About six weeks ago, I detailed the 8th District’s adventure into the wilderness that is Ohio sovereign immunity statutes.  That case, O’Toole v. Denihan, involved a suit against the Department of Children and Family Services over their failure to properly investigate claims of child abuse prior to the beating death of a a 4-year-old.  I mentioned at the time that while the decision probably came to the correct result, its analysis of the sovereign immunity statutes was not as rigorous as it could have been.

The court tackled the issue again in Rankin v. Children Services, a decision two weeks ago involving an equally appalling incident:

On July 23, 2003, Martin had a supervised visit with D.M. [his 3-year-old daughter].  Despite prior warnings not to allow any of Martin’s activities with D.M. to go unsupervised, during the course of this visitation, Martin was allowed to take D.M. into a private restroom where he sexually assaulted her. Afterwards, Martin took D.M. back to the visitation room and placed her on his lap. He then placed a jacket over her lap and placed his hand under her clothing and fondled her genitals. Although Martin was under surveillance at the time, at no time did anyone from DCFS remove D.M. from Martin or contact the police.

While some courts have suggested that the Delphic riddles posed by the sovereign immunity statutes are only slightly less daunting than string theory, it’s actually not quite that bad.  Basically, here’s how it goes:  the government is immune from suit (RC 2744.02(A)), unless the conduct falls into one of the five exceptions under 2744.02(B).  But even if it does fall within one of those five exceptions, the government can still be held immune if the conduct falls within one of the seven items listed in 2744.03.

Without going into detail, the problem in Rankin was that the none of the five exceptions to immunity appear to apply.  So the plaintiff got creative, and the court bought into it:  it reversed the trial court’s grant of summary judgment, finding that sovereign immunity could be overcome by the “special relationship” exception to the rule.  That exception, according to the court, exists when there is

(1) an assumption of an affirmative duty by a political subdivision; (2) knowledge on the part of the political subdivision or its agents that inaction could cause harm; (3) a direct contact between the political subdivision’s agents and the injured party; and (4) that party’s justifiable reliance on the political subdivision’s affirmative undertaking.  

Again, this is a morally proper result, but the court’s method is problematic: it’s not clear that the exception the court relies upon even exists.  The “special relationship” exception actually was part of the “public duty rule,” both of which are discussed in this 1987 Ohio Supreme Court case.  The problem is that the case arose before the sovereign immunity statutes were enacted, and it’s not clear whether the whole concept survives them.

One other problem with Rankin is that it concluded that the individual defendants could be held liable under the exception in 2744.03 for “reckless” conduct, the same conclusion they reached in O’Toole.  As I pointed out there, though, reckless conduct is not a basis in itself for imposing liability; before you even get to that, you have to find that immunity is removed under one of the five exceptions of 2744.02(B).

This probably isn’t the last word on either of these cases:  the Department’s already filed a memorandum asking the Supreme Court to review O’Toole, and similar action is likely in Rankin.

One thing reading those cases did do for me, though, was reaffirm my conviction that I’d move to Brazil before I’d let Children’s Services get within 100 yards of my kid.

As the legions of faithful readers of this blog have probably figured out by now, I’m a fairly opinionated sort.  When I first thought of writing a blog, I briefly contemplated doing a political one.  I chose to do a legal one instead, and although there are any number of legal issues with political overtones, I decide to avoid those for the most part, and stick to Ohio law, keeping my opinions to myself on those issues.

Until this weekend, when I read the comments of Cully Stimson, a Pentagon official who holds the title of Deputy Assistant Secretary of Defense for Detainee Affairs.  In an interview with Federal News Radio the other day, Stimson launched into a discussion of the major law firms which are providing pro bono legal assistance to the Guantanamo detainees:

Actually you know I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA [Freedom of Information Act] request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there,’ and you know what, it’s shocking.

And who should be shocked about it?

I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.

