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Collateral damage

Warren Lewis was in no mood to cooperate.  The police had responded to a call of a juvenile fight involving three girls, one of them Lewis' daughter.  They decided to charge all three, but when one officer went up to Lewis' house and asked him for information, like the address (the house didn't have a visible number), Lewis clammed up and went inside.  For that he was charged and convicted of obstructing justice.

The 8th District had no problem deciding that was bogus; in fact, in a rare en banc decision, all twelve judges agreed on that.  What raised a question was whether Lewis' case had been mooted by the fact that he'd paid the $100 fine and served the six months inactive probation.  And that question plopped into the lap of the Ohio Supreme Court yesterday.

Mootness, of course, is the doctrine that if an appellate decision isn't going to change anything, why bother?  If a criminal defendant has served sentence, what's the point of deciding whether he should have been convicted in the first place?  That was the view adopted way back in 1974 by the Ohio Supreme Court in State v. Wilson.  There are some exceptions to the doctrine, though.  One is where the defendant has served the sentenced "involuntarily," and that's where most of the argument in Lewis was focused.  Lewis had filed a motion for stay pending appeal in the trial court, but his failure to file one in the appellate court, the city argued, meant that he "voluntarily" served the sentence.

This doesn't make much sense, and the "two-stay" rule the city was arguing didn't find any support in the statutes, rules, or case law.  (In fact, there were several 8th District cases saying that a motion to stay didn't have to be filed with the appellate court.)  This also gave the defense an opening to contend that Wilson and other cases could be distinguished, because they involved pleas.  (One case cited a passage from the trial court transcript, where the judge responded to a request for a stay pending appeal by saying, "What are you appealing?  You just pled no contest.")  Lewis, on the other hand, had gone to a jury trial, and then appealed; wasn't all that, the defense argued, sufficient to show that he wasn't "voluntarily" agreeing to the outcome in his case?

The more powerful argument, though, was one that didn't receive much mention yesterday.  About twenty years after Wilson, the court in State v. Golston held that a felony conviction wasn't mooted by the defendant's having served his sentence, "given the numerous adverse collateral consequences imposed upon convicted felons."  Judge McMonagle seized on that in her concurring opinion in the 8th District's decision -- which garnered the support of six other judges, including the one who authored the main opinion, and thus became a second "majority" opinion -- pointing out that even a minor misdemeanor marijuana conviction can (at least according the 1st District) creates a disability prohibiting someone from possession of a firearm, that the Adam Walsh Act imposes reporting and registration requirements for many misdemeanor sex offenses, and that "there is a palpable collateral disability to any misdemeanor conviction."  The Cuyahoga County Public Defender's Office had submitted an excellent amicus brief outlining the many consequences of a misdemeanor conviction.  (Hot tip:  if you want to get a license to be a Precious Metal Dealer, better get that conviction for shoplifting at Nordstrom's expunged.  Ditto if you've got your sights set on becoming Inspector General.) 

So overwhelming was the recitation (the portion of the brief, which you can read here, dealing with just the state statutes and regs pertaining to consequences of misdemeanor convictions runs twelve pages), that Justice Lundberg Stratton bluntly told the city's attorney that any attempt to argue away collateral consequences was foreclosed.  The attorney took a different tack, claiming that Lewis' failure to file a cross-appeal on that issue prevented the court from considering it.

I'm not sure this is correct.  As I mentioned the other day in the discussion of the 8th District's decision in State v. Ortiz, normally a party has to file a cross-appeal if it supports the lower court's judgment, but wants to change it in some way; a cross-appeal isn't necessary if you're simply arguing that the court's judgement can be upheld for another reason.  Besides, the city's argument was a bit bold, considering that they hadn't raised the issue of mootness in the court of appeals; the issue was raised for the first time by the panel in oral argument. 

This leads to another point.  The 8th had held that Lewis failed to present evidence of any collateral consequences -- somewhat understandable, since the issue wasn't raised until oral argument -- and that view is echoed in various other opinions on the subject.  But it may be improperly shifting the burden on that issue, as the dissent in Wilson pointed out, noting the language from a 1968 US Supreme Court decision that "a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction."  In light of the amicus brief, and the simple fact that, especially in today's job market, even a misdemeanor conviction can be a ticket to the unemployment line, it's hard to see how any conviction would meet that test.

So what's going to happen?  O'Connor and O'Donnell asked some questions which might have been viewed as favorable to the city, but didn't seem to muster much enthusiasm.  Lundberg Stratton, McGee Brown, and Lanzinger seemed safely on Lewis' side.  Pfeifer, for the first time I can remember, didn't say anything during the argument.  (I actually went back and checked the video to make sure he was there.)  Cupp offered a way out:  not require anything more if the appeal is from a trial conviction, but keep Wilson intact where the appeal is from a plea.  I'm not sure that's going anywhere; I think the chances are good that the court will agree that Judge McMonagle got it right.

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