the ballot because five signatures the board accepted should have been invalidated. After hearing testimony and reviewing documents, the board concluded that the five contested signatures were valid and that Espen had "presented no testimonial evidence to support his contention that the proposed Bowling Green Charter Amendment exceeded the scope of municipal initiative power."

{¶ 7} When reviewing a decision of a county board of elections, the standard is whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions. State ex rel. Jacquemin v. Union Cty. Bd. of Elections , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9.

1. The protest against the substance of the petition

{¶ 8} Ohio Constitution, Article XVIII, Section 3, provides that municipalities "have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." This authority is also extended to the people acting in their sovereign capacity: "The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action * * *." Ohio Constitution, Article II, Section 1f.

{¶ 9} A municipal ordinance created under the power of local self-government "must relate 'solely to the government and administration of the internal affairs of the municipality.' " In re Complaint of Reynoldsburg v. Columbus S. Power Co. , 134 Ohio St.3d 29, 2012-Ohio-5270, 979 N.E.2d 1229, ¶ 25, quoting Beachwood v. Cuyahoga Cty. Bd. of Elections , 167 Ohio St. 369, 148 N.E.2d 921 (1958), paragraph one of the syllabus. The limitations on municipal lawmaking in Article XVIII, Section 3 apply with equal force to municipal charter provisions. Ohio Constitution, Article XVIII, Section 7.

{¶ 10} Espen contended that the proposed charter amendment violates Article XVIII, Section 3 in at least four ways. Proposed Article I, Section 1.05(a) of the charter provides:

The people of the City of Bowling Green, and the natural communities and ecosystems in Bowling Green, possess the right to a healthy environment and livable climate. That right shall include the right to be free from new infrastructure for fossil fuel transportation within the City of Bowling Green or on property owned by the City of Bowling Green, except for infrastructure to transport fossil fuels to end-users within Wood County.

{¶ 11} Espen challenges this provision as a regulation of commerce that occurs outside Bowling Green's municipal boundaries and therefore beyond the city's authority to enact. Subpart (b) of the charter amendment provides: "City of Bowling Green law enforcement, and cooperating agencies acting within the jurisdiction of the City of Bowling Green, shall have no lawful authority to surveil, detain, arrest, or otherwise impede persons enforcing these rights."

{¶ 12} Espen further challenges this clause as a regulation of county, state, and federal law-enforcement officials, which Bowling Green is without authority to enact. And he opposes other sections of the charter amendment on the grounds that they purport to regulate the jurisdiction of the courts.

{¶ 13} However, the question before the court is not whether the proposed amendment would be constitutional if enacted, but whether the board of elections has the authority to make that determination. And in answer to that question, we have held:

The boards of elections * * * do not have authority to sit as arbiters of the legality or constitutionality of a ballot measure's substantive terms. An unconstitutional amendment may be a proper item for referendum or initiative. Such an amendment becomes void and unenforceable only when declared unconstitutional by a court of competent jurisdiction.

(Emphasis sic.)

State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections , 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 11.

{¶ 14} Our jurisprudence limiting the authority of board of elections to review the constitutionality of proposed measures rests squarely on separation-of-powers considerations. Youngstown at ¶ 11 (holding that decisions of constitutional interpretation belong to the courts, not the boards of elections). The separation of powers is "implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of powers granted to the three branches of state government." S. Euclid v. Jemison , 28 Ohio St.3d 157, 159, 503 N.E.2d 136 (1986).

{¶ 15} Contrary to the argument advanced by the parties, the statutory amendments made by 2016 Sub.H.B. No. 463 do not change this result. Newly enacted R.C. 3501.38(M)(1) requires county boards of elections to examine petitions to determine

(a) [w]hether the petition falls within the scope of a municipal political subdivision's authority to enact via initiative, including, if applicable, the limitations placed by Sections 3 and 7 of Article XVIII of the Ohio Constitution on the authority of municipal corporations to adopt local police, sanitary, and other similar regulations as are not in conflict with general laws, and whether the petition satisfies the statutory prerequisites to place the issue on the ballot. The petition shall be invalid if any portion of the petition is not within the initiative power * * *.

This attempt by the General Assembly to grant review power to the election boards violates the Constitution because " 'the administration of justice by the judicial branch of the government cannot be impeded by the other branches of the government in the exercise of their respective powers.' " State v. Bodyke , 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 45, quoting State ex rel. Johnston v. Taulbee , 66 Ohio St.2d 417, 423 N.E.2d 80 (1981), paragraph one of the syllabus. To the extent that R.C. 3501.38(M)(1)(a) authorizes and requires boards of elections to make substantive, preenactment legal evaluations, it violates the separation-of-powers doctrine and is unconstitutional.

{¶ 16} We agree with the board of elections that it had no authority to invalidate the charter petition based on a substantive evaluation of its legality, and we affirm the rejection of Espen's first protest argument.

2. The protest against the validity of the signatures

{¶ 17} Alternatively, Espen claimed that the petition failed to qualify for the ballot because in certifying the amendment proposal, the board verified five invalid signatures. To qualify for the ballot, the petition needed 714 valid signatures. The board of elections verified 715 signatures. Thus, if successful, Espen's protest would have left the petition with too few signatures.

{¶ 18} The challenge was based on R.C. 3501.38(C), which requires each signer of a part-petition to indicate the date of signing and the location of the signer's voting residence. "The voting address given on the petition shall be the address appearing in the registration records at the board of elections." R.C. 3501.38(C). A board of elections "may" disqualify a petition signature when the residence listed by the signer is not the same as the residence on file with the board for that signer. In re Protest Filed by Citizens for the Merit Selection of Judges, Inc. , 49 Ohio St.3d 102, 106, 551 N.E.2d 150 (1990).

{¶ 19} Espen identified five alleged mismatches:

• On their voter-registration forms, Kylor Kavahi, Cara Kalouris, and Sarah Wilmore each listed 1417 East Wooster Street as their residential address. But when they signed the petition, Kalouris and Wilmore wrote 1417 Bromfield, and Kavahi wrote 1417 Harshman Bromfield.
• Jacob Dyer registered at 522 Thurstin Street, but wrote "GT09-03 Kappa Sigma" as his address on the part-petition.
• Olivia Diehl registered at 311 Mercer Road, Apt. D336, but listed "Kreischer Darrow" on the petition as her address.

{¶ 20} However, the board of elections determined that in each case, the address on the petition was effectively the same as on the registration form. Terry Burton, deputy director of the board of elections, testified at the protest hearing that the addresses were the same. With respect to Kavahi, Kalouris, and Wilmore, Burton testified that 1417 is the street address, and Harshman Bromfield is the name of the dormitory. According to Burton, the board of elections treats both designations as denoting the same address:

Well, in the example of [Kavahi], she registered under the East Wooster Street address, and in our voter registration system, that is automatically converted to the Bromfield address. Our understanding is that those are equivalents in our system.
And so if they would have listed the Bromfield address in the voter registration system, we would have entered it there with the mailing address as being Wooster. If they register at the Wooster Street address, we list it as Bromfield with Wooster as the mailing address.

{¶ 21} The same is true of Dyer, who listed the name of his fraternity house instead of its street address on the petition, and Diehl, who listed her dorm room rather than its address.

{¶ 22} In treating the two designations as synonymous, the board of elections was following the directions of the secretary of state, who has instructed the boards of elections not to disqualify every apparent mismatch:

If an elector's address given on the petition differs from that on file with the board, then the board must invalidate that signature unless the signer has provided the elector's residence information in a format that is consistent with postal regulations as opposed to the political subdivision on file with the board of elections (e.g., writing "Columbus" as the city when the elector's political subdivision is "Perry Township"). A board must not reject a signature solely based on this difference.

