Simple question in the office this week:  if a lawsuit gets dismissed for lack of service, does the plaintiff still get the benefit of the savings clause, RC 2305.19, permitting him to refile within one year?

Simple answer:  it depends on who dismisses it, and why it gets dismissed.  Civil Rule 4(E) requires a court to dismiss a case if the plaintiff doesn’t get service within six months and can’t give a good explanation why not.  The rule, though, clearly states that it’s a dismissal without prejudice.  So if you get bounced out for that, there’s no problem in refiling, as long as you do it within a year.

But take a look at Rule 3(A), which says that an action is “commenced” if it’s filed and service is obtained within one year.  If a defendant is smart, instead of objecting that you didn’t get service within the six months of Rule 4(E), they’ll wait out the year, then move to dismiss.  And then you’re screwed.

Why? you say.  After all, the savings statute gives you a year to refile in any action that is “commenced or attempted to be commenced.”  Surely you can argue that you attempted to commence the action, and thus are entitled to a year after it’s dismissed to refile it.

You can get away with that argument in a number of districts, but Cuyahoga County isn’t one of them.  Back in 2003, in Anderson v. Borg-Warner Corp., our court held that failure to get service within a year not only requires dismissal, but bars refiling as well. 

Anderson’s reasoning is quite simple.  Let’s say you have an auto accident which occurred on July 1, 2002.  You have until July 1, 2004 to file the lawsuit.  Under Rule 3(A), you have until July 1, 2005, to get service.  But if you don’t get service within that year, the action has never been commenced, and you’re now outside the statute of limitations.  The defendant is thus entitled to have the complaint dismissed on statute of limitation grounds, and that is a dismissal on the merits, so the savings clause isn’t applicable.

As I said, the reasoning in Anderson is simple, but that doesn’t necessarily mean it’s right, and most districts don’t agree with it, as this case shows.  Keep in minid, too, that in Anderson the defendants had moved to dismiss the case; in other words, it doesn’t address the situation in which the plaintiff dismisses after the year’s gone by, then refiles.  In that case, arguably, you do not have a “judgment on the merits,” so you’re not taken out of the savings clause.

But if you practice in this county and you’ve got a service problem, the safe bet is to make sure you dismiss before the year after filing is up, and then refile.

A couple of recent US Supreme Court decisions are worth mentioning.  I’ll have more on the Court’s death penalty decision in a couple of weeks.  The big decision the other day was United States v. Gonzalez-Lopez.  The defendant was indicted for conspiracy to distribute 100 kilos of marijuana, and called in a California lawyer who’d just negotiated a plea deal in a major drug case in that very district.  The district court refused to grant the attorney’s pro hac vice application, though, and Gonzalez-Lopez was forced to retain another lawyer.  The case was tried; Gonzalez-Lopez lost and was sentenced to twenty-four years in prison, with the not unlikely prospect of winding up as the “wife” of someone named Bubba.

But maybe not — the court of appeals found that the trial court erred in denying the California lawyer permission to represent the defendant, and vacated the conviction.  The government took it up to the Supremes, arguing that unless the defendant could show that he was actually prejudiced by having to use a different lawyer, the conviction should stand.

Four justices — Alito, Roberts, Thomas, and Kennedy — bought it, finding that as long as the trial was fair and the lawyer competent, the defendant had no room to complain.  The other five justices, though, did not, and affirmed the appellate court’s decision vacating the conviction. 

In fact, not only did Justice Scalia side with the liberal wing, he wrote the majority opinion, holding that the Sixth Amendment right to counsel meant not just that the defendant had a right to a lawyer, but that he had the right to a lawyer of his own choice, and that failure to allow him to exercise that right was a “structural error” in trial that required reversal.  Scalia’s stance on this had been pretty much foreshadowed at oral argument back in April, when he rebuked the government lawyer’s claim that competent counsel was sufficient by declaring, “I don’t want a ‘competent’ lawyer.  I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win.'’

