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Case Update

The opinions start to spill out of Washington, with most being exercises in statutory construction.  Fowler v. US involves the state of mind required for conviction of the Federal witness tampering statute, which makes it a crime to "to kill another person, with intent to. . . prevent the communication by any person to a [Federal] law enforcement officer" of "information relating to the . . . possible commission of a Federal offense."  Fowler killed a local police officer who discovered him preparing to rob a bank, and the 11th Circuit upheld his conviction, holding that the government needed only to show that it was "possible" that the police officer would have tipped off Federal authorities.  Not so, says the Court in a 7-2 decision; the statute requires that there be a "reasonable likelihood" that a Federal official would have received the information.

In US v. Tinklenberg, the subject was a provision of the Speedy Trial statute which excludes "delay resulting from any pretrial motion."  Ohio has a similar provision, and our court has interpreted that to mean that any motion filed by the defendant tolls the time.  I've argued that's wrong, because it reads the "delay resulting" part out of the statute, but SCOTUS doesn't think any more of that argument than the Columbus Gang have, rejecting that interpretation in an 8-0 decision.

The two big decisions, though, were Brown v. Plata, which we'll talk about on Friday, and Chamber of Commerce v. WhitingThe latter involved an Arizona ordinance which suspended or revoked the business licenses of Arizona employers who knowingly hired illegal aliens.  The statute, like the more recent Arizona law allowing police officers to question people they stop about their immigration status, involves the issue of to what extent state laws are pre-empted by Federal laws on immigration, a matter traditionally reserved for the Federal government.  Whiting holds that the state law does not conflict with Federal law, and is thus not pre-empted.  The decision is of limited utility in gauging whether the Court will uphold the recent law, because that involves issues of discrimination as well.

Nothing happening in Columbus, so let's head over the courts of appeals...

Criminal.  1st District says that convictions of falsification and obstructing official business, based on defendant's giving phony name to cop at scene of accident, should have merged as allied offenses... 2nd District reaffirms its case law that outstanding arrest warrant deprives defendant of any right to privacy, stop and search without any reasonable suspicion is valid... License plate is one of items that elevates receiving stolen property from misdemeanor to felony, but license sticker not the same as plate, RSP of sticker is only misdemeanor, says 6th District... Sentencing entry must contain amount of restitution, says 8th District; can't say "to be determined by probation department" or anything else indicating that court has jurisdiction to modify amount... Pandering sexual material involving minor and illegal use of minor in nudity-oriented material may be allied offenses, says 8th District, case remanded to trial court for determination of whether they were committed "in a single act with a single state of mind"... 9th District says that Akron's noise ordinance not unconstitutionally vague... Defendant has to establish actual, not potential, prejudice to warrant dismissal for pre-indictment delay, says 9th District... Where defendant filed written jury demand, but record did not show subsequent waiver, trial court erred in conducting bench trial, 12th District rules...

Civil.  Back to the Future:  Adoption of comparative negligence rendered last-clear chance doctrine a nullity in Ohio, says 10th District... Argument that franchise agreements were procured through fraud required reference to agreement and process creating it, thus fell within provision requiring arbitration of "any claim or controversy in connection with, arising out of, or relating to the Agreement," says 9th District... Statute of limitations may only be extended once under savings statute, RC 2305.19, regardless of whether dismissal is by plaintiff or by stipulation, says 10th District... City had sovereign immunity for claims of reckless hiring and supervision in claim by employee who was raped by co-employee, 9th District holds...

Malpractice alert.  In Troyer v. Janis, the plaintiff's medical malpractice complaint was dismissed because he didn't include an affidavit of merit.  In Fletcher v. Univ. Hospitals, the Ohio Supreme Court held that such a dismissal was without prejudice, and so the plaintiff simply refiled his complaint.  Under CivR 41, though, a dismissal is with prejudice unless the court specifies to the contrary, which the trial court in Troyer didn't.  That means that, notwithstanding Fletcher, the dismissal was with prejudice.  What's more, since the plaintiff didn't appeal that entry, it's res judicata, and so the 10th District affirms the grant of summary judgment against the plaintiff from his refiled complaint:

We cannot recognize error in that initial judgment by means of the appeal now before us, which is taken from the trial court's second judgment in the matter, dismissing the second complaint on grounds of res judicata.  It is not an impediment to a finding of res judicata that the initial judgment upon which the bar of relitigation stands was itself in error; the trial court's second judgment in this case, which we now consider in this appeal, correctly relied on res judicata and must be affirmed in that respect.

So much for the preference for deciding cases on their merits, rather than on hypertechnicalities.


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