We certainly do.  And lest there be any doubt about who’s wearing the black hats here, Stimson hinted darkly that instead of this being done pro bono, somebody — somebody, oh, who maybe uses a prayer rug and faced east five times a day — could be providing quid for the quo:  when asked who was paying the firms for the work, Stimson replied,

It’s not clear, is it?  Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I’d be curious to have them explain that.

At this point, a confession:  I am not the most impartial of political observers.  I became convinced at least six months ago that President Bush has taken to roaming the halls of the White House at night and talking to the pictures; I watched his speech last week mainly to see if he’d be rolling steel balls in his hand.  So it might be that I am exaggerating the import of Stimson’s comments.  Maybe he’s really some insignificant toady, his impressive-sounding title actually putting him no higher on the organizational chart than the Deputy Assistant Secretary for Pentagon Cafeteria Luncheon Meat Selection.  Maybe it’s no big deal.

I don’t think so, though.  What I do think is this:  any administration which had a shred of respect for constitutional liberties would quickly usher Stimson out the door, telling him that there was no place for his odious threats of a boycott against lawyers who are undertaking to represent the undesirables, a tradition that goes back to John Adams defending the British soldiers accused in the Boston Massacre.

But this is an administration which has insisted that it has the right to declare anyone an enemy combatant, to hold them indefinitely without trial or charges, to engage in surveillance without warrant or other authorization, all without interference or oversight by the other two branches.  A few days before he gave his speech last week announcing Operation Let’s All Clap Our Hands and Wish Real Hard, our Maximum Leader issued a signing statement to a postal appropriations bill, informing us that he reserved the right to open anybody’s mail if he deemed it necessary.

So I don’t think Mr. Stimson will have to worry about hitting the unemployment line.  I guess he figured that after the Administration took on the 4th Amendment and habeas corpus, the 6th Amendment was fair game, too.

One thing I do know, though.  One of the firms that does the pro bono work for the detainees is the Washington firm of Paul, Weiss, Rifkind, Wharton & Garrison.  They’re also representing Scooter Libby, the aide to Dick Cheney who goes on trial this week in the Valerie Plame affair.  Gotta figure that Scooter’s not going to be participating in the boycott.

And they say irony is dead.

If you do Federal criminal law, you know that prior to Booker, the trial judge had to give notice of whether he was considering imposing a sentence above the guideline range. A decision by the 6th Circuit the other day in US v. Collins, 469 F.3d 572, holds that’s still required, even though the guidelines are now advisory.

Now, on to the Ohio courts.

Civil.  “I’ll take Torts for $400, Alex”:  9th District finds that there is a cause of action in Ohio for “hostile housing environment,” while 6th District, in medical malpractice case, holds there is no cause of action for “negligent referral“… 8th District rules that guardian ad litem in custody case has absolute immunity from suit… Thorough discussion of when counsel must be disqualified because of necessity of being a witness in this 10th District case… 12th District explains what constitutes a continuing trespass for statute of limitations purposes… Failure to attach schedule of assets voided prenuptial agreement, 1st District rules… Granting a motion to vacate a default judgment is not a final appealable order, says 5th District…

Criminal.  9th District upholds trial court’s rule that negotiated pleas would not be accepted on day of trial… 6th Circuit holds that Alford plea waives right to appeal suppression ruling, just as ordinary plea would… 1st District upholds Cincinnati’s anti-panhandling ordinance against constitutional challenges… Excellent discussion of requirements trial court must observe for allowing defendant to proceed pro se in this 9th District case…

Finally, this week’s Chutzpah Award goes to the defendant in State v. Walsh.  After becoming comptroller of a company, he persuaded them to hire him an assistant with whom, unbeknownst to the company, he was having an extramarital affair.  The two of them ripped off the company for almost $200,000, much of it by forging company checks to pay the defendant’s credit card debts.  On appeal,

appellant claims that his unauthorized execution of corporate checks to pay off his personal credit cards actually should be interpreted as an “interest-free loan” from appellant to [the company]. Appellant maintains that due to poor financial performance by the company, appellant did not avail himself of salary increases to which he was entitled. Appellant claims it was less of a fiscal burden on the company for him to utilize corporate funds to pay off his personal credit cards in lieu of a salary increase.

