Ohio Supreme Court civil considerations

In the first of two civil considerations this week, the Ohio Supreme Court on Wednesday found that a law firm, being an entity as opposed to an individual, does not engage in the practice of law, and therefore cannot directly commit legal malpractice; also holding that law firms can't be held liable for legal malpractice unless one of its principals or associates is found liable. [ Nat'l. Union Fire Ins. Co. of Pittsburgh v. Wuerth ( summary )( opinion ) ]

In answering that certified question from the federal Sixth Circuit Court of Appeals, Ohio's Supreme Court "(drew) upon the similarities between the legal & medical professions," in part referencing its 1989 decision in Zimmie v. Calfee, Halter & Griswold where it had held that "[m]edical and legal malpractice actions should conform to the same standard for determining when a cause of action accrues and when the statute of limitations commences so we do not discriminate 'for or against' doctors or 'for or against' lawyers."

"Our precedent concerning medical malpractice is instructive," the Court said, "and in the medical context, we have recognized that because only individuals practice medicine, only individuals can commit medical malpractice… In Browning v. Burt (1993), we explained that '[a] hospital does not practice medicine and therefore is incapable of committing malpractice' … As we explained in Thompson v. Community Mental Health Ctrs. of Warren (1994), '[i]t is well established common law of Ohio that malpractice is limited to the negligence of physicians and attorneys.'"



Yesterday, it held that in lawsuits for negligence a party cannot be awarded punitive damages unless compensatory damages were first awarded, also ruling that there was no "per se" rule barring a defendant accused of negligent tortuous conduct from asserting a claim of self-defense. Whether evidence presented supports such a claim is a matter trial courts should decide on a case-by-case basis. [ See Niskanen v. Giant Eagle, Inc.( summary )( opinion ) ]



And last Tuesday the Court held that Ohio's Administrative Code, O.A.C. 109:4-3-16(B)(22), is unconstitutional and invalid to the extent that it allows state courts to consider "parol evidence" of alleged oral promises or representations made by a vendor to a consumer that are contrary to the terms of a written contract signed by the parties. [ See Williams v. Spitzer Autoworld Canton,L.L.C ( Summary )( Opinion )]

"Under the parol evidence rule," the Court said, "if an agreement between parties has been reduced to a signed, written contract, and that contract includes language stating that all terms and conditions of the agreement are set forth in the contract and no other terms or conditions previously discussed by the parties are binding on the parties, then neither party may later introduce 'parol' evidence (evidence of alleged verbal or written commitments outside of the signed contract) to seek additional compensation or concessions from the other party."

Pleading Standard in Federal Civil Procedure

"Congress is preparing to wade into the growing debate over the pleading standard for civil lawsuits after two recent Supreme Court decisions effectively upended long-standing precedent," a National Law Journal article said last week.

The article continued by saying that, "United States Senator Arlen Specter, had introduced a bill designed to return that standard to what it was prior to 2007, when the Court handed down its ruling in Bell Atlantic Corp. v. Twombly. That case, and another -- Ashcroft v. Iqbal, from the most recent term -- have raised the standard that pleaders must meet to avoid having their cases quickly thrown out of court." Senator Specter's bill would specifically direct federal courts to interpret pertinent rules as the Supreme Court did in a much earlier decision, Conley v. Gibson, in 1957.

The Supreme Court was authorized to make general rules of civil procedure for district courts in 1934. The original rules were adopted in 1937 and became effective in 1938. At issue now is how specific a pleading must be under the Federal Rules of Civil Procedure. Rule 8 requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief," while Rule 12 allows for the dismissal of complaints that are "vague or fail to state a claim". Under the Court's decision in Iqbal, many courts are now requiring more specific facts that, plaintiffs lawyers say, aren't often available until discovery.

Michael Dorf in a FindLaw commentary yesterday, sought to answer the question, "Should Congress Change the Standard for Dismissing a Federal Lawsuit?," observing that "the goal of the Rules is adjudication on the merits, and so each of the pleadings—the plaintiff's complaint and the defendant's answer—need only put the court and the other side 'on notice' of what claims or defenses are at issue."

Dorf posits that the bill should be rewritten in that if it were concluded that the more liberal notice pleading regime of Conley v. Gibson should be restored, the Specter bill would still be problematic. Rather than specifying a standard for dismissing lawsuits, the Specter bill simply incorporates the Conley standard by reference.

"It's possible," he writes, "that even with the enactment of Senator Specter's proposed Notice Pleading Restoration Act, courts would still require 'plausible' pleadings per Twombly and Iqbal. They would be able to say that Twombly and Iqbal merely clarified, rather than overruled, Conley, and that by following Twombly and Iqbal, they are thereby also following Conley. True, such a move would not be consistent with Senator Specter's intent, but the courts often follow what they take to be the meaning of the words of a statute, rather than the intent of its sponsor.

