Thursday, December 22, 2016

No life without parole for juveniles

Today the Court released its long-awaited decision in State v. Moore, which asked whether a juvenile can be sentenced to a term that exceeds his life expectancy for non-homicide offenses. The answer is no; the Court held that such a sentence violates the Eighth Amendment. The Moore appeal was accepted more than two and a half years ago, and argued more than a year and a half ago.

I haven't yet had time to digest the full opinion--it's 77 pages, and includes dissents from each of Justices Kennedy and French, and a concurrence from Chief Justice O'Connor and Justice Lanzinger--but generally it's an application of the US Supreme Court's 2010 decision in Graham v. Florida, and its 2012 decision in Miller v. Alabama. Graham had held that a mandatory sentence of life without parole imposed on a juvenile convicted of a non-homicide offense violated the Eighth Amendment. Miller extended the same rule to juveniles convicted of homicides.

What sets Moore apart from Graham and Miller is that Moore's sentence was not mandatory. Moore, who was 15 when he was convicted for a series of crimes including aggravated robbery, rape, and kidnapping, all with firearm specifications, was sentenced to 141 years in prison. While this wasn't a de jure "life without parole" sentence, it was a de facto life without parole sentence. Today the Court held that such a sentence was unconstitutional.

Surely there is more to be said about this holding in the future, but Justice Sharon Kennedy's dissent points out that at least four other states (Louisiana, Tennessee, Arizona, and Virginia) have held that Graham should be limited only to cases in which an actual mandatory life sentence has been imposed. Meanwhile (at least) California, Florida, Iowa, Connecticut, Illinois, and Wyoming have held that Graham extends to cases similar to Moore's. The US Supreme Court will have to address this divide at some point.

Monday, December 19, 2016

Appellant files brief in State v. Beasley

This case, discussed briefly when it was accepted on October 5, relates to what a defendant must do to make a proffer of evidence. Here is the opening of the appellant's brief:

When an off-the-record conversation occurs between defense counsel, the prosecutor, and the court, counsel's proffered summary of the conversation on the record is sufficient to preserve the issue for appeal when the trial court concurred with the substance, and the prosecutor did not correct or refute the summary.
The brief is here. The First District's opinion below is here.

The State's response brief is presently due January 9. The parties may (and probably will) stipulate to an extension until January 30.

Tuesday, December 13, 2016

Court affirms death penalty

The Court today affirmed the death penalty imposed on Steven Cepec, who was convicted of the aggravated murder of Frank Munz in 2010. Cepec had raised arguments relating to Miranda violations, ineffective assistance of counsel, the competency of adverse witnesses, and other issues, all of which were rejected by at least six justices.

Justice O'Neill concurred in part and dissented in part without opinion, which I interpret to mean that he concurred in the convictions, but dissented with respect to the sentence of death. Justice O'Neill has previously written that he would hold the death penalty to be unconstitutional.

Court issues decisions in two BOR appeals

I normally don't cover Board of Revision appeals relating to ad valorem taxes. It's a somewhat esoteric area of law, and while many firms, including ours, had very active BOR practices from about 2007 to 2012 (when the economy had taken a downturn and property values were low) most BOR activity has significantly leveled off in recent years.

I do note, however, that today the Court held that a purchase from a "real estate mortgage investment conduit" after foreclosure constituted a "forced sale" under R.C. 5713.04, and that as a result such a sale is not indicative of the true value. The case is Lunn v. Lorain County BOR.

In Musto v. Lorain County BOR, the Court affirmed the BTA's retention of the auditor's value of a parcel. Justice O'Neill, joined by Justice Pfeiffer, dissented, arguing that the BTA abused its discretion in refusing to continue or delay the hearing so that the property owner's appraiser, who had apparently mistakenly went to the wrong building, could attend and testify.

Friday, December 9, 2016

Attorney's fees in contingency cases

In William E. Weaner & Associates v. 369 West First Street the Second District was asked to reduce a fee award on the grounds that the award exceeded the amount that would have been paid to the law firm under its contingency fee agreement. It declined to do so.