Wherever the line is between creative lawyering and total bullshit, this one was well over it.

It’s the Friday odds and ends column, of course, as we scan the globe for… well, whatever.  And I do mean the globe.  Got a hit on my blog yesterday from someone in Israel, who had Googled the phrase, “fruit of the poisonous tree.”  Not sure if he was researching the legal doctrine or the religious doctrine; if the latter, he was disappointed.

Came across an interesting decision out of the Federal Court in Massachusetts.  As many of you probably know, there’s a Federal law which requires anyone convicted of a Federal felony (and certain other crimes) to give a sample of his blood to be stored in a DNA databank.  The defendant, who’d been convicted of social security fraud, objected, and the court agreed that this violated his Fourth Amendment rights.  The opinion, which can be found here, is a long read — almost 50 pages — but it’s a masterful job, analyzing the issue from the historical perspective of the British general Writs of Assistance, which, as the name indicates, allowed general searches, and were the major impetus for our own Fourth Amendment’s command that warrants “particularly describe the place to be searched, and the person or things to be seized.”  Here’s one of the final paragraphs of the opinion:

But the tapestry of constitutional protections that cover all Americans is woven with long threads, each section and each pattern revealing of the integrity of the whole. This holding seeks not to mend this fabric, but to preserve it. To preserve it, most directly, for the unsympathetic probationer who, despite a transgression against the law and against society, is now released to and embraced by that same law and that same society to the full extent reasonably possible. It is also preserved indirectly and with greater resonance for those who remain untouched by this individual invasion, but who suffer the collective erosion of their protection against arbitrary state action.

I’m not going to get into whether the judge was right or wrong, because there are arguments to be made on both sides, but damn, that’s some good writing.  I’ve been doing this blog for almost eight months now.  I’ve read probably a hundred or so court decisions in that time, and skimmed God knows how many more, and it’s a real pleasure to come across a decision which doesn’t lapse into dry legal-speak.

Speaking of good writing, Kent Sheidegger over at Crime and Consequences took a look on Tuesday at Burton v. Stewart, the case pending before the US Supreme Court on whether Blakeley is cognizable on habeas corpus, and argued that it was the worst possible case for resolving that issue, because there are some monumental jurisdictional and factual issues that the Court would have to ignore before even reaching the question.  As Schiedegger put it,

Out of all the salmon swimming up Blakely River, why pick the one that’s lying on its side gasping?

As someone once said, a man’s reach should exceed his grasp, or what’s a meta for?  And yesterday, the Supreme Court kicked Burton out on technical issues.

A case that will make it to the Supreme Court soon is the constitutionality of several new state laws which impose the death penalty for child molestation.  The ABA Journal takes a look at Louisiana’s law, and the constitutional issues, here.

If you’re contemplating a career change, you might want to check out the five law firms that managed to win a spot on Forbes Magazine’s list of the 100 best companies to work for.  At Perkins Coie, a firm specializing in international law, “each office has it own ‘happiness committee’ that surprises attorneys and staff with spontaneous celebrations on Cinco de Mayo or Mardi Gras.”  On the other hand, if you’d rather take the money and run, fax your resume to Nixon Peabody, which made the list because of its high rates of compensation:  the average associate makes $181,000.

Finally, if you’re an aging boomer like me with a fondness for that old-time rock’n'roll, head over to Wolfgang’s Concert Vault.  Once you register at the site (all you need is an email address), you get access to some 330 concerts from back in the 60′s and 70′s, which you can stream to your computer.  (High bandwidth is pretty much of a necessity).  As I’m writing this, I’m listening to the concert by Derek and the Dominos at the Fillmore East in October of 1970.  Let me tell you, if listening to Eric Clapton and the boys jam doesn’t get you moving, call the morgue, because you’re dead.  The best thing is you don’t need to be an associate at Nixon Peabody to enjoy it:  it’s free.