Dorf also foresees Senator Specter's proposed legislation raising two other, more technical, difficulties as well. "First, the bill would make Conley the standard for dismissal of a plaintiff's complaint, but would do nothing with respect to the standard for judging a defendant's answer…

"The second difficulty is even more, well, technical. Even in the days of Conley, there were select circumstances in which pleaders were required to set forth specific facts, rather than general allegations. Rule 9(b) states that a party alleging fraud or mistake 'must state with particularity the circumstances constituting fraud or mistake.' By forbidding the dismissal of a complaint except under the Conley standard, the Specter bill would arguably eliminate the heightened specificity requirement for fraud or mistake—but again, only for plaintiffs.

"There is something to be said for repealing Rule 9(b). It has always been a bit of a mystery why just fraud and mistake, but not other easy-to-allege-but-difficult-to-prove facts, are covered by the Rule. Yet, if Rule 9(b) is to be repealed, it should be repealed expressly, and for defendants as well as plaintiffs."

Ohio Personal Injury Median Awards

The August 2009 installment of LRP's Personal Injury Verdict Review relates one of their recent studies, based on award data from 2002 thru 2008, shows that the compensation median for personal injury trials in Ohio is $13,000, with plaintiffs receiving damages in 49% of cases going to trial. Nationwide, the Review said, the median award amount was $35,000 with a plaintiff recovery probability of 50 percent.

Statistics here were based on Jury Verdict Research’s Verdicts & Settlements Database which contains more than 250,000 cases. Further information can be obtained @ http://www.juryverdictresearch.com/

Ohio Supreme Court expands parameters for legal intern representation

The Ohio Supreme Court announced yesterday adoption of amendments to Rule II of the Rules of Government of the Bar of Ohio, permitting "legal interns to represent individuals in fourth-degree and fifth-degree felonies, and juveniles if the crime would be a fourth- or fifth-degree felony if committed by an adult, as long as a supervising attorney accompanies that intern in all proceedings.

"In cases of first-, second-, or third-degree felonies, supervising attorneys would serve as co-counsels in court proceedings."

Legal interns are law students having completed at least two-thirds of their academic requirements and having a certificate issued by the Supreme Court. Rule II was established in 1972 and amended last, prior to this, in 2007.

The new amendments become effective August 1, 2009


( Court’s Announcement )
( Text of Amendments )

Ohio unauthorized practice "right of action" prior to Sept. 2004

The Ohio Supreme Court last Thursday held that "there was no legal basis for a private lawsuit based on a claim of unauthorized law practice in Ohio prior to September 2004, when the General Assembly amended R.C. 4705.07 to expressly recognize such a cause of action."
(Holding) (Court's Summary)

The case was one evolving out of a homeowner's seeking to recover civil damages from a mortgage company for allegedly using non-attorneys in 2002 to perform legal services, such as the drafting of promissory notes & similar documents, for which it then charged "document preparation fees." Citing prior court decisions that held that a non-attorney was not entitled to payment for any service that constitutes the unauthorized practice of law, Plaintiff Gary Greenspan had asked the trial court to order the lender to refund the $300 he had paid for document preparation services. He hadn’t filed a grievance with the Ohio Supreme Court's Board on the Unauthorized Practice of Law or a local bar association regarding the lender's actions, nor did he obtain a ruling by the board that the lender's actions constituted the unauthorized practice of law. Defendant lender had filed a pretrial motion to dismiss asserting that prior to the adoption of amendments to Revised Code 4705.07 in 2004, there was no legal basis for a civil lawsuit in Ohio. That motion, granted by the trial court, was appealed to the 8th. District Court of Appeals in Cuyahoga County.

"While Greenspan's appeal was pending before the 8th District," the Supreme Court recounted, " that court issued a decision in a virtually identical case, Crawford v. FirstMerit Mortgage Corp, in which it held that that plaintiff could not sue to recover document preparation fees he paid to a mortgage lender prior to September 2004 because a private cause of action for unauthorized practice of law did not exist in Ohio prior to the 2004 amendment of R.C. 4705.07. Despite its holding in Crawford, a different panel of in the 8th District overruled the trial court in Greenspan's case and reinstated his suit. The court held that because the unauthorized practice of law was available as a defense to breach-of-contract and fee-collection actions, it "inexorably" followed that it was also available as an affirmative cause of action. The appellate court did acknowledged that its decision now conflicted with Crawford, but declared that Crawford was "simply in error."

