No big decisions from the Ohio Supreme Court, other than some peremptory affirmances based on its decision the week before in State v. Buehler that courts do not need to order DNA tests of inmates, pursuant to newly-enacted RC 2937.74, if the test would not be outcome-determinative.  Nothing new in the US Supreme Court, either.  So, on to the courts of appeals:

Criminal.  In case involving controlled delivery of UPS package containing drugs, 1st District holds that evidence insufficient to convict because defendant never took package, but says he could be convicted of attempted possession… 10th District reverses grant of expungement of 1979 drug trafficking conviction in which defendant received 3-year mandatory sentence because, even though crime could have been expunged at that time, under current law expungement not allowed for crimes involves mandatory sentencing… 8th District holds that failure to give accomplice instruction mandated by law is plain error… 12th District finds that judge’s comments in juvenile delinquency proceeding that juvenile’s failure to testify was “critical” to judge’s decision was improper consideration of 5th Amendment right and “structural error” requiring reversal…

Civil.  2nd District gives yet another reminder that failure to object to magistrate’s decision waives right to appeal from trial court’s judgment adopting decision… 6th District tosses out Toledo’s ban on weapons in its municipal park’s, says newly-enacted RC 9.68, effective last month, allows concealed-carry permit-holders to carry weapons in parks… 8th District affirms trial court’s holding that class action re telemarketing scheme should be limited to Ohio citizens because of differences in state law; good review of law on class actions… 12th District holds that claims for negligence, strict liability, and breach of warranty were outside of contract, thus not within scope of arbitration clause…

Now this is doing justice:  in State v. Irwin, the defendant had been charged with menacing as a result of an altercation at a city council meeting.  He represented himself, and sent a letter to the judge stating that he’d gotten had lie detector test taken by a certain company, but requesting a continuance so he could get another test done.  The judge denied the continuance, but told him to bring in the results anyway.  At trial, of course, the tests were excluded because the prosecution wouldn’t stipulate to them.  The defendant was convicted, and on appeal complained that if he’d known that he wouldn’t have spent the $350 on the test.  The appellate court agreed that the trial judge’s advice to bring in the results was confusing, so it reversed the fine of $250 and let the rest of the penalty stand.

A couple of weeks back, I discussed the imbroglio regarding the eight US District attorneys fired by the Justice Department last year.  The conflicting explanations for the firings offered by Attorney General Alberto Gonzalez have led even Republican stalwarts like Newt Gingrich to suggest it should be bedtime for Gonzo.  Gonzalez has insisted that he’s not resigning, although he’s sounding more and more, in Hunter Thompson’s memorable phrase, like a farmer with terminal cancer trying to borrow money on next year’s crop. 

The rationale initially offered by the DOJ, that the firings were performance-related, took another hit recently.  David Iglesias, the USDA for New Mexico, was allegedly canned because of his absence from the office; he was gone for about 45 days a year, due to his obligations as a member of the Navy Reserve.  As you might guess, there’s a law that prohibits job discrimination against members of the military, and now the Office of Special Counsel is investigating to determine whether Iglesias’ firing violated that law.  What’s worse, it turns out that William Mercer, the USDA for Montana, hasn’t been there in two years because he’s serving as an aide to Gonzalez in Washington, DC; the chief judge for the US District Court in Montana has written the Justice Department asking for Mercer to be replaced, because “a lack of leadership” in the Montana office and created “untoward difficulties for the court” and for career prosecutors.

Of course, Gonzalez isn’t the only lawyer in law enforcement who’s feeling the heat.  On Wednesday, the North Carolina attorney general announced he’d completed his investigation into the racially-charged rape allegations made against members of the Duke Lacrosse team last year.  Not only did he drop the charges, he declared that Durham District Attorney Harold Nifong, who’d pursued the case so relentlessly, was a “rogue” prosecutor, and that the defendants were innocent and the “victims of a tragic rush to accuse.”  He even went so far as to suggest that a criminal investigation of Nifong might be appropriate. 

