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Case Update

Eric and Kathleen get a divorce on June 19, 2007.  There's a pension which has to be divided, and so the court decree orders Kathleen to submit a Qualified Domestic Relations Order doing that.  Eric wants to appeal, but up to that time most people thought the law was that you couldn't appeal until the QDRO was journalized.  Two days after it is -- five months after the journal entry of divorce -- Eric appeals.  The very next day, the Supreme Court, in Wilson v. Wilson, says that the journal entry of divorce is a final appealable order, even before the QDRO is issued.

You wouldn't think that it would take the Supreme Court to tell the court of appeals that it shouldn't apply Wilson retroactively and toss out Eric's appeal as untimely.  But it does.  So in Rothman v. Rothman, the court does exactly that, and further instructs the appellate courts to allow any "similarly-situated litigants" -- anyone who's had an appeal dismissed based on retroactive application of Wilson -- to file notices of appeal, so long as they do so before March 31, 2010.

Several months ago, in State v. Cargile (discussed here), the court held that a person who was arrested and did not disclose that he had drugs on him before he was taken to jail could be convicted of illegally transporting narcotics into a detention facility.  State v. Cole presents the same issue, with one difference; the appellate court's opinion doesn't indicate whether Cole was warned that thing bringing contraband into the jail could result in additional charges, or whether he denied possessing it, both of which were the case in Cargile.  So the court remands it back to the 8th District to consider all that, and to decide whether it would make a difference.  After which the Supreme Court, a few years down the road, can answer the same question it could have answered last week.

Last, back in July I discussed the 8th District's decision in State v. Brooks, in which it vacated the defendant's gross sexual imposition convictions, finding that hearsay had been improperly admitted and that, without the hearsay, there wasn't sufficient evidence for conviction.  I'd mentioned that this might be a problem because of the Supreme Court's decision last year in State v. Brewer, in which the court held that in determing the sufficiency of the evidence, the appellate court had to consider all the evidence, including that which had been improperly admitted.  My opinion that "it may be that Mr. Brooks isn't completely out of the woods just yet" was confirmed last week; the Supreme Court reversed and remanded Brooks for reconsideration in light of Brewer. 

Four opinions finally emerge from the Supreme Court in Washington, none of any great interest to me; much more fascinating was the oral argument in two of the "honest services" cases before the Court.  Don't know what that means?  You can bet that Jimmy Dimora and Frank Russo do, and so will you, if you stop here on Wednesday.  For right now, though, we'll head over to the courts of appeals...

Civil.  Plaintiff arrested, handcuffed for driving stolen vehicle, five minutes later or so cops determine vehicle wasn't stolen, release plaintiff; 6th District affirms summary judgment against plaintiff's false arrest claim on sovereign immunity grounds... 10th District holds that trial court's denial of motion to bifurcate plaintiff's claims for compensatory damages from claim for punitive damages is final appealable order, and that new statute which requires such bifurcation is constitutional... 8th District says that affidavit saying "I have meritorious defenses to the claims alleged in Plaintiff's Complaint" not a sufficient showing of operative facts to warrant relief from judgment... Insureds' son sets off fireworks, which hit neighbor's garage and set it on fire; 5th District holds that insurer's exclusion for "criminal acts" doesn't apply, because son didn't intend to cause damage or know that damage would likely result from his act...

Criminal.  6th District reverses videotaped plea because video didn't include portion where defendant was supposedly advised of his rights... 9th District holds that "overnotification" of post-release controls -- judge says that period will be three years, when actually parole authority has discretion to make period up to three years -- renders sentence void... 8th District rejects argument that plea agreement specifying that defendant won't be granted judicial release violates defendant's statutory right to file for it... 6th District agrees with other courts which have held that victim's requiring medical treatment satisfies "serious physical harm" element of felonious assault... 12th District holds that search warrant signed by magistrate was void, because only judges have authority to sign warrants, but says that warrant saved by "good faith" exception to exclusionary rule... Defendant agrees to plea where prosecutor will recommend sentence of community control with inpatient treatment, at sentencing prosecutor reneges; 2nd District rules that defense counsel was ineffective in failing to hold prosecutor to its bargain...

New theories of tort law.  In Garofolo v. Fairview Park, the plaintiff, a garbage collector for the City of Fairview Park, went to Fairview Hospital after hurting his shoulder at work.  The blood test taken there revealed that Garofolo had been using cocaine, which the hospital disclosed to the city.  Much else ensues, and Garofolo eventually sues everybody.  The allegation against the hospital is denominated, "unlawful and negligent urine sample claim."

You can pretty much guess what happened next.  In State v. Haymond, the defendant was charged with domestic violence, assault, criminal damaging, and having a weapon while intoxicated.  The opinion notes that "the charges arose from a situation wherein the boyfriend of appellant's teenage daughter and his male companion presented themselves at the appellant's home to take the appellant's daughter to have a pregnancy test."


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