As you might guess, I’m not one of Scalia’s bigger fans; his opinions are so right wing I’ve wondered lately whether they have to be translated from the original German before publication.  Still, I’ll give the man his due:  he nailed this one.  Lawyers aren’t fungible commodities, and if a defendant has the ability to afford his own lawyer, he should have the right to pick the one he wants.

A doctor gets sued for malpractice.  The plaintiffs engage in no discovery, claiming that they’re trying to figure out which of the defendants were the negligent parties.  A year and a half later, the plaintiffs voluntarily dismiss their lawsuit.  They refile a year after that, against all the same defendants, again not engaging in any discovery; after they’re ordered to provide expert reports, they voluntarily dismiss once more, thus ending the case.  The doctor’s malpractice carrier, however, notifies him that since they had to pay twice for his defense, they’re canceling his insurance.  It costs him an additional $60,000 to get insurance with another company.  Does he have a remedy, on a theory of either malicious prosecution or abuse of process?

No, says our court in Pritchard v. Algis Sirvaitis & Assoc.  The court was sympathetic to the doctor’s plight, complimenting him on his “eloquent” arguments, but correctly found itself constrained by Supreme Court precedent — specifically Robb v. Chagrin Lagoons Yacht Club – to reject those arguments, and uphold the trial court’s dismissal of the claims.

This points up one of the greater absurdities of Ohio law.  In order to make a case for malicious prosecution, you have to show not only that the proceedings were initiated without probable cause and terminated in your favor, but that your “person or property” was “seized through judicial process.”  An arrest obviously qualifies as a seizure, making malicious prosecution an appropriate claim in a criminal context.  But since prejudgment attachment hardly ever happens in a civil context, the seizure requirement essentially precludes a malicious prosecution claim as a remedy in those cases.

What about abuse of process?  That seems ideally suited for baseless civil suits, except for one thing:  one of the elements of abuse of process is that the original claim was brought “with probable cause.”  In short, the essence of a claim for abuse of process is that the initial plaintiffs had a meritorious claim, but brought it for ulterior reasons.

Thus, the doctor was in a bind:  for malicious prosecution, he had to show that his property was seized, and for abuse of process, he had to admit that the suit against him had merit.

This is a pretty goofy result, but that’s exactly what Robb held.  The majority decided to keep the seizure requirement of malicious prosecution, fearing abolition would “unleash the floodgates” of litigation by victorious defendants seeking revenge upon their tormentors, and deciding that any remedy should come from the legislature.

I’m not a big fan of doctors, and I think the “malpractice crisis” is overhyped, but I don’t think the Robb court’s arguments are particularly compelling.  Two Justices dissented, pointing out that the seizure requirement was an out-moded relic.  And relying on the legislature to rewrite the law that the court itself created doesn’t have much logic, either.

Of course, the aggrieved defendant always can resort to sanctions under Rule 11 or RC 2323.51.  I’ll take a look at how our court has treated those in the next couple of weeks.

You’re representing a client in a felony domestic violence case, which means that he had a prior misdemeanor for the same crime.  You learn that he didn’t have a lawyer when he pled to the misdemeanor.  Can the prior conviction still be used to enhance the felony charge?

As in most everything else in the law, it depends, but there’s a nice recent case out of the 5th District — State v. Mack – which tackles that issue.  In Mack, the state introduced the journal entry from the municipal court, as well as a transcript of the plea hearing there.  The transcript indicated that the court explained the defendant’s rights to him, then asked him to sign a form.  The form was not in the record, though, and the appellate court held that the record failed ”to affirmatively demonstrate that appellant waived his right to counsel,” and thus ”the plea was uncounseled and the right to counsel was not waived.”  The court dismissed the specification and remanded the case for resentencing on a misdemeanor.

It’s a good result for defense attorneys, and there are some good cases out of the 8th District, including this one, where the court held that the municipal court’s solitary inquiry — “is it your intention today to proceed without a lawyer?” — wasn’t sufficient to show that defendant “fully understood and relinquished that right.” 

