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June 2006 Archives

June 30, 2006

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.

Continue reading "June 30, 2006" »

June 29, 2006

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.

Continue reading "June 29, 2006" »

June 28, 2006

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.

Continue reading "June 28, 2006" »

June 27, 2006

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.

Continue reading "June 27, 2006" »

June 26, 2006

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.

Continue reading "June 26, 2006" »

Trafficking in tomato soup

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.

Continue reading "Trafficking in tomato soup" »

June 24, 2006

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.

Continue reading "June 24, 2006" »

June 23, 2006

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. CarterA 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.

Continue reading "June 23, 2006" »

June 22, 2006

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."

Continue reading "June 22, 2006" »

June 21, 2006

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.

Continue reading "June 21, 2006" »

June 20, 2006

Where a prenuptial agreement spells out what spousal support a wife is to receive upon divorce, is temporary spousal support included in that amount? No, says our court in Cangemi v. Cangemi. The parties married in 1996, at which time the husband had a net worth of just north of $8 million, compared to the wife's $33,000. The prenup provided the wife was to receive $5,000 a month for one year in spousal support upon the journalization of a divorce decree. She filed for divorce three years later, and the court ordered temporary support of $6,000 a month. It took six years until the final decree, and in the interim hubby coughed up enough in temporary support to fund a small South American republic. His argument that the temporary support should have counted toward his final tab fell on deaf ears, and for good measure, he had to pay $15,000 toward his ex-wife's attorney fees. Ain't love grand?

That's a bit too flippant, actually. (Flippant? Moi?) Judge Cooney's opinion - joined in by Judges Karpinski and McMonagle - was meticulously thorough, and there's no real basis for quibbling with the result: the decision with regard to temporary alimony is supported by the case law, and most of the specific determinations, some of which went against the wife, were essentially dictated by the language of the agreement.

Somewhat interesting, though, is the opinion's assertion that "a strict application of the law of contracts is not appropriate, rather, the terms of the agreement and the intent of the parties at the time of execution of the agreement is of prime importance." It's not entirely clear what that phrase means; obviously, "the terms of the agreement" and "the intent of the parties" are part of the law of contracts. There's language in other decisions, such as the Supreme Court case of Fletcher v. Fletcher that prenups are "contracts and generally the law of contracts applies to their interpretation and application."

To be sure, they're not treated the same as the ordinary business contract, because of the fiduciary relationship of the parties, and there's no question that the alimony provisions, at least, can receive heightened scrutiny for unconscionability. That's one reason that spouses who rely on such agreements often find that they don't offer nearly the protection originally envisioned. It's possible that some creative lawyers might seize on the remark in Cangemi to argue that the divorce court's equitable powers give it even greater ability to fashion a remedy not entirely, or even closely, consistent with the provisions of the prenuptial agreement.

Continue reading "June 20, 2006" »

June 19, 2006

A somewhat unusual result the other day from the 8th District in State v. Person. The police had been using a confidential reliable informant to conduct a "buy-bust" operation: the CRI, with a marked bill, would approach the target and make a buy, at which point the police would swoop down and arrest the dealer. One of the buys was with someone on a bike; the bicyclist then took off, but shortly thereafter, the police found the defendant sitting on a bike, and arrested him. They found neither drugs nor the marked money on him.

At trial, the detective testified that he could identify the defendant as the man who'd sold the drugs to the CRI, although there was some discrepancy in that testimony: at one point he stated he'd been 400 feet from the transaction, and later testified that the distance was 1/10th that.The CRI, of course, was nowhere to be found: the state had refused to disclose his identity, and he was not called as a witness. One detective testified that the CRI had in fact identified the defendant, and the objection to that was sustained. Despite that, the prosecutor asked the second detective whether the CRI had identified the defendant. Although that objection was also sustained, the jury apparently experienced some confusion over it: during deliberations, they sent a question asking "Was it officer Hall who made the ID, or both Officer Hall and the CRI?"

The prosecutor also asked the detective whether the defendant had been given his Miranda rights and, for no apparent purpose, asked if the defendant had made a statement. He had not.  Judge McMonagle, with Judge Karpinski concurring, felt that this was sufficient evidence of error and prosecutorial misconduct to warrant reversal. Judge Kilbane dissented.