(Emphasis sic.) Ohio Secretary of State Directive 2017-15 (Aug. 8, 2017), see Ohio Election Official Manual, Chapter 11, Section 1.05(C). The secretary's directive is consistent with the purpose of R.C. 3501.38, which is "to enable the board of elections to determine whether a signer of the petition timely signed the petition and is a registered voter." Blackmore v. Nasal , 74 Ohio App.3d 382, 383-384, 599 N.E.2d 298 (2d Dist.1991).

{¶ 23} When the secretary of state, as the state's chief election officer, has adopted a reasonable construction of an elections statute, this court must defer to that interpretation. State ex rel. Colvin v. Brunner , 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 57. The board of elections has verified that the five contested signatures came from registered electors. We see no reason to disenfranchise those voters for using a different designation of their residential addresses when that designation is the equivalent of the street address listed on their registration forms.

{¶ 24} We affirm the board of elections' decision rejecting Espen's second protest argument.

Conclusion

{¶ 25} Because we find that Espen's protest had no merit, we deem it unnecessary to address the committee's procedural objections to the protest and this lawsuit. We hereby deny the petitions for writs of mandamus and prohibition.

Writs denied.

O'Connor, C.J., and O'Neill and Fischer, JJ., concur.

O'Donnell, J., concurs in judgment only.

French, J., concurs in part and dissents in part, with an opinion joined by Kennedy and DeWine, JJ.

{¶ 26} I concur in the majority's decision to grant the motions for leave to file an amended answer and for leave to intervene. With respect to the merits, however, I respectfully dissent and would grant a writ of mandamus compelling respondent, the Wood County Board of Elections, to remove the charter-amendment petition from the November 2017 ballot based on the lack of sufficient signatures.

{¶ 27} Relator, David W. Espen, raised two issues in his unsuccessful protest. First, he argued that the petition did not include a sufficient number of valid signatures to qualify for the ballot. He specifically identified five signatures that he claims the board was legally required to invalidate. Second, Espen argued that the petition exceeded the municipal powers of self-government as set forth in the Ohio Constitution. I agree with Espen that the petition was procedurally defective because it lacked a sufficient number of valid signatures to qualify for the ballot.

{¶ 28} To qualify for the ballot, the petition required 714 valid signatures. The board verified as valid 715 of the 1,230 signatures submitted. Espen challenged five of the verified signatures as invalid under R.C. 3501.38(C). He contends that the board had a legal duty to invalidate those signatures.

{¶ 29} When this court reviews a board of elections' decision, the standard is whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal principles. State ex rel. Jacquemin v. Union Cty. Bd. of Elections , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9.

{¶ 30} R.C. 3501.38 prescribes rules governing petitions presented to a board of elections and includes specific requirements applicable to petition signers. For example, R.C. 3501.38(A) provides that only electors qualified to vote on the subject of a petition may sign the petition. R.C. 3501.38(C) states:

Each signer shall place on the petition after the signer's name * * * the location of the signer's voting residence, including the street and number if in a municipal corporation or the rural route number, post office address, or township if outside a municipal corporation. The voting address given on the petition shall be the address appearing in the registration records at the board of elections.

R.C. 3501.38(C) thus contains two requirements. First, if the residence is in a municipal corporation, each signer must identify his or her voting residence by street name and number. Second, the voting address listed on the petition must be the same as the address that appears in the board's voter-registration records.

{¶ 31} "[S]trict compliance is the default for election laws and * * * that standard is lowered only when the statutory provision at issue expressly states that it is." State ex rel. Linnabary v. Husted , 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 40. " R.C. 3501.38(C) does not permit substantial compliance * * *." State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections , 65 Ohio St.3d 167, 169, 602 N.E.2d 615 (1992). The board does not dispute that R.C. 3501.38(C) requires strict compliance.

{¶ 32} Espen's protest stated that the signatures of Kylor C. Kavahi, Cara C. Kalouris, Sarah C. Wilmore, Jacob L. Dyer, and Olivia K. Diehl are accompanied by addresses that do not match the addresses appearing on their voter-registration records. On their voter-registration forms, Kavahi, Kalouris, and Wilmore each listed their address as 1417 East Wooster Street. But when they signed the petition, which expressly asked for "VOTING RESIDENCE ADDRESS STREET AND NUMBER," Kavahi wrote "1417 Harshman Bromfield," and Kalouris and Wilmore wrote "1417 Bromfield." Dyer's voter-registration lists an address of 522 Thurstin Street, but on the petition Dyer wrote "GT09-03 Kappa Sigma" as his address. Diehl's voter registration lists an address of 311 North Mercer Road, but on the petition she listed simply "Kreischer Darrow" as her address. Facially, none of the addresses accompanying the challenged petition signatures match the corresponding addresses in the board's voter-registration records.

{¶ 33} Despite its acknowledgment that strict compliance with R.C. 3501.38(C) is required, the board argues that this court has afforded boards of election discretion to validate a signature despite noncompliance with that statute. In re Protest Filed by Citizens for Merit Selection of Judges, Inc. , 49 Ohio St.3d 102, 103, 551 N.E.2d 150 (1990), presented the question "whether a board of elections may disqualify a signature on an initiative petition * * * where the residence indicated by a signer is not the same as the residence on record with the board of elections for said signer." We answered that question in the affirmative. Id. at 106, 551 N.E.2d 150.

{¶ 34} The board cites In re Protest for the proposition that it has discretion to determine whether to invalidate a signature based on a discrepancy between the address listed on the petition and the address listed on the signer's voter registration. But In re Protest did not address whether disqualification by the board was mandatory or discretionary. There, the board of elections had rejected 9,100 signatures because of discrepancies between the addresses on the petition and the addresses in the voter-registration records. With our holding, this court merely approved the board's action. We were not required to determine whether the board would have had discretion to approve the challenged signatures, because it had already disqualified them.

{¶ 35} In support of its validation of the challenged signatures, the board relies on Ohio Secretary of State Directive 2017-15 (Aug. 8, 2017), see Ohio Election Official Manual, Chapter 11, Section 1.05(C), found at https://www.sos.state.oh.us/globalassets/elections/directives/2017/dir2017-15_eom_ch_11.pdf. It states:

If an elector's address given on the petition differs from that on file with the board, then the board must invalidate that signature unless the signer has provided the elector's residence information in a format that is consistent with postal regulations as opposed to the political subdivision on file with the board of elections (e.g., writing "Columbus" as the city when the elector's political subdivision is "Perry Township"). A board must not reject a signature solely based on this difference.

(Emphasis sic.) Id. at 11-13 to 11-14. Immediately prior to that language, however, the same manual incorporates the first requirement of R.C. 3501.38(C), that "[t]he petition must contain the elector's voting residence address, including the house number and street name or Rural Free Delivery (RFD) number, and the appropriate city, village, or township." (Emphasis added.) Id. at 11-13.

{¶ 36} The board contends that the challenged signatures fall within the Election Official Manual's postal-regulation exception because the street addresses listed for the signers in the voter-registration records are the street addresses for the residence halls and/or fraternity houses that the signers identified as their addresses on the petition. Terry Burton, the deputy director of the board, testified at the protest hearing, "Our understanding is that those are equivalents in our system."

{¶ 37} The postal-regulation exception does not apply here. The exception directs a board of elections to overlook the difference between an address on a petition and the signer's address on the voter register only if the address on the petition "is consistent with postal regulations as opposed to the political subdivision on file with the board of elections (e.g., writing 'Columbus' as the city when the elector's political subdivision is 'Perry Township.' " (Emphasis added.) Id. at 11-13 to 11-14. The exception excuses only differences between the city, village, or township listed on the petition and the political subdivision listed on the voting-registration records. It does not excuse a difference between the street number and street name on the petition and the voter register, and it does not excuse a failure to list any street number or street name. Because the postal-regulation exception is inapplicable, the Election Official Manual required the board to invalidate the challenged signature.