And the three Duke students weren’t the only ones to exult in exoneration during the past week.  Last Thursday, the US 7th Circuit Court of Appeals threw out the fraud conviction of Georgia Thompson, a Wisconsin government worker, finding that the evidence was insufficient to convict.  I won’t bore you with the details of the case, which you can find here, but the best indication of the flimsiness of the government’s case was that the three judges voted to order Thompson released within a couple hours after hearing oral argument on the case, without waiting to write an opinion.

While these three stories might seem unrelated, they’re not.  The defense offered by the administration apologists in the USDA firings is that the district attorneys are political appointees who serve at the president’s pleasure, and can be fired for any reason or no reason.  That’s true to an extent, but it ignores the potential for abuse in mixing politics and justice.  Iglesias believes he was fired because he refused to indict local Democrats on corruption charges just prior to the election last year; he was contacted by a Republican Senator and a Republican Congresswoman to find out if he was going to be pursuing those charges, and they expressed regret that he wasn’t.  Thompson’s conviction played a major role last year in Wisconsin Democratic Jim Doyle’s campaign for re-election, with Republicans running major ads attempting to demonstrate that the conviction proved Doyle to be corrupt.  There’s suspicion that Nifong’s prosecution of the Duke students was motivated by a desire to enhance his prospects in an upcoming primary election, in which he faced a black opponent.

There are a lot of crappy things that can happen to you in life, and I’ve always believed that being charged with a serious crime is in the top five.  Those who’ve never had any experience in the criminal justice system have absolutely no idea of the awesome power that a United States District Attorney, or even a County Prosecutor, has at his disposal, and can bring to bear against a solitary individual.  Justice finally caught up to Georgia Thompson, but not before she’d spent $250,000 in her defense, and four months in prison.  One can only imagine what justice cost the Duke students and their families. 

One of the more interesting emails in the treasure trove of Justice memos about the reasons for the firing of the USDA’s is one noting a desire to replace them with “loyal Bushies.”  I don’t know whether the USDA who prosecuted Georgia Thompson fell into that category, but the possibility that that happened, and the consequences to Georgia Thompson, should strike a cautionary note to those who believe that the selection of a USDA should not involve anything other than political considerations.

There are few things more frustrating in law than to file a motion to suppress, do all the legal research and prep, then go through a three-hour hearing, only to have the judge say, “motion denied,” without giving any explanation of why he ruled the way he did.  Well, be frustrated; as indicated by the 8th District’s decision last week in State v. Stewart, that can work to your advantage. 

Stewart involved one of those prosecutorial rarities, the narcotics bust.  The police were conducting surveillance at one of the city’s many drug marts, and spied the defendant take something from his mouth, count it, then put it back in.  The cop then saw a Ford Ranger stopped in traffic; the defendant approached the Ranger, got in, and the vehicle drove off.  The officer who’d seen all this radioed to a zone car and told them that the Ranger had committed a traffic violation — the area was a no-stopping zone — and that the passenger was suspected of drug activity.  The police pulled the vehicle over and, as the defendant was exiting it, one of the officers spied a bag of cocaine in “plain view” in the middle of the floor of the vehicle.

The trial court denied the motion to suppress, finding that the police officers had a reasonable suspicion to stop the Ranger.  The court of appeals found to the contrary, citing a number of earlier cases to support its position that observing the defendant take something from his mouth, count it, and then put it back in wasn’t sufficient to create a reasonable suspicion that he was engaged in drug trafficking.

Now, if you’re reading along — and, quite obviously, you are – you’re probably thinking, “Hey, what happened to the traffic stop?”  As we all know, a traffic violation, no matter how obscure, is a sufficient basis for a vehicular stop, even if it is for an ulterior purpose, and “stopping in a no-stopping zone” is no more a bullshit violation than getting pulled over for not using your turn signal on an exit ramp or having tinted windows or a loud muffler, or all the other petty transgressions of the traffic code that now serve as the launch point for the assault on the 4th Amendment.

Well, it turns out that the state forgot to argue the traffic violation in the lower court.  The court of appeals said, thank you, but you’re not going to do it here, either:

In denying appellant’s motion to suppress, the trial court only made the factual determinations necessary for rendering its decision as to reasonable suspicion and did not make any factual determinations or judge credibility as to the traffic stop, which appellant contested. Therefore, we cannot address the state’s argument that the detectives had probable cause to make a traffic stop because an appellate court is not a fact-finding court, and thus, is limited by the findings of the trial court contained in the record.