Catch you next week.

At first glance, the result in the 8th District’s decision a couple weeks back in State v. Hertzel looks straightforward:  The police were called to woman’s home on her claim that her grandson had used her car without permission.  Although the car had been returned by the time the cops showed up, the woman told the officers that her grandson lived in the house, but that she’d given him an eviction notice a couple of weeks before because he’d failed to consistently pay rent and had caused her other problems.  She asked the police to remove him, and they obliged, escorting the young man to his room to get his things.  Once in the room, the officer sees some strange chemicals in the room, then spots a crack pipe on the dresser and… well, you’ve seen the end of that movie, haven’t you?

The court had no difficulty upholding the search, finding that

On the evening of appellant’s arrest, Hartman specifically asked Officer Greenway to aid her in removing appellant from her home. Greenway did not enter appellant’s room with the intent to conduct a search — his only purpose was to enable appellant to pack his belongings and then safely escort him out of Hartman’s home.

Unfortunately, the decision completely ignores several questions, the first being whether the grandmother had the right to demand that defendant immediately vacate the home.  As anybody who’s ever handled an eviction case knows, serving an eviction notice is merely step one in getting rid of a tenant:  you then have to file the forcible entry action, get a judgment, get an order of restitution, and have the bailiff throw the defendant’s stuff out on the treelawn if he doesn’t move out by the latter date.  There doesn’t seem to be any dispute that the defendant was in fact a tenant, and if the grandmother would not have had the legal right to forcibly remove him from the premises at that point, it’s hard to see how she can legitimately enlist the police to do that for her.

Even assuming she did, it’s not at all clear that the police had the right to accompany him to his room.  There was no allegation that the defendant had consented to this, and the officer’s justification for doing it — that the grandson “exhibited odd behavior in the past, and he had a very silent reaction to his grandmother’s order to leave” — falls miles short of probable cause.

Then again, there are worse results than Hertzel out there for this type of situation, like this one from the 2nd District a few years ago.  The defendants were staying in a motel, and the motel owner decided that he didn’t want them there, so he called the police to help him remove them.  The cops went along, the manager told the people to get out, and after about twenty seconds the police went in to escort them out, and found drugs.  Despite the fact that the people had paid their bill up to that point, the court held that their tenancy rights were immediately terminated when the manager told them to leave, and thus they had no possessory or privacy interest in the room when the police entered.  Now that’s a bad decision.

This is why I like sociological research:  you find some fascinating stuff that you really didn’t figure on.  Like this article which recently appeared in the Ohio State Journal of Criminal Law.  The (much) short(er) version is that the authors studied the outcomes of criminal cases in Denver to determine whether public defenders or private lawyers were more effective in getting their clients shorter sentences.  It turns out that private lawyers fared better:  their clients averaged sentences of three years less than those represented by public defenders.

This might be because public defenders wind up with defendants charged with more serious crimes, and they do:  a defendant charged with a serious crime is more likely to be unable to post bond, and thus can’t retain private counsel.  But that didn’t account for the difference here; in fact, when seriousness of the crime was taken into account, clients represented by public defenders fared even worse, doing five years more than their privately-represented counterparts.

And, it turns out, it’s not because public defenders were worse lawyers.  They actually filed more motions than private attorneys, and their acquittal rates once in trial were every bit as good.

So what accounts for the difference?  A combination of two factors.  The first is that criminal defendants perceived private counsel as being more effective.  The second is that defendants do not fall neatly into one of two groups, the indigent and the non-indigent.  There’s also a group the authors call the “marginally indigent,” that is, people who would qualify for public defenders but who, in a pinch, can tap hidden resources or family and friends for enough money to hire private counsel.  So when do they do that? 

It turns out that the explanation, at least in part, is one that should put a smile on the face of all free-marketers and rational choice theorists: criminal defendants, just like any other consumers of services, appear to be making choices based on their rational assessments of costs and benefits.