Thursday, December 8, 2016

Burnham v. Cleveland Clinic - Supreme Court limits prior holding restricting appellate jurisdiction

Yesterday the Supreme Court issued its decision in Burnham v. Cleveland Clinic, holding 6-1 that an order compelling the production of attorney-client privileged material is immediately appealable. This is good news. That such an order is appealable might seem obvious at first blush, but it was very much in doubt after the Court's holding last year in Smith v. Chen.

Opinions in brief

Quick summaries of five decisions released by the Supreme Court on December 7 and 8.

Wednesday, December 7, 2016

Hague Service Convention authorizes service by mail

The First District has weighed in on a district split regarding whether the Hague Service Convention permits service of a complaint and summons by regular mail, and finds that it does.

Monday, December 5, 2016

Brief filed: Fisher v. Doe

In October I criticized the First District's decision in Fisher v. Doe because it declined to adopt and apply the Dendrite test, which provides rules for when an anonymous speaker can be unmasked. Doe has appealed the decision to the Ohio Supreme Court, and today Tom Haren and I filed an amicus brief in support of jurisdiction, on behalf of our client Alexandria Goddard. Alex was the blogger who earned fame (or, perhaps, notoriety) in 2012 for investigating and blogging the social media posts made by students attending a party at which two Steubenville High School football players raped a teenaged girl.

Our brief can be read here. In it Tom and I urge the Court to recognize that both the Ohio and US Constitutions protect the rights to speak anonymously and remain anonymous, and that the Dendrite test is best suited to protecting those constitutional rights, while still allowing for meritorious claims to proceed. Most importantly, Dendrite requires plaintiffs to make a showing of merit before unmasking the anonymous speaker. Any rule that allows unmasking before a demonstration of the existence of a meritorious claim improperly prioritizes a common law claim (defamation) over a constitutional right (anonymity).

The plaintiff's response to the jurisdictional briefs is due in January.

Update: the Court has declined jurisdiction in the case.

Monday, November 28, 2016

Brief filed: Stewart v. Vivian

Today we filed a merits brief in the Ohio Supreme Court on behalf of the appellant in Stewart v. Vivian.  You can read the brief here. The supplement is here.

Supreme Court elections official

First District judges Pat Fischer and Pat DeWine have officially won the elections for the seats being vacated by Justices Paul Pfeiffer and Judith Ann Lanzinger, respectively. Fischer narrowly defeated Cuyahoga County Common Pleas Judge John O'Donnell--O'Donnell only conceded the race this past week--and will be sworn in on January 1. DeWine, who earned a sizeable victory over Judge Cynthia Rice of the Eleventh District, will be sworn in on January 2.

Fifth District: procedendo issued

The Fifth District has issued a writ of procedendo requiring the Morgan County Common Pleas Court to rule on the relator's petition for post-conviction relief. The motion was filed in August 2015 and had not yet been ruled on, despite Superintendence Rule 40(A)(3)'s requirement that motions be resolved within 120 days of filing. The court did observe that litigants have no private right to enforce that rule, but the rule nevertheless bears upon the question of whether the court "has unduly delayed" in issuing a ruling. The case is State ex rel. Smoot v. Favreau.

Tuesday, November 15, 2016

Thursday, November 10, 2016

Rule 60(B)(4) - when does it apply?

Rule 60(B) provides for relief from a final judgment on certain specified conditions, including mistake or excusable neglect, newly discovered evidence, and fraud or misrepresentation. Subdivision (4) provides for relief if "the judgment has been satisfied, released or discharged," and honestly, it's never been clear to me when or why that might warrant the vacature of a judgment. I understand why a judgment might be noted as "paid" or "satisfied," but why should that be grounds for relief from the judgment? The Second District has an answer, though not necessarily an entirely satisfying one, in Kossoudji v. Stamps.

Wednesday, November 9, 2016

Supreme Court case announcements, 11/9/16

The Court announced that it has accepted one new jurisdictional appeal, has accepted one new certified conflict, and has granted one motion for reconsideration and accepted a jurisdictional appeal that was previously denied.

Wednesday, October 26, 2016

Supreme Court case announcements, 10/26/16

The Court has accepted two new cases for review.

When is a hospital employee acting within the scope of employment?

