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.