Let’s say you’re charged with robbing a liquor store, they’ve got you on videotape, so there’s no hope of beating the case.  Why bother depleting your resources to hire a lawyer to accomplish pretty much the same thing the public defender is going to do for free?  But if you’re innocent of the charges, isn’t it more likely that you’d tap those resources to hire a lawyer that you perceived would be more effective?

In short, the difference in result is because of self-selection by the marginally indigent:  public defenders wind up with the obviously guilty and other hopeless cases, while the more defensible cases gravitate toward private lawyers.  Keep in mind that doesn’t just show up in conviction rates; cases in which guilt is questionable almost always end up in much better plea bargains, and thus shorter sentences.  Private lawyers get better results not because they’re better lawyers, but because defendants think they’re better lawyers and are willing to pay for the difference.

I’m not sure that the implications of that, as a public policy matter, are earth-shaking.  The authors themselves argue for nothing more than perhaps a more stringent application of indigency, so as to force the marginally-indigent guilty defendants into choosing private counsel.  That certainly would free up some public resources, but it’s difficult to see how that would be put into practice; one’s friends and even one’s family do not have a legal obligation to pick up the tab for representing him in a criminal matter. 

But as I said, it’s interesting from an intellectual aspect:  you wind up looking at things in a way that you hadn’t anticipated.

You’re representing a client on a Foster sentencing remand:  the judge gave your guy, a first-time offender, three years on a third-degree felony, after making the findings justifying a more-than-minimum sentence, but the court of appeals vacated it because Foster declared the more-than-minimum findings unconstitutional.  A number of people, yours truly included, have noted the absurdity of this:  if the judge went to the trouble of making findings to impose more than the minimum sentence, it doesn’t make much sense to remand the case for resentencing where he can impose more than the minimum sentence without making any findings at all.  But here’s the tricky part:  while it’s unlikely that the judge is going to give your client less time, can he give him more?

That was the exact situation faced a few weeks back by the 3rd District in State v. Wagner.  The defendant had been sentenced to 12 months on a fourth-degree felony, the sentence was vacated under Foster, and on remand the judge gave him 15 months.  As the court indicated, this raised the question of vindictiveness in resentencing.  Normally, if a judge hands down a stiffer sentence after an appeal, there’s a presumption that it’s retaliation for the defendant having exercised his constitutional rights.

That’s only a presumption, and there’s some big exceptions.  If the initial sentencing was on a plea, and the defendant then goes to trial and is convicted, all bets are off; the lack of acceptance of responsibility, plus what comes out at trial, is almost invariably sufficient to impose a stiffer sentence.  You might want to check out this decision last year from the 5th District, which discusses the law on vindictiveness in resentencing in more detail.

Still, the general rule is that the trial court has to state some reason for increasing the sentence.  Keep in mind that Foster itself might provide that reason.  If, for example, the judge gave the minimum sentence the first time around, it seems likely that he can overcome the presumption of vindictiveness by pointing out that he had to make findings before giving more than the minimum sentence before, and now he doesn’t have to do that.

Normally, I do the weekly update on Mondays.  Normally, there’s about 170 decisions handed down every week by the Ohio courts.  Last week wasn’t normal; only 29 came down.  There’s a couple that are interesting, but I’ll save them for next week.  Instead, I’ll discuss a few things that I’ve come across in cases that I’ve handled recently.

Actually, this post should be entitled “Russ’ Bogus Journey,” because we’ll start with the slip and fall case that I tried and got punked on a couple of weeks back.  The case involved a slip and fall on a construction site, and the defense argued the open and obvious doctrine.  (An argument which was greatly aided by pictures of the site, in which the ground looked like it had recently undergone an artillery barrage.)  The defense also argued assumption of risk.