{¶ 38} Even if the board were able to determine that the information the signers provided on the petition identifies the same residences as the addresses listed in the board's voting records, that equivalence does not cure the statutory defect. Both R.C. 3501.38(C) and the Election Official Manual require that a petition contain the elector's voting-residence address, including the house number and street name. None of the challenged signatures were accompanied by an address that included both a street number and a valid street name. And nothing in the Election Official Manual suggests that a board of elections may validate a signature accompanied by a disparate address that does not comply with the statute in that regard.

{¶ 39} In State ex rel. Citizens for Responsible Taxation , 65 Ohio St.3d at 169, 602 N.E.2d 615, the board of elections rejected the signatures of petition signers who listed post-office boxes instead of voting-residence addresses even though the board had information from which it could have otherwise confirmed the signatures' validity. Id. at 170, 602 N.E.2d 615. The board explained that the secretary of state had instructed it not to count signatures that provided only a post-office box as an address. Id. Citing R.C. 3501.11(P), which requires boards of elections to perform the duties prescribed by law or by the rules of the secretary of state, we held that the board had a duty to follow the secretary of state's instruction, absent a showing that the order had no statutory basis. Id. at 170-171, 602 N.E.2d 615. Here, the Election Official Manual published by the secretary of state required the board to invalidate the five challenged signatures because the accompanying addresses on the petition differed from those on file with the board, and the postal-regulation exception did not apply. I therefore conclude that the board abused its discretion and acted in clear disregard of applicable legal principles in validating the challenged signatures.

{¶ 40} Without the challenged signatures, the petition does not have the requisite number of valid signatures to be submitted to the ballot. I would therefore grant a writ of mandamus ordering the board to remove the proposed amendment from the November 2017 general-election ballot.

Kennedy and DeWine, JJ., concur in the foregoing opinion.

      Espen also alleges that subpart (b) of the amendment is defective because it is administrative in nature. In State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections , 148 Ohio St.3d 176, 2016-Ohio-5919, 69 N.E.3d 696, we upheld the decision of a board of elections refusing to place a measure on the ballot "[b]ecause a significant portion of the proposed ordinance [was] administrative." (Emphasis added.) Id . at ¶ 20. Unlike the ordinance at issue in Sensible Norwood , the current proposal cannot fairly be characterized as administrative when considered in its totality.

      Other provisions enacted as part of 2016 Sub.H.B. No. 463, such as R.C. 3501.11(K)(2), are not implicated in this case, because they relate exclusively to the adoption of county charter amendments.

      https://www.sos.state.oh.us/globalassets/elections/directives/2017/dir2017-15_eom_ch_11.pdf.


source: Caselaw Access Project

author: Kennedy, J.

license: Public Domain

text:
    ELLIOTT-THOMAS, Appellee, v. SMITH et al., Appellants.
    No. 2017-0693
    Supreme Court of Ohio.
    Submitted January 25, 2018 Decided May 8, 2018
    Consolo Law Firm, Co., L.P.A., and Frank Consolo, Cleveland, for appellee.
    Reminger Co., L.P.A., Martin T. Galvin, and Jonathan H. Krol, Cleveland, for appellants.
    Willis & Willis Attorneys, Co., L.P.A., and Jason E. Starling, Akron, urging affirmance for amicus curiae Ohio Association for Justice.
    Elfvin, Klingshirn, Royer & Torch, L.L.C., and Christina M. Royer, urging affirmance for amicus curiae Ohio Employment Lawyers Association.
   Kennedy, J.

{¶ 1} The Eleventh District Court of Appeals determined that its judgment in this case conflicts with judgments of the Fourth, Fifth, and Eighth District Courts of Appeals, and it certified the issue in conflict as follows:

"Does the tort of intentional interference with or destruction of evidence include claims alleging interference with or concealment of evidence that disrupt a plaintiff's underlying case? Or, is the tort of intentional interference with or destruction of evidence limited to claims that allege evidence is physically altered or destroyed?"

150 Ohio St.3d 1406, 2017-Ohio-6964, 78 N.E.3d 907, quoting 11th Dist. Trumbull No. 2015-T-0007 (May 4, 2017). We agreed that a conflict exists and accepted this matter for review. Id.

{¶ 2} As the questions are framed by the appellate court, resolution of one resolves the other. We answer the first question in the negative, and therefore, we need not address the second question. We reverse the judgment of the Eleventh District Court of Appeals and reinstate the judgment of the trial court.

Facts and Procedural History

{¶ 3} In August 2012, appellee, Kristen Elliott-Thomas, filed an action against the Warren City School District, its board of education, and five board members (collectively, "school defendants") alleging wrongful termination and sex discrimination ("wrongful-termination case"). Appellants, David Kane Smith and David Hirt, are attorneys who represented the school defendants in the wrongful-termination case.

{¶ 4} While the wrongful-termination case was pending, Elliott-Thomas filed the instant action against Smith, Hirt, and two members of the school board, alleging intentional spoliation of evidence. Specifically, she contends that Smith and Hirt intentionally withheld, hid, altered, and/or destroyed evidence relevant to her wrongful-termination case.

{¶ 5} The parties filed cross-motions for summary judgment. The trial court granted judgment in favor of Smith and Hirt, finding that Elliott-Thomas's claim for intentional spoliation of evidence failed because she was unable to establish that either Smith or Hirt had physically destroyed evidence. Instead, the trial court determined that the allegations amounted to discovery disputes arising from the wrongful-termination case.

{¶ 6} Elliott-Thomas appealed. The appellate court reversed, concluding that to establish a viable spoliation claim, a plaintiff need not present evidence of "actual destruction or alteration of physical evidence * * *. Instead, the intentional concealment, interference with, or misrepresentation of evidence is sufficient * * *." 2017-Ohio-702, 79 N.E.3d 606, ¶ 35.

{¶ 7} Smith and Hirt then filed a motion to certify a conflict with the Fifth District's judgment in Allstate Ins. Co. v. Qed Consultants, Inc. , 5th Dist. Knox No. 09CA14, 2009-Ohio-4896, 2009 WL 2973503 ; the Eighth District's judgments in O'Brien v. Olmsted Falls , 8th Dist. Cuyahoga Nos. 89966 and 90336, 2008-Ohio-2658, 2008 WL 2252527, and Bugg v. Am. Std., Inc. , 8th Dist. Cuyahoga No. 84829, 2005-Ohio-2613, 2005 WL 1245043 ; and the Fourth District's judgment in McGuire v. Draper, Hollenbaugh & Briscoe Co., L.P.A. , 4th Dist. Highland No. 01CA21, 2002-Ohio-6170, 2002 WL 31521750. The appellate court granted the motion.

{¶ 8} We recognized the conflict. 150 Ohio St.3d 1406, 2017-Ohio-6964, 78 N.E.3d 907.

Analysis

{¶ 9} Smith and Hirt argue that the appellate court erred in reversing the trial court's grant of summary judgment in their favor. The trial court's judgment was based on its holding that the independent tort of spoliation of evidence does not include claims alleging intentional concealment of or interference with evidence.

We review de novo cases involving a grant of summary judgment. Dayton v. State , 151 Ohio St.3d 168, 2017-Ohio-6909, 87 N.E.3d 176, ¶ 12.

{¶ 10} Ohio is among only a handful of jurisdictions that recognize the independent tort of intentional spoliation of evidence. See Smith v. Howard Johnson Co., Inc. , 67 Ohio St.3d 28, 29, 615 N.E.2d 1037 (1993) ; see also Hannah v. Heeter , 213 W.Va. 704, 707-708, 584 S.E.2d 560 (2003) ; Oliver v. Stimson Lumber Co. , 297 Mont. 336, 1999 MT 328, 993 P.2d 11, ¶ 33-40 ; Coleman v. Eddy Potash, Inc. , 120 N.M. 645, 649, 905 P.2d 185 (1995), overruled on other grounds , Delgado v. Phelps Dodge Chino, Inc. , 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148 ; Hazen v. Anchorage , 718 P.2d 456, 463 (Alaska 1986). In Smith, we established that the tort has five elements: "(1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages proximately caused by the defendant's acts." Id. at 29, 615 N.E.2d 1037.

