June 2010 Archives
Yesterday I promised to take a look at four cases from the 8th dealing with search issues. If I were writing children's books instead of a legal blog, I'd probably entitle this post The State's Terrible, Horrible, No Good, Very Bad Week in 4th Amendment Cases. The State's already sporting a losing record on that issue this year, and last week went to bat in four cases, and came up empty in three. They can draw some solace from the fact that it could've been an o-fer. Perhaps best demonstrating the vagaries of this area of jurisprudence is that they could have just as easily won all four.
Four, count 'em, four search decisions out of the 8th, so they get their own blog post tomorrow. In other cases from the 8th last week, the degeneration of the English language that technology has wrought continues apace, another judge is reminded that the abuse of discretion standard isn't triggered unless you exercise some, and the Yuletide season comes early.
One of the things I learned in the past two weeks is that, in a hospital, a nurse telling you that the doctor will be with you shortly means the exact same thing as a bailiff in courtroom telling you that the judge will be with you shortly.
The penultimate week in the Supreme Court's current term saw decisions in the "honest services" cases, the most significant of which was Skilling v. US. Skilling, as CEO of Enron, had misrepresented the company's fiscal health before it collapsed, and was prosecuted for a variety of crimes, including "honest services" fraud. (Earlier post here.) While three justices would have tossed out the statute as unconstitutionally vague, the Court doesn't go that far, but unanimously holds that statute requires proof of some bribe or kickback. That wasn't present in this case, so the Court vacates Skilling's conviction on that count and remands the case back for determination of whether the error is harmless in regard to the money fraud and securities fraud convictions.
Actually, as much of the opinion in Skilling is devoted to the issue of whether the trial court should've granted a change of venue, given the huge publicity surrounding Enron's collapse. The Court held that a change wasn't necessary, and those inquiries are too fact-intensive to lend themselves to recapitulation in a blog post, but if you've got a case on that issue, Skilling's a must-read.
There were also a couple of 1st Amendment cases. Doe v. Reed concerned a referendum to challenge a gay-rights law in Washington; the petition signers contended that the state's public records law, which would have allowed release of their names, infringed on their free speech rights. The Court rejected that claim, but only as to the facial challenge to the public records act; remaining in the district court, and yet to be addressed, is the claim that release would be improper because it would subject the signers to "threats, harassment, and reprisals."
In Holder v. Humanitarian Law Project, the Court upheld a law prohibiting providing any services to terrorist groups, in this case, a Kurdish insurgent group, and the Tamil Tigers, a group promoting an independent state for Tamils in Sri Lanka. While the HLP's services were of a decidedly non-terrorist bent -- it provided training to the two groups in how to use international law to resolve disputes peacefully and how to effectively petition the United Nations and other international organizations -- the Court essentially deferred to the determinations by the executive and legislative branches that even this type of aid could further the terrorist aims of the organizations.
The big case out of Columbus was McFee v. Nursing Care Mgmt. Nursing Care Management's policy was that an employee had to be employed for year before becoming eligible for any leave for any purpose. McFee gave birth eight months after she was hired, and was terminated for violating the company's leave policy. The 5th District had held that the company's failure to provide for maternity leave constituted sex discrimination, but the court reverses, holding that a company may maintain a uniform minimum length of service policy, and that Nursing Care's policy was "pregnancy blind." I don't know in how many cases Justice Pfeifer has been the lone dissenter, but whatever that total is, McFee increased it by one.
In the courts of appeals...
Only nine opinions last week, about than half the usual output. But the 8th District does close the book on two big cases -- Lynn Kelley has a good week, Terrance Hough has a bad one -- so let's take a look.
Despite the fact I write a blog, I'm pretty much an idiot savant when it comes to technology; I've never even sent a text message. Jeff Quon, a member of the SWAT team of Ontario, California, can't make that claim: during a single month, he sent 456 of them over his department-issued pager. And that was just during work hours. Unfortunately, about 400 of them were non-work related, and some were sexually explicit. He was disciplined for this, and he in turn filed suit against the city for violating his privacy rights by looking at the messages.