If a hospital employee accesses a patient medical record for a reason having nothing to do with treatment of the patient and then unlawfully discloses that information, is the hospital liable for the employee's actions? No, says the First District.

Friday, October 21, 2016

Does Dendrite International apply in Ohio?

What standard must a court apply when a plaintiff seeks to use the subpoena power of the court to identify an anonymous speaker on the internet? There is not yet a consensus to this important question in Ohio, but earlier this week the First District--my home district, filled with good judges with whom I very rarely disagree--bucked the national trend by declining to apply the standard from Dendrite International v. Doe. In my opinion this case was wrongly decided, and does not adequately protect the constitutional right to anonymous speech. This is a subject in which I'm very interested; see here for video of my participation in a panel last week at the Ohio State Bar Association's Law and Media Conference.

Update: we have filed an amicus brief in support of Doe's jurisdictional appeal to the Ohio Supreme Court.

Tuesday, October 18, 2016

"Replevin action regarding parrot"

In Carlton v. Johnson, the Fifth District affirmed a trial court's judgment that the plaintiff was not entitled to replevin of a parrot.

The Supreme Court Reporter of Decisions describes the issues of the case as "Replevin action regarding parrot/Manifest weight."

That is all.

No stay in criminal contempt case

In today's case announcements, the Court denied a motion to stay imposition of a five-day sentence for indirect criminal contempt. The contemnor, Crysta Pleatman, had raised due process and First Amendment defenses to the contempt charge, both of which were rejected by both the trial court and the First District.

Monday, October 17, 2016

A face only a mother could love

Fans of law-of-the-case and scope-of-the-appellate-mandate doctrines may want to check out the Second District's decision in LG Harris Family Limited Partnership v. 905 S. Main Street. The rest of you? Eh--move along.

Ohio Supreme Court stays judgment allowing pipeline appropriation

My habit for many years, dating back to my trial-court clerking days, is to check for newly released appellate opinions at about ten o'clock every morning. There obviously are days that I can't do this; sometimes I'm in hearings, sometimes I'm with clients, etc. When this happens I usually just catch up the next day or next week. But now for the first time I've had the unhappy experience of being unable to check for new opinions because I was in trial, and having one of those opinions actually relate to the trial that was in progress.

Tuesday, October 4, 2016

Arbitration award vacated due to "evident partiality" of the arbitrator

Bear with me as I catch up on decisions announced over the last week, as I was in trial.

The Twelfth District in City of Mason v. Mason Professional Firefighters IAFF Local 4049 has vacated an arbitration award in favor of the union due to the "evident partiality" of the arbitrator, based on the arbitrator's role as executive director of a union-advocacy group.

Thursday, September 22, 2016

Norwood pot decriminalization initiative won't be on the ballot

The Court has denied a writ of mandamus which sought to compel the Hamilton County Board of Elections to place on the November ballot an initiative that would effectively decriminalize the use of marijuana--sorry, "marihuana"--in the City of Norwood, an enclave of Cincinnati.

Tuesday, September 20, 2016

Medical marijuana rule adopted

Today the Court announced an amendment to Rule of Professional Conduct 1.2, which clarifies the propriety of advising clients with respect to Ohio's medical marijuana law, which went into effect earlier this month. Kudos to the Court for moving quickly to amend the rule after the Board of Professional Conduct last month issued an advisory opinion indicating that such counseling was impermissible.

Writ of mandamus issued in referendum case

Today the Ohio Supreme Court issued a writ of mandamus compelling the Union County Board of Elections to remove a zoning referendum from the November ballot.

Tuesday, September 13, 2016

Death sentence affirmed; confrontation clause

The Ohio Supreme Court has rejected the appeal of Calvin McKelton, who was sentenced to death in 2010 in connection with the murders of Margaret Allen and Mick Evans.

No statutory damages in public records case without proof of delivery by hand or certified mail

In a per curiam opinion with two justices partially dissenting, the Court today denied a writ of mandamus and statutory damages in an original-jurisdiction case in which the relator sought production of public records from the Avon Lake police department.