{¶ 11} Elliott-Thomas acknowledges that in Smith , this court described the tort as requiring the "willful destruction of evidence," but she argues that a close examination of Smith reveals that the court did not limit the cause of action to the physical destruction of evidence. Instead, she contends, the court intended the tort to encompass intentional concealment and interference. In support of this argument, Elliott-Thomas points to Smith 's citation of Viviano v. CBS, Inc. , 251 N.J.Super. 113, 597 A.2d 543 (1991) ; she also points to this court's opinion in Davis v. Wal-Mart Stores, Inc. , 93 Ohio St.3d 488, 756 N.E.2d 657 (2001). However, neither case supports Elliott-Thomas's position.

{¶ 12} In Viviano , the New Jersey Superior Court, Appellate Division, found compensable the plaintiff's claim that the defendants had fraudulently concealed evidence that was material to an action that the plaintiff was pursing against third parties for work-related injuries. Id. at 126-127, 597 A.2d 543. The Viviano court first set out the elements of a claim for destruction of evidence, then recognized that the claim before it for concealment of evidence was "analogous to" an action for destruction of evidence. Id. at 125-126, 597 A.2d 543 ("If 'concealment of evidence' is substituted for 'destruction of evidence,' all of those elements * * * are amply supported by the evidence"). However, we are not convinced that Smith cited Viviano for anything more than the elements of an action for destruction of evidence. See Smith at 29, 615 N.E.2d 1037, citing Viviano at 126, 597 A.2d 543.

{¶ 13} In Davis , the plaintiff alleged that the defendant "had withheld certain evidence and documents and that several [of the defendant's] employees * * * had provided false or misleading testimony during their depositions" in an underlying case. Id. at 489, 756 N.E.2d 657. But the Davis court was considering only the narrow issue of whether the plaintiff's intentional-spoliation-of-evidence action was barred by res judicata. Id. In concluding that it was not, the court did not explicitly hold that the tort applied to interference with or concealment of evidence. Id. at 489-491, 756 N.E.2d 657.

{¶ 14} As demonstrated by the appellate court's certification of a conflict, several Ohio appellate districts have concluded that the tort of intentional spoliation does not include claims alleging intentional concealment of or interference with evidence. Additionally, none of our sister state supreme courts that recognize the independent tort has so defined the action. The Supreme Court of Alaska stated,

Intentional spoliation is not the appropriate cause of action when evidence is concealed, but not destroyed, because late-produced evidence-even evidence produced after the entry of judgment-can still be presented to the fact finder for a ruling on the merits. And trials on the merits are most consistent with the truth-seeking function of the court.

Allstate Ins. Co. v. Dooley , 243 P.3d 197, 203 (Alaska 2010).

{¶ 15} Most states have declined to adopt a cause of action for intentional spoliation of evidence. See Goff v. Harold Ives Trucking Co. , 342 Ark. 143, 150, 27 S.W.3d 387 (2000) ; Trevino v. Ortega , 41 Tex.Sup.Ct.J. 907, 969 S.W.2d 950, 951-953 (1998) ; Monsanto Co. v. Reed , 950 S.W.2d 811, 815 (Ky.1997) ; Brown v. Hamid , 856 S.W.2d 51, 56 (Mo.1993) ; Koplin v. Rosel Well Perforators, Inc. , 241 Kan. 206, 215, 734 P.2d 1177 (1987) ; La Raia v. Maricopa Cty. Superior Court , 150 Ariz. 118, 121, 722 P.2d 286 (1986) ; Murphy v. Target Prods. , 580 N.E.2d 687, 690 (Ind.App.1991) ; Miller v. Montgomery Cty. , 64 Md.App. 202, 214, 494 A.2d 761 (1985). It is notable that California, the state in which the intentional-spoliation-of-evidence action found its beginnings, see Smith v. Los Angeles Cty. Superior Court , 151 Cal.App.3d 491, 495-503, 198 Cal.Rptr. 829 (1984), changed course and no longer recognizes that tort, deciding to rely instead on traditional remedies, see Cedars-Sinai Med. Ctr. v. Los Angeles Cty. Superior Court , 18 Cal.4th 1, 8-17, 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998). As the viability of the tort is not an issue currently before us, we do not go that far today. Nevertheless, the reasons and principles discussed by these courts guide our decision to reject an expansion of the tort of intentional spoliation of evidence to encompass allegations of intentional concealment of or interference with evidence.

{¶ 16} One consideration that supports our decision is the existence of other adequate remedies to deter and punish interference with and concealment of evidence by parties and counsel. Civ.R. 37 provides trial courts with broad discretion to impose sanctions upon a party who violates the rules governing the discovery process. See Toney v. Berkemer , 6 Ohio St.3d 455, 458, 453 N.E.2d 700 (1983). Abuse of the discovery process is also deterred by the ethical obligations placed upon legal counsel, see Prof.Cond.R. 3.3 and 3.4, and attorney-disciplinary sanctions, see Gov.Bar R. V. Accord Dooley at 203 ; Trevino at 953 ; Cedars-Sinai at 8-13, 74 Cal.Rptr.2d 248, 954 P.2d 511.

{¶ 17} Another consideration contributing to our decision to reject an expansion of the spoliation tort is the speculative nature of the harm arising from interference with or concealment of evidence and the speculative nature of any alleged resulting damages. See Cedars-Sinai at 13-14, 74 Cal.Rptr.2d 248, 954 P.2d 511 (harm); Koplin at 215, 734 P.2d 1177 (damages); Trevino at 952 (damages). A jury would have difficulty meaningfully assessing the harm done to the underlying action when evidence has been interfered with or concealed. "The jury could only speculate as to what * * * effect [the evidence] might have had on the outcome of the underlying litigation." Cedars-Sinai at 14, 74 Cal.Rptr.2d 248, 954 P.2d 511. And a jury would find assessing damages problematic "because evidence spoliation tips the balance in a lawsuit; it does not create damages amenable to monetary compensation." Trevino at 952-953.

{¶ 18} We must also recognize the additional burden that would be placed upon courts if we were to recognize a cause of action for interfering with or concealing evidence. As this action demonstrates, extending the scope of the tort would result in more supplemental proceedings requiring presentation of evidence from underlying litigation in order for juries to determine the harm suffered by plaintiffs. See Cedars-Sinai , 18 Cal.4th at 16, 74 Cal.Rptr.2d 248, 954 P.2d 511. Such duplication of effort runs counter to the interests of judicial economy.

While the law must adjust to meet society's changing needs, we must balance that adjustment against boundless claims in an already crowded judicial system. We are especially averse to creating a tort that would only lead to duplicative litigation, encouraging inefficient relitigation of issues better handled within the context of the core cause of action.

Trevino , 41 Tex.Sup.Ct.J. 907, 969 S.W.2d at 951-952.

Conclusion

{¶ 19} We hold that allegations of intentional interference with or concealment of evidence are not actionable under the independent tort of intentional spoliation of evidence. We therefore answer the first question certified by the court of appeals in the negative and do not address the second question. We reverse the judgment of the Eleventh District Court of Appeals and reinstate the judgment of the trial court.

Judgment reversed.

French, Mock, and DeWine, JJ., concur.

Fischer, J., concurs, with an opinion joined by O'Donnell, J.

O'Connor, C.J., concurs in judgment only.

Russell J. Mock, J., of the First District Court of Appeals, sitting for O'Neill, J.

