6th. Circuit Court of Appeals certifies abortion question to Ohio Supreme Court

The 6th. Circuit Court of Appeals, last Monday, certified an almost 4-year old Planned Parenthood case centering around RU-486, a drug used to induced abortions, and the Ohio statute passed in June 2004 specifically prohibiting its use, to the Supreme Court. (Article)

HB 126 was passed by the General Assembly four years ago to the day yesterday, becoming ORC § 2919.123. Planned Parenthood, however, filed a complaint in Southern Ohio District Court, winning a preliminary injunction against its going into effect Sept. 23, 2004, on grounds that it was void for vagueness, and unconstitutional on two other points. That was appealed in 2006.

The Appeals Court held that the district court’s primary holding was in error but affirmed its reasoning and remanded the case “for the appropriate scope of injunctive relief in light of the United States Supreme Court’s decision in Ayotte v. Planned Parenthood of Northern New England.” The district court now found for Planned Parenthood, granting a permanent injunction against the State’s enforcing the statute.

Now, as the Sixth Circuit put it, “both the State and Planned Parenthood have presented contrary, yet plausible, interpretations of ORC §2919.123 that they respectively believe would save the statute from unconstitutionality…. Both Planned Parenthood and the State encouraged this court to speculate on how the Supreme Court of Ohio would interpret the statute as opposed to seeking an authoritative interpretation from the high court via certification. In our opinion, however, the interests of judicial federalism and comity strongly counsel in favor of providing the Supreme Court with the opportunity to interpret that statute..”

Illinois Circuit Court Rules addition in "Measure of Damages per Shortened Life Expectancies"

Illinois circuit courts in May added “shortened life expectancies” to its measures of damage pattern jury instructions:


30.04.05 Measure of Damages—Shortened Life Expectancy

This instruction is appropriate if there is evidence that plaintiff’s life expectancy has been shortened by the tort. It should appear as a separate element of damages on the verdict form.


The element “shortened life expectancy” can arise when the tort causes a plaintiff to be likely to die prematurely. Dillon v. Evanston Hospital, 199 Ill.2d 483, 500 (2002) supports this element of damages. See DePass v. United States, 721 F.2d 203, 208 (7th Cir. 1983)(Posner, J. dissent) citing out of state cases to support the conclusion that Illinois law does not permit a tortfeasor to get off scot-free because, instead of killing the victim, he inflicts an injury that is likely to shorten the victim’s life. Shortened life expectancy is recognized as a separate element of
compensable damages in Bauer ex rel. Bauer v. Memorial Hospital, 377 Ill.App.3d 895, 920-921 (5th Dist. 2007).

Supreme Court decides Pro Se compentency limits

The U.S. Supreme Court yesterday held that defendants found mentally competent enough to stand trial are not necessarily likewise competent enough to represent themselves at that trial. (Case )

Coming out of the state of Indiana, the trial court had relied on a lengthy amassing of psychiatric reports, noting that the defendant had been diagnosed as suffering from schizophrenia, and concluding that, while he was competent to stand trial, he was not competent to represent himself.

He appealed that two years ago, the court there agreeing that the trial court’s refusal of self-representation deprived him of his constitutional right of self-representation under the Sixth Amendment and case precedent (Farretta v. California, 1975 ), and remanded the case.

Last year the Indiana Supreme Court affirmed that on the grounds that Faretta and Godinez v. Moran (1993 ) both required the defendant be allowed to defend himself.

The Supreme Court had “several considerations” in concluding that the Constitution in fact allows a state to limit a defendant’s right to self-representation:

Federal precedent, while not answering the question at hand, points in that direction. Dusky v. U.S. (1960 ) and Drope v. Missouri (1975) set forth the Constitution’s “mental competence” standard forbidding the trial of an individual lacking a rational & factual understanding of the proceedings and sufficient ability to consult with his lawyer with a reasonable degree of rational understanding, but did not consider the relation of that “mental competence” standard with the right of self-representation. Faretta (supra), rested its self-representation conclusion in part on pre-existing state cases that are consistent with , and at least two of which expressly adopt, a competency limitation on the self-representation right.

The nature of mental illness cautions against a single competency standard to decide both whether a defendant who is represented can proceed to trial, and whether a defendant who goes to trial must be permitted to represent himself.

A self-representation right at trial will not “affirm the dignity” of a defendant who lacks the mental capacity to conduct his own defense without the assistance of counsel , and may undercut the most basic of the Constitution’s criminal law objectives, that of providing a fair trial.

