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Case Update

The news out of Columbus was sad:  the untimely death of Ohio Supreme Court Chief Justice Thomas Moyer on Friday, coming just two weeks after the passing of Frank Celebrezze, the man he beat for the post in 1986.  Moyer was a conservative, but he was always faithful to the law, not his ideology, in his rulings.  He had an abiding passion for professionalism in the practice of law, as anyone who appeared before him can attest.  He was a true gentleman, and he will be missed. 

There were no decisions from the Ohio Supreme Court, and we discussed the major one from SCOTUS, Padilla v. Kentucky, last Thursday.  While my post concentrated on the possible effects of Padilla - what other collateral consequences of a plea must a lawyer advise his client about - the immediate effect is certain:  an immigrant's lawyer must inform him if a plea bargain is likely to result in deportation.  On the civil side of the ledger, the big decision was Shady Grove Orthopedic v. Allstate Ins., which dealt with the question of whether state law can limit a class action brought in Federal court under its diversity jurisdiction.  I'd get into a more detailed discussion of it, except (1) I don't do class actions, and I'm betting you don't, either, and (2) various commentators have described the case as presenting "a classic civil procedure conundrum that only law professors could love" (National Law Journal) or one that might be read only by "a Supreme Court junkie who's had four too many cans of Red Bull"  (WSJ Law Blog).  At any rate, Supreme Court junkies will be jonesing for a while:  the Court isn't expected to issue any new opinions until April 20.

On to the courts of appeals:

Civil.  8th District says that invalid service voids judgment, even if defendant was aware of suit... Defendant may move for summary judgment before filing an answer, 9th District holds... Defendant files motion to refer case to arbitration, court denies it, then later grants defendant's motion for reconsideration on that issue; 10th District says that trial court lacked power to do that, since entry denying arbitration was a final appealable order... Facts not sufficient to overcome sovereign immunity defense for school district in student hazing case, but is sufficient to show John Doe defendants were reckless, thus not immune, 9th District rules...

Criminal.  9th District says failure of jury verdict form to contain finding of aggravating factor in charge of intimidation of crime witness makes offense misdemeanor instead of felony... Police called to scene of burglary, find suspect's crashed car, do inventory search, find drugs in trunk, defendant charged separately with burglary and drug possession; 6th District rules that they don't arise out of same transaction, defendant not entitled to triple count provisions for speedy trial... Defendant offered to sell 10 grams of crack, actually shows up with 4.6; in case of first impression, 9th District rules that statute defining degree of crime by amount of drug involved means amount actually sold, not offered... Even though no basis for patdown, drugs in defendant's pockets come in under inevitable discovery doctrine, because police would have found them incident to arrest when they discovered defendant was driving with a suspended license, says 10th District...

Picky, picky.  The 9th District has become a stickler for the provision in App.R. 16(A)(7), which requires an appellate brief to include "an argument containing the contentions of the appellant with respect to each assignment of error. . . with citations to the authorities, statutes, and parts of the record on which appellant relies."  This devotion to detail reaches an apogee in State v. Riley, which involved the prosecution of a business owner for theft for not making the lease payments on a forklift for three months.  The theft statute defines "deprive" as withholding property of another "for a period that appropriates a substantial portion of its value or use."  The court rejects an argument on insufficiency of the evidence on this point, noting that

To the extent that Riley argues three month's rent does not amount to a "substantial portion of [the forklift's] value or use," he fails to cite to any law in support of his argument.

Ummm, guys.... What kind of law do you think is out there on the question of whether three months' rent of a forklift constitutes a substantial portion of its value or use?  As the dissent correctly notes, the state has the burden of proof on this point, and "there was no testimony even suggesting what portion of the forklift's value Riley appropriated by his three months of possessing the forklift without making payments."

I certainly don't have a problem with citing cases, and you should have something to back up your arguments.  But applying the citation rule this mechanistically doesn't serve much purpose.

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