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.

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.

Supreme Court case announcements, 1/25/2017

The Court has issued its first major orders list of 2017, accepting three new cases and declining about 60 others.

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.

What happens to money paid pursuant to a conviction that was vacated on appeal?

The State of Ohio contends that the answer depends on precisely what the purpose of the payment was.

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.

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.