The extent of an employees' privacy rights, in the age where everybody at work has a computer and an email account, is one of the hot new legal topics: exactly what reasonable expectation of privacy does an employee have? This is of much greater import in government-employee situations, because there the 4th Amendment applies. Unfortunately, in Quon v. City of Ontario, the US Supreme Court last week dodged that issue entirely, stating that regardless of what Quon's expectations should have been, the fact that the search was "motivated by a legitimate work-related purpose" saved it.
Stop the Beach v. Florida involved another big issue. Over the past several decades, conservatives have argued for a more expansive reading of the Constitution's "takings" clause: that it does not require compensation just for property seized under eminent domain, but for any government action that substantially reduces the value of the property (e.g., the government's declaring that a portion of your property is wetlands, and off-limits to development). The obvious result this would have in environmental law had many concerned about the outcome here, which involved a suit by condo owners against a Florida action which would have created a new beach and thereby effectively converted the properties from oceanfront to oceanview. Again, the Court dodges that issue, instead engaging in a lengthy discussion of littoral rights. Well, I assume it was lengthy; I stopped reading it the second time "littoral rights" was mentioned. If you're still looking to quench your thirst for knowledge, this article and this one discuss the issue in more detail than I can muster.
As for the output from Columbus, I covered the major decision on Friday, so let's get to the courts of appeals...
Ever since the US Supreme Court revolutionized 6th Amendment jurisprudence with its 2004 decision in Crawford v. Washington, courts have wrestled with the issue of exactly what constitutes a "testimonial" statement under Crawford. The Ohio Supreme Court's done it three times, and took another shot at the issue yesterday in State v. Arnold. It did little to clarify the issue, and there's a case to be made that it muddied it further.
The United States now incarcerates 753 out of every 100,000 of its adult citizens. We're No. 1, by a huge margin: Poland is second, with 240. Most of the Western European nations aren't even in the rear-view mirror, averaging about a tenth of our rate. Japan clocks in at a measly 63.
Actually, Ohio doesn't rank that high, either, with 586 per 100,000 adults. Of course, the better indication of the real situation is that the figure back in 1971 was 112. Or this: in that period, spending on prisons in Ohio increased five times faster than spending on higher eduction.
You've got to give the Franklin County Prosecutor's Office credit for thinking big. Faced with an adverse appellate decision on a search issue, they decided to go for the home run. After the oral argument in the Supreme Court last week, it looks like they dribbled a grounder to second.
Burnes Lottie finds out that "the more the merrier" isn't the best philosophy for deciding whom to invite to your sentencing, and the 8th District's ouevre this week provides us with Reason #384 why I don't do divorce work.
While there are still 24 cases to be decided by the US Supreme Court before its term ends in two weeks, only three came down this past week, all involving Federal issues: Barber v. Thomas concerned good-time credits for Federal prisoners, and Hamilton v. Lanning involved bankruptcy law.
Perhaps the most interesting was a civil case, Krupski v. Costa Crociere, which concerned whether a motion to correct the name of a party after the statute of limitations had run "related back" to the original filing. The Court unanimously said it did, taking a much more liberal view of Fed CivR 15 than the Ohio Supreme Court did of the state counterpart a few weeks back in Erwin v. Bryan; there, the court held that identifying "John Doe" defendants had to be done before the statute of limitations expired.
In addition to KRE v. Roberts, discussed Friday, the latter court handed down several decisions this past week. In State v. Williams, they decided that the statute allowing involuntary commitment of a defendant who cannot be restored to competency is a civil, rather than criminal, proceeding, thus avoiding due process and equal protection problems. Boley v. Goodyear Tire involved the question of whether Ohio's statute on asbestos exposure allows a lawsuit by someone who was exposed to the asbestos outside the owner's premises, in this case, the wife of an employee who died of mesothelioma as a result of breathing in asbestos dust when she shook her husband's workclothes out before laundering them. No, it doesn't, concluded the court.
In the courts of appeals, there's nothing of note in the civil side, but plenty criminal cases...
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