That’s an interesting conclusion in light of a case from last year, State v. Ogletree, which offered a similar legal situation.  The defendant there was approached and questioned by the police regarding drug activity, at which point they observed him “swishing” a piece of crack cocaine in his mouth.  The state offered two theories in support of the search:  stop and frisk, and that the encounter was a consensual one up until the point where the officers observed the piece of crack.  The trial court rejected the first argument, but made no findings on the second.  The court of appeals agreed that there was no reasonable suspicion for a stop, but noting that Criminal Rule 12(F) requires that “where factual issues are involved in determining a motion, the court shall state its essential findings on the record,” it concluded that “this [case] becomes a classic circumstance where findings of fact are crucial to the resolution of the issue,” and reversed and remanded the case for further factual determinations by the trial court.

So why didn’t the Stewart court do the same thing:  remand back to the trial court for factual findings on the traffic violation issue?  I’ve suggested before that the 8th District seems to developing a more critical attitude toward low-end drug busts and accordingly is more willing to find 4th Amendment violations in those cases, and that may have played a part in Stewart.

And there’s another thing that may have factored into the outcome in Ogletree.  The appellate court’s opinion notes that “the court did not directly address the state’s [consensual encounter] theory, but very obviously rejected it by remarking that one of the judges of this court would ‘be happy to hear that argument.’”  Knowing the trial judge, I’m fairly confident that she was referring to Michael Corrigan, certainly the most conservative of the judges on the appellate bench at that time.

Guess who wound up writing the opinion in Ogletree?

Back in September, I regaled you with a teen romance story, ultra-modern variety.  The short version is that our client (I handled the appeal, not the trial), a 16-year-old boy, had taken his 15-year-old girlfriend into a bathroom stall at school and had her perform oral sex on him.  The festivities had been interrupted by someone coming into the bathroom; when he left, the two resumed.  The school got wind of it, and the young man found himself charged with rape and kidnapping.  He argued consent at the trial in Juvenile Court, buttressed by the testimony of the girl’s friends and his own probation officer, who testified that the she’d been on the phone when the alleged victim called him and apologized for claiming that he’d forced her into the act. 

Two months later, the trial judge handed down a decision which, somewhat bewilderingly, determined that there were actually two sexual episodes — the first before the interloper came into the bathroom, and the second after he left — and that while the first episode was consensual, the second was not.  What was even more bizarre, the court convicted the defendant of attempted rape and attempted kidnapping.

As I chronicled back in September, the court of appeals had little trouble reversing that; given that penetration was admitted, there was no “attempt,” and either the defendant was guilty of rape and kidnapping or he wasn’t guilty of anything, depending upon whether there was consent.  After determining that the trial court “abused its discretion” in amending the original charges, it stated, “we reverse and remand this matter to the trial court for a new hearing.”

A new hearing on what?

See, this is where things get funky.  There’s a substantial body of case law, starting with a 1957 Supreme Court case, Green v. US, 355 US 184, which holds that a conviction of a lesser offense is an automatic acquittal of the greater offense.  In Green, the defendant had been charged with first degree murder, found guilty of second degree murder, then had his conviction reversed; at his second trial, he was convicted of first degree murder.  The Supreme Court said that was a no-no, and violated the double jeopardy clause:  by convicting him of second degree murder, the jury had implicitly acquitted him of the greater offense, so he couldn’t be tried for that again.

And there’s Ohio case law to the same effect, notably, State v. Edmundson.  In that case, the defendant had been charged with welfare fraud of over $5,000, a 4th degree felony.  The trial court, however, convicted her of only a 5th degree felony, after deducting the amounts that she would have received if she’d been truthful.  The court of appeals reversed that, and the Supreme Court affirmed, both courts concluding that it’s the total amount you take, not the amount you wrongfully take, that determines what degree of crime you’ve committed.

