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Case Update

SCOTUS may be taking its summer vacation (that's Justice Sotomayor, reflecting on her first year on the Court), but the gang in Columbus has started churning out cases again.  Three of them concern adoption:  in In re Adoption of GV and In re Adoption of PAC, the court holds that a probate court must refrain from proceeding with an adoption if the juvenile court has a pending proceeding to determine who the father is.  That might seem self-evident, but the dissent argues that that's not what the statute permits; in their view, it was permissible for the court to hold that the father's consent to adoption wasn't necessary since he hadn't signed on to the Putative Father Registry, despite the fact that he had filed an action with the juvenile court to obtain visitation rights, and DNA tests showed a 99.99995 percent chance he was the father.  In re Adoption of JAS concerns the question of whether the pre-adoption placement procedures of RC 5103.16(D) apply even where the prospective adoptive parents already have legal custody, and the child has been living with them; the court decides that they do. 

Two criminal cases of note, one of which, State v. Bess, we'll discuss on Thursday.  In State v. Rohrbaugh, the defendant was charged with breaking and entering, pled guilty to an amended indictment charging receiving stolen property, and appealed the restitution order.  Instead of considering that, the 3rd District reversed the conviction, finding plain error in the indictment being amended to change the identity of the crime.  Well, no, it's not plain error when the defendant not only agrees to the change, but receives a benefit:  the state dismissed six other charges in return for the plea.

Among several disciplinary cases comes the conclusion of the saga of Portage County Municipal Judge John Plough, whose exploits, chronicled here, earn him a 12-month suspension with six months stayed

On to the courts of appeals...

Civil.  Sovereign immunity does not apply to protect against claims for violation of Federal statutory or constitutional claims, says 1st District... Court's review of arbitration award very limited, error in interpretation or application of law by arbitrator insufficient to set aside award; decision must "fly in the face of clearly established precedent to support a vacation of the award," says 9th District... Trial court dismisses two claims on motion for judgment on pleadings, plaintiff voluntarily dismisses third, then appeals ruling on first two; 5th District says no final appealable order, voluntary dismissal must be of all claims...

Criminal.  6th District rejects argument that Rule 29 motion for acquittal should have been granted after prosecutor's opening statement, says acquittal appropriate at that point only if prosecutor admits no offense was committed, or that appellant is not guilty... When jury deadlocks in penalty phase of capital case, trial court can impose any of alternative sentences to death penalty, 8th District holds... Fact that defendant wanted to testify in one case and not the other insufficient basis for granting motion to sever cases, concludes 10th District, as has every other court which has considered the issue... 9th District vacates plea where trial court incorrectly informed defendant that he could appeal court's rulings despite guilty plea... 10th District vacates conviction, holds that police officer's telling victim that photo array contained picture of perpetrator was unnecessarily suggestive identification procedure... Shining of flashlight into car did not constitute stop under 4th Amendment, officer did not need reasonable suspicion to do so, says 12th District... State takes $800 from defendant in drug buy, gives it back, then files motion for forfeiture; 3rd District says since State can no longer identify specific money used in drug transaction, it's not entitled to forfeiture...

If at 6th you don't succeed... In Carreker v. Carreker, the court affirms a decree of divorce involving a 36-year marriage, noting that "it was the seventh time appellee filed for divorce against appellant."

The march to gender equality continues.  In Curry v. Village of Blanchester, the 12th District considers the a wrongful discharge suit brought by a city clerk, who also included a defamation count for comments the mayor allegedly made about her.  The opinion contains such beguiling headings as "A. Whether the "titties" comment was protected by absolute immunity," and tackles the sovereign immunity issue thusly:

We note that this employee-immunity analysis will only apply to the comment about the affair and the "titties" comment, and not to the "tits and no brain" comment as the latter was made by White in a local bar as a private citizen, and not as an employee of a political subdivision. For the same reasons,  the absolute immunity analysis will not apply to the "tits and no brain" comment.


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