Wednesday, August 26, 2009

Ohio Supreme Court cases & advisory opinions

The Ohio Supreme Court yesterday held that a request for copies of public records involving a juvenile were improperly denied without sufficient explanation as to the denial, but that a chief of police had acted reasonably because a judge had sealed the case. In interpreting 2007 amendments to Ohio's records statutes, which provide that "R.C. 149.43(C)(1) provides for statutory damages of $100 for each business day during which the public office failed to comply with the public-records law, up to a maximum of $1,000. Over ten business days elapsed from the date the mandamus case was filed before appellant received a statutorily sufficient explanation, and the $1,000 maximum award represented 'compensation for injury arising from lost use of the requested information' …"—on the other hand, pointing to specific language in the amended statute making attorney fee awards mandatory only in cases where a public office makes no response at all to a records request, or where the office promises to disclose records by a specified deadline and fails to do so. [ Opinion and Summary ]

In a second case, the Supreme Court held that "its 2006 decision in State v. Foster did not sever (invalidate) the provision of state law that authorizes enhanced criminal sentences for repeat violent offenders (RVO), and that a trial court does not violate a defendant's right to a jury trial when the judge designates a defendant as an RVO based on relevant information about the offender's prior convictions that is part of the judicial record. [ Opinion and Summary ]

Last Thursday it upheld the state's "Freedom of Residency Act" with a set of four cases each referenced to its precedent set last June in State v. Lima.

The Cities of Toledo, Cleveland, Dayton, and Warren had questioned the constitutionality of ORC §9.481 which the act created back in May 2006. R.C. 9.481 states that "no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state." [ SB 82 (2006) ]

Writing for the majority in State v. Lima, Justice Paul Pfeifer "cited specific language in Section 34, Article II of the Ohio Constitution stating that the General Assembly may enact laws 'providing for the comfort, health, safety and general welfare of all employees [sic]; and no other provision of the constitution shall impair or limit this power,'" the Court’s summary in that case said. "In light of this language, he wrote, a finding that the legislature enacted R.C. 9.481 for the 'general welfare' of public employees pursuant to Section 34 precludes further analysis of the statute under any other provision of the constitution such as the home rule provisions of Article XVIII, because the only purpose of such analysis would be to 'impair or limit' the General Assembly's exercise of its power under Section 34."

And yesterday, two advisory opinions from the Supreme Court of Ohio's Board of Commissioners on Grievances & Discipline set forth guidance on outsourcing legal or support services and whether a newly appointed domestic relations magistrate can continue to serve as a city council member were released (Court's Release )
  • Opinion 2009-6 finds that the Ohio Rules of Professional Conduct do not prohibit an Ohio lawyer or law firm from outsourcing legal or support services domestically or abroad . The opinion cautions, however, that applicable rules do impose significant ethical requirements.

  • Opinion 2009-7 finds that it is improper under the Ohio Code of Judicial Conduct for a newly appointed full-time or part-time domestic relations court magistrate to continue serving out a term as an elected member of city council.

The Ohio Supreme Court posts advisory opinions from 1986 on in Word format, but reminds viewers that the Supreme Court adopted the its Rules of Professional Conduct Aug. 1, 2006, effective Feb. 1, 2007, which superseded the Ohio Code of Professional Responsibility, adopted Oct. 5, 1970 and as amended throughout the intervening years. Advisory Opinions numbered 1986 through 2006 provide advice for attorneys and judges as to the application of the Ohio Code of Professional Responsibility, which those numbered 2007 and forward provide advice as to the application of the Ohio Rules of Professional Conduct.

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