But here’s the interesting thing.  The court of appeals had first reversed and remanded the case for a new hearing, but then issued another journal entry affirming the conviction of the 5th degree felony; as the Supreme Court noted,

The court of appeals’ correction of its judgment was necessary insofar as reversal and remand would have been a futile exercise; double-jeopardy principles barred the state from pursuing the grand theft charges because the trial court’s finding of guilt on the lesser-included offenses operated as an acquittal of the greater offenses.

In the main brief in our case, we argued that the only appropriate action was discharging the defendant:  he couldn’t be tried for rape and kidnapping because of double jeopardy, and the court had just concluded that there was no basis for convicting him of an attempt to commit those crimes.  When the court reversed the delinquency finding and remanded the case for “a new hearing,” we even filed a motion for reconsideration.  The appellate court didn’t buy it, not only denying our motion, but stating,

Further, we clarify our journal entry and opinion to specify that this matter is remanded to the trial court for a new delinquency hearing.  And stop bugging us about this.

Okay, they didn’t include that last sentence, but they were probably tempted.  We appealed to the Supreme Court, and last week they told us to get lost, too.

So now what?  We go back to the juvenile court, which, given the court of appeals opinion, certainly can’t convict our client of attempted rape and kidnapping, barring blatant perjury by everybody involved.  It can’t constitutionally convict our client of rape and kidnapping, either.  What could happen is that we file a motion of once in jeopardy on the main crimes, the judge overrules it and finds our client guilty of either or both, and we wind up in the court of appeals again, arguing that that’s impermissible, which is an issue that should have been decided the first time around.

God, I love the law.

I know it says in the “About” tab that caveat emptor applies here, and that there’s no guarantee that anything I say is right.  Still, the tagline reads, “Commentary and analysis of Ohio law,” not “My wild-assed guesses about what the law means.”  For what it’s worth, I do place a good bit of importance on my credibility here, and I usually take what I believe are the appropriate steps to make sure that whatever I post here is correct.

So I got somewhat bummed when I did the Case Update over the weekend and came across this case, a 6th District decision dealing with a major drug offender.  As you may remember, repeat violent offenders and major drug offenders were given special treatment by Ohio law:  if the jury returned a verdict including that specification, a mandatory ten-year sentence was imposed, and the court could add an additional one to ten years if it made certain other findings.  In the 6th District case, the defendant had pled out to the MDO spec, and judge had given him the ten-year mandatory and tossed two years on top of that for good measure.  The appellate court found that was permissible.

So what’s the problem?  Well, back in December I’d written a post claiming that the additional one-to-ten year sentences for MDO and RVO specs were unconstitutional.  I thought the 6th District had gotten it wrong, but they referred to the Supreme Court’s decision in State v. Foster last year, and quoted language which seemed to support their view.  (As if life isn’t complicated enough, the 6th District decision is also State v. Foster, albeit involving a different defendant.)  Specifically, the Supreme Court had found that the additional 1-10 year sentence required “judicial factfinding,” as did the provisions requiring findings for more-than-minimum, consecutive, or maximum sentences.  This was a no-no after the US Supreme Court’s decision in Blakely v. Washington, but the Ohio Seven determined that the statute could be saved if the offending portions were severed, and, as the 6th District noted last week, quoting Foster, “After the severance, judicial fact-finding is not required before imposition of additional penalties for repeat-violent-offender and major-drug-offender specifications.”  So, I guess I was wrong.

Or not.  Because a few months after Foster, the Supreme Court decided State v. Chandler, in which it had this to say about the MDO spec: 

As the statute now stands, a major drug offender still faces the mandatory maximum ten-year sentence that the judge must impose and may not reduce. Only the add-on that had required judicial fact-finding has been severed. [My emphasis.]

So what exactly did the Supreme Court do?  Did it sever the entire add-on sentence provision, or just the part of that provision which required judicial fact-finding?  The Court in Chandler said, ”We severed R.C. 2929.14(D)(3)(b) to remedy the constitutional violation,” and that section provided:

(b) The court imposing a prison term on an offender under division (D)(3)(a) of this section may impose an additional prison term of one, two, three, four, five, six, seven, eight, nine, or ten years, if the court, with respect to the term imposed under division (D)(3)(a) of this section and, if applicable, divisions (D)(1) and (2) of this section, makes both of the findings set forth in divisions (D)(2)(b)(i) and (ii) of this section.

