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Case Update

This is the final week for oral argument in the Supreme Court this term, and the Court saves one of the big ones for last:  Wednesday's docket features the argument in Arizona v. US, concerning the constitutionality of the immigration law passed in Arizona in 2010.  Although much of the discussion has centered on whether the law permits racial profiling -- it permits police to stop and arrest anyone they suspect of being an undocument immigrant -- the appeal at this point focuses solely on "pre-emption":  the doctrine that states may not interfere with any powers given exclusively to the Federal government.  Of course, the doctrine comes in a variety of flavors:  there's express pre-emption (where the Constitution or a federal statute explicitly confirms Congress' intent to expound the law to the exclusion of the states), and "implied pre-emption" (where Congress has the power but doesn't expressly state that it is pre-empting state laws), and within the latter, "conflict pre-emption" (where the state statutes conflict with Federal law) and "field pre-emption" (where the federal regulatory scheme is so pervasive as to warrant an inference that Congress intended to exclude the states).

This involves conflict pre-emption, and Justice Kagan having recused herself, the early line focuses on whether the four conservatives can lure Kennedy to their side to uphold the Arizona law; otherwise, a 4-4 tie results in the affirmance of the 9th Circuit's decision.   The end of June thus offers the prospect of two Supreme Court decisions on major issues affecting the presidential elections:  health care and immigration.

Speaking of presidential elections, Mitt Romney has famously observed that corporations are people, too.  Apparently, the Court isn't buying; its one decision last week, Mohamad v. Palestinian Authority, held that the Torture Victim Protection Act, which doesn't do much to protect torture victims except allow them to sue, imposes liability only on individuals, not organizations.  Jack Bauer's handlers no doubt breathed a sigh of relief.  In the other decision last week, Filarsky v. Delia, the Court unanimously reversed a 9th Circuit decision which had held that a private attorney working for a city on a contract basis could be sued under §1983 for a possibly illegal search conducted under his authority.  Not so, said the Court; a private citizen working for the government is entitled to the same qualified immunity as a government worker is.

I would be remiss in not telling you that also scheduled for oral argument this week is Match-E-Be-Nash-She-Wish Band of Pottawatomi Indicans v. Patchak.  I think it's based on an old episode of F Troop

One decision from the Ohio Supreme Court last week, in State v. Davis, involving RC 2921.04(B), which prohibits intimidation of a witness "involved in a criminal action or proceeding."  Three years ago, in State v. Malone, the court held that the statute didn't apply where the defendant had threatened a witness to a rape case, because the rape hadn't been reported, and thus there was no "criminal action or proceeding."  Here, an investigation had begun, but the court holds that's not an action or proceeding within the meaning of the statute, and hence it still doesn't apply.  All intersting stuff, but in a footnote, the court mentions that the statute's since been amended so that it applies regardless of whether charges have been filed.  In that light, it's not clear why the court even took the case; the 2nd District had reversed the defendant's conviction, which the court affirmed.  File this one under "W" for "Why Bother?"

In the courts of appeals...

A judge doesn't have to inform the defendant at a plea hearing that he can be prosecuted for escape if he doesn't report while under post-release control, the 8th District holds in State v. Milczewski... A trial court must make findings of fact and conclusions of law in denying a timely-filed petition for post-conviction relief, says the 1st District in State v. Young, but instead of remanding the case for that purpose, it simply dismisses the appeal for lack of a final order... The 9th District holds in State v. Clouser that a trial court cannot modify a sentence once it is final, even if it hasn't been executed; the Supreme Court held the same last year in State v. Carlisle... Go figure:  In State v. Brooks, the 5th District notes that an expert in a criminal case need only testify as to "possibility," while an expert in a civil case needs to testify as to a "reasonable certainty"...

Defendant's failure to raise allied offense arguments in his first appeal precluded him from raising them on appeal from his resentencing, the 11th District holds in State v. Stoutamire... A trial judge can impose a "blended sentence" on two or more offenses -- prison on one, community control sanctions on another -- but can't impose both on the same offense, says the 8th District in State v. Heidrick... In State v. Nistelbeck, the defendant had been put on probation for a abduction, a third-degree felony, then violated it, and received a four-year prison sentence.  In the interim, however, HB 86 had reduced the maximum penalty for abduction to three years.  The new law requires that the new sentences apply as of the date sentence is "imposed," and the 10th District holds that this means the date the sentence is imposed for the probation violation, not the original date of sentencing, so the defendant can only get three years...

Cautionary note.  A fool for a client, and all that:  Louis Campbell represented himself at trial, wound up with four years, and fares no better on his pro se appeal.  In State v. Campbell, the 8th District finds that it is "unable to decipher his arguments or make sense of his assignments of error," and without delving any further, affirms the conviction on the basis of his non-compliance with appellate rules. There's a couple of briefs I've written lately where I haven't been able to decipher my own arguments or make sense of my assignments of error, so I might be in line for a beatdown, too.  Stay tuned.


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