There are some pitfalls to beware of.  The burden is on the defendant to show that the misdemeanor conviction was uncounseled, but that’s just a burden of production; once he meets that, which can be done simply by introducing an affidavit stating that he didn’t knowingly waive counsel, the burden of proof shifts to the state to prove that there was a knowing and voluntary waiver of the right.  Also, even if the misdemeanor defendant didn’t validly waive counsel, there’s no constitutional violation if he wasn’t incarcerated, as the 8th District notes here. 

Finally, keep in mind that strict compliance with the rules requiring waivers to be recorded isn’t necessary, as this 8th District decision indicates.  The bottom line is that if there’s a signed waiver in the municipal court file, that’s probably going to be enough.

I’m not going to be doing too much here this week.  You may remember the Outlaw Motorcycle Club trial in Federal court in Toledo a couple years back:  10-week trial on RICO and drug and gun conspiracy counts.  I’ve got one of the defendants, and the brief’s due in a month.  It’s an 8100 page transcript.  You do the math. 

Couple of brief notes.  The governor signed the predatory lending bill last week, and it goes into effect on January 1 of next year.  I had a brief piece on it, with links to a summary and the actual text, here.  The governor also signed an amendment to RC 4715.39 which will “allow a dental assistant to apply pit and fissure sealants,” and, in a bow to Footloose fans everywhere, a bill “to remove the prohibition against a minor being in a public dance hall unless accompanied by a parent or legal guardian.”

On a more serious note, Governor Taft signed into law SB 238, which provides substantial changes in Ohio’s child welfare and adoption laws, somewhat loosening the restrictions on access to information on the latter.  A summary of the bill can be found here. 

Today’s rant was going to be about State v. Hereford, in which the 8th District upheld a conviction for trafficking in marijuana.  The defendant was caught with “11 individually sealed bags” containing 16 grams of marijuana.  That’s a little over half an ounce; one can possess six times that amount and still be committing only a minor misdemeanor.  Hereford wound up with a conviction for preparation for sale — a 5th degree felony — because the police testified that the packaging “was consistent with someone selling drugs.”

I was going to rant about the absurdity of this.  Obviously, if this is the way drug dealers package marijuana, it’s also the way drug users purchase it.  If I like tomato soup, I may decide to purchase more than one can at a time when I go to the store, especially if the store is in a bad neighborhood and operated by shady characters.  In fact, I might decide to buy a whole case of tomato soup just so I’ll have it when I want it.  That doesn’t make me a tomato soup dealer.

I was going to rant about all this, until I checked Hereford’s record.  He’s got eight prior cases.  The judge who convicted him, in a bench trial, of this latest one is the most liberal in the Justice Center.  So maybe he was trafficking.

But you know what?  I’m going to rant about it anyway.  No, I’m not blaming the appellate court; they can only review it for weight and sufficiency of the evidence, and the conviction’s supportable on that basis.  But when our schools and infrastructure are crumbling, the devotion of finite resources to the prosecution of low-level marijuana dealers — even assuming they’re dealers — is simply nuts.

There’s been a debate for a number of years now about legalizing drugs, and I’m on the fence about that.  There’s no question that there are some dangerous drugs out there, and witnessing what the crack cocaine epidemic did to the black community for the past couple of decades can’t make anyone sanguine about the prospect of permitting greater drug use, which is what legalization would unquestionably do.

On the other hand, the drug war is almost solely responsible for the evisceration of the 4th Amendment, and if you want to bemoan how drugs have affected the black community, chew on this:  Black people are 13 percent of drug users – about the same as their percentage of the U.S. population – but are 35 percent of those arrested for drug possession, 55 percent of those convicted of drug charges, and 74 percent of those sent to prison on drug charges.  In a dozen states, 30 to 40 percent of young black men will lose their right to vote because of felony convictions.  The war on drugs is primarily responsible for that.