Ohio DUI legislation

The Ohio General Assembly last Tuesday passed sweeping legislation cracking down on DUIs in this state. (Text)(Analysis)

The new law, once signed by Gov. Strickland, includes requiring repeat offenders to install $90-a-month ignition “interlocks” on their cars – the seventh state to have that kind of provision – and creates a public, online “habitual OVI offender” database for persons having five or more drunk-driving charges.

Fines are increased from $325 to $375 for the first offense now, $525 for a second offense within six years of the first, and $850 for a third within that six year period. Fines for more than three offenses increases from $1,300 to $1,350.

Of the 250, 000 Ohio DUIs with at least one arrest, some 44 % have multiple convictions, according to an Enquirer article last week. An accompanying graphic by the Ohio Department of Public Safety indicated that roughly 1/3rd of those charged with drunken driving in Hamilton, Lucas, Wood and Franklin Counties were repeat offenders. That estimate was around 50% for 11 other counties, with Adams County having the highest percentage of prior convictions (57 %); neighboring Brown and Highland Counties were second & third. (See Map)

Walgreen's whistleblower lawsuit settlement

Walgreen’s, the nation’s largest chain drugstore, yesterday agreed to pay $35 million in settlement to a federal whistleblower lawsuit which alleged it had substituted more expensive versions of three prescription drugs from July 2001 thru 2005 to Medicaid programs from 42 states and Puerto Rico. (Article)

Pharmacist Bernard Lisitza – who will get about $5 million -- also successfully sued CVS Caremark Corporation back in March, and Omnicare, Inc. in November 2006.

An Associated Press report this morning said the only states not part of the action were Alaska, California, Delaware, Hawaii, North Dakota, Vermont, and West Virginia. The District of Columbia was not party to the action either.

Press releases from the attorney general offices of Ohio and Indiana indicated that the settlement also resolved allegations that Walgreen’s had made wholesale switches without physician involvement and therefore violated numerous state regulations governing pharmaceutical dispensing.

The three cases together recovered $120 million to the various state Medicaid programs. Ohio received $4.7 million from the Omnicare case, $1.7 million from the CVS case last March, and $161,000 from today’s settlement. Indiana’s Medicaid program is receiving $28, 479 from Walgreen’s, and had picked up $1.7 million from the two earlier cases.

Civil Liabilities vs. Governmental Agencies

A pair of rulings from the Ohio Supreme Court today examined child abuse particulars regarding a governmental agency’s immunity to civil liability.

The first case spawned from an incident back in March 2000 when a daycare facility came to suspect a four-year old girl was being abused. Cuyahoga County Children’s Services was notified and had begun an investigation when the little girl ended up being killed by her mother. The Court held:

· A public children services agency, upon receipt of a case referral, does not have a duty under ORC §2151.421 to cross-report the case to law-enforcement officials and are immune to liability from failing to do so;
· Because Ohio’s child endangerment statute does not expressly impose a liability on a political subdivision, it is immune to liability under that statute;
· Recklessness necessarily requires something more than mere negligence, and in order to act in a “reckless manner” an actor must be conscious that his conduct will in all probability result in injury.

The second case was also out of Ohio’s Cuyahoga County, stemming from a 2003 encounter in which a young girl was sexually assaulted by her father during a supervised visit at the Cuyahoga County Family Services’ Hunter Social Services Center. Here the Court decided that “Pursuant to ORC § 2744.02(A)(1) the department cannot be subjected to liability unless one of the exceptions provided for in § 2744.02(B) applies.”

Canton, Ohio weed control initiative

The City of Canton, Ohio has a reasonably interesting situation happening at an opportune time. Its city council unanimously approved toughening its high-grass & weed ordinance on June 2nd., making violations for repeat offenders a fourth-degree misdemeanor carrying a fine of up to $250, and up to 30 days in jail. Sounds reasonable, but it’s apparently drawn national attention, too. A local article carrying the story was picked up by the news aggregation website Drudge Report ; that resulted in a deluge of e-mails from around the nation.

The Canton Repository this morning, though, says Mayor William Healy still supports the new law, and says that the focus isn’t to put repeat offenders in jail – which is up to the discretion of municipal court judges anyway – but to “put teeth” in the law already in force. “You’re really talking about the worst of the worst,” he said, “Instead of jail time, judges may be more likely to sentence repeat offenders to cut grass themselves as a community service.”

(New Ordinance)