"Because the events giving rise to Greenspan's claim occurred before September 2004, when the legislature created a statutory cause of action for unauthorized law practice," Justice Maureen O’Connor wrote, "(T)his case turns on whether a common-law right of action for the unauthorized practice of law existed prior to 2004. Greenspan cites a myriad of cases from various state and federal courts for the proposition that courts have long recognized common-law claims for unjust enrichment and money had and received when a person without a license performs a service for which a license is required. But the case law upon which Greenspan relies almost exclusively relates to architectural and engineering services. Case law acknowledging a common-law claim for recovery of fees charged by unlicensed architects and engineers does not establish the existence of a common-law claim for the unauthorized practice of law."

The Court further held that "contrary to the Eighth District's Greenspan holding, it does not 'inexorably' follow that because the unauthorized practice of law may be an affirmative defense in breach-of-contract and fee-collection actions, an affirmative cause of action for the unauthorized practice of law must exist. Greenspan cites no case law, and this court is not aware of any, that recognizes an affirmative common-law cause of action for the unauthorized practice of law."


Greenspan v. Third Federal S. & L. ( Appeals Court decision )

ORC 4705.07(C)(2)HB 38 {adding §4705.07 (C); effective Sept. 15, 2004}
[ Legislative Service analysis ]

Senate "conceal-carry" amendment defeated

The Washington Post yesterday carried an article about an amendment to a bill currently in the Senate that would have allowed gun owners to carry their weapons across state lines, which fell just short of passage, revealing deep divisions among Democrats there.

"Offered as an amendment to the annual defense authorization bill, the legislation would have allowed people to carry concealed firearms across state lines, provided they 'have a valid permit or if, under their state of residence' they 'were entitled to do so.' It was considered one of the most far-reaching federal efforts ever proposed to expand gun-permitting laws," the article said.

"This carefully tailored amendment would have ensured that a state's border is not a limit to an individual's fundamental right and have allowed law-abiding individuals to travel without complication throughout the 48 states that already permit some form of conceal and carry," Senator John Thune said during Wednesday's sometimes contentious debate.

"Despite its defeat, the amendment, sponsored by Thune (R-S.D.), demonstrated the continuing power of the National Rifle Association and the gun rights issue in Congress. Rather than a setback, those backing the effort consider the vote a sign of strength for the Second Amendment and are planning more gun-related amendments to other legislation throughout the year. Afterward, Thune said he hopes the Senate will ‘reconsider this important issue’ later this year."

ABA "Red Flags Rule" Litigation

There've been a couple Law.com articles this week about the American Bar Association's considering a suit against the Federal Trade Commission to prevent that agency from enforcing new identity-theft regulations scheduled to go into effect on August 1st. if they don't exempt lawyers.

The FTC, Treasury Department's Offices of Currency Comptroller and Thrift Supervision, Federal Reserve System, Federal Deposit Insurance Corporation and National Credit Union Administration jointly issued "final rules & guidelines implementing Sections 114 and 315 of the Fair & Accurate Credit Transactions Act" in November 2007, with the Federal Register then citing January 1, 2008 as their effective date and November 1 of that year as the mandatory compliance date.

Enforcement of those regulations is now set to begin on August 1, 2009. [ See "Fighting Fraud with Red Flags Rule" and "FTC Enforcement Policy: Identity Theft Red Flags Rule" ]

"FTC officials have already delayed enforcement of the regulations twice, most recently three months ago at the request of the bar association," a National Law Journal article yesterday morning said. "'The commission has received a request from a House Appropriations subcommittee for an additional delay, which will be considered,'" said Betsy Broder, assistant director of the FTC's Division of Planning and Information. Broder also said in an interview Wednesday afternoon, however, that she could not say when it would do so.

The FTC, which is charged with protecting consumers, has included lawyers, doctors, and many other professionals in its definition of "creditors" because they bill customers only after providing services, the article said. The ABA disagrees with that interpretation, and says bar associations from Arkansas, Colorado, Illinois, Ohio, and Virginia have also expressed their opposition. (See New York Law Journal article )

The New York Law Journal article, above, also relates that "this isn’t the first time lawyers have battled the FTC over its attempt to regulate them under a federal statute. In 2005, the ABA and the New York State Bar Association won a lawsuit that barred the FTC from imposing broad requirements to protect customer privacy under the Graham-Leach-Bliley Act, of 1999, in American Bar Association v. Federal Trade Commission, (2005). "

Ohio casino legislation/litigation update

Updating Ohio's gambling picture a bit, the Cincinnati Enquirer Tuesday morning reported that Secretary of State Jennifer Brunner had ruled last Monday that proponents wanting to build four casinos in Ohio, including one here in Cincinnati, had more than enough signatures on petitions to have the issue put on the ballot this November.

