Daily Case Update Archive

As a service to our members, we monitor opinions issued from the Ohio Supreme Court, the Ohio State First District Court of Appeals, and the United States Sixth Circuit Court of Appeals.  You can read the latest summaries or archived summaries from 2005 , 2006 , 2007 , 2008 , 2009 , 2010 , 2011.

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July 1st & July 2nd, 2008

Ohio Supreme Court | Ohio First District | U.S. 6th Circuit - Ohio | U.S. 6th Circuit - Other States
 

TOPICS:
- Discretionary appeal
- Public utilities * Right-of-way
- Criminal law * Allied offenses of similar import
- Offense of intimidation
- Writ of Mandamus / Regulatory taking
- Prohibition / Speedy-trial
- Abuse of Discretion / Deficient Record
- Warrantless Search and Seizure
- Family Law / Custody / Metally Incompetent
- Qualified immunity
- Rehabilitation Act of 1973 / Disability qualification
- Sentencing / Evidence / Witness tampering
- Sentencing
- Americans with Disabilities Act
- Federal Tort Claims Act
 

Ohio Supreme Court

 

Peleg v. Spitz (Slip Opinion)(July 2, 2008)(2008-Ohio-3176)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3176.pdf
-  Discretionary appeal accepted and judgment of the court of appeals affirmed.
 
Swaisgood v. Puder (Slip Opinion)(July 2, 2008)(2008-Ohio-3177)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3177.pdf
-  Judgment of the court of appeals affirmed on the authority of Turner v. Ohio Bell Tel. Co.
 
State v. Lucky (Slip Opinion)(July 2, 2008)(2008-Ohio-3178)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3178.pdf
-  Discretionary appeal accepted and cause remanded for application of State v. Smith.
 
State v. Bell (Slip Opinion)(July 2, 2008)(2008-Ohio-3179)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3179.pdf
-  Court of appeals’ judgment reversed on the authority of State v. Cabrales and cause remanded.
 
State v. Sessler (Slip Opinion)(July 2, 2008)(2008-Ohio-3180)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3180.pdf
-  Certified question answered in the affirmative and court of appeals’ judgment affirmed on the authority of State v. Pelfrey.
 
State ex rel. Gilmour Realty, Inc. v. Mayfield Hts. (Slip Opinion)(July 2, 2008)(2008-Ohio-3181)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3181.pdf
-  Mandamus * Petition to compel city to commence appropriation proceedings based on alleged regulatory taking * Pending action for declaratory and injunctive relief on same facts is not adequate remedy in ordinary course of law as it is not complete, beneficial, and speedy * Mandamus is appropriate remedy when involuntary taking of property is allege * Court of appeals’ judgment dismissing petition reversed and cause remanded.
 
State ex rel. Jackim v. Ambrose (Slip Opinion)(July 2, 2008)(2008-Ohio-3182)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3182.pdf
-  Prohibition * Petition to prevent trial court judge from proceeding with criminal retrial due to claimed speedy-trial violation * Claim of denial of speedy trial not cognizable in extraordinary-writ proceeding * Court of appeals’ judgment denying writ affirmed.
 

First District Court of Appeals

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*** Judgment Entries ***
 
Nancy Ayers vs. Devin C. Drambarean (July 2, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070607_07022008.pdf
-  Drambarean appeals from the trial court’s decision sustaining plaintiff-appellee Nancy Ayers’s objections to a magistrate’s decision finding her to be in contempt. The record was deficient and it was an abuse of discretion to sustain Ayers’s objections to the magistrate’s decision on an incomplete record. Judgment REVERSED and REMANDED for further proceedings.
 
State of Ohio vs. Omar Boyd (July 2, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070817_07022008.pdf
-  Boyd challenges the trial court’s post-hearing decision overruling his suppression motion. Boyd argues that the arresting officer lacked a reasonable and articulable suspicion to perform an investigative weapons search under Terry v. Ohio. Judgment AFFIRMED.
 
In Re: Matazz Thomas and Nevaeh Pennekamp (July 2, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080280_07022008.pdf
-  Appellant, Tina Pennekamp, appeals a judgment of the Hamilton County Juvenile Court awarding custody of her two children, Matazz Thomas and Nevaeh Pennekamp, to appellee, Hamilton County Department of Job and Family Services. Pennekamp contends that the trial court erred in determining that HCJFS was not required to make reasonable efforts to prevent removal of the children from the home. Judgment AFFIRMED.
 

U.S. Sixth Circuit Court of Appeals:  Ohio Cases

 

El Bey v. Roop (July 1, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0234p-06.pdf
-  This case arises out of the events surrounding the entry into, and search of, a residence in Xenia, Ohio, and the subsequent arrest of Raahkiim El Bey by Xenia police officers. El Bey claims that the officers unlawfully entered his residence, handcuffed him, and illegally searched his belongings in an effort to verify his identity. The officers, on the other hand, contend that the primary leaseholder of the residence consented to their entry into the home and that El Bey was initially detained only until the officers could determine whether he was the suspect for whom they had a valid arrest warrant. Upon discovering that there was an outstanding arrest warrant from New Jersey for a person named Billie Greene, whose Social Security number matched the one found in El Bey’s residence, and after confirming that El Bey had changed his name from Billie Greene, the officers arrested El Bey. El Bey subsequently filed a pro se complaint against the police officers pursuant to 42 U.S.C. § 1983 and Ohio state law. The officers moved for summary judgment, arguing, among other things, that they were entitled to qualified immunity. Their motion for summary judgment was granted by the magistrate judge designated to decide El Bey’s case. For the reasons set forth below, we AFFIRM in part and REVERSE in part the judgment of the district court, and REMAND the case for further proceedings consistent with this opinion.
 