Here’s the skinny on that.  There used to be three types of assumption of risk under Ohio law.  The first was express, where the plaintiff had entered into a contract expressly acknowledging the risk.  Another is primary, where the risk is so well-accepted that the plaintiff can be understood to have accepted it; the foul ball at the baseball game is typical of this.  Then there’s implied assumption of risk, which Ohio Jury Instructions define as

The plaintiff impliedly assumed the risk of injury if he/she had knowledge of a condition that was obviously dangerous to him/her, and voluntarily exposed himself/herself to that risk of injury.

Except it doesn’t exist anymore; OJI claims the definition is drawn from the 1983 Ohio Supreme Court case of Ceccardi v. Anderson, but if you read the case, you find that implied assumption of risk got folded into the concept of comparative negligence.  The defense attorney in my case wanted an instruction on both implied assumption and comparative neglience, but I convinced the judge to charge only on the latter, and I had a full 45 minutes to revel in the brilliance of my legal acumen and persuasive skills before the jury came back with a defense verdict.

And last week, I had a motion to suppress which will probably come to the same bad ending, but I came across some stuff that might be helpful.  In my case, the cops stopped my client for going through a red light and asked him for his drivers license.  When he told them he didn’t have it on him, they arrested him, and found that he possessed certain items that the law frowns upon.

It turns out that the police can’t arrest a person for not having a drivers license on him.  The statute, 4507.35, says

The operator of a motor vehicle shall display the operator’s driver’s license, or furnish satisfactory proof that the operator has a driver’s license, upon demand of any peace officer…

In other words, it’s not a crime not to have your driver’s license on you; it’s only a crime if you can’t furnish satisfactory proof that you have one.  There are a number of cases, including this one last year from the 8th District, which have nullified arrests where the defendant provided information, such as name and social security number, from which the police could have determined whether he had a valid license.  (Virtually all police cruisers, at least in this area, now have LEADS units in them, and if not, they can always do it the old-fashioned way:  call the info in to the dispatcher.)  And, of course, once the arrest goes out the window, everything found as a result of the arrest goes with it.

As you know, Friday’s the day I troll the web for news of the interesting and absurd, but the holidays seem to have thrown most people off; there’s not a lot of fascinating stuff out there this week.  I did pull this blurb off of the Legal Theory Blog, about an article entitled Nomos, Conflict, and the Tragedy of Adjudication: The Jurisprudence of Robert Cover, the abstract of which reads,

Robert Cover is known for having argued that in every plural society there exist, along with the State, multiple normative entities that create and maintain their own sense of normativity, that is, their own holistic modes of assessing good and bad, valid and invalid, right and wrong. Beyond that, few systematic attempts have been made to pursue this view as a comprehensive theory of law. 

This is one of the (many) times I wish I was a bright guy, because then if I read that article I could probably get past the second paragraph without having my mind wander to questions like why anyone would make something called a “Thickburger,” and why anyone would eat it. 

On a slightly more serious tone, the US Supreme Court is considering a grant of certiorari in a case the California Supreme Court handed down in June, in which it upheld the denial of a passenger’s motion to suppress evidence seized at a traffic stop.  Despite finding that the stop was unlawful, it ruled that the evidence could be used because the stop didn’t constitute a seizure of the passenger.  You can find a fuller discussion here. 

And back on the lighter side, those of you who’ve ever had an AOL account will appreciate this.  Canceling an AOL account is only slightly less complicated than getting a death sentence commuted; you can’t simply send them an email telling them you want to cancel, you have to call them and talk to a live person, who will spend a fair amount of time trying to talk you out of it.  (As this tape, which got extensive coverage a few months back, shows.)  This suggestion of how to avoid that comes courtesy of CRM Lowdown’s Ten Worst Support Companies for Call Center Service:

For those who are at their wits end trying to cancel their AOL account, here’s a tip from Utterly Boring: A guy tried for better part of a week to cancel AOL. He talked to six or seven different people on six different days. Each time he was thwarted. Finally, weary of the runaround, he went into a “chat room” and started threatening to kill people in the room. His AOL account was canceled in three minutes.