"The plan to expand gambling, however, is complicated by the fact that the Ohio General Assembly last week approved Gov. Ted Strickland's approval of up to 2,500 slot machines at seven horse tracks, including River Downs and Lebanon Raceway," according to the article.

Ohio is hoping to add electronic slot machines at horseracing tracks as early as next May to close its budget gap, but interest group LetOhioVote filed suit Monday seeking to force a popular vote on the slot machine venture. The Court set the briefing schedule for that case last Tuesday.

The validity of those petitions, first-mentioned, is also being contested, and the article says Secretary Brunner has "launched a separate investigation over allegations by a horse track owner that fraud may have been committed by petition circulators, who reportedly included signatures of deceased voters and fake addresses. But under new state constitutional provisions, the power to adjust signature totals is now with the Ohio Supreme Court." That probe could include the potential for criminal prosecution of election wrongdoings.

The briefing schedule for that case, set last Monday, runs through July 28th., with the state’s response to the complaint due yesterday. Requests for time extensions are not going be permitted. [ Case Docket ]

Last month the Ohio Council of Churches and United Methodist Church said they were going to file similar actions asking the Ohio Supreme Court to declare the casino plans unconstitutional, and Warren County Commissioners said they not only wouldn't allow video slots on county-owned property and the Lebanon Raceway, but that they were also of the opinion that the proposal was unconstitutional. Warren County Commissioners considered, but also did not pursue, similar legal action. ( Here )

Kentucky's casino bill died in its Senate back in June. "State leaders there," an Evansville CourierPress article had said, "have debated for years whether Kentucky, a state with a long tradition of betting on horse races, can offer casino-style gambling at the tracks. Opponents argue that the state constitution specifically forbids casino-style gambling, while proponents contend a constitutional amendment that allowed a state lottery opened the door."

Casinos and gambling seem on the minds of all three tri-state governments. "House Bill 2 could be revived in the remaining hours of a special legislative session if 20 of the 38 senators vote to discharge it from committee," a Kentucky.com article had said, "or if House and Senate leaders agree in a free conference committee to attach it to an unrelated bill that goes to the governor's desk. Lawmakers said neither option is likely." Meanwhile, "concerned in part by potential competition from Ohio and Kentucky," a July 12th. Louisville Courier-Journal article said, Indiana lawmakers were going to study that state's gambling industry to see how best to position their casinos and protect that state's revenue.

Dayton Daily News article

Dept. of Labor reorganizations

There apparently hasn't been an official announcement as of yet, but there's been confirmed mention that the Department of Labor is going to be abolishing its Employment Standards Administration as of November 8, 2009 in an internal reorganization which will result in the Wage & Hours, Workers’ Compensation, Office of Federal Contract Compliance, and Labor Management Standards all now reporting directly to the Assistant Secretary of Labor.

Established in 1971 as the Workplace Standards Administration, and renamed Employment Standards Administration in 1972, it represents the largest agency currently in the Department of Labor.

Morgan Lewis, an international law firm with 22 offices having its corporate headquarters in Philadelphia, posted an labor & employment alert last week which says, "importantly, the abolishment of the ESA will leave employers with one less avenue of appeal for actions taken by ESA agencies," and that they will now "not have much time to prepare for what promises to be decisive implementation of the Secretary’s pro-enforcement agenda across the broad spectrum of workplace laws & regulations enforced by the Department of Labor."

New Employment Standards organizational chart

Grant of new Ohio Parole Board hearings

220-some Ohio inmates are getting new parole board hearings according to a USAToday.com article yesterday, following a Franklin County court ruling earlier this year.

Cynthia Mausser, chairwoman of the Ohio Parole Board, said the new hearings are being held to apply parole board guidelines the way the judge, in Franklin County, determined they should be in an inmates' class-action lawsuit, according to the article. "The way the (parole) guidelines were applied to some of these inmates previously made it appear as if we were replacing our ranges for the minimum sentence imposed by the court, which was deemed impermissible," Mausser said.

The case here in point was Hall v. Hageman, decided last January. That case was resultant of Ankrom v. Hageman in 2005, which examined the parole eligibility of "old law" prisoners given indeterminate sentences prior to changes associated with Senate Bill 2 in 1996. Ankrom applied to "all parole-eligible Ohio prison inmates who pleaded guilty or no contest to lesser or fewer offenses than for which they were indicted." The consideration here was to "parole-eligible prisoners whose convictions were obtained by a trial."