I say "unusual result" because a reversal for prosecutorial misconduct of this nature - of any nature, really - is as rare as an insightful comment from Jessica Simpson. Even the majority conceded that a reversal for an "isolated incident" of a Doyle v. Ohio violation - eliciting that defendant had exercised his Miranda rights - is rare.  In fact, one of the more helpful things, from the defense attorney's viepoint, is the court's handling of State v. Ervin, one of the first to enunciate the "isolated incident" view.  The Person court notes that in Ervin and its progeny, the evidence of guilt was overwhelming, unlike the case before it.  It noted further that "Ervin should not be read or understood to stand for the proposition that the State gets one free constitutional violation of a defendant's Fifth Amendment right not to be compelled to be a witness against himself."

One shouldn't make too much of Person; obviously, the court was influenced by the closeness of the case, and the prosecution's attempt to get into evidence the CRI's identification, as well as the jury's obvious reaction to that evidence.  The result is a welcome one, though.  After all, the prosecutor's inquiry into the defendant's exercise of his Miranda rights was a constitutional violation, and in a case like this, it's hard to see how any error would be harmless beyond a reasonable doubt.

At any rate, if you've got an appeal with a Doyle issue, this is a good case to have.

Continue reading "June 19, 2006" »

June 18, 2006

On Wednesday, I had a post about the 8th District's decision in in re J.C., discussing the portion of the decision concerning access to agency records of child abuse in a custody proceeding.  The court rejected the father's attempts to obtain the records, finding that his allegations were "of a kind that is, sadly, all too common in custody cases."

That wasn't the only thing sad or common about the case.  The father had filed a motion seeking custody because of alleged visitation violations, the mother had then filed a motion to relocate her and the children to California, and then had done so before the court could rule on it.  The trial court granted temporary custody to the father, then ultimately reversed itself and gave the children back to the mother in California. 

To its credit, the 8th District reversed, finding that the lower court had given insufficient consideration to the devastating effect that relocation would have on the father's parenting rights, and remanded the case for that purpose.  Judge Calabrese, concurring and dissenting, would have gone further:  he would have awarded the father custody.  As he put it,

The crux of this case is the best interest of the children and whether the harm outweighs the advantages of the change in environment. In my opinion, what is in the best interest of any child is to have a relationship with both parents.

The mother in this case blatantly interfered with the children's  relationship with their father by moving them across the country, making shared parenting impossible. I find it hard to believe that she had the best interest of her children in mind when she violated the terms of the custody agreement. Her self-absorbed and spiteful actions amount to "harm" that outweighs any sunshine California may have to offer these children. They need their mother and their father. If the mother chooses to relocate herself to California and leave her children behind in Ohio to be raised by their father, so be it. She is free to move wherever she likes, but she is not free to violate a shared parenting plan by taking the children away from their father without the court first considering what is in the best interest of these children.

As far as I'm concerned, that's right on the money.

Happy Father's Day.

Continue reading "June 18, 2006" »

June 17, 2006

I want to spend a beautiful day like this writing this stuff about as much as you want to spend it reading it, so let's get to the Weekly Roundup so we can all get outdoors and enjoy the sunshine.

RC 3119.79(A) provides that if a party asking for a modification of child support shows that the obligation would increase or decrease by 10% from the previous order, it constitutes a change of circumstances allowing a change in the order. The 10th District holds that this isn't a prerequisite: the court can modify support even if the 10% rule isn't met... 10th District also upholds trial court's grant of default judgment and dismissal of defendant's counterclaim as sanction for defendant's consistent failure to attend deposition... 9th District finds that trial court doesn't abuse discretion by granting lifetime alimony in a marriage of "long duration," 26 years in this case... 8th District holds hearsay rules aren't applicable in small claims proceeding. Case involved veterinary malpractice, and could serve as a manual for how magistrates shouldn't conduct a hearing...

3rd District determines that trial court didn't do sufficient job of determining that defendant should be allowed to represent himself; good discussion of steps court should take in accepting waiver...12th District says that theft by deception and receiving stolen property are allied offenses, when it's the same property; case involved a money order which defendant claimed he received "after he responded to an email soliciting his help in claiming money from a Nigerian bank"... 3rd District holds that even if sobriety tests are not properly given, arrest is valid if the "totality of the circumstances" shows probable cause... 9th District holds that the amendment of the DWI statute to provide a 20-year "lookback" period isn't unconstitutional as an ex post facto law.

And if you think that Cuyahoga County is the only place where the "name game" gets played in judicial elections, check out the result of this race in Los Angeles:

The rare defeat of a highly regarded sitting judge ousted from the bench Tuesday by a bagel store owner who'd barely practiced law in the last decade sent a jolt through Los Angeles County legal circles, leading some to question whether the system to select judges needs overhauling.

