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Case Update

The US Supreme Court is closed for the summer.  I'd mentioned that I was going to do a review of their term, but in looking at it, about the only significant non-death penalty criminal decision handed down was Brendlin v. California, which I'd already discussed here.  Of course, there were a number of other major decisions, and Justice Kennedy's drift to the right has caused great consternation in liberal quarters.  If you want some serious talking head discussion on that subject, you can check out this panel discussion by the American Constitution Society, which concludes with the non-motherly observation that "if this is the birth of a new constitutional era, all I say is what an ugly baby."  Those with a desire to understand the newly-developing alignments on the court in a less verbose form can check out this graphic from the AP, which tells us, among other things, that in non-unanimous cases Kennedy voted with Alito and Roberts nearly three-quarters of the time, while voting with Ginsberg only 48%, and with Stephens only 38%, of the time.

As for the Ohio Supreme Court, they had a decision last week on the effect of a dismissal for lack of personal jurisdiction.  That's a dismissal without prejudice, since it doesn't go to the merits of the suit, and the rule is generally that a dismissal without prejudice doesn't create a final appealable order, since a plaintiff can simply refile.  The 8th District had applied that rule to dismissals for lack of personal jurisdiction, but in National City v. AAAA, the Court sided with the 12th District and held that a plaintiff could appeal from a decision tossing out their suit for lack of personal jurisdiction.

In the court of appeals, the 2nd District holds that failure to grant the defendant the right of allocution before imposing sentence requires reversal and a remand for resentencing; betcha what the defendant finally gets to say is going to make a big difference.  The 2nd District also held that arrests, even when they don't result in convictions, can be considered by a court in determining whether to label someone a sexual predator; I'll have more on that later this week.  The 6th District holds that penetration of the labia is equivalent to penetration of the vagina sufficient to constitute rape.  Make a special note of this one, as it's sure to come up in your practice:  the 5th District holds that the statute prohibiting owners from allowing their animals -- in this case, a pig -- to run at large isn't a strict liability offense.  The 12th District points out that a trial court must not only advise the defendant at sentencing of post-release controls, but also advise him of the effect of the violating those controls; failure to do so requires a remand for resentencing. 

Last, if you want to change your eye color to match that nifty blue suit on the days you wear it, you're going to have to get a doctor's prescription:  the 6th District holds that a prescription is required even for "zero-powered" or cosmetic contact lenses, rejecting the claim of the defendant, Star Beauty Supply, that only lenses which "correct human vision" are subject to state control.

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