Plaintiffs asserted that the opinions in Layne v. Ohio Adult Parole Authority(2002) as well as Ankrom should've been directive in their case, and that "many (prisoners) were serving lengthy continuances as a result of pre-Layne and Ankrom hearings where they were denied meaningful consideration for parole." In Layne the Ohio Supreme Court had found that "In any parole determination involving indeterminate sentencing, the Adult Parole Authority must assign an inmate the offense category score that corresponds to the offense or offenses of conviction."

Senate Bill 2 in 1996 was a major revision of Ohio felony sentencing law. The Ohio Sentencing Commission foresaw some of the events following Ankrom and issued a memo entitled "Thoughts on Applying SB 2 to 'Old Law' Inmates." That memo "recaps the differences between old & new law, gives executive director David Diroll's thoughts on the parole board's guidelines, reviews Ankrom, and discusses why it is difficult to apply SB 2 retroactively."

Mausser iterated in the above article that the new hearings doesn’t mean circumstances that led to a parole being denied have changed.

Judicial Conference testimony to House Judiciary Committee

Chief Judge Julie Carnes, chair of the Judicial Conference Committee on Criminal Law, yesterday told the House Judiciary Subcommittee on Crime, Terrorism & Homeland Security that "as well-intended as the proponents of mandatory minimum legislation may have been, these kinds of sentencing statutes have created what the late Chief Justice Rehnquist aptly identified as 'unintended consequences.'" ( U.S. Courts’ press release )

Those statutes have become "blunt & inflexible tools that lack the ability to meaningfully distinguish between serious offenders and those who are substantially less culpable," she said.

In presenting her case on behalf of the Judicial Conference, which has consistently opposed mandatory minimum sentencing, she endeavored to explain why such statutes are "systematically flawed and rarely avoid undesirable outcomes." She concluded her testimony by attempting to provide the committee with some preliminary thoughts about approaches that Congress may begin to take to ameliorate the current situation and a specific recommendation on one statute that the Conference has made.

"A predecessor chair of the Criminal Law Committee of the Judicial Conference, the late and wise Senior Judge Vincent Broderick," she said, "summarized the conclusion that many reach concerning mandatory minimum sentences in 1993. What he said then still makes a great deal of sense today:

"I firmly believe that any reasonable person who exposes
himself or herself to this [mandatory minimum] system of sentencing, whether judge or politician, would come to the conclusion that such sentencing must be abandoned in favor
of a system based on principles of fairness & proportionality.
In our view, the Sentencing Commission is the appropriate institution to carry out this important task."

Chief Judge Julie Carnes’ Testimony (31 pp. PDF)

Washington Federal Appeals Court expands lawmaker protection

In an opinion unsealed last Thursday, the U.S. Circuit Court of Appeals in Washington ruled that statements made by politicians during congressional ethics committee investigations can't be used against them in further criminal actions.

The case involved former Representative Tom Feeney and a golfing trip he made to Scotland, paid for by Jack Abramoff. The House of Representatives Ethics Committee, according to an Associate Press article, Friday, said in 2007 that the trip violated House rules and Feeney had agreed to repay the Treasury Department the $5,643 the trip purportedly cost. Subsequent to the House's investigation, the Justice Department began an investigation into statements that Feeney had made to the House committee. "The opinion, which does not name Feeney but described elements of his case, concluded statements made to the ethics committee are excluded from criminal investigations by the U.S. Constitution, in the so-called 'Speech or Debate Clause,' which says speech or debate in Congress 'shall not be questioned in any other place.'"

Tri-State weekend update

A quick sweep of the weekend to get us “up & running,” as it were, with Tri-State events reveals that Ohio has finally a budget for the year after Ohio House Speaker Armond Budish, along with Gov. Ted Strickland and Senate President Bill Harris reached a compromise agreement Friday afternoon that includes the authorization to put video lottery machines at seven horse racing tracks, including River Downs in Cincinnati and the Lebanon Raceway in Warren County. Opponents to the measure, however, "immediately vowed to challenge the plan in court," according to the Columbus Dispatch, Saturday, "complaining that the state was rushing into a risky expansion of gambling that voters have already rejected four times in the past." The Cincinnati Enquirer had earlier put together an overview of the spectacle that delayed the state’s July 1st. deadline almost two weeks.

**********

A portion of Ohio’s transportation budget, which was passed last April and went into effect on July 1st , incorporates tougher penalties for people driving off-road vehicles on farms and other properties without permission from the owners.

Offenders committing criminal trespass while using an all-purpose vehicle now face fines of two times the usual amount for violations, and "if an offender has previously been convicted of, or pleaded guilty to, two or more trespassing violations or a substantially equivalent municipal ordinance… the court, in additional to all other penalties may impound the certificate of registration & license plate of that vehicle for not less than 60 days."(Legislative Service analysis @ Pp. 39)

**********

State court officials in Kentucky say they’re ready to implement a new law, which went into effect on June 25th., but which there had been concern about by some court officials about the lack of process to implement the law, an nky.com article, yesterday, reports.

