Wednesday, October 18, 2017

Exclusionary rule not applicable to violation of knock-and-announce statute

So says the Supreme Court in State v. Bembry.

The result may not be surprising, given that the US Supreme Court held similarly in 2006's Hudson v. Michigan, and I personally am convinced that the rationale of Hudson (which was adopted by the Court in Bembry) was correct, but I also am sympathetic to those who might view this as a missed opportunity to provide greater protection to Ohio's citizens through new federalism.

Monday, October 2, 2017

Cert. denied in State v. Brandon Moore

In December I wrote about State v. Brandon Moore, in which the Ohio Supreme Court held that a juvenile sentence for a non-homicide offense that exceeds the defendant's life expectancy violates the Eighth Amendment. It seems that roughly half the states that have confronted this question have found a constitutional violation, and half have not. (There are several other similar cases floating around out there.) One would think that the US Supreme Court will have to weigh in eventually.

But it will not weigh in on Moore. Today the court denied the state's cert. petition.

Thursday, September 28, 2017

Four summary reversals and one summary affirmance

Yesterday I noted two cases summarily affirmed on the authority of Aalim II. Today we have a summary reversals in State v. Stevens, State v. Lonero, State v. Schroeder, and State v. Kepler, and a summary affirmance in State v. Moore, all on the authority of State v. Grimes. The Court in Grimes explained the requirements for validly imposing post-release control as part of a sentence.

As with the Aalim II dispositions, these five cases were decided some four months after the decision on which they were based.

Wednesday, September 27, 2017

Court decides two cases held for Aalim II

Earlier I noted that the Court had accepted some cases and held for the decision on the motion for reconsideration in State v. Aalim. Aalim II was decided in May, and I wrote at the time that I expected the held cases to be affirmed. It took four months, but today the Court affirmed State v. Belton and State v. Lee on the authority of Aalim II.

Thursday, August 24, 2017

A milestone

Today marks the first anniversary of the Ohio Appellate Counsel blog. I've written more than 80 posts discussing more than 50 cases. I've spent more time covering the Ohio Supreme Court than I expected to, and less time covering the district courts of appeals than I expected to. Will that shift in Year Two? I hope so; stick with me to find out.

Tuesday, August 22, 2017

State v. Blair dismissed as moot

Today the court dismissed State v. Blair, which was noted as a newly accepted case in this blog post from May. The issue in Blair related to record-sealing, formerly known as "expungement"; an applicant is not eligible for sealing if she has a "pending criminal matter" at the time of the application. Blair's application was denied because she was on community control for a different offense at the time she applied. The question presented to the Court was whether community control constituted a "pending criminal matter." (The trial court and the First District had held that the answer was yes.) The State moved to dismiss the case as moot, because Blair's community control period was terminated earlier this year, and the Court agreed.

The State preemptively argued that the case was not capable of repetition yet evading review, because while Blair's community control was relatively short (one year), Ohio law authorizes community control period of up to five years, so the issue was bound to be raised eventually in another case. We'll keep our eyes open for that one.

Wednesday, July 26, 2017

Supreme Court case announcements, 7/26/17

Four new accepted cases today. Interestingly, all four cases have noted dissents regarding whether to accept the case or which propositions of law to hear. Three of the four are from the Eighth District. (Update: and certified conflicts, too.)

Wednesday, July 5, 2017

Follow-up: Fisher v. Doe

In December I wrote that Tom Haren and I had filed an amicus brief in the Ohio Supreme Court on behalf of our client Alexandria Goddard. We asked the Court, in Fisher v. Doe, to adopt the Dendrite International standard for cases in which a subpoena seeks to unmask anonymous internet speech.

Today the Court declined to accept the case by a 4-2 margin. Justices French and O'Neill dissented. Justice Fischer, who was on the First District panel that decided the case in October, did not participate.

