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Case Update

Some cases to write about at last.  The Religious Land Use and Institutionalized Persons Act is the subject in Sossamon v. Texas, the Supreme Court deciding that states don't waive sovereign immunity for private lawsuits for money damages, such as the one Sossaman, an inmate, filed regarding the prison's refusal to allow him to attend chapel services because of a disciplinary infraction.  Left unanswered by the Court's opinion was the larger question:  why Congress felt compelled to treat religious land use and institutionalization of persons in the same piece of legislation.  The Court hears the final oral arguments for the Term next week, and someday soon I'll do a post on the big decisions which remain pending, once I figure out what they are.  One of them undoubtedly concerns the 2004 Internet Sales Tax and Migratory Birds Act.

The Gang of Seven in Columbus swings back into action, too.  We'll discuss their decision in State v. Chambliss later this week, and the court writes finis -- at least for now -- to the saga of Nancy Allen and Joseph Smith.  As discussed here, Allen and Smith had been convicted of numerous counts of child rape in controversial trial in Lorain County in 1994.  In 2008, they argued their journal entries contained a Baker violation, but instead of simply correcting the entry Common Pleas Judge James Burdge, who did not preside over the trial, reviewed the record and granted them a belated motion for acquittal under Rule 29(C).  In an earlier decision this year the court reversed that, and last week denied the motion to reconsider.   

In civil cases, newly-appointed Justice McGee Brown writes her maiden opinion in Loudon v. Radiology & Imaging Services, which features a somewhat muddled legal situation.  Loudon, recovering from breast cancer, sued the defendants, claiming they should have diagnosed it a year earlier, and alleging that their negligence led to an enlargement of her tumor and emotional distress from the fear of an increased chance of the recurrence of the cancer.  Somehow, despite the fact that Loudon had not included a separate count for emotional distress, the trial court treated her complaint as alleging only that, and granted summary judgment.  Somehow, the appellate court focused on the emotional distress claim which Loudon hadn't raised, and reversed.  The court straightens all this out, determining that the spread of cancer is in fact a physical injury, but that a separate claim for emotional distress stemming directly from a physical injury isn't only unnecessary, but improper:  such damages can be considered in the normal context of a traditional medical malpractice claim. 

There was also a decision in another civil case, Westfield v. Hunter, which has something to do with exclusions in homeowners policies for claims "arising out of" premises owned by the insured other than the insured location.   In the unlikely event that you're reading this blog with the hope of keeping up with all the insurance cases, despite nothing that I've written in the past five years giving you reason to do so, give me a call and I'll pretend to explain the decision to you.

Yeah, yeah, I know.  I spend the past month complaining that there are no Supreme Court decisions to write about, and then they do issue one, and I snarkily dismiss it out of hand.  So sue me. 

In the courts of appeals, very little new in the criminal area, besides affirmances of sentences against claims that they're excessive, and of denials of motions to withdraw pleas.  But that's not new, is it?  The 8th District handed down some nice decisions in criminal cases, but we'll get to those tomorrow.  In the meantime...

Criminal.  Guilty plea waives claim on appeal that trial court should have granted motion to allow trial counsel to withdraw, unless failure to grant motion induced plea, says 6th District... Municipal court erred in trying adult defendant for contributing to unruliness or delinquency of minor, says 8th District; juvenile court has exclusive jurisdiction in such cases...

Civil.  Intentional employer tort statute, RC 2745.01, provides that removal of safety guard creates presumption of intent to injure, 6th District say this raised genuine dispute of fact, trial court shouldn't have granted summary judgment... 9th District upholds award of $115,000 to homeowners against Ohio Turnpike, based on claim that improvements to Turnpike -- widening of lanes -- created permanent nuisance... Attorney not liable for sanctions for frivolous conduct when investigation didn't discover factual basis for lawsuit, 6th District holds; liable only if no reasonable expectation of finding such evidence... 12th District affirms summary judgment for slip on water puddle, holding defect was open and obvious, but excellent dissenting opinion summarizes law and correctly notes that doctrine only applies where defect was observable by reasonable observation... Since wife failed to file an answer, divorce was deemed uncontested under local rules, and wife's ability to present evidence could be limited to issue of grounds, says 5th District... 12th District upholds denial of defendant's motion for new trial on basis that her attorney suffered some sort of medical episode during trial; party in civil suit has no right to effective assistance of counsel...

Doggie Update.  A couple months ago, I discussed the question of whether a dog's alerting to the supposed presence of drugs should provide probable cause for a further search.  Two recent developments in that area.  The first is the Florida Supreme Court's decision in Harris v. Florida, which held that to meet its burden establishing that the alert did give rise to probable cause,

the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability in being able to detect the presence of illegal substances within the vehicle.

And last week in Harris v. Mayfield Heights, the 8th District ordered the return of some $15,000 to the occupant of a car; the money had been seized after the defendant was stopped, and a dog alerted to the cash.  Although the probable cause issue wasn't addressed, what's interesting in the opinion is the court's treatment of the alert.  That the dog alerted to the cash is hardly unusual, says the court, given the evidence that somewhere between 90% and 97% of US currency bears traces of cocaine, and quoting this tantalizing piece from DC Circuit decision:

If the information related above proves accurate, a court considering whether a dog sniff provides probable cause, may have to take into account the possibility that the dog signaled only the presence of money, not drugs.

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