What's up in the 8th
The State takes it on the chin in a search case -- so what's new? -- but there's a three-way split on another one, more plea and sentencing problems arise, the court decides to clarify some law just so I'll shut the hell up about it, and still finds the time to address the tort reform statute. All that and more from the Court by the Lake's body of work last week.
In State v. Dowdell, decided back in March, the trial judge had told the defendant, who was pleading guilty to two counts of robbery, that he would go to prison on "these felonies," and could get anywhere from 2 to 8 years. The court vacated the plea and resulting 16-year sentence, holding that while the judge did not have to advise the defendant of the possibility of consecutive sentences, here the defendant could have been misled into believing that the maximum penalty for "these felonies" was 8 years. Without mentioning Dowdell, oddly enough, the court comes to a similar conclusion in State v. Pettito, where the defendant was informed that he "could serve a prison term of anywhere from 1 to 5 years, in yearly increments," on the two counts of gross sexual imposition he was pleading to. The court says that the failure to delineate that the penalties were for each count was compounded by the ambiguity of the judge's advisement, but, especially given that this error was raised by the court sua sponte, it seems the better practice in the 8th for a judge to make sure that the penalties are clearly delineated so as to remove any concerns about ambiguity.
Speaking of law in the 8th, one of my frequent criticisms is the court's repeated insistence that seeking medical treatment is sufficient proof of serious physical harm. In State v. Clopton, the majority opinion carefully reviews the law on this area, and concludes that seeking medical treatment alone is not dispositive of the issue. It also notes, as I did the last time I raised the point, that in virtually every case, resort to that argument was unnecessary because it was clear that the victim had in fact suffered serious physical harm.
Two search cases of note. In State v. Williams, the police have a warrant for warrant to search premises at 3488 W. 54th St. As they go up driveway, they see Williams standing in the backyard of the adjoining property, minding his own business. They order him to the ground and handcuff him for "officer safety," and shortly thereafter see a plastic bag protruding from his pocket; they pull it out, and find it contains crack. The court commiserates with the officers' concerns for their safety, but notably absent from the 4th Amendment is any language dispensing with reasonableness or probable cause whenever the police are inclined to feel that their safety justifies doing so. You simply can't go around handcuffing people who have nothing to do with the search you're conducting, concludes the court.
State v. Miller presents a trickier situation. The police find a suspicious package in a Fed Ex delivery warehouse and have a dog sniff it. He alerts, so they get a warrant. The cop disguised as the Fed Ex delivery guy drops it off at the house, which appears abandoned, and bangs on the door. No one answers, so he leaves it on the porch; a minute later someone reaches out and pulls it inside. A few minutes more, Miller and his wife exit the house, and, when arrested, claim that they were taking the package back to the Fed Ex center since it had obviously been misdelivered. The jury didn't buy this, and neither did the court, but the opinion ventures into another area: what does the affidavit have to say about the dog? The lead opinion and dissent hold that, in line with other cases, "the affidavit in support of a search warrant must establish the training and reliability of the drug-detecting dog"; the different results are based on the lead opinion's conclusion that the failure to do so is saved by the good exception to the exclusionary rule. The concurring opinion, however, argues that such a rule is overly broad,and no such qualifications need to be set forth.
In civil cases, the court in Dean v. Dean clarifies the standard by which spousal support can be modified. In this case, the parties' forty-year marriage was dissolved with the order that husband pay wife $3,000 per month in spousal support, but the court retained the right to modify the term and amount of spousal support "because of husband's precarious health and employment situations." Husband lost his job two years after that, and had hip surgery a year later, reducing his income to zero. The wife resisted the effort to modify support, citing Mandelbaum v. Mandelbaum, the Supreme Court's 2009 decision which held that a substantial change of circumstances suffiicient to warrant modification hasn't occurred if the change was one contemplated at the time of the decree. The court puts an end to wife's blood-from-stone experiment, holding that "contemplated" in this context means "intended," and pointing out the circular nature of wife's logic:
A trial court should be able to reserve jurisdiction for further consideration of a specific issue if it finds that it is unable to adequately predict the timing, extent and impact of a foreseeable change. Otherwise a trial court would lack jurisdiction to revisit the issue precisely because it found that it would be necessary to do so.
Luri v. Republic Services presents another issue with the tort reform act, this time the requirement that the issues of compensatory and punitive damages be bifurcated in trial. The 5th and 8th District have concluded that this provision is unconstitutional, in that it conflicts with CivR 42(B), which allows the judge to determine when bifurcation is appropriate; on procedural issues, the rules trump statutory law. The 10th came to the opposite conclusion, holding that the tort reform statute provision was substantive, and the 8th's earlier decision on this is presently pending before the Ohio Supreme Court. (The appellee's merit brief was just filed last week, so a decision before the end of the year is unlikely.)
Luri demonstrates the problems with the statute. Luri had been told by his employer, Republic, to terminate three older employees; Luri refused on the grounds that it might result in a discrimination suit. The company instead fired him, then doctored documents to cover up its reasons for doing so. The jury awarded $3.5 million in compensatory and $43 million in punitive damages, and the court noted that, had the trial been bifurcated, much of the same evidence would have had to have been introduced in both trials.
Luri presents a couple of other interesting issues. First, there's a due process component to punitive damages, and the Ohio Supreme Court adopted the US Supreme Court's test on that several years ago (see my posts here and here.) Basically, the tort reform statute limits punitive damage awards to two times the compensatory award (that provision has already been upheld), but the due process argument might limit it even further. The Luri court does an excellent job considering the factors, and upholds the award, but cuts it down to the $7 million maximum. Even here there's an argument; as the dissenting opinion points out, the statute limits it to twice the compensatory damages awarded "against that defendant," and here there were four separate defendants, with each found jointly and severally liable for the full amount. Stay tuned.