As I said, there are some dangerous drugs out there.  Marijuana isn’t one of them; the next death resulting from marijuana use will be the first.  I suppose there’s an argument to be made for prosecuting high-level marijuana dealers.  But to prosecute some guy with eleven little baggies of the stuff, just to pad the arrest and conviction statistics of police departments and prosecutors’ offices, does far more damage to society than anything in those eleven little baggies.

Not a whole lot for this week’s roundup; hopefully, the golf handicaps of our appellate judges are declining in pace with those of the bar in general.

9th District holds that landlord shopping center’s duty to tenant’s employee is duty owed to a licensee, not an invitee; as concurring opinion points out, this isn’t so… If you’re defending a motion to vacate a default judgment, the 10th District’s decision in Nat’l City Bank v. Calvey is the one to have:  although motion filed only a month after default judgment for $125,000, court stringently applies “reasonable neglect” standard against defendant, says her claim that she was traveling to take care of her sick mother not sufficient excuse for failure to respond to complaint… Another round of plaintiff smackdown, this time from the 12th District:  Plaintiffs asked jury for $542,000, got $9,000, court upholds it…  2nd District says trial court erred in not taking into consideration ex-husband’s inheritance of $1,000,000 in determining modification of spousal support… 

10th District follows its rule that, in any post-Blakely sentencing, failure of defendant to object to sentence at hearing waives all but plain error…  Jury announces it’s deadlocked after three hours of deliberation, judge gives dynamite charge, jury deliberates another 30 minutes, still says it’s deadlocked, judge declares mistrial; 2nd District says that “manifest necessity” of declaring mistrial did not preclude retrial on double jeopardy grounds.  Review was on plain error basis, though; defendant did not object to declaration of mistrial, or file motion for jeopardy prior to second trial… As noted last week, prosecutor’s mentioning of defendant’s invocation of Miranda rights is barred; 8th District holds that prosecution can bring out fact that defendant refused to make written statement where he first made oral statement…

Enjoy your weekend.

Questions that came up this week in the office:

Does a passenger have standing to object to the stop and search of a car?   Yes and no.  He has standing to object to the stop, since it’s an invasion of his privacy, but not to a search of the car, unless he’s the owner or driving it with the owner’s permission, according to State v. Carter.  A good local case on this is State v. Hill, which holds the same way; it also has a nice result and deals with a few other issues, like filing a motion to suppress out of rule and whether the motion meets the particularity requirement, in a defense-positive way.  If you show it to the trial court, though, you might want to leave out Judge Gallagher’s dissent, because he probably gets the better of it on several of those issues.

If you have separate trials, can you get a co-defendant’s exculpatory statement admitted under the declaration against interest hearsay exception?  Not automatically; the rule, 804(B)(3), specifically provides that it can’t be admitted unless “corroborated by circumstances clearly indicating its trustworthiness.”  One of the best cases to have here is the 11th District’s decision in State v. Cohen, 1988 Ohio App. LEXIS 1618.  It reversed a murder conviction for refusal to admit the co-defendant’s statement, and contains an excellent analysis of the issue and the various considerations that should go into the determination of trustworthiness.

Can the judge increase your sentence if you violate probation above what she gave you when she first sentenced you?  No.  The sentence she hands down originally is the one you get if you violate probation.  In State v. Barr, the judge had announced a sentence of 33 months in prison when she gave the defendant community control sanctions, but increased that to 84 months when the defendant violated them.  Our court said that’s a no-no. 

A week ago, I mentioned that the US Supreme Court had come down with a decision which had some ominous implications for the continued vitality of the exclusionary rule.  Defense counsel might want to revise their suppression motions to assert a violation of Ohio’s search and seizure amendment, Article I, Section 14.  If the Supremes do throw out the exclusionary rule, this allows you to claim that it should be imposed under the state law.  That might not afford much hope; arguing whether the US or Ohio Supreme Court is more conservative is sort of like debating which is the smarter Hilton sister. 