In short, the entire section allowing the additional prison term was severed.  This is logical:  the main issue of severability is whether the statute still makes sense after the offending portions have been removed, and it’s hard to see how that happens when you have a statute that says, “The judge can give you 1-10 years if it finds X, Y, and Z,” and you take out the part about finding X, Y, and Z.

So which is correct?  While Chandler’s view is the logical one, it’s dicta.  What’s worse, as I also pointed out in December, there’s now a new RVO and MDO statute: last August, they were amended to provide virtually the identical judicial fact-finding that had been declared unconsitutional in Foster. 

I also did some more checking, and there haven’t been any cases which have attempted to reconcile the language in Foster and Chandler.  It’s somewhat doubtful that the 6th District even considered the latter case; appellate counsel had filed an Anders brief seeking to withdraw, and it appears that the defendant’s pro se brief is all the court had to consider.

Bottom line?  I think I was right in saying that the add-ons for MDO and RVO specs are out the window.  If you’ve got a case involving them, press the issue.  Eventually, this is one the Supreme Court will have to clear up.

My faithful companion Lexis advises me that the Ohio courts have decided some 340 cases since I last did a courts update two weeks ago.  Fortunately, about a hundred of them are “unpublished” decisions of the Supreme Court, where they simply announce that they’re not going to hear a particular appeal.  Happened to one of my cases, which we’ll talk about next week. 

Meanwhile, on to the courts of appeals:

Criminal.  3rd District holds that defendant can be convicted of violating protective order, even if petitioner invited him onto property… Fact that witnesses were under influence of drugs — presumably when they observed crime, not when they testified — does not render them incompetent under Evid.R. 601 and 602, 2nd District holds…. 7th District rules that trial judge violated defendant’s right to allocution by immediately proceeding to sentencing after jury verdict, vacates sentence… 3rd District holds it was error to admit preliminary hearing transcript, one subpoena not “reasonable effort” to procure her appearance…

Civil.  8th District holds that insurance company cannot proceed against tortfeasor on subrogation claim if tortfeasor had no knowledge of insurance payments to plaintiff… Termination of shared parenting agreement does not require showing of changed circumstances, rules 12th District… 10th District rules that mortgage company waived right to insist on arbitration for lendee’s claims by first filing foreclosure… 1st District holds that savings statute not available where plaintiff never demanded or attempted service of first complaint… Pallet in aisle open and obvious hazard, says 10th District in affirming summary judgment for store… Trial judge’s ex parte communications with jury presumed substantive and prejudicial in absence of contrary evidence, warranting new trial, holds 9th District…

The joys of being a cop.  The facts from State v. Donkers, in which the 11th District reversed the defendant’s conviction for not having her baby in child restraints:  after being followed by the officer, with his lights and sirens going, for three miles,

appellant exited the turnpike and entered a line at a toll booth. The trooper quickly approached the vehicle. He ordered appellant to turn off the vehicle and hand over her keys, which she did only after multiple requests. She voluntarily explained that she had been breastfeeding her six-month old, which she urged was lawful based upon legal research she performed before making the trip. . .  At first, appellant would not display identification or reveal her name. She cited the trooper to United States Supreme Court case law dealing with lack of police authority to demand identification where no criminal investigation was occurring. . . Finally, she handed over an apparently homemade identification card/affidavit displaying her picture, her name and a Pennsylvania address.

The defendant represented herself in both the trial and appellate courts.  There’s a surprise, huh?

Today’s man-bites-dog story comes from Delaware, where the state House, in a fit of rationality, has voted to repeal the minimum-mandatory sentences for drug offenses.  The pros and cons of doing that have been endlessly rehashed, and they’re mostly re-rehashed in the article, but what caught my eye is one contention that I haven’t seen raised in support of mandatory minimums:  According to Dover Police Chief Jeffrey Horvath, “Mandatory sentencing makes it fair for everyone who can’t afford a (high-priced) attorney.”  There’s certainly an argument to be made that anything which minimizes the disparity in result that affluence plays in the justice system is a good thing, but I’ve never heard the argument couched in quite this fashion.  Plus, I don’t think people doing time for drug offenses for no other reason than that the law requires a judge to give them time are going to draw much solace from the fact that their more well-heeled compatriots are suffering the same fate.