Doe v. The Salvation Army (July 1, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0235p-06.pdf
-  The plaintiff, John Doe, appeals the district court’s summary judgment dismissing Doe’s lawsuit against the defendants, The Salvation Army in the United States and the Salvation Army Eastern Territory. Doe claims that when he was being interviewed for a job with the Salvation Army, the interviewer asked him about his medications. When Doe acknowledged that he took psychotropic medications, he was rejected for the job, in violation, he alleges, of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794(a), and Ohio Rev. Code Ann. § 4112.02. We hold that summary judgment for the defendants was inappropriate because there are genuine issues of material fact as to whether Doe qualifies as “disabled” under the Rehabilitation Act and whether the Salvation Army’s failure to hire Doe was based solely on Doe’s purported disability.
 
USA v. Miller (July 1, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0236p-06.pdf
-  Following a jury trial, defendant Shawn Joseph Miller was found guilty on two counts of committing wire fraud, in violation of 18 U.S.C. § 1343, two counts of money laundering, in violation of 18 U.S.C. § 1957, and one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(3). Thereafter, the district court sentenced Miller to an above-Guidelines term of 125 months of imprisonment. Miller now appeals, raising four claims: (1) his constitutional right to a fair trial was abridged when he was forced to wear an electronic stun belt during trial; (2) the district court erred in failing to sua sponte order a mental competency hearing; (3) the evidence offered against him at trial was insufficient to support the jury’s finding of guilt on the witness tampering charge; and (4) his sentence was substantively unreasonable. For the reasons set forth below, we affirm Miller’s convictions and order a limited remand for resentencing for the purpose of correcting Miller’s term of supervised release.
 
USA v. Erpenbeck (July 2, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0237p-06.pdf
-  A. William Erpenbeck, Jr. pled guilty to one count of bank fraud, in violation of 18 U.S.C. § 1344. Before he was sentenced, he also pled guilty to participating in a conspiracy to obstruct justice by interfering with his sentencing proceeding, in violation of 18 U.S.C. § 371. The court then sentenced Erpenbeck to 300 months of imprisonment for bank fraud with a concurrent sentence of 60 months for obstruction of justice. This resulted in a final sentence that was 65 months above the district court’s calculation of the applicable Guidelines range for the bank-fraud charge. Erpenbeck argues on appeal that his sentence is procedurally and substantively unreasonable and that the district court violated Rule 32(h) of the Federal Rules of Criminal Procedure by failing to provide him with proper notice that it was considering an upward departure. The government has conditionally cross-appealed, arguing that if we find that a resentencing is warranted, we should correct the district court’s Guidelines determination as to the amount of actual loss and the number of victims. The government made clear in its briefs and at oral argument, however, that if we conclude that Erpenbeck’s arguments are without merit, the government waives all of the issues raised in its cross-appeal. Because of our conclusion that Erpenbeck’s arguments are without merit, and that any errors made by the district court in calculating Erpenbeck’s sentence either militate in Erpenbeck’s favor or are harmless, we AFFIRM the judgment of the district court.
 

U.S. Sixth Circuit Court of Appeals: Other States Cases

 

S.S. v. Eastern KY Univ (July 2, 2008)(Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0238p-06.pdf
-  From 2000 to 2003, S.S. was a student at the Model Laboratory Middle School (Model), which is operated by Eastern Kentucky University (EKU) to train student teachers under the supervision of certified teachers. S.S. has various disabilities, including cerebral palsy, attention deficit/hyperactivity disorder, dyslexia, pervasive developmental disorder, and post-traumatic stress disorder. During his attendance at Model, S.S. was involved in numerous physical and verbal altercations with other students, leading S.S. to complain that he was being bullied and harassed. Model investigated the incidents as they occurred, determining that some were initiated by S.S. and some were initiated by other students. In response, Model took various steps as the school administration deemed appropriate, including interviewing S.S. and his classmates, disciplining the students that it found to be culpable, monitoring S.S., and at times separating S.S. from his harassers. S.S. left Model after successfully completing the sixth, seventh, and eighth grades. He subsequently filed suit against EKU, Model’s director Jacqueline Vance, and Model’s psychologist Ellen Rini, alleging that the defendants had discriminated against him on the basis of his disability, in violation of both federal and state law. The district court granted summary judgment in favor of the defendants. For the reasons set forth below, we AFFIRM the judgment of the district court.
 
Heather Ellison v. USA (July 2, 2008)(Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0239p-06.pdf
-  Heather Ellison asks us to reinstate her tort claim against the United States under the Federal Tort Claims Act. Because she filed this lawsuit almost seven months after the Postal Service denied her claim, because the Act requires claimants to file their claims within six months of the agency’s written denial of the claim and because her alternative readings of the Act are unconvincing, we affirm.