We are disappointed, obviously. The First Amendment's protection extends as equally to anonymous and pseudonymous speech as it does to speech from identified sources, and this is no less true for online speech than it is for speech in newspapers, pamphlets, or any other media. We will continue to keep our eyes open for candidates to place the Dendrite issue before the Ohio Supreme Court and courts of appeals. If you are aware of any, please don't hesitate to contact me.

Supreme Court case announcement, 7/5/17

Today the Court announced that it has accepted discretionary appeals in two criminal cases.

Wednesday, June 7, 2017

On orders, final orders, and judgments

Perhaps no issue more consistently perplexes litigants (and sometimes, it must be said, judges) than whether a particular order is merely an order, a "final order," or a "judgment." The distinction matters a great deal, and in this case it (for now, at least) cost the plaintiff a shot at almost 8 million bucks.

Tuesday, June 6, 2017

Potential conflict in arbitration case

The Ninth District has just released a decision in Kelsey v. Carrington Homes, Inc., in which it held that a trial court must conduct an evidentiary hearing before compelling the parties to arbitrate a dispute.

This holding appears to conflict with that of at least one other appellate district, and may be a candidate for review by the Supreme Court as a certified conflict.

Monday, June 5, 2017

Tuesday, May 30, 2017

Justice DeWine's concurrence in Aalim II

Yesterday I noted Justice DeWine's concurrence in Aalim II, and promised to write a bit more. And so--as I see Justice DeWine jog down the street past my office window--here is that post.

The majority opinion in Aalim II is a rejection of a due-process challenge to Ohio's statutory scheme providing for mandatory bindover of juveniles to common pleas court if certain factors are met.  Justice DeWine agrees with the conclusion that the scheme is in fact constitutional, but writes separately to emphasize his belief that the Court has conflated procedural and substantive due process standards.

Stick with me--this is more interesting than you might think.

State v. Roberts - death sentence affirmed on third appeal

Today the Court announced its decision in State v. Roberts, a death penalty appeal that had made two prior trips to the Supreme Court. In the first appeal, the Court vacated the death sentence because the trial judge had engaged in improper ex parte communications with the prosecutor, and had allowed the prosecutor to assist in drafting the sentencing opinion. In the second appeal, the Court vacated the death sentence because the trial court had (apparently) failed to consider the defendant's allocution.

This time, the Court affirms. Justice O'Neill concurred in the judgment affirming the conviction, but dissented as to the imposition of the death penalty (as he now always does). Chief Justice O'Connor concurred in the judgment only.

This blog has previously covered the case of Roberts's co-defendant, Nathaniel Jackson, whose conviction and sentence were affirmed last summer.

Friday, May 26, 2017

Double jeopardy clause bars ethnic intimidation charge

On Wednesday the Supreme Court issued its decision in State v. Mutter, an appeal from the Fourth District concerning whether a prior no contest plea and sentence for aggravated menacing precluded a later indictment for ethnic intimidation. The Court holds that it does.

Monday, May 22, 2017

Service of process abroad

In December I wrote about the First District's decision in Richardson v. Clinical Computing PLC, in which the court held that a treaty (the "Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters") permitted service of a complaint and summons by regular mail in the United Kingdom. I also noted that there was a split of authority on the question.

Today the US Supreme Court resolved that split, holding in Water Splash v. Menon that the treaty does indeed permit service of process through regular mail.

A tip of the cap is due to former First District Judge Peter Stautberg, who nailed the analysis in his decision.

Wednesday, May 17, 2017

Supreme Court case announcements, 5/17/17

Five new accepted cases today: one appeal by the Public Utilities Commission, one pro se criminal appeal, one parental rights case, one arbitration case, and one counseled crim pro case. The announcement is here.

Tuesday, May 9, 2017

Your patience is appreciated...

I am back from my vacation. Yosemite National Park--you've got to see it to believe it.

No new grants while I was gone. I will dive back in with some updates from the courts of appeals soon.