The other sentencing news is with regard to the maximum penalty that the law provides.  As Doug Berman at the Sentencing Law & Policy blog notes, Texas is about the only state in the Union which is still executing people:  it executed Roy Pippen the day that Berman’s post appeared, bringing its total for the year to 11.  The total for the US so far in 2007 is 12, and only three other people have been executed anywhere else in the United States in the past five months.

Texas’ achievement in this regard is by no means recent.  Since capital punishment was reinstated by Furman in 1976, there have been 1,069 executions in the United States.  Here’s a breakdown by state:  Texas has been responsible for 390, or over one-third, of those, almost 300 more than the next closest state.  During the eight years he was governor of the state, George W. Bush signed off on 152 of those executions.

Bush protested during the 2000 debates that he was not “proud” of Texas’ record on that score, and had contended earlier that whether to go ahead with an execution was one of the most “profound” decisions he had to make as a governor, and described his procedure for doing so as one where ”I get the facts, weigh them thoughtfully and carefully, and decide.”  That description took a hit when the New York Times obtained a copy of his calendar for the years in question and discovered that he’d spent an average of 15 minutes reviewing each case before reaching his determination, which was, in all but one case, to go ahead with the execution.

And then back in 2003, journalist Alan Berlow obtained copies of 62 of the clemency memos submitted to Bush by the Texas attorney general, and wrote an article about it for the Atlantic Monthly.  That article (which you can read here, and a summary of it here) showed that the summaries, which were normally given to Bush the day of the execution, were cursory at best in describing the case, and concentrated almost exclusively on issues of guilt or innocence, rather than questions of mitigation which would be the more logical consideration for clemency.  For example, when Bush approved the death sentence for Terry Washington, the memo advised him of the details of the crime — the victim had been stabbed 85 times — but didn’t note that Washington was so severely retarded that he had the communication skills of a 7-year-old, and that his counsel, although aware of substantial mitigating evidence, had never presented it at trial, nor even asked the court to appoint a mental health expert to examine Washington.

The attorney general who prepared those 62 memos was Alberto Gonzalez.

So it’s more than a little interesting that, as Prof. Berman also notes, there have been so few Federal executions during the Bush presidency, and under the Department of Justice’s recent stewardship by Attorney General Alberto GonzelezL only one execution in the past six years, and none in the past four, and with reports that the next one, in April, has been stayed.

The police are in the process of executing a search warrant for drug activity on a local bar.  While doing so, they see people traipsing from the bar to a Chevy Lumina in the parking lot, and then back again.  They approach the car, where the driver is rather conspicuously smoking an outsized joint.  That’s only a minor misdemeanor in Ohio, which means a person can’t be arrested as long as they can provide identification.  The police tell him they’re going to write him a citation, and ask him for his identification.  Turns out he doesn’t have any, so they arrest him, remove him from the car, and promptly find a bag containing 29 vials of marijuana.  (At least, that’s what the opinion says.  I didn’t know marijuana came in vials.  The march of science continues…)

The prosecutors must have been nonplussed when the trial court threw out the search on a motion to suppress, and their bewilderment could only have deepened when the 8th District unanimously affirmed that decision last week in State v. Green.  The court primarily relied on a 6th District decision from 1997, State v. Satterwhite, which held that even though the defendant didn’t have any identification on him, because the police could have properly identified the defendant from his social security number, they lacked a basis for arresting him for a minor misdemeanor.

The facts in Satterwhite are a good bit more favorable to the defendant than the ones in Green.  In the former case, the defendant was jaywalking; when the police noticed he had something clenched in his hand, they approached him, asked him for identification, and promptly arrested him when he said he didn’t have any.  As soon as they got him into the police vehicle, they asked for his name and social security number, and promptly identified him from that.  The opinion in Green doesn’t indicate exactly when the police actually determined his identity; what’s more, busting a guy for jaywalking seems to have more of the hallmarks of a roust than busting somebody who’s openly smoking marijuana in a car.

