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Case Update

As you might gather, I read a lot of cases.  I do not read cases which are 183 pages long and begin,

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part, mostly because he thinks that KENNEDY, J., is such a tool.

Okay, I made that last part up, but you get the idea.  The case, of course, was the Supreme Court's long-awaited decision last week in Citizens United v. FECThe Cliff Notes version is that corporations (and unions) are now free to spend money on political advertising directly, rather than have to go to the pretense of funneling it into political action committees.  The effect of this on our democracy has generated great wailing and gnashing of teeth from the Usual Suspects and predictions of our being inundated by massive political advertising in the coming election.  Like we weren't before.  One of the best consumer purchases I ever made was TiVo a few years back, and you couldn't get me to watch live television at gunpoint any more.

Nothing out of Columbus, so let's head over to the courts of appeals.

Civil.  6th District holds that whether arbitration provision was part of contract is question of law, not question of fact, reviewed de novo and not under abuse of discretion standard... 2nd District says court erred in dismissing negligence action against minor, should have appointed minor's mother as guardian ad litem...

Criminal.  Jury returns not guilty verdict of disorderly conduct/intoxication, trial court amends charge to disorderly conduct/causing annoyance and convicts defendant of that; 6th District says that second is not lesser included offense of first; yeah, and then there's that pesky jury trial/double jeopardy thing... Trial court not required to advise defendant of what sexual classification he'll get, but if it does, must advise him correctly; 8th District vacates plea where defendant told he'd be a Tier 1 offender, was actually Tier II... 3rd District affirms forfeiture award in drug case, good discussion of basic law on subject... 12th District finds no ineffective assistance of counsel in failure to file motion to suppress identifications, call expert witness on identification... 10th District reverses grant of judicial release for judge's failure to comply with statutory requirements regarding necessary findings... 2nd District affirms dismissal of enhancement for prior uncounseled conviction, excellent discussion of requirements for valid waiver of counsel...

Further confirmation of my wisdom.  It's long been my view, based upon my personal and professional experiences, that every third home contractor should be taken out and shot, if only as a lesson to the others.  Additional evidence of that is provided by Irby v. Strang, where the plaintiff had signed a contract for $33,000 for repairs to her home.  Dissatisfied with the result, she'd sued, only to be presented with the defendant's contention that the contract contained an arbitration provision.  Irby claimed the contract she signed contained only three pages, and that the arbitration provision was part of a six-page document containing "supplemental conditions" she was given after work was started.  The first page of that document was numbered "page 4," and the last, numbered "page 14," contained the arbitration provision.  The court of appeals affirmed the denial of the motion to refer the case to arbitration, agreeing with the trial judge's observation that "it would be peculiar that the parties would be signing the third page of an alleged 14-page contract."

Am I missing something?  Here's the 9th District's recitation of the facts in State v. Little:

On the evening of July 30, 2007, Officer Orlando Perez of the Lorain Police Department received a "serious" call for assistance in locating "persons of interest[,]" including a "thin black male, young, wearing dark clothes and long shorts[.]" Officer Perez observed an individual matching the description and ordered the man to the ground and put handcuffs on him. The man was compliant and stated that his name was Terry Little. Officer Perez ran a warrant check and discovered Little had an outstanding warrant for failure to appear in court. Officer Perez then arrested and searched Little. During the search, Officer Perez found a large clear plastic bag containing  crack cocaine in Little's left rear pants pocket.

Given the nature of the dispatch ("'serious' call"?  "person of interest") and the paucity of the description, I think there's a legitimate issue as to the validity of the stop.  Yes, there's a warrant, but if the stop's bad, you can make an argument that you never get there.  It's not a sure-fire winner on a motion to suppress, but I've seen better searches than this get tossed. 

But nobody even made the argument.  No motion to suppress was filed in the trial court, and the only issues raised on appeal were weight and sufficiency of the evidence.


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