Monday, September 12, 2016

A different approach to determining appellate jurisdiction

In Bank United v. Klug, the Ninth District reaffirmed the well-settled rule that the journalization of a nunc pro tunc order which merely "correct[s] minor typographical errors" does not extend the 30-day notice-of-appeal filing deadline provided for in Appellate Rule 4(A). Here, the order was entered on January 6, a nunc pro tunc order was entered on January 22, and the notice of appeal was filed on February 19--28 days after the nunc pro tunc order, but 44 days after the original order. The appeal thus was untimely, and was dismissed.

Gas pipelines, surveys, and you

Today the Ninth District decided Nexus Gas Transmission v. Houston, a case interpreting the statute authorizing natural gas pipeline companies to enter onto private property for the purpose of surveying and appropriating property for pipelines and related operations.

Is a member of the public entitled to make a claim under a contractor-licensing bond posted with the city?

Yes, says the Eighth District, in Koster v. Chowdhury. The court's decision--which is correct, in my view--is arguably a reversal of its 1996 unpublished holding in Soltesz v. Dicamillo.

Wednesday, August 31, 2016

Ohio Supreme Court conducts final oral arguments of 2016 term

Today the Court heard oral arguments in four cases. It also marked the last day of oral arguments for Justice Judith Ann Lanzinger and Justice Paul E. Pfeiffer, who are prohibited from running for re-election. (The Ohio Constitution precludes the election or appointment of any judge who would be 70 years old or older on the date he or she is sworn in.)

Justice Lanzinger has served on the Court since 2005, after being elected in November 2004 and re-elected by a wide margin in 2010. Justice Langzinger has periodically blogged at Justice Judy since 2010.

Justice Pfeiffer, if I'm not mistaken, enjoys the distinction of having served longer on the Court than all but four earlier associate justices, having first been elected in 1992.

Randy Ludlow of the Columbus Dispatch has this look-back on their service on the Court.

Monday, August 29, 2016

Ohio Supreme Court case announcements, 8/29/16

Today the court announced the release of official versions of fifteen opinions, and one procedural ruling.

The procedural ruling is in State v. Ford, a death penalty appeal out of Summit County. The defendant had filed an unopposed motion to partially unseal the record. At issue are several dozen documents ordered sealed by the trial court, many of which (according to Ford's counsel) relate to competency issues. Ford's attorneys--who are based in Youngstown, Ohio, and Glorietta, New Mexico--did not seek full public access to the records. Rather, they sought permission for counsel of record or the Ohio Public Defender to access and make copies of the record. The Court denied the motion, but ordered that counsel of record or the Ohio Public Defender may view the sealed documents at the Clerk's office.

Friday, August 26, 2016

Ohio Supreme Court case announcements, 8/26/16

The Court today announced procedural orders in four cases, including three disciplinary matters.

In one of the disciplinary matters, Columbus Bar Association v. Eric Lee Lafayette, the Court sua sponte took the somewhat unusual step of rejecting the agreed recommended sanction of a one-year suspension from the practice of law to be stayed on conditions, and remanded the matter to the Board of Professional Conduct for further proceedings, "including consideration of a more severe sanction." Lafayette has been accused of mishandling an immigration matter that resulted in the voluntary departure of his client, of forging a client's signature on bankruptcy documents, and failing to advise a client that he did not have malpractice insurance.

Thursday, August 25, 2016

State v. Hand - juvenile delinquency cannot be basis for mandatory sentence

In State v. Hand, the Court held R.C. 2901.08(A) to be unconstitutional as violative of the due process clauses of the Ohio and US Constitutions. That statute provided that an adjudication as a delinquent child constitutes a prior conviction for purposes of mandatory sentence calculation. The Court held the statute unconstitutional because juvenile determinations are made by the court without the benefit of a jury, thus running afoul of Apprendi v. New Jersey. The Court left open the possibility that juvenile delinquency adjudications could nevertheless be factors considered by the sentencing court in its discretion. Justices Terrence O'Donnell, Sharon L. Kennedy, and Judith L. French dissented.

Ohio Supreme Court case announcements, 8/25/16

Today the Court announced that it has issued two merits decisions and three procedural rulings.