What makes Satterwhite and especially Green so helpful to defendants is that it clearly places the onus on the police to determine identity, and that has far more reach than just in cases of minor misdemeanors.  As I discussed a couple months back, although there’s a prevalent belief among police officers that they can arrest a motorist if he doesn’t have his drivers license on him, that’s not true:  the 8th District, and others, have ruled on numerous occasions that the law requires that a person either have his license or be able to supply proof of identity. 

The question, though, is how far the police have to go to determine identity.  Just last year, in State v. Spraggins, the 8th District held in dicta that the police don’t have an affirmative duty to ask for a person’s social security number.  Green seems to clearly hold that they do, at least in the context of an arrest for a minor misdemeanor, and it’s difficult to see how the same logic wouldn’t apply to an arrest for not having your drivers license on you.

I didn’t do anything on civil stuff last week, so a shout-out to one of my peeps, a lawyer in Middleburg Heights who dropped me an email and turned me on to an interesting decision in a probate court case.  Now, as far as I’m concerned, the words “interesting” and “probate court case” are as likely to appear in the same sentence as the words “Paris Hilton” and “genius-level IQ.”  Still, the decision last year by the 11th District in In Re Estate of Ivanchak should pique our interest because it’s about something that’s near and dear to our hearts:  us.

Partnerships between us, to be more precise.  The case tracks the careers of three attorneys:  John Fowler, Theodore Ivanchak, and his son, Terry.  The three had engaged in various business relationships, beginning with a law firm composed of Ivanchak fils and pere, with Fowler as a salaried employee.  This then became Ivanchak, Ivanchak & Fowler, with an agreement for weekly pay plus a sharing of the profits among the three.  Subsequently, Terry left, and the firm became Ivanchak & Fowler, with a slightly different agreement regarding pay and the sharing of profits, Fowler’s percentage being elevated from 20% to 40%.

Then Theodore Ivanchak died, and his son Terry, as executor of the estate, filed a motion for an accounting of the partnership’s assets.  As they say in the railroad biz, this is where the train went off the track.  The probate court appointed appraisers to evaluate the assets, the parties engaged in stipulations about how the various files should be divided, and the court conducted a hearing, at the conclusion of which it decided that there’d never been a partnership in the first place.

Fowler appealed, and the 11th District held that while whether a partnership existed was a “close call,” it wouldn’t engage in “Monday-morning quarterbacking,” and would instead give due deference to the lower court’s factual findings:

The probate court’s conclusion that the parties did not intend to form a partnership rests on the findings that there was no written partnership agreement, the firm did not maintain an IOLTA account, Theodore used firm funds to pay for certain personal expenses, the firm did not file partnership tax returns, and the accountant, Smaltz, did not treat the firm as a partnership.

Well, that latter point wasn’t quite right.  The appellate court conceded that “there is no direct evidence that Smaltz did not treat the firm as a partnership in the record”; a more accurate way of stating this would be that there was direct evidence that the account did treat the firm as a partnership, as the dissent points out:

there was a memorandum from Smaltz [the accountant] to Theodore admitted at the hearing in which Smaltz requests an appointment “to discuss the books for the new partnership.” Far from concluding that Ivanchak, Ivanchak & Fowler was not a partnership, Smaltz treated the entity as a partnership.

The dissent also does a pretty good job of demolishing the remaining pillars of the lower court’s decision:  there’s no requirement that a partnership agreement be in writing, that it have an IOLTA account, or that it pay taxes (the individuals do, not the partnership), nor is there any prohibition on using firm funds for personal expenses:  on the contrary, this simply shows a co-ownership of the firm’s assets, which is an indication of a partnership.

So what are we to make of all this?  Did the court of appeals really mean to suggest that partnership agreements based on nothing more than a verbal agreement and a handshake — and I’ve been in two of those — are now invalid? 