Wednesday, April 5, 2017

Stay granted in Vontz v. Miller

Vontz v. Miller is an interesting First District decision that I noted in late December but did not have an opportunity to discuss. The named parties are each 50% shareholders of Dayton Heidelberg Distributing Co., and their litigation concerned a shareholder impasse. The trial court issued injunctive relief requiring the shareholders to attend a shareholder meeting, but the First District reversed in part, holding that the trial court exceeded its authority.

Tuesday, March 28, 2017

Case update: Myocare v. Hohmann and conditional dismissals

Earlier this year I wrote about Myocare Nursing Home, Inc. v. Hohmann, in which the Eighth District dismissed an appeal for lack of jurisdiction. The parties had stipulated to a "conditional dismissal" of a compulsory counterclaim, but the appellate court ruled that Ohio law doesn't recognize conditional dismissals, and that as a result the counterclaim remained pending in the trial court and the appellate court lacked jurisdiction.

Monday, March 27, 2017

Tenth District: no jurisdiction over appeal from denial of motion for reconsideration

The reason being, of course, that motions for reconsideration of a final judgment simply don't exist under the Civil Rules. Denials of motions for reconsideration therefore can't be final orders, and the court of appeals has no jurisdiction over appeals from non-final orders.

But there is a lot more going on in this case.

Friday, March 17, 2017

More on Belton, Aalim, and disqualifications

In an earlier post I promised more on BeltonAalim, and related issues. In particular, I want to discuss how the Court, and in particular new Justices Patrick Fischer and Pat DeWine, are handling some unusual procedural issues.

Wednesday, March 8, 2017

Poor Thomas Warren

At first glance Tom Warren might not be an obvious candidate for your sympathy. He's a partner at Baker Hostetler, where he's the leader of its appellate defense group. Graduate of Harvard College and Stanford Law, former federal prosecutor, adjunct professor at three law schools...

Wednesday, February 22, 2017

Monday, February 6, 2017

Brief filed: Stewart v. Vivian

Today we filed our reply brief in the Ohio Supreme Court on behalf of the appellant in Stewart v. Vivian. You can read the brief here.

Stewart relates to the proper interpretation of section 2317.43 of the Revised Code. The docket is here. Our merits brief was filed in November, and the appellee's brief was filed last month.

The case is scheduled for argument on Thursday, April 6.

Thursday, February 2, 2017

Oral argument scheduled in Stewart v. Vivian

The Court has scheduled argument in our case Stewart v. Vivian for Thursday, April 6. I'm pleased to note that the argument will be conducted in Morgan County, Ohio, as part of the Court's off-site program, which has as a goal the education of high school students about the Court and legal system. While I'm disappointed we won't be going to the Court's home in Columbus, the off-site program gives students a chance to interact with the Justices and lawyers, which is great. I participated in a similar program in December, albeit with the Chamber of Commerce, rather than students.

Some prior discussion of the Stewart case can be found here. We will file, and I will share, our reply brief on Monday.

Monday, January 30, 2017

Brief filed: R&R Family Investments v. The Plastic Moldings Corp.

Today we filed a notice of appeal and a jurisdictional brief in the Ohio Supreme Court on behalf of the appellant in R&R Family Investments v. The Plastic Moldings Corp., et al. You can read the brief here.

At issue in the case is whether a property owner owes a duty to people outside the land with regard to naturally occurring conditions of which the owner has actual knowledge. More particularly, our brief asks the Court to accept the appeal in order to adopt Section 54 of the Restatement Third of Torts: Liability for Physical and Emotional Harm.

Thursday, January 19, 2017

Conditional dismissals, appellate jurisdiction, compulsory counterclaims, and you

Civil procedure and appellate jurisdiction wonks may be interested in the Eight District's decision in Myocare Nursing Home, Inc. v. Hohmann. The question is whether the civil rules allow for conditional dismissals, and if so whether a conditional dismissal confers appellate jurisdiction over the order disposing of the remaining claims.

Thursday, January 12, 2017