When the ballots were counted it wasn't even close: Judge Dzintra Janavs, a 20-year veteran of the bench, lost by almost 8 percentage points to Lynn Diane Olson, a Hermosa Beach resident and business owner who only late last year reactivated her state bar membership.

Continue reading "June 17, 2006" »

June 16, 2006

I share office space with six other lawyers, and one of the consequences of being pretty good at research is that I'm the guy they'll come to for resolution of weird questions.  Several times a week, one of them will trudge into my office and tell me, "You know, there's got to be a case that says..."

So, that's going to be the new Friday Feature at the Briefcase.  Saturdays is for the Weekly Roundup, Sundays is for the Rant, and now Fridays will be for There's Gotta Be a Case.  (Note to several readers:  your suggestion for another weekly feature at the Briefcase is appreciated, but Dirty Picture Wednesday is pretty much of a nonstarter.)

So, let's get to it.  There's gotta be a case that says:

Continue reading "June 16, 2006" »

June 15, 2006

Your client's busted for DWI, you file a motion to preserve the videotape of the arrest, and find that the cops destroyed the tape. Is that a basis for having the charges thrown out?

Good chance, as the recent decision from the 3rd District in State v. Geeslin explains, as long as the tape was destroyed after you filed your request to preserve it.

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June 14, 2006

It's been exactly a month that I've been doing this now. We've got some regular readers, and others who drop in from time to time. For those of you who may not know this, there's a new post here each day. I try to make it entertaining, and also informative. I learn something new just about every day doing this, and hopefully you will, too. In the next week or so, I'm going to try to set up something called an RSS feed, which will allow you to sign up to automatically get the day's post in your email. More on that later.  For now, fortified by a cup of not-so-great coffee, on to the law.

The court somewhat clarifies the circumstances under which a party can obtain agency records of abuse or neglect, despite statutory provisions making them confidential, in In re J.C.

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June 13, 2006

Arguably, the Rubik’s Cube of Ohio law is determining whether a conviction for simple assault can be expunged, the difficulty resulting from the fact that the statutory provision on that is worded worse than anything this side of the IRS regulations.

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June 12, 2006

On April 6, 2006, the Task Force on Pro Se and Indigent Litigants submitted its report to the Ohio Supreme Court. The report runs 45 pages (128 including the appendix, which contains the results of a survey on pro bono work, and an Iowa court manual on how to handle pro se litigants). It contains no fewer than 52 recommendations, and can be found here.

If its recommendations were adopted, they would have a profound effect on the practice of law in Ohio.

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June 11, 2006

Gay marriage is back on the front burner, and not only because the US Congress, fresh from solving all the country's other problems, failed in their attempt to remedy one of the Founders' glaring omissions. A few weeks back, the 3rd District in State v. McKinley concluded that the Defense of Marriage Amendment passed by referendum in November of 2004 precludes a conviction of domestic violence where the victim is cohabiting with the defendant, on the theory that this gives non-married cohabitants a "status" equal to marriage, which the Amendment prohibits.

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June 10, 2006

Time for the Weekly Roundup... 3rd District upholds grant of custody of three children, one an 11-year-old girl, to the father; probably the biggest factor was the mother's moving in with a man who'd been classified as a sexual predator. Duh... The 8th district determines that lack of smoke detector on first floor, in violation of city ordinances, precludes summary judgment... Going to prison doesn't get you off the hook for child support, says the 3rd District... the 5th District upholds use of RC 1703.191, which allows you to obtain service on an unlicensed foreign corporation by serving the secretary of state...

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June 9, 2006


Back in January, the Supreme Court ruled in Hernandez v. Kelly that the Adult Parole Authority couldn’t impose post-release controls on a defendant unless he’d been notified about them at the sentencing hearing. This was in accord with the prior case of Woods v. Telb, which held that, because of the principle of separation of powers, the APA couldn’t impose post-release controls unless the trial court included that in its sentence.

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June 8, 2006

Someone pointed out to me that my encomium on Tuesday to the troops who fought on D-Day had them landing in Normandy in 1956. Oh, well, 52 years ago, 62 years ago, whatever... One of the reasons I went to law school is they promised there wouldn't be any math.

The other day I highlighted the Supreme Court's decision in Smith v. Smith. It's not uncommon to have a paternity case where the father is sued years after the child is born, and since the mother is entitled to child support retroactive to the child's birth, the father can be hit with an arrearage in the tens of thousands of dollars. (And sometimes it's more than just a few years; in this case, CSEA sought to recover a 39-year-old arrearage.)