The new law calls for people who are convicted of one of a myriad of theft charges to have their licenses taken from them until they pay any court-ordered restitution. "Hardship licenses to get to work, school or medical appointments can be applied for, and the new law is not retroactive to persons already sentenced."

"The state's 120 circuit court clerks will be responsible for manually processing the order of suspension and sending hardship license request to the driver licensing division," Leigh Anne Hiatt, spokeswoman for the Kentucky Administration Office of Courts (AOC) said in a statement released July 2nd., and work has also begun on developing an electronic process that will eventually replace the current manual system. (Ky. HB 369 Here )

Personal Injury Jury Verdicts

"According to a recent Jury Verdict Research study based on verdicts rendered from March 1998 thru March 2009, median wards for paralysis were higher for younger plaintiffs than older. Plaintiffs age 17 and under received a median award of $15, 500, 000, while those age 50 and older only received $3, 358, 428."

A second study, based on verdicts rendered from March 1999 to March 2009, revealed that the overall median compensatory award for collisions with disabled vehicles was $20,000 with plaintiffs prevailing in 42% of the cases that went to trial.

Ohio Supreme Court on "allied offenses"/"lesser included offenses"

The Ohio Supreme Court released two decisions Tuesday, between the two of which reasoned that while a defendant cannot be convicted with two "allied offenses of similar import," he could be charged with a "lesser included offense" for which he had not been indicted.

In State v. Harris, 2007-1812, the Court held that "the crime of robbery, as defined in R.C. 2911.02(A)(2), and aggravated robbery, as defined in R.C. 2911.01(A)(1), were 'allied offenses of similar import' and therefore a defendant could not be convicted of both offenses when both were committed with the same animus (wrongful purpose) against the same victim, and that felonious assault as defined in R.C. 2903.11(A)(1) and felonious assault as defined in R.C. 2903.11(A)(2) were also allied offenses of similar import, and therefore a defendant couldn't be convicted of both of those offenses when both are committed with the same animus against the same victim." The reasoning in both instances being Ohio's multiple-count statute, ORC §2941.25. Justice Evelyn Lundberg Stratton cited that language, which provides: "Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." [ Court Summary ]

Justice Stratton, in writing the majority opinion, cited the Court's 2008 decision in State v. Cabrales, in which it clarified its 1999 holding in State v. Rance with regard to how courts should determine whether two criminal charges against a defendant are "allied offenses" that must be combined into a single conviction. "(I)n Cabrales," Justice Stratton wrote, "we held that even though the elements of possession of a controlled substance under R.C. 2925.11(A) and trafficking in a controlled substance under R.C. 2925.03(A)(2) ('knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance') did not exactly align, the crimes were, nevertheless, allied offenses of similar import because trafficking in a controlled substance necessarily results in possession of the same controlled substance."

"With regard to Harris' separate convictions for felonious assault, Justice Stratton cited a 2008 decision in which the Supreme Court addressed the same legal question. "In State v. Cotton," she wrote "the defendant stabbed one victim, three times. He was convicted of felonious assault under R.C. 2903.11(A)(1) and felonious assault under R.C. 2903.11(A)(2). The trial court imposed sentences for both convictions. The court of appeals affirmed. We reversed the judgment of the court of appeals in Cotton on the authority of State v. Brown (2008) holding that felonious assaults in violation of R.C. 2903.11(A)(1) and (2) are allied offenses of similar import under R.C. 2941.25(A). ... On the authority of Cotton, we affirm that convictions for felonious assault defined in R.C. 2903.11(A)(1) and felonious assault defined in R.C. 2903.11(A)(2) are allied offenses of similar import, and therefore a defendant cannot be convicted of both offenses when both are committed with the same animus against the same victim."


The Court's unanimous decision in State v. Evans, 2008-0363, the Court clarified its 1988 ruling in State v. Deem by stating that, in determining whether an offense is a lesser included offense of another, a court must consider (1) whether one offense carries a greater penalty than the other; (2) whether some element of the greater offense is not required to prove commission of the lesser offense; and (3) whether the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed. [ Court Summary ]

Here, writing for the Court, Justice O’Donnell noted that R.C. 2945.74 provides that a criminal defendant may be found guilty of a lesser included offense even though the lesser offense was not separately charged in the indictment. "Lesser included offenses need not be separately charged in an indictment, because when an indictment charges a greater offense, it 'necessarily and simultaneously charges the defendant with lesser included offenses as well,'" wrote Justice O’Donnell. "Thus, a conviction for a lesser included offense does not deprive an offender of his constitutional right to presentment or indictment by the grand jury, because by indicting the offender for the greater offense, the jury has necessarily considered each of the essential elements of the lesser offense."

