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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

The big case out of the US Supreme Court this past week was the decision on the Help America Vote Act.  HAVA requires states to check voter registrations against government databases like drivers license records, and to flag mismatches.  The GOP had sued Ohio Secretary of State Jennifer Brunner to turn over information about mismatches to local officials.  The District Court had sided with the GOP, a 6th Circuit panel reversed, the 6th Circuit en banc reversed that, and the Supreme Court reversed the whole thing, vacating the District Court's order, voting 9-0 that the Republican Party didn't have standing to bring the action in the first place.  That's not the end of it, of course; the GOP says it's going to file suit in the Ohio Supreme Court.  As with everything in life, there are pros and cons on this issue.  If the public opinion polls stay as they are, it won't make much difference, but if the presidential race tightens, Ohio 2008 could be Florida 2000.  Stay tuned.

Down in Columbus, the Ohio Supreme Court confronted another voluntary dismissal issue in Pattison v. WW Grainger, an employment caseThe plaintiff had sued for age discrimination and wrongful termination; the court had granted summary judgment on the first.  Pattison dismissed the second under Rule 41(A)(1)(a), but the Supreme Court held that a plaintiff can't voluntarily dismiss parts of his action; he's got to dismiss the whole case, at least against a particular defendant.  The law's fairly clear on this, although Justice Lundberg Stratton points out some of the practical problems of this for plaintiff's counsel in her dissent.

Other than that, a spate of disciplinary and workers comp cases. The most interesting of the latter was the rejection of an employer's claim that one of its former employees wasn't really permanently disabled; the court noted that he was 78 years old and suffered from end-stage glaucoma in both eyes, and decided that his hanging out in his wife's shop, for no pay, didn't cut it as far as being capable of remunerative employment went.  Kudos to AT&T on this one; if they spent less time stalking septuagenarian ex-employees and more time actually doing the stuff they were supposed to, maybe my internet connection wouldn't fade out four or five times a day.

On to the courts of appeals where, of 43 decisions handed down last week, 12 of them came out of the 3rd District...

Criminal.  1st District finds that trial court in child sex abuse case erred in allowing evidence of prior claimed incident of abuse which had occurred 28 years ago as 404(B) evidence, affirms conviction anyway, since it was a bench trial and judge said he relied solely on victim's credibility... 5th District says that trial court erred in not asking defendant if he had anything to say before sentencing him on telephone harassment misdemeanor, says denial of right to allocution requires sentence to be reversed and remanded; I'm sure that'll turn out differently... 5th also rejects claim that jury waiver wasn't valid because trial judge didn't tell defendant that jury verdict had to be unanimous, court says no requirement that judge do so... 3rd District says that defendant not entitled to jail credit for time spent in treatment center... Also says that just because your lawyer tells you you're going to get concurrent time on a plea doesn't mean the judge has to give it to you, at least where the judge has told you at the plea that he's not bound by any promises anyone else has made... Good discussion of criteria for determining whether to disclose identity of informant in this 12th District case...

Civil.  1st District follows its precedent and says that denial of sovereign immunity may be final order per statute, but is not appealable order where there are other parties and no 54(B) order is entered; underlying case is on appeal to Supreme Court, and it says here it's going to be reversed... 3rd District says that spoliation claim requires proof of destruction or alteration of an existing document, creation of a false document isn't sufficient for claim...

Down on the farm.  In my typically elitist, snobby fashion, I'll point to the 3rd District's decision last week upholding the revocation of a livestock dealer's license for violation of the proscription against making false or misleading statements in disposing of livestock, because he failed to tell a buyer that the broker's hogs had tuberculosis.  Let this be a lesson to others.


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