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Supreme Court Update

Taking the spotlight in the nine cases up for argument in the Ohio Supreme Court this week is J.F. v. D.B., which presents a factual situation that could serve as the script for a movie on the Lifetime channel.  Or the Science Fiction channel, for that matter.  Here's a quick recap:  James Flynn signs a surrogacy contract with Mr. and Mrs. Bimber, paying them $20,000 so that Mrs. Bimber can be the surrogate mother of Flynn's child.  The eggs are harvested from another woman, impregnated with Flynn's sperm, then implanted in Mrs. Bimber.  Turns out she has triplets, and decides to keep them.  This arrangement spawns -- pun fully intended -- no less than four separate legal actions. 

What's worse, while Aldous Huxley might have contemplated such a scenario, he probably wouldn't have used conflict of laws as a plot device:  Flynn lives in Ohio, and the Bimbers live in Pennsylvania.  Flynn first sought relief in Pennsylvania, but the result was that the court there held the contract to be void, then named Flynn the legal father because the contract  designated him as the father, and named Mrs. Bimber the legal mother because the contract did not designate a mother.  No, I'm not making that up; as the Ohio court delicately opined, "deeming a contract void but then relying on that contract in the ensuing analysis is legally questionable."  The other result of the Pennsylvania decision was that not only was Flynn out the twenty grand he'd paid the Bimbers, but he was also obligated to pay child support for the kids the Bimbers decided to keep. 

The final case in this saga is the 9th District decision being argued today, which held that the contract was enforceable, that the Bimbers breached it, thus entitling Flynn to recover the money he'd given them, and that the indemnity provision in the contract required the Bimbers to reimburse Flynn for any money he paid in child support.  You can catch the argument on the Court's video.  Frankly, I think everyone would have been better served if this had been submitted to Judge Judy.  Talk about must-see TV...

The other cases are a bit more mundane.  There's one involving the Public Utilities Commission, but as I've hinted before, if you ever see a discussion here about PUCO cases, call the police, because it means somebody stole my identity and is posting on this blog.  Perhaps the most interesting of the rest of the lot is Leininger v. Pioneer Nat'l Latex, in which the trial court granted summary judgment to the defendant in an age discrimination case because she hadn't filed suit within the 180 days provided by Ohio's statute, 4112.01(A).  The appellate court reversed, holding that the plaintiff's discharge violated public policy, and thus was a common law tort with a two-year statute of limitations.  Why was it a violation of public policy?  Because 4112.01(A) says that you can't discriminate on the basis of age.  I think there's some problems in bootstrapping a statutory cause of action into a common-law one so as to avoid the limitations provisions of the former, and I'd be willing to bet that the Supreme Court agrees.

Speaking of somewhat befuddling results, one was provided by the 8th District's decision last week in State v. Dyer, a child molestation case in which the court, in a bench trial, permitted the social worker to testify as to her interview with the 9-year-old victim.  The defendant had argued that this was a Crawford violation (if you don't know what that means, read this), but there was one big problem with this argument, as the appellate court pointed out:  Crawford only bars testimonial statements where the declarant doesn't testify at trial, and here the child did testify, affording the defendant his full right of confrontation and cross-examination.

Nonetheless, the court proceeded to determine whether the social worker's testimony was prohibited by Crawford, and tracked the Ohio Supreme Court's decision in State v. Stahl, which held that "in determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement."  I've discussed the problem with Stahl before, in the post cited above, and that's on full display in the court's conclusion here:

We conclude that, under the circumstances of the instant case, B.D.'s statements to McHugh are nontestimonial. Our review of the record reveals nothing to indicate that B.D., or a typical child of her age, would have reasonably believed that her statements would be used later for trial.

My guess is that the record would reveal nothing to indicate that B.D., or a typical child of her age, would have had any concept what a trial was.  I feel relatively comfortable in surmising that of the many thoughts which ran through B.D.'s head at the time she talked to the social worker, one of them was not, "Gee, I wonder whether what I say can be used at trial."

The topper was that despite the nature of the crime and the fact that the cops found 77 pictures of child porn on defendant's computer, the court reversed the defendant's sexual predator designation and remanded that for a new hearing, just two weeks after another panel upheld a predator designation in what was essentially a date rape case.  Why?  Because the trial court didn't say the magic words:  although the judge opined that "with the number of counts in front of me involving children, obscenity involving children, as well as physical crimes against a related child in this case, that defendant should be classified as a sexual predator," the judge didn't specifically discuss whether the defendant was likely to reoffend.

Once again, form beats substance.

UPDATE:  A shoutout to one of the other lawyers in my office, Toni Richmond, who gently pointed out that, probably due to my declining mental state, I interchanged "Kimbers" with "Bimbers" in portion of this post about the Supreme Court case on surrogate mothers.  I've made the necessary changes.  I think.


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