Ohio bedbug legislation

An article in July 4th.’s Cincinnati Enquirer relates to a bill State Representative Dale Mallory introduced the first part of last month, "to put bedbugs on par with roaches, rats and other vermin so health departments can take more decisive action against property owners." The article also admits that "in most states, including Ohio & Kentucky, bedbugs aren't considered a health threat because they aren't known to carry disease, so health departments can do little to force property owners to clean up infestations." An earlier senate bill would require owners of apartment buildings with 30 or more units to "eradicate vermin infestation from their buildings," "vermin" being defined as "any noxious, objectionable, or disgusting insect or animal, including lice, bedbugs, cockroaches, mice, and rats."

Mallory's bill also includes a provision for funding and was referred to the Finance & Appropriations Committee.

Although bedbugs don't represent health hazards, as such, they've received a lot of attention in the past couple of months including being the topic of an EPA "summit" in Arlington, Virginia last April, and the subject of a bill introduced in the House of Representatives, initially last year, and resubmitted in May. That bill centers on the establishment of a grant program to assist states in the inspection of hotel rooms and directing the Center for Disease Control & Prevention to "investigate the public health implications of bed bugs on lodging & housing, with specific consideration of the impact on mental health of bed bugs, their potential for spreading infectious disease, and contributing to other diseases such as asthma.," with a report to Congress due by December 2010.

Ohio bills introduced

Five bills were introduced in the Ohio General Assembly last week that might be of some interest to local practitioners:

SB 150 IMMIGRATION LAW - To provide that a board of county commissioners may direct a sheriff to take custody of persons who are being detained for deportation or who are charged with civil violations of immigration law and to expressly authorize state and local employees and county sheriffs to render assistance to federal immigration officials in the investigation and enforcement of federal immigration law. [Referred to Ways and Means and Economic Development Committee]

HB 243 OFFENSE OF INTIMIDATION - To specify that the offense of intimidation of an attorney, victim, or witness in a criminal case also applies to delinquency cases and to any attempt to influence, intimidate, or hinder a witness to a criminal or delinquent act in the discharge of the duty of a witness, and to prohibit any attempt to influence, intimidate, or hinder a victim, witness, or attorney through any act of unlawful conduct. [Referred to Criminal Justice Committee]

HB 244 DIVORCE PROPERTY DIVISION - To permit a court to modify a division of property in a divorce decree or decree of dissolution of marriage upon the express written consent or agreement of both spouses.
[Referred to Judiciary Committee]

HB 248 PRISON TERMS - To provide a prison term of 20 years to life for a person convicted of murder when the victim is less than 13 years of age and the offender is not subject to sentencing under the Sexually Violent Predator Sentencing Law.
[Introduced July 1st.]

HB 247 UNEMPLOYMENT BENEFITS - To include any child that an individual claiming benefits has been granted custody of by court order in the calculation of dependents for the purpose of determining unemployment benefits. [Introduced July 1st.]

Ohio Supreme Court Public Access Rules

A quick reminder from the Ohio Supreme Court that new rules for public access to court records (Sup. R. 44-47) took effect last Wednesday. ( July 2nd. Announcement )

Administrative Counsel Allan Asbury said, "These rules are designed to ensure that Ohioans continue to have open and ready access to court records, and were carefully crafted for more than two years in a process that involved extensive public input and revisions. We will continue to be available to court staff & interested members of the public who have questions about these rules as they are implemented.”

The Supreme Court has a central clearinghouse for information about the rules @ http://www.supremecourt.ohio.gov/Boards/superintendence/PAR/default.asp

Ohio Supreme Court abortion cases

The Ohio Supreme Court decided two abortion cases yesterday.

In the first, Roe v. Planned Parenthood Southwest Region, it was held that the parents of a teenager who had had an abortion at a clinic were not entitled to abuse reports or medical records kept by the clinic of other minors treated there.