As for helpful hints in your practice, a month ago, I mentioned that the Supreme Court is going to make all filings available on its web site for download.  To help implement this, the Court just adopted an amendment to its Rules of Practice:  effective February 7, one copy of all pleadings has to be in a “scannable” version — unbound, unstapled, single-sided (you can paper-clip it together).

Finally, from the Department of Maybe You Ought to Spend More Time on Witness Prep:  The defendant in State v. Edwards is on trial for felonious assault for hitting someone in the head with a baseball bat.  He has a previous juvenile delinquency adjudication for felonious assault for hitting someone in the head with a baseball bat. 

During appellant’s direct examination in the case at bar, his trial counsel asked him whether he had “ever hit anybody in the head with a baseball bat?” Appellant began to explain about the prior juvenile adjudication. Before appellant could fully respond, his trial counsel stopped him and asked whether appellant was talking about something that happened in the past. The State objected, and the trial court sustained the objection, noting that trial counsel “asked him a question. You got an answer.” Appellant continued to explain the prior juvenile adjudication.

The defendant’s assignment of error alleging ineffective assistance of counsel was overruled, because of the overwhelming evidence of guilt.

Have a good weekend.  I’ll be back next week with posts on whether judges can give stiffer sentences on a Foster remand, an interesting search case from the 8th District, and another foray by the 8th into the labryinthine world of sovereign immunity.

There’ve been a number of interesting cases out of the 8th District recently that I’m going to touch on.  Today we’ll take on two in the civil area. 

If you’re handling a custody dispute, and the other party has, shall we say, several mental “issues,”  you’ll want to take a look at Hageman v. Southwest General.  The wife subpoenaed records of the husband’s treatment for bipolar disorder, and the husband then sued the shrink and hospital for releasing them. 

The court affirmed the trial judge’s grant of summary judgment, holding that

the appellant’s interests in confidentiality are far outweighed by the concerns surrounding the care of his daughter. * * *  In order for the domestic relations court to make an effective decision regarding appellant’s ability to adequately care for his child, it was necessary for the court to evaluate his medical information and prognosis. Similarly, it was important for opposing counsel, as well as the guardian ad litem, to have access to the medical reports in order to make the most informed decisions regarding custody and visitation.

This was in line with the court’s decision in Gill v. Gill, back in 2003, that the medical privilege statute provides that “the filing of any civil action by a patient waives the physician-patient privilege as to any communication that relates causally or historically to the physical or mental injuries put at issue by such civil action,” and that by filing for custody a party “subjects him or herself to extensive investigation of all factors relevant to the permanent custody award.”

That leaves a question, though:  in both cases, the court could easily conclude that the party had waived the privilege by filing a pleading asking for custody.  What about visitation?  Even in an uncontested divorce, the court will enter an order of visitation for the noncustodial parent.  Can the court consider mental issues even in the absence of some pleading which might be viewed to have waived the privilege?  Gill’s citation of the custody statutes gives an ample argument for doing so:

Of major importance, as stated in R.C. 3109.04(F)(1)(e), is the mental and physical health of not only the child but also the parents. R.C. 3109.04 places the mental conditions of all family members squarely in issue.

The court also decided a case which added more substance to the claim that the rules on voluntary dismissal of a civil case are in need of a serious rewrite.  In Hutchison v. Beazer, the plaintiff had filed suit against numerous defendants, one of which was granted summary judgment.  Just prior to trial, the plaintiff voluntarily dismissed the case, then refiled against all the defendants, including the one who’d been summaried out.  The trial court ruled that the earlier grant of summary judgment was res judicata, but the appellate court disagreed, relying on earlier cases holding that unless 54(B) final judgment language in the entry granting SJ, it’s merely an interlocutory order that’s dissolved when the voluntary dismissal is filed.  I’ve talked about this before, and before you dismiss a case where SJ has been granted to one of the defendants, you’ll want to read this and this.