A note about case citations.  Both Lexis and Westlaw have come up with a uniform citation form for cases:  each decision is given a number, and the format is [year] ohio [number].  For example, the citation for the case that I refer to in this post is 2006 ohio 2879.  It works for both case services.  Most of the Ohio cases that I have linked here show that cite, so if you want to get fuller treatment, you can plug that number into either case law service and get the case in that format, with headnotes and all.  There are Supreme Court cases using that format going back to the early 90’s, but there are very few appellate court cases prior to 2001.  One other thing:  if you’re citing a case in a brief and can, use that designation instead of the Westlaw or Lexis cite.

Now, on to the law…

From the Coulda Woulda Shoulda Department: A reminder in Watson v. Parma Community Gen. Hospital that res judicata bars not only claims that have been litigated, but claims that could have been raised, but weren’t. The plaintiff worked in the Radiation Safety Program at the hospital, and a coworker there told him that she was pregnant. He made inquiries on her behalf, but when he refused to disclose her identity, he was fired. He sued in Federal court under Title VII, and also brought a pendent state claim under ORC 4111.02. The Federal court granted summary judgment on both. 

Watson then filed an action under the “whistle blower” statute in common pleas court. The court affirmed the grant of summary judgment on res judicata grounds, finding that Watson could have included that claim in Federal court, and refusing to engage in the “speculative gymnastics” of determining whether the Federal court would have exercised pendent jurisdiction over that claim as well. The court noted that this “is not a case where the trial court decided the federal case on the merits and dismissed the pending state claim without prejudice in order for the plaintiff to refile in state court.”

That doesn’t always make a difference, though. Four years earlier, in Abram v. Greater Cleveland Regional Transit Authority, the U.S. district court had dismissed the plaintiff’s Federal claim for employment discrimination, but had declined to exercise jurisdiction over the state claims. The court nonetheless found that the refiled state action was barred by res judicata because of the state law so closely tracked Federal law in this area that “the same parties were litigating the same set of facts, issues, and causes of action arising out of the same circumstances and occurrences.”

The police receive an anonymous tip that a black male wearing black clothing and walking through a parking lot has a gun. The police arrive within thirty seconds, see a black male wearing black clothing walking through the parking lot. He doesn’t respond when the officers tell him to stop and take his hands out of his pockets, so they stop and frisk him, finding an Altoids tin containing PCP. (Talk about “curiously strong.”) Good search or bad?

Bad, says the court in State v. Kittrell, reiterating that in order for an anonymous tip to furnish the basis for a stop, it “must provide more than a mere description of the person’s appearance and location”; the police have to be able to corroborate some detail of the informant’s tip which indicates that criminal activity is afoot before making the stop.  This is in accord with previous cases, such as this one, which contains a particularly nice quote at the end from Judge Timothy McMonagle extolling the values of the 4th Amendment, and this one. 

The lodestar, as we say in the law biz, on this subject remains the US Supreme Court case in Florida v. J.L., where the police received an anonymous tip that there was a young black male in a plaid shirt with a gun at a bus stop, the police arrived at the scene and observed a young black male in a plaid shirt at a bus stop, and a subsequent search revealed he had a gun.  The Supreme Court unanimously struck down the search.

I had a case last year which was almost on all fours, as we also say in the law biz, with J.L.  I won’t mention the judge, but he would be universally regarded by defense attorneys as one of the fairest and most solicitous of constitutional rights.  I cross-examined the cop and got him, rather easily, to acknowledge that he hadn’t seen anything other than what the anonymous tip had told him:  a black male at a certain place wearing certain clothing.  I gave the judge a copy of J.L., and he agreed that the search was bad.  As he walked off the bench, he mentioned that it was the first time in twelve years that he’d granted a motion to suppress.

And all I could think was that if this judge had granted a single motion to suppress in twelve years, the 4th Amendment was in a lot worse shape than I thought.