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Case Update

The US Supreme Court gets back in session with several oral arguments last week, including one in a major search case we'll talk about on Wednesday.  Hint:  it may be better if you not only don't Bogart that joint, but don't flush it when The Man comes a'knocking.

Down in Columbus, the only thing of interest was the decision in In re Griffin, in which the court denied Hasan Griffin's application to take the bar examination.  The court found that he lacks the requisite character to become a lawyer because he has "no plan or ability" to pay the $170,000 in student loans that he'd piled up, all but $20,000 of it incurred in getting his law degree.  As a recent New York Times article pointed out, law school graduates "face the grimmest job market in decades."  Given that, and that the average law student graduates with $100,000 in debt, one suspects that Griffin is not alone in failing to come up with a coherent strategy of working that debt off.

In the lower courts, the heavy lifting was done by the 8th District; of the 116 decisions from the courts of appeals, 47 of them were out of Cuyahoga County...

Criminal.  Judge not required to tell defendant of reporting requirements for sexual offenders in plea colloquy, 8th District holds... 6th District rules that ex parte temporary protection order in divorce case which wasn't properly served can't form basis for trespass element of burglary charge... Prosecutor's claim in closing that defendant failed to call a particular witness not impermissible comment on defendant's failure to testify, says 8th District... Defendant convicted of failing to report as sex offender, given probation, probation subsequently revoked, after which underlying conviction is reversed; 10th holds that probation revocation need not be vacated because appellant's own statements show he was guilty of underlying crime... Denial of motion for judicial release not final appealable order, says 8th District... Brandishing a weapon sufficient to establish its operability, 9th District rules... 3rd District vacates conviction on no contest plea for abduction because indictment failed to set forth element creating risk of physical harm; while this would suffice for guilty plea, it doesn't for no contest plea...  12th District affirms denial of motion to seal record of arrest for public indecency where defendant had been acquitted; although trial court failed to state any findings balancing defendant's interest with state's, appellate court would "presume" that trial court did so...

Civil.  Earlier suit by plaintiff for unpaid wages didn't arise out of same nucleus of operative facts, isn't res judicata as to plaintiff's claim for sexual harassment, says 8th District... For the umpteenth time, calling a suit against an attorney a "breach of contract" as a way of avoiding the statute of limitations for malpractice actions doesn't work, says the 6th District... Defendant waived right to arbitration by not raising it as affirmative defense, litigating action for four years, says 10th District... 6th District affirms order to hospital to divulge information regarding who plaintiff's roommate was during hospitalization; name and address not "confidential medical information" protected by privilege... Even though inheritance by wife from parents was substantial change in circumstances, modification of spousal support denied because inheritance was contemplated at the time of the decree, 3rd District finds; wife's parents were 82 and 80 years old at time of divorce, and both died the following year...

Clinton, J., concurring.  Michelle Dernier was involved in an accident on her way to work.  Her claim for workers compensation benefits was rejected.  Three weeks later, she settled with the other driver's insurance company for the policy limits of $100,000; two days after that, she appealed the BWC decision, and ultimately won.  She's received $122,000 in benefits from workers comp since then.

There's a statutory provision which allows the Bureau to become subrogated to an injured employee's personal injury claim, and that's what the Bureau tried to do here.  The case focused on whether Dernier qualified as a "claimant" at the time she settled the case with the insurer, and thus was required to notify the Bureau of their subrogation interest.  A claimant is defined by the statute as "a person who is eligible to receive compensation"; Dernier argued that, at the time she settled, her claim for benefits had been rejected.  This is how the court framed the issue:

The resolution to the question of whether her subsequent qualification for benefits brings her under the statute then is dependent on the temporal requirement of the definition. We need to know what the definition of "is" is.

In BWC v. Dernier, the 6th District affirmed the grant of summary judgment to Dernier.

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