The majority decision here, written by Justice Evelyn Lundberg Stratton, held that: (1) a balancing test for the disclosure of confidential medical information set forth in the 1999 Ohio Supreme Court decision, Biddle v. Warren General Hospital, applies only as a defense against the tort of unauthorized disclosure of such records and does not create a right to discover confidential medical records of nonparties in a private lawsuit; (2) a former version of the state law requiring health care professionals to report suspected child abuse did not authorize an award of punitive damages for failure to report abuse; and (3) legislative amendments to the abuse-reporting law enacted in December 2008 affect a substantive right and therefore may not be applied retroactively to claims that arose before the law was amended. ( Court’s Summary )


The second case, Cordray v. Planned Parenthood Cincinnati Region, was a certified question from the Sixth Circuit Court of Appeals asking the Supreme Court of Ohio to review and interpret R.C. 2929.123 and to answer two certified questions: “1) Does O.R.C. § 2919.123 mandate that physicians in Ohio who perform abortions using mifepristone do so in compliance with the forty-nine-day gestational limit described in the FDA approval letter?” and “2) Does O.R.C. § 2919.123 mandate that physicians in Ohio who perform abortions using mifepristone do so in compliance with the treatment protocols and dosage indications described in the drug’s final printed labeling?”

In 2004, the Ohio General Assembly enacted R.C. 2919.123, a new section of state law that barred Ohio physicians from administering or prescribing RU-486 to induce an abortion unless the drug was provided to a patient “in accordance with all provisions of federal law that govern the use of RU-486.” “Before the new law took effect,” the Court’s summary recounts, “Planned Parenthood of Southwest Ohio and other plaintiffs filed suit in federal district court asserting four different legal bases on which the statute was unconstitutional and therefore unenforceable. The district court granted a temporary injunction preventing state officials or local prosecutors from enforcing the statute. In 2006, while the temporary injunction remained in place, the U.S. District Court for the Southern District of Ohio granted summary judgment in favor of Planned Parenthood, holding that R.C. 2929.123 was unconstitutionally vague and permanently enjoining enforcement of the entire statute.” The state appealed that decision to the Sixth Circuit, which in turn, certified the above questions to the Ohio Supreme Court.

The Court yesterday here answers both questions, holding that “state law enacted in 2004 mandates that Ohio physicians providing the drug mifepristone (RU 486) to patients for the purpose of inducing an abortion must do so in accordance with the approval letter and final printed labeling for the drug issued by the U.S. Food and Drug Administration (FDA), which includes compliance with the 49-day gestational limit and with the treatment protocols and dosage indications expressly approved by the FDA.”

“Today’s ruling,” the Court’s summary states, “does not address the constitutionality of the state law in question, R.C. 2919.123, but only interprets the language of the statute in response to a request by the U.S. Sixth Circuit Court of Appeals. The Sixth Circuit requested today’s ruling in connection with an ongoing federal lawsuit in which Planned Parenthood and other Ohio providers of abortion services have challenged the constitutionality of R.C. 2919.123. That lawsuit remains pending in the federal courts.”

Ohio death penalty conviction upheld

The Ohio Supreme Court yesterday unanimously upheld the aggravated murder convictions & death sentence of James Trimble for the 2005 shooting deaths of his girlfriend, her seven-year-old son, and a Kent State University student who he had taken hostage while fleeing the scene from police. ( Court’s Summary and Opinion )

"All 15 allegations of legal and procedural error by the trial court that Trimble had advanced as grounds to vacate his convictions or reduce his death sentence to a term of life imprisonment were rejected," the Court's summary reported. "These included claims that the trial judge should have granted a requested change of venue because of prejudicial pretrial publicity; and that the trial court improperly allowed the state to display before the jury a collection of 19 firearms owned by Trimble that were not used in the murders with which he was charged."

"Though pretrial publicity was extensive, the trial court was in the best position to judge each juror's demeanor and fairness," the Court said. "The trial court selected a jury after conducting in-depth voir dire that encompasses over 2,450 pages of the record….. The firearms and ammunition displayed in court had been introduced into evidence and were displayed only during an ATF expert witness’s testimony. Nothing in the record demonstrates that the method of presenting this evidence prejudiced Trimble by inflaming the jury's passions. … While it is highly questionable whether the trial court should have allowed this evidence to be displayed before the jury in court or during deliberations, the trial court did not abuse its discretion in doing so. Even assuming that these exhibits should not have been displayed, any error was harmless"

"Justice Paul E. Pfeifer entered a separate opinion expressing concern that the state was permitted to display to the jury '19 firearms that were not involved in the murders and dozens of pictures that were repetitive,'" the Court’s summary said. ' I am troubled by the inclusion of evidence that was so rife with potential prejudice.' He concluded, however: 'Although whether the jury was prejudiced by this evidence is a close call, I reach the same conclusion as the majority and therefore concur in affirming the sentence of death.'"

"Upon independent weighing," Chief Justice Thomas Moyer wrote, "we find that the aggravating circumstance or circumstances as to each count outweigh the mitigating factors beyond a reasonable doubt."

This had been a direct appeal from Trimble's trial court. His original November 15, 2006 execution date had been stayed pending this appeal and is now rescheduled for September 29th..