Wednesday, August 24, 2016

Pitcher v. Waldman - no requirement to hold sanctions hearing

In Pitcher v. Waldman, the First District affirmed the trial court's decision denying sanctions. The defendant argued that the complaint was based on claims that the plaintiffs knew had previously been released pursuant to the settlement of earlier litigation, and that the sole purpose of the complaint was to harass Waldman.  The trial court denied the motion. On appeal, the First District rejected the argument that a trial court must hold a hearing on a motion for sanctions; per R.C. 2323.51(B)(2) requires a hearing only if the court imposes sanctions.

State v. Jackson - death penalty; no right to be resentenced by new judge after original judge was publicly reprimanded for violating Code of Judicial Conduct in connection with first sentencing

In State v. Jackson , the Court affirmed the death penalty imposed upon Nathaniel Jackson for the 2001 murder of Robert Fingerhut. Jackson and his co-defendant, Donna Brooks (the victim's former wife), were initially sentenced to death in 2002. Roberts's death sentence was vacated by the Court in 2006, on the ground that the sentencing judge engaged in improper ex parte communications with an assistant prosecutor regarding the sentencing opinion, an act for which the Court later publicly reprimanded the judge. Jackson used the decision in Roberts's case and the public reprimand--and the judge's admission that the same type of ex parte communications had occurred in Jackson's case--to obtain post-conviction relief in the form of a new sentencing hearing. The new sentencing hearing was conducted by the same judge, who in 2012 again sentenced Jackson to death in an opinion that Jackson characterized as substantially identical to the 2002 "tainted" sentencing opinion. The Court rejected these arguments, holding in part that because Jackson had attempted to have the judge removed through the Ohio Constitution's judicial disqualification mechanism, and that disqualification was denied, relitigation of whether the judge was biased against Jackson was barred by res judicata.  The Court further held that there was no showing that the taint of the 2002 sentencing opinion carried over to the 2012 sentencing opinion.  Justice Judith Ann Lanzinger dissented on the grounds that the lower court did not properly consider Jackson's allocution upon resentencing; she wrote that the 2012 sentencing opinion was clearly prepared in advance of the resentencing hearing because it was filed immediately after the hearing, thus violating Jackson's right to allocution.

Midland Funding v. Hottenroth - dismissed as improvidently granted

In Midland Funding v. Hottenroth, the Court dismissed the appeal as having been improvidently granted in light of the Court's intervening decision in Taylor v. First Resolution Investment Corp. Justice Terrence O'Donnell dissented, arguing that the case presented an opportunity for the Court to resolve the important but unanswered question of when a claim for breach of a credit card contract accrues. Justice Lanzinger joined Justice O'Donnell's dissent.

State v. Montgomery - death penalty; sua sponte competency evaluation not required merely because capital defendant is on prescription medication

In State v. Montgomery, the Court affirmed the death penalty imposed by a three-judge panel upon Caron Montgomery, who had waived his right to a jury trial and pleaded guilty to murder, domestic violence, and aggravated murder with death specifications, in connection with the 2010 murders of Montgomery's girlfriend Tia Hendricks, their two-year-old son Tyron Hendricks, and Tia Hendricks's nine-year-old daughter Tahlia Hendricks. Of note, Montgomery contended on appeal that his jury waiver and guilty plea were not knowingly, voluntarily, and intelligently made because he was taking two prescription medications, Thorazine and Risperdal, at the time of the waiver and plea. He further contended that the trial court knew that he was under the influence of the medications, and should have ordered a competency evaluation. The Court disagreed, holding that the panel interacted with Montgomery multiple times over an 18-month period, adequately conducted the Crim.R. 11 plea and waiver colloquys (including adequate inquiry into the prescription medications), and properly determined that there was no reason to suspect that Montgomery was incompetent. The Court also stated that "we have never held that a court must order a competency hearing before accepting a guilty plea from a capital defendant who is taking a prescription medication for mental illness, and we decline to do so now." Justice William M. O'Neill dissented, arguing that the Court's 2004 decision in State v. Mink required the lower court to conduct a competency evaluation before accepting a guilty plea from a capital defendant on prescription medications.

Ohio Supreme Court case announcements, 8/24/16

Today the Court announced that it has issued merits opinions in two death penalty cases, issued two procedural orders, and dismissed one case as improvidently granted.