{¶ 20} I concur fully in the majority opinion but write separately to address any concerns that this court's holding may deprive certain litigants of an adequate remedy when an individual conceals or interferes with evidence. As explained in the court's decision, our Rules of Civil Procedure provide trial courts with broad discretion to address concealment of or interference with evidence that occurs during the course of discovery. See Civ.R. 37. Judges should be diligent in using that discretion. The provisions of Civ.R. 37 are critical to the fair administration of justice because they afford trial courts the discretion necessary to address in a timely and appropriate manner any failure to abide by the discovery rules. To that end, trial judges are encouraged to sanction without delay errant behavior by lawyers and litigants in order to deter such conduct in the future. The Rules of Professional Conduct and Rules for the Government of the Bar also contain provisions that deter counsel from concealing or interfering with evidence and provide for the punishment of attorneys who do so. See Prof.Cond.R. 3.3 and 3.4; Gov.Bar R. V.

{¶ 21} It is possible that our tort of intentional spoliation of evidence and our rules may not cover a situation in which a nonattorney's concealment of or interference with evidence is not discovered until the underlying action has concluded. This situation is not before us in this case, however, because appellee, Kristen Elliott-Thomas, asserts that she learned about the alleged wrongful actions during the pendency of her wrongful-termination case. Thus, while we may eventually have to decide whether there is a remedy for damages caused by someone who conceals or interferes with evidence when that act is not discoverable until after the underlying litigation has concluded, we need not and do not decide that question today.

O'Donnell, J., concurs in the foregoing opinion.


author: French, J.

text:
    IN RE ADOPTION OF M.G.B.-E. et al.
    No. 2017-0039
    Supreme Court of Ohio.
    Submitted November 21, 2017 Decided May 9, 2018
    The Law Offices of Jason A. Showen, L.L.C., and Jason A. Showen, for appellee.
    Rion, Rion & Rion, L.P.A., Inc., Jon Paul Rion, Travis T. Dunnington, Dayton, and Bradley D. Anderson, Troy, for appellant.
   French, J.

{¶ 1} This appeal addresses a probate court's authority to proceed on an adoption petition-specifically, to determine whether parental consent is required for the adoption-when preexisting matters concerning the parenting of the child are pending in another court. Appellant, D.H. ("Father"), asks this court to hold broadly that a probate court "may not proceed with an adoption petition if any pending parenting matter is proceeding in another court." We reject Father's proposition of law, but we hold more narrowly that a probate court must consider the existence of pending parenting matters when determining whether an exception to the requirement of parental consent to adoption applies.

Facts and procedural background

{¶ 2} The legal issues raised in this appeal are relatively straightforward. But the factual record-replete with contradictory testimony, allegations of abuse from both sides, regular failures to comply with court orders, and a 13-year history of animosity between two parents-complicates our analysis.

The adoption petitions and consent requirements

{¶ 3} Appellee, D.E. ("Stepfather"), filed petitions in the Clinton County Probate Court to adopt M.G.B.-E. and R.S.B.-E., the minor children of his wife, V.B.-E. ("Mother"), and Father, her ex-husband. Under R.C. 3107.06, a petition to adopt a minor who was born to married parents may not be granted without the written consent of both the mother and the father of the minor, unless an exception set forth in R.C. 3107.07 applies. Stepfather's adoption petitions state that Father's consent is not required because Father failed without justifiable cause to provide more than de minimis contact with the children for at least a year immediately preceding the filing of the adoption petitions. See R.C. 3107.07(A) ("Consent to an adoption is not required of * * * [a] parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor * * * for a period of at least one year immediately preceding * * * the filing of the adoption petition"). Father objected to the adoption petitions and disputed the applicability of the R.C. 3107.07(A) exception to the R.C. 3107.06 parental-consent requirement.

{¶ 4} The probate court held a hearing on the necessity of Father's consent. Witnesses included Mother; Father; Stepfather; Father's current wife, S.H. ("Stepmother"); and Father and Stepmother's babysitter. Much of the evidence concerned Mother and Father's acrimonious relationship, dating from before their 2004 divorce.

The divorce decree and subsequent parenting litigation

{¶ 5} Father and Mother were married for about five years and, during that marriage, had two children-a son, R.S.B.-E., and a daughter, M.G.B.-E. In the course of their divorce proceedings, Mother accused Father and his brothers of sexually abusing the children. A November 2004 final divorce decree granted Mother custody of the children and granted Father parenting time. The decree incorporated the parties' agreement that the children were not to be left unsupervised with a particular paternal uncle.

{¶ 6} Mother impeded Father's parenting time from the outset. Between October 2004 and April 2006, as evidenced by more than 25 police reports filed by Father, Mother regularly refused to deliver one or both of the children to Father for parenting time in accordance with the final decree. In May 2005, Father moved for temporary and permanent custody of the children, alleging that Mother had repeatedly denied him parenting time and that Mother and the children's maternal grandfather were physically and mentally abusing the children. In 2005 and 2006, Father filed at least five motions to hold Mother in contempt.

{¶ 7} Subsequent to the divorce decree, Mother made additional allegations of sexual abuse of the children by Father to Highland County Children Services, Montgomery County Children Services, and the Warren County Sheriff's Office. A letter dated June 17, 2005, from Montgomery County Children Services reports no indication of "anything improper, neglectful or abusive [having] occurred during visits with paternal family members."

{¶ 8} In June 2006, Mother unilaterally cut off parenting time between Father and the children after the children returned from parenting time with Father with, according to Mother, physical evidence of and verbal statements by M.G.B.-E. regarding sexual abuse. Mother took M.G.B.-E. to her pediatrician and to Cincinnati Children's Hospital with complaints of vaginal and anal bleeding and allegations of abuse. An examination revealed no physical signs of abuse. Mother also contacted the Warren County Sheriff's Office. Both children reported sexual abuse to Warren County detectives.

{¶ 9} Based on her June 2006 allegations, Mother obtained an ex parte civil protection order from the Highland County Common Pleas Court in September 2006 that prohibited Father from having contact with Mother or the children. Father denied Mother's allegations and again moved for temporary custody of the children in November 2006. Mother and Father agreed to dismiss the protection order in March 2007.

{¶ 10} Also in March 2007, a domestic-relations magistrate held a hearing on the parties' motions that had been filed between March 2005 and November 2006. The parties agreed that the magistrate would address only Father's most recent motion for contempt (regarding parenting time during the summer of 2006), Mother's motion to restrict Father's parenting time to supervised visits, and Father's motion for in camera interviews of the children. The parties agreed to dismiss all other pending motions.

{¶ 11} Before the domestic-relations court issued a decision on the pending motions, Mother successfully applied to the Highland County Probate Court to have the children's last names changed from Father's last name to her maiden name. Despite the parties' continuing litigation in the domestic-relations court, Mother's applications stated that Father's address was unknown and was not ascertainable with reasonable diligence. Father was not personally served with the applications, and he claims that he received no notice of the applications whatsoever.

{¶ 12} In September 2007, the domestic-relations court ruled on the motions argued at the March 2007 hearing. As part of her consideration, the magistrate interviewed both children and reviewed a guardian-ad-litem report, psychological evaluations and the Highland County Children Services' file regarding the allegations of sexual abuse. The court denied Father's motion for contempt.

Although the magistrate noted that the allegations were unsubstantiated, she found that Mother reasonably denied Father parenting time pending the investigation of those allegations. With respect to Mother's motion to restrict Father's parenting time, the court ordered that Father's "parenting time shall be limited pending therapy" with one of three named therapists or a mutually agreed-upon therapist "for the parents and children to help the children to transition to spending time with" Father. The court expected that "within 6 months the children should have transitioned into parenting alone with" Father.

{¶ 13} The parties had not commenced counseling by the time the court held a review hearing in April 2008, but the parties agreed to contact a therapist and schedule counseling. In September 2008, however, the court dismissed the matter for want of prosecution. Father admits that arranging counseling "fell through the cracks."