My Middleburg Heights correspondent suggests darkly that the true reason for the court’s decision might be found in the first sentence of the seventh paragraph in the court’s decision:

In January 2000, Terry left the firm to become a Warren Municipal Court Judge.

Now, I’m as jaundiced an observer of the human condition as the next guy, even if the next guy is H. L. Mencken, but I’m not willing to go quite that far.  After all, it’s not as though Terry was contesting whether a partnership existed; indeed, the dissent’s major point was that neither party had disputed that.  I think it’s simply a bad decision at both the trial and appellate levels.  Fortunately, it’s very fact-specific, and the appellate decision is so obsequious in its deferral to the trial court’s factual determinations that it has no real precedential value.

But it probably wouldn’t be a bad idea to put something in writing.  For all the talk from lawyers about how oral contracts aren’t worth the paper they’re not written on, sometimes we can be quite cavalier about our own affairs.

No Courts Update this week, because I was on the road and didn’t have time to do it.  Instead, we’ll talk about a 4th Amendment decision last Wednesday out of the Ohio Supreme Court.

The facts in Blue Ash v. Kavanagh are fairly straightforward:  the defendant was stopped for driving with expired plates on I-71 near Cincinnati, and when the officer discovered that the defendant’s license had also expired three months earlier, he decided to impound the car.  Because the defedant appeared “nervous,” he also called for a drug-sniffing dog.  When the dog was brought to the scene a short while later, it alerted to the driver’s door.  The defendant at that point confessed that there was a gun in the car, and the police retrieved an unloaded pistol from the console.

The trial court had denied a motion to suppress, but the 1st District had reversed.  The Supreme Court in turn reversed that, and upheld the defendant’s misdemeanor conviction.  Three judges dissented, mainly because they didn’t think the case should have been accepted for review in the first place, Justice Pfeiffer commenting that “because of its fact-specific nature, the majority opinion is unlikely to provide meaningful guidance to the bench and bar.”

If only.

At first glance, the impact of Kavanagh does appear muted.  The decision turns on whether the police officer had the right to impound the vehicle because of the expired plates and license.  Under state and local law, the officer had the discretion to do so:  the vehicle couldn’t be legally driven, and the defendant couldn’t legally drive it anyway.  The court concluded that the officer exercised his discretion, which allowed the traffic stop to continue until the dog arrived, and the dog’s alerting to the scent of drugs gave the officer probable cause to search the car.  (Oddly, no drugs were found.  The defendant told the officer that his friends often smoked dope in the car, and that’s probably what the dog alerted to.  There’s a moral there, boys and girls:  don’t let your pals toke up in your ride.)

But let’s get back to that issue of discretion.  One of the reasons that search and seizure law is “something other than a seamless web” is because of the virtually infinite variety of factual situations which can present 4th Amendment questions.  Those who argue for greater deference to police decisions have a point:  it’s a little ridiculous to have a someone in a black robe (or three or seven or nine someones in black robes) spending hours or even months picking apart the decision a police officer had a split-second to make.

On the other hand, Kavanagh presents the other side of that coin:  giving too much discretion essentially allows the officer to determine the extent of a person’s Fourth Amendment rights.  Justice Pfeiffer points out that the offenses were minor misdemeanors, and argues 

Instead of citing people who forget to renew licenses and registrations and having them pay a fine as a consequence of their forgetfulness, today this court sanctions the impoundment of every car whose registration is out of date and sanctions forcing every person — the elderly, mothers with young children, etc. — to find alternative means to his or her destination, if his or her license has not been timely renewed.

He’s wrong about that.  Police aren’t going to use their discretion to impound the cars of the elderly or mothers with young children.  They’re going to use it to impound the cars of young people, black people, people that are different from them, people who give them a hard time, or just people about whom they form some kind of “inchoate hunch” — leagues removed from “reasonable suspicion,” let alone probable cause.

That that might be exactly what happened here is revealed by a footnote in the Court’s opinion:

It is unclear from the record whether defendant was cited for driving with expired tags in violation of R.C. 4503.21 or operating without a valid license in violation of R.C. 4510.12, or both.

In short, there’s nothing to indicate that Kavanagh was ever charged with the offenses that got the car impounded in the first place.