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Case Update

You rent a hotel room, and when you check your bill, you see you've been charged 6.5% for county and municipal taxes.  Except the county and municipal government don't have taxes on hotel rooms.  You sue the hotel management company, but are informed by the trial and appellate courts that you have to sue the taxing authority to get your money back.  Even though they don't have your money, because they didn't assess any taxes.  The Supreme Court steps in and rectifies the situation in Volbers-Klarich v. Middletown Mgmt., but the whole thing is so goofy it reminds me why I don't do tax law. 

We already discussed  last week's big decision by SCOTUS in Graham v. Florida, on juvenile life-without-parole sentences, but also of note was US v. ComstockAt issue was a provision recently passed by Congress allowing Federal sex offenders to be civilly committed after the expiration of their criminal sentences.  The district court and 4th Circuit had held the law unconstitutional, finding that mental health issues such as civil commitment were traditionally within the purview of state governments.  The Supreme Court disagreed, 7-2, the five-member majority creating a broad test for determining the scope of the constitutional clause giving Congress those powers "necessary and proper" to execute other enumerated powers.  Roberts and Alito concurred more narrowly, but only Thomas and Scalia were left to beat the drum of states rights.  The case may set the stage for arguments about Obama's health care legislation when it inevitably comes before the Court.

On to the appellate courts of Ohio...

Criminal.  6th District says that multiple police officers' testimony that witness' testimony was "consistent" with statements isn't hearsay; well, yeah, but when did opinion evidence on witness' veracity become admissible?... Where sentence should have been 11 years instead of 10, no problem in court using nunc pro tunc entry to correct it, 8th District holds... Although court need not hold hearing on post-sentence motion to vacate guilty plea if defendant presents no more than "conclusory allegations," it must hold hearing if motion is filed pre-sentence, 6th District rules... Defendant accused of child molestation, calls victim's sister as witness, sister testifies that defendant also molested her; decision to call witnesses a tactical one, not ineffective assistance of counsel, says 10th District... Rare reversal of trial court's denial of motion to vacate plea in 9th District; defendant said she wasn't sure of one of the offenses she was pleading to, attorney admitted she was "hurried" into pleading, and trial judge should have considered validity of defendant's claims regarding lawfulness of search... Decision to forego developing self-defense theory until after defendant testified was a strategic choice, not ineffective assistance of counsel, says 12th District...

Civil.  6th District holds that insurance company's repeated requests for documentation regarding fire before it would pay claim created genuine issue of fact as to whether it had denied claim sufficient to avoid contract's one-year statute of limitations for filing suit... Failure of social worker to pass license exam within probation period is not "just cause" for firing her sufficient to deny her unemployment compensation, rules 8th District... 3rd District says that plaintiff's affidavit in opposition to motion for summary judgment was inconsistent with her deposition, thus could not raise genuine dispute of fact; good discussion of issue... Court didn't err in denying motion to amend complaint filed one day before court was scheduled to rule on defendants' motion for summary judgment, 9th District says...

If there's a war, we know who to blame.  In Global World Peace v. City of Mayfield Hts. Planning Comm., the 8th District affirms the city's rejection of the plaintiff's proposal to develop land.  Global had applied for approval of a "conference and wellness center," which would include a "corporate development program offered by the Maharishi University of Management."  The sticking point appeared to be the "wellness spas" located on the second flor, where "therapies would be provided by licensed massotherapists."

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Recent Entries

  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax
  • June 28, 2017
    Plea Bargaining -- The defendant's view
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  • June 27, 2017
    What's Up in the 8th
    A worrisome decision on expert funding, and, mirabile dictu, a court's dismissal of a case for a discovery violation is upheld