2008-2014: Father's absence

{¶ 14} For at least six years after September 2008, when the domestic-relations court dismissed the parenting matter for lack of prosecution, the children did not receive any voicemail, telephone call, text message, e-mail, card, letter or gift from Father. Father testified that from 2010 until at least August 2014, he had no way of contacting the children because he did not know where they were living and because he did not have a working telephone number for Mother. Mother changed addresses and telephone numbers multiple times without informing the domestic-relations court or Father, as required by the final divorce decree. Father did see R.S.B.-E. once during that period, at a church picnic in July 2010, but he claims that he was unable to speak with R.S.B.-E., because Mother "haul[ed] [R.S.B.-E.] away in the other direction."

2014-2015: Father learns of the children's whereabouts and attempts to see them

{¶ 15} In August 2014, Father learned that the children were attending Wilmington High School after Stepmother saw the children at a football game. Father and Stepmother's babysitter, who was a cheerleader for the opposing team, spoke to R.S.B.-E. and learned that he would be wrestling for Wilmington High School that winter. Father, Stepmother, their children, and the babysitter subsequently attended a wrestling match in which R.S.B.-E. was participating. There, the babysitter learned that R.S.B.-E. would be running track in the spring. The babysitter did not mention Father in her conversations with R.S.B.-E. Father did not make personal contact with R.S.B.-E. at the wrestling match.

{¶ 16} In April 2015, Father, Stepmother, their children, and the babysitter attended one of R.S.B.-E.'s track meets. When Mother noticed Father, she contacted the Wilmington police department. She wanted the police to ask Father to leave; she believed that keeping R.S.B.-E. safe required him having no contact with Father. The police officer, however, simply asked Father to avoid contact with Mother or R.S.B.-E. Father and Stepmother attended another track meet two days later, but they testified that Stepfather immediately removed R.S.B.-E. from the track after his race to avoid any contact between Father and R.S.B.-E. Father attended two additional track meets in May 2015, but R.S.B.-E. was not present. On one of those occasions, Mother, Stepfather, and Mother's father were present despite R.S.B.-E.'s absence. Stepmother claims that Stepfather and Mother's father followed her vehicle when she left the meet. Stepfather denies that claim but admits that he was "parked down the street just keeping my eyes on things and just observing."

Father's motion to reestablish parenting time

{¶ 17} On May 14, 2015, Father filed a motion in the domestic-relations court to reestablish parenting time. The same day, Father, Stepmother, and their children, along with a process server, attended a track meet to see R.S.B.-E. and to serve Mother with Father's motion. After finding that neither R.S.B.-E. nor Mother was at the track meet, the family accompanied the process server to Mother's house and parked about two blocks away. The process server approached the house to serve the motion. Stepfather, who was observing from across the street, called 9-1-1 and reported a group of people, including Father, approaching the house. Stepfather also called R.S.B.-E., who was inside the house at the time, and told him to run out the back door, where Stepfather picked him up and drove to a nearby parking lot.

{¶ 18} After stopping Father and the process server and learning of their purpose, the police directed the process server to Stepfather's location, and the process server delivered Father's motion to reestablish parenting time. Stepfather filed his adoption petitions in the probate court four days later.

Concurrent proceedings in the probate and domestic-relations courts

{¶ 19} The probate court held that pursuant to R.C. 3107.07(A), Father's consent to Stepfather's adopting the children was not required because Father failed without justifiable cause to provide more than de minimis contact with them for at least one year prior to the filing of the adoption petitions. The court "put a lot of weight [o]n the fact that the father 'dropped the ball' " following the September 2007 domestic-relations court order "and did not provide or pay for or pursue counseling" to reinstate visitation. Clinton C.P., Probate Div., Nos. 20155012 and 20155013 (May 19, 2016). The probate court's decision did not mention Father's pending motion to reestablish parenting time or the proceedings in domestic-relations court that preceded the probate court's hearing. {¶ 20} While Stepfather's adoption petitions were pending in the probate court, the domestic-relations court held hearings on Father's motion to reestablish parenting time and issued orders granting Father limited parenting time. Proceedings in the domestic-relations court remain ongoing.

{¶ 21} The Twelfth District Court of Appeals affirmed the probate court's decision that Father's consent was not required and held that the probate court had jurisdiction to proceed on the adoption petitions despite the pending parenting matter in the domestic-relations court. 2016-Ohio-7912, 2016 WL 6948299, ¶ 49, 69. Father appeals that judgment.

Analysis

{¶ 22} Probate courts have original, exclusive jurisdiction " 'to hear and determine an adoption proceeding relating to a minor child notwithstanding the fact that the custody of such child is at the time within the continuing jurisdiction of a divorce court.' " In re Adoption of Pushcar , 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, ¶ 9, quoting In re Adoption of Biddle , 168 Ohio St. 209, 152 N.E.2d 105 (1958), paragraph two of the syllabus. Father, however, asserts that "[t]he probate court may not proceed with an adoption petition if any pending parenting matter is proceeding in another court." See 150 Ohio St.3d 1407, 2017-Ohio-6964, 78 N.E.3d 908. We reject Father's broad proposition of law.

{¶ 23} Father makes three arguments in support of reversal. First, he urges us to construe our precedent, and particularly the line of cases stemming from Pushcar , in favor of the natural parent and to hold that any parenting proceeding pending in a court with continuing jurisdiction over a child precludes a probate court from exercising jurisdiction over an adoption petition concerning that child. Second, he urges us to apply the jurisdictional-priority rule to preclude the probate court's exercise of jurisdiction. Lastly, he urges us to recognize a necessity for determining pending parenting matters before an adoption petition may be granted.

{¶ 24} We address Father's arguments out of order, beginning with his argument regarding the jurisdictional-priority rule.

Jurisdictional-priority rule

{¶ 25} "As between courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties." State ex rel. Phillips v. Polcar , 50 Ohio St.2d 279, 364 N.E.2d 33 (1977), syllabus. The jurisdictional-priority rule applies when cases in multiple courts of concurrent jurisdiction involve the same parties and when either the causes of action are the same or the cases present part of the same whole issue. State ex rel. Otten v. Henderson , 129 Ohio St.3d 453, 2011-Ohio-4082, 953 N.E.2d 809, ¶ 24, 29.

{¶ 26} Father argues, based on Otten , that the jurisdictional-priority rule precludes the probate court from proceeding with Stepfather's adoption petitions because Father first invoked the domestic-relations court's jurisdiction with his motion to reestablish parenting time. But Otten does not support Father's argument. Otten involved competing adoption petitions, filed by the same petitioner and relating to the same child, in the probate courts of different counties. The petitions involved the same parties and precisely the same issue-whether the consent of the child's natural father was required for the adoption. Id. at ¶ 28-29. This court held that the court whose jurisdiction the petitioner first invoked had exclusive jurisdiction to determine the adoption petition. Id. at ¶ 36.

{¶ 27} The jurisdictional-priority rule does not apply here. First, unlike the probate courts in Otten , the probate court and the domestic-relations court in this case are not courts of concurrent jurisdiction. The probate court has exclusive jurisdiction over the adoption petitions, Pushcar , 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, at ¶ 9, and the domestic-relations court has exclusive jurisdiction over Father's application to reestablish parenting time, see Broadnax v. Bowling , 1st Dist. Hamilton No. C-030502, 2004-Ohio-1114, 2004 WL 442872, ¶ 15-16. Application of the jurisdictional-priority rule would purport to give the domestic-relations court-the court whose jurisdiction was first invoked-the opportunity to adjudicate "the whole issue and to settle the rights of the parties," Phillips at syllabus, but the domestic-relations court lacks subject-matter jurisdiction to adjudicate adoption petitions. Second, the two proceedings here do not involve the same parties. Finally, they do not involve the same cause of action or present part of the same whole issue. The jurisdictional-priority rule, therefore, does not preclude the probate court from proceeding on Stepfather's adoption petitions.