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June 7, 2006

A reminder from the 9th Circuit of one of the pitfalls for the defense attorney representing a defendant charged with multiple offenses: a motion for severance is waived if you don't renew it at the close of the state's case and the close of all the evidence. This is in keeping with the law in this district and, in fact, with virtually every district in Ohio.

I got nailed on this several years ago.

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June 6, 2006

The Supreme Court will hear oral argument tomorrow in the case of State v. Azbell, and the ensuing decision should clear up some confusion about the speedy trial statute.  In Azbell, the defendant had been arrested at a pharmacy in May of 2003 trying to buy drugs with a phony prescription.  Although she was booked and fingerprinted at that time, no charges were filed.  In January of 2004 she was indicted, and wasn't served with the indictment until April.  The 6th District held that since the speedy trial time runs from the time of arrest, the time for trial ran from her arrest in May, and thus had expired.

If the Supreme Court affirms,

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June 5, 2006

If you do workers comp court appeals, you should be aware that a quirk in the voluntary dismissal procedure has been addressed by the Ohio legislature.  If either side is not satisfied with the result of a work comp case at the administrative levels, they can appeal to Common Pleas court.  (And unlike other administrative appeals, you get a trial de novo.)  The procedure starts with the filing of a notice of appeal to the court, followed by a complaint filed by the claimant.  After that, it's governed by the normal rules of civil procedure.

Including Rule 41, and that's where the anomaly arose.

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June 4, 2006

Another new feature at The Briefcase: Sundays will be devoted to The Rant, a screed by yours truly on a recent case, a law, or anything else that strikes my fancy. The only promise I make is that it will not reach the level of pathos achieved by Kelly Droughns, wife of Cleveland Browns running back Reuben, who expressed her relief at her spouse’s recent acquittal of drunk driving charges by proclaiming: "It’s been hard on us, hard on Reuben. We’re taking a limo everywhere, even to the grocery store."

Today’s subject

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June 3, 2006

While our Republican state legislature passing a strongly pro-consumer measure is arguably one of the signs that the End Times are upon us, let's give props where props are due: by all accounts, the newly-enacted predatory lending bill is one of the strongest in the nation. And this just a couple of weeks after I ripped the legislature for being as sensitive toward consumer concerns as James Dobson is to gay rights. Imagine my shame...  A summary of the bill's provisions can be found here, and for those who laugh at death, the full text of the bill can be found here.

We're going to be starting a new feature at The Briefcase this week. Instead of a post on a single subject, on Saturdays we'll take a quick swing around court decisions that have come out in the past week, regardless of which district they're from.

Continue reading "June 3, 2006" »

June 2, 2006

Just a short note.  Back in 2000, the legislature amended the law on paternity cases to hold that a father couldn't be held liable for arrearages if the child was over three at the time the paternity action was filed, and the father didn't have any knowledge of the child.  On Wednesday, in Smith v. Smith, the Supreme Court held that the statute couldn't be applied retroactively.

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June 1, 2006

I'm doing some catching up with some other work today and tomorrow, so I probably won't have anything new until the weekend.  I've made some changes in the site again.  You can now email the site to your friends (that's the link at the top that says, helpfully, "email this").  I've also set up categories, so that if you're only interested in criminal or civil cases, you can just go to the posts in that subject.  ("Constitutional" means criminal cases involving constitutional issues like search and seizure or confrontation.)

If you're new to the site and don't want to wade through a whole bunch of posts, you might want to check out some of these.  Here's one on sanctions for frivolous filingsThis one discusses whether you can wait until trial to get a complaint tossed because the plaintiff didn't get service.  And the ability of the court to negate an arbitration provision in a car purchase contract is discussed here.  A recent decision which may allow lawyers to be deposed about what they talk about with expert witnesses is discussed here.

On the criminal side, here's a post on determining the competency of witnesses, and this one is on which drug offenses are allied offensesThe statute of limitations, and whether it runs if the state doesn't do anything to serve an indictment, is discussed here.

For discussions of constitutional issues, here's a post about how State v. Foster might lead to defendants who appeal their sentences getting longer ones.  This post discusses whether the police can always frisk after a stop, and here's one on how a "high crime area" affects the question of whether a frisk is permitted in the first place.

See you on Saturday.

Continue reading "June 1, 2006" »

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