{¶ 28} We now turn to Father's remaining arguments, which rely in large part on Pushcar.

Pushcar

{¶ 29} Pushcar reached this court on appeal from an appellate court's reversal of a probate court's determination that a stepparent adoption could proceed without consent from the child's legal father. The legal father, who lived with but was not married to the child's mother at the time of the birth, had signed the child's birth certificate. Pushcar at ¶ 1. The legal father moved the juvenile court to enforce the unwed parents' agreement regarding visitation and support, but the juvenile-court rules required genetic testing to establish paternity before the court could rule on the motion. Id. at ¶ 2-4. While the legal father's motion was pending in the juvenile court, the mother married and her new husband filed a petition in the probate court to adopt the child. Id. at ¶ 4-5.

{¶ 30} The probate court in Pushcar held that pursuant to R.C. 3107.07(A), the legal father's consent was not required for the adoption because he had not provided for or communicated with the child for at least a year. 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, at ¶ 5-6. The Eleventh District reversed and held that the probate court should have refrained from exercising jurisdiction over the adoption proceeding until the juvenile court had adjudicated the parenting matter. Id. at ¶ 7. It also held that the probate court could not make the necessary determination regarding the need for the legal father's consent under R.C. 3107.07(A) until there had been a judicial determination of paternity. Id. This court affirmed the Eleventh District's judgment. Id. at ¶ 14.

{¶ 31} We explained in Pushcar that courts must strictly construe any exception to the parental-consent requirement in favor of the nonconsenting parent and that the petitioner in an adoption proceeding bears the burden of proving by clear and convincing evidence the satisfaction of an exception to the general requirement that an adoption may not proceed without parental consent. Id. at ¶ 11, 13. The petitioner in Pushcar could not meet his burden of proving satisfaction of the R.C. 3107.07(A) exception to the parental-consent requirement unless and until there had been a judicial ascertainment of paternity-which was the very issue that remained pending in the juvenile court. Id. at ¶ 14. Separately, we held in Pushcar , "When an issue concerning parenting of a minor is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child." Id. at syllabus.

{¶ 32} Father makes two arguments based on Pushcar and on some of our more recent cases that discuss it. First, he argues that the Pushcar syllabus requires a probate court to refrain from proceeding with an adoption when any "issue concerning parenting" is pending in another court. Second, he argues that like the determination of paternity in Pushcar , the determination of his right to parenting time is a necessary antecedent to the probate court's determination of Stepfather's adoption petitions.

Application of Pushcar

{¶ 33} The broad language in Pushcar 's syllabus-"When an issue concerning parenting of a minor is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child," 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647 -seems to support Father's first argument. And in two cases decided in 2010, this court stated, "It is clear that we did not intend our holding or analysis [in Pushcar ] to be restricted to parenting issues implicated by R.C. 3107.07(A). Rather, our use of general language shows that we intended the holding to apply to all parenting issues pending in a juvenile court."

In re Adoption of P.A.C. , 126 Ohio St.3d 236, 2010-Ohio-3351, 933 N.E.2d 236, ¶ 8 ; In re Adoption of G.V. , 126 Ohio St.3d 249, 2010-Ohio-3349, 933 N.E.2d 245, ¶ 8. Like Pushcar , both of those cases involved questions of paternity pending in juvenile court. P.A.C. at ¶ 2-3 ; G.V. at ¶ 2-3.

{¶ 34} Since P.A.C. and G.V. , however, this court has retreated from this broad reading of Pushcar . We have stated that the context of Pushcar "manifestly indicates that the court intended 'parentage,' " not "parenting," in its syllabus. In re G.T.B. , 128 Ohio St.3d 502, 2011-Ohio-1789, 947 N.E.2d 166, ¶ 10, fn. 2 ; see also State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Court of Common Pleas, Probate Div. , 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d 380, ¶ 38 (" Pushcar required the probate court to refrain from proceeding while there was a question of parentage -i.e., paternity-pending in the juvenile court" [emphasis sic] ), citing G.T.B. at ¶ 10 and fn. 2. "Parentage," which refers to "[t]he quality, state or condition of being a parent," Black's Law Dictionary 1288 (10th Ed.2014), is a more limited term than "parenting." Father asks this court to "pull back" from its statement in G.T.B. , later cited in Allen Cty. , and to hold that any pending "parenting" matter in another court requires a probate court to refrain from proceeding on an adoption petition. We decline to do so.

{¶ 35} The cases in which we have held that a probate court must refrain from proceeding on an adoption petition have involved the issue of paternity, which affected the probate court's ability to rule on the concurrent adoption petitions. See Pushcar ; P.A.C. ; G.V. But when a parenting issue pending in a juvenile or domestic-relations court does not affect a probate court's ability to determine the statutory prerequisites for adoption, we have not required the probate court to refrain from exercising its exclusive jurisdiction over adoption proceedings. That was the case in Allen Cty. , which involved a jurisdictional conflict between a juvenile court that retained continuing jurisdiction over a dependent and abused child and a probate court that was considering a petition by the child's foster parents to adopt that child, with the mother's consent. This court held that the probate court had jurisdiction to consider the adoption petition despite the ongoing juvenile-court proceedings regarding permanent custody. Id. at ¶ 41. We noted that the statute governing the juvenile court's jurisdiction implicitly recognized the probate court's jurisdiction to conduct adoption proceedings while custody proceedings were pending in the juvenile court. Id. at ¶ 34.

{¶ 36} We also stated in Allen Cty. that our holding in that case was consistent with our decision in Pushcar . Allen Cty. at ¶ 37. The factor that distinguished Pushcar from Allen Cty. was the Pushcar probate court's inability to rule on the adoption petition without a decision on the factual question of paternity that was pending in the juvenile court. We explained that "the point in Pushcar was that pursuant to the adoption statutes, the probate court could not proceed with the adoption without the consent of the putative father, and only the juvenile court could decide the question of the child's paternity." Allen Cty. at ¶ 37. We read Pushcar as requiring the probate court to refrain from acting until the juvenile court had determined the child's paternity, because until that had occurred, the probate court could not determine whether the father's consent was required. Allen Cty. at ¶ 37. There is no similar impediment to the probate court's exercise of jurisdiction here; the probate court is able to determine, without any finding by the domestic-relations court, whether Father failed without justifiable cause to have more than de minimis contact with the children for at least a year prior to the filing of the adoption petitions, so as to render Father's consent to the adoptions unnecessary. For these reasons, we reject Father's proposition of law.

{¶ 37} But that does not end our inquiry. We must still consider what impact, if any, Father's motion to reestablish parenting time and the parties' proceedings on that motion in the domestic-relations court should have on the probate court's proceedings and its analysis of whether Father's consent to the adoptions is required under R.C. 3107.07(A).

Probate court must consider pending parenting proceedings

{¶ 38} Under R.C. 3107.07(A), Father's consent to the adoptions of his children is not required if the probate court finds by clear and convincing evidence that he "has failed without justifiable cause to provide more than de minimis contact with" his children for at least one year immediately preceding the filing of the adoption petitions. Stepfather-the petitioner who asserts that Father's consent is not required-has the burden of proving the applicability of R.C. 3107.07(A) by clear and convincing evidence. In re Adoption of Holcomb , 18 Ohio St.3d 361, 481 N.E.2d 613 (1985), paragraph four of the syllabus.

{¶ 39} Even if a parent has completely failed to communicate with his children during the statutory period, his consent to adoption will still be required if there exists justifiable cause for the failure. Id. at 367, 481 N.E.2d 613. The burden of proving a lack of justifiable cause remains on the petitioner in the adoption proceeding. Id. at 368, 481 N.E.2d 613 ("No burden is to be placed upon the non-consenting parent to prove that his failure to communicate was justifiable"). Typically, a noncustodial parent has justifiable cause for failing to communicate when the custodial parent significantly interferes with or significantly discourages communication. Id. at 367-368, 481 N.E.2d 613.

{¶ 40} The probate court must strictly construe R.C. 3107.07(A) in favor of Father to protect his rights as a natural parent. In re Adoption of Schoeppner , 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976). And strictly construing R.C. 3107.07(A) in favor of Father requires the probate court to take into account Father's efforts to reestablish parental rights and responsibilities through the domestic-relations court during the year preceding the filing of the adoption petitions, as well as Mother's efforts to impede Father's contact with the children.

{¶ 41} In an earlier case with similar facts, the Twelfth District held that a parent's filing of a motion for parenting time under a domestic-relations court's continuing jurisdiction precluded the application of R.C. 3107.07(A). In re Adoption of A.J.B , 12th Dist. Butler No. 2008-12-306, 2009-Ohio-2200, 2009 WL 1278433, ¶ 27. The court stated:

It would be a gross miscarriage of justice to allow [the stepfather], with knowledge of the father's pending petition [for parenting time], to seek adoption without consent and extinguish the biological father's parental rights by virtue of [the stepfather's] five-day-old marriage [to the child's mother]. Further, despite the fact that she has raised A.J.B. alone, it would be equally impermissible to allow the mother to receive notice of the biological father's intent to assume parental responsibility and preemptively terminate his parental rights due to her marriage, when the father in this case is pursuing his parental responsibilities through the proper procedure.

Id. at ¶ 26.

{¶ 42} Although this case presented the Twelfth District with a nearly identical scenario, the court reached the opposite conclusion without addressing its prior holding.

{¶ 43} The probate court did not consider Father's pending motion to reestablish parenting time with his children in determining whether Father's consent to their adoption was required. In fact, the probate court's decision does not even mention Father's pending motion or the domestic-relations court's proceedings on that motion. The Twelfth District acknowledged Father's efforts to reestablish parenting time but stated that resolution of Father's parenting motion "has no bearing on whether he failed without justifiable cause to provide more than de minimis contact with the children in the year immediately preceding the filing of'' the adoption petitions. 2016-Ohio-7912, at ¶ 48. But strictly construing R.C. 3107.07(A) in Father's favor, and remaining cognizant that parents facing the termination of their parental rights must be afforded every protection the law allows, In re Hayes , 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), we conclude that Father's efforts to enforce his parental rights, prior to the filing of Stepfather's adoption petitions, are relevant.

{¶ 44} Father could undoubtedly have done more to protect and nurture his relationship with his children. He admits that he did not arrange counseling in accordance with the September 2007 order of the domestic-relations court. And although he knew where Mother and the children were living until early 2010, he made no attempt after 2008 to contact the children or assert his parental rights. But the record also demonstrates Mother's history and ongoing pattern of impeding Father's opportunities to develop and maintain a relationship with the children, reaching back to the time of the parents' divorce. That history includes repeatedly failing to deliver the children to Father at a court-ordered time and place, moving multiple times without informing Father or the domestic-relations court of her new address, changing her telephone number without informing Father or the domestic-relations court, changing the children's last names without Father's knowledge, and calling the police when Father appeared at R.S.B.-E.'s track meet.

{¶ 45} In domestic-relations court, Father and Mother continue to actively litigate the question of Father's parenting time. The probate court refused to admit evidence about the domestic-relations court's proceedings or orders despite Father's proffered testimony and exhibits demonstrating that the domestic-relations court has granted Father limited visitation with the children. "A court may take judicial notice of a finding of another court in an unrelated case," Kirshner v. Shinaberry , 64 Ohio App.3d 536, 539, 582 N.E.2d 22 (6th Dist.1989), and we take judicial notice of public records made available by the domestic-relations court that reveal Mother's ongoing efforts to impede Father's parenting time. For example, a magistrate has found Mother in contempt of court for interfering with Father's parenting time, and the court has stated that Mother "has actively and intentionally interfered with the children's relationship with" Father.

{¶ 46} In its brief discussion of justifiable cause, the probate court "put a lot of weight [on] the fact that the father 'dropped the ball' on the final 'order' out of Montgomery County." Clinton C.P., Probate Div., Nos. 20155012 and 20155013 (May 19, 2016). But Father's failure to engage a therapist nearly ten years ago does not, by itself, determine the question of justifiable cause. After learning that the children attended school in Wilmington, Father made efforts to reinsert himself into their lives. Facing resistance from Mother, as he has from the outset of their divorce, Father appropriately turned to the domestic-relations court with a motion to reestablish parenting time. That action should be a factor in determining whether Father's consent to the adoption of his children is required under R.C. 3107.07(A).

Conclusion

{¶ 47} When a parent has filed a parenting motion in a juvenile or domestic-relations court having continuing jurisdiction over a child prior to the filing of a petition to adopt that child, the probate court must consider the parent's legal action as part of its consideration whether the parent failed without justifiable cause to have more than de minimis contact with the child during the year immediately preceding the filing of the adoption petition, under R.C. 3107.07(A). Because the probate court failed to do that here, we reverse the Twelfth District's judgment and remand this matter to the Clinton County Probate Court for further consideration, consistent with this opinion, of whether Father's consent to Stepfather's adoption petitions is required.

Judgment reversed and cause remanded.

O'Connor, C.J., and Kennedy, Pietrykowski, and Fischer, JJ., concur.

O'Donnell, J., dissents, with an opinion joined by DeWine, J.

Mark L. Pietrykowski, J., of the Sixth District Court of Appeals, sitting for O'Neill, J.

{¶ 48} Respectfully, I dissent.

{¶ 49} R.C. 3107.07(A) does not require probate courts to "consider the existence of pending parenting matters," majority opinion at ¶ 1.

{¶ 50} Rather, R.C. 3107.07(A) specifies that a parent of a minor is not required to consent to an adoption if a probate court finds "by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor * * * for a period of at least one year immediately preceding * * * the filing of the adoption petition."

{¶ 51} The majority opinion, contrary to the statute, imposes a new burden on probate courts by mandating that "a probate court must consider the existence of pending parenting matters when determining whether an exception to the requirement of parental consent to adoption applies," majority opinion at ¶ 1. Although the legislature could have required probate courts to make such a determination, it chose not to do so; despite the lack of statutory authorization, the majority judicially adds this new factor for probate courts to consider in adoption cases.

{¶ 52} By doing so, the majority opinion increases the complexity of the problems faced by probate courts in adoption proceedings and resolving issues involving de minimis contact questions that arise in those proceedings. And it opens a new field of interpretation as to the meaning of the phrase "without justifiable cause." Future cases will now require probate courts to consider the mere filing of motions for change of visitation, custody, or support filed in domestic relations courts, paternity matters filed in juvenile courts, and a host of other matters in juvenile and probate courts bearing on the question of parenting.

{¶ 53} These are all questions best resolved by the probate court in its consideration of whether the adoption petitioner has presented clear and convincing evidence showing that the parent failed without justifiable cause to provide more than de minimis contact with the minor as required by R.C. 3107.07(A). That is exactly what the probate court did in this instance, and we should affirm its judgment.

{¶ 54} Today's new standard imposes on probate judges an additional layer of review and unnecessarily complicates an already difficult situation, which will lead to all sorts of consequences not intended by the General Assembly.

{¶ 55} We should leave to the General Assembly the matter of imposing additional burdens on probate courts and resist the impulse to make the statute better by engrafting onto it judicially created burdens that will undoubtedly lead to additional litigation to further define what a "pending parenting matter" includes or does not include and that will further confuse the role of probate courts in resolving adoption proceedings.

{¶ 56} For these reasons, I would affirm the judgment of the Twelfth District Court of Appeals.

DeWine, J., concurs in the foregoing opinion.