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 or 2006.

If you would like to receive a daily e-mail with same-day case updates, please join our Members-Only discussion list.  Not a member?  Join today!

March 17, 2006

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

TOPICS:
- Ohio's Public Records Act verses HIPAA
- Sentencing
- Sexual-predator
- Civil - Public funds - general contractor
- Wills - Trusts
- Debtor Creditor - Contracts - Truth in Lending Act
- Equal Pay Act
- federal habeas discovery
- Constitutionality - TN Statute - special logotype license plates
- Federal antitrust laws - recruiting rule
 

Ohio Supreme Court

 

State ex rel. Cincinnati Enquirer v. Daniels (March 17, 2006) (2006-Ohio-1215)
-  http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-1215.pdf
-  We focus our attention in this appeal on the question of whether the Cincinnati Enquirer, a division of Gannett Satellite Information Network, Inc., may, pursuant to O.R.C. 149.43, Ohio's Public Records Act, obtain copies of the Cincinnati Health Department's lead-contamination notices issued to property owners of units reported to be the residences of children whose blood tests indicated elevated lead levels. Relying on the Standards for Privacy of Individually Identifiable Health Information contained in the federal Health Insurance Portability and Accountability Act ("HIPAA"), the city of Cincinnati and the Health Commissioner and Assistant Health Commissioner of the Cincinnati Health Department declined to release copies of the requested citations. Judgment of the appellate court is REVERSED, the writ of mandamus is granted, the respondents are ordered to release the requested records, and the request for attorney fees is denied.
 

First District Court of Appeals

[Search Other Ohio Districts]
 

State v. Robinson (March 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Summaries/C-040592.DOC
-  The defendant's conviction upon his guilty plea to gross sexual imposition was not subject to reversal on appeal on the ground that his trial counsel was ineffective in counseling the plea:  The defendant argued that the videotape upon which the charge was based would have disproved, rather than proved, a matter essential to a successful prosecution on the charge.  But the appellate court's review of the defendant's ineffective-counsel claim could not include the videotape, because the videotape was not before the court during the proceedings below, and the defendant and the state could not, by stipulation, add the videotape to the record on appeal. The court of appeals must VACATE the defendant's prison sentence and REMAND for resentencing, when the defendant was sentenced under statutes held by the Ohio Supreme Court in State v. Foster to be unconstitutional.

State v. Bailey (March 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Summaries/C-040739.DOC
-  Convictions for aggravated robbery and carrying a concealed weapon were supported by sufficient evidence and were not against the manifest weight of the evidence, where the victim identified the defendant shortly after the crimes had occurred, and where police officers, while pursing the defendant, saw him toss a gun under a parked car.  The defendant's sentences for aggravated robbery, carrying a concealed weapon, and having a weapon under a disability were improper because they were based on O.R.C. 2929.14(B)(2), which has been held unconstitutional by the Ohio Supreme Court.  See State v. Foster 2006-Ohio-856. Judgment AFFIRMED in part, REVERSED in part and Cause REMANDED.  

State v. Byrd (March 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Summaries/C-050111.DOC
-  O.R.C. 2929.14(B), which states that a felony offender sentenced to a period of incarceration who has not previously served a prison term is presumed to be eligible for the minimum prison term available for the offense, is unconstitutional, and because the provision has been "severed and excised" in its entirety from the felony sentencing scheme, a trial court has the discretion to impose more than the minimum term as long as the sentence falls within the statutory range provided for the offense. Judgment VACATED as to sentence and Cause REMANDED.

State v. Mozena (Reconsideration) (March 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Summaries/C-050208_reconsideration.DOC
-  O.R.C. 2929.14(B), which states that a felony offender sentenced to a period of incarceration who has not previously served a prison term is presumed to be eligible for the minimum prison term available for the offense, is unconstitutional, and because the provision has been "severed and excised" in its entirety from the felony sentencing scheme, a trial court has the discretion to impose more than the minimum term as long as the sentence falls within the statutory range provided for the offense. A trial court is not capable of reaching a medical conclusion that a sexual offender is a pedophile absent evidence from clinic reports or other medical diagnosis based upon the opinion of an expert; while the court may use the term "pedophile" descriptively, it may not employ that term as a medical diagnosis where psychological experts only recommend further evaluation for the possibility that the offender is a pedophile. The trial court's adjudication of the defendant as a sexual predator was not against the manifest weight of the evidence, when the court appropriately assessed the evidence in light of each factor in O.R.C. 2950.09(B)(2), and properly determined that (1) the two victims were eleven years old at the time of the crimes; (2) the sexual offender was fifty-nine years old; (3) the offenses involved separate victims and were committed on separate dates; (4) the offender breached his position of trust in relationship to the victims and their parents; (5) he attempted to buy his victims' silence with ice cream and money; and (6) he was purposely deceptive when interviewed by court-appointed psychologists who found that his chance of recovery was guarded. VACATED as to sentence and Cause REMANDED, AFFIRMED as t Sexual-predator Adjudication.
 
City of Cincinnati v. Scheer & Scheer Development, et al. (March 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Summaries/C-050336.doc
-  The trial court did not err in determining that a housing redevelopment project financed by the city of Cincinnati was a public improvement under O.R.C. 1311.25 through 1311.38:  Although the city did not own the buildings, the degree of control it exerted over the general contractor through financing, profit sharing, and implementation of hiring and employment policies was sufficient to make the general contractor the city's agent; an unpaid subcontractor was therefore entitled to assert against the city a lien on public funds earmarked for the project. Judgment AFFIRMED.

U.S. Bank, et al. v. Hospice of Cincinnati, et al.  (March 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Summaries/C-050393.DOC
-  The probate court properly granted summary judgment for the contingent beneficiary of a will and trust, when the named charitable beneficiary was "no longer in existence," as that phrase is commonly understood, and when there was no successor to that named charitable organization.  The plain and unambiguous language of the will and trust evidenced the testator's intent to benefit the activities that were being conducted under the named beneficiary's d/b/a name:  Once the entity stopped providing those services under the d/b/a name and ceased using the d/b/a name, the named charitable beneficiary was no longer in existence.  In determining whether an organization is a successor to another, a court looks at whether any business interests were transferred, including assets and liabilities.  Judgment AFFIRMED.

Wixom v. Union Savings Bank (March 17, 2006)
-  http://www.hamilton-co.org/appealscourt/Summaries/C-050466.DOC
-  Regulation Z, the implementing regulation of the Truth in Lending Act, permits lending institutions to charge interest during a rescission period after a contract is signed but before the proceeds of a home mortgage loan are disbursed, so long as the practice is not otherwise prohibited. Ohio does not bar the collection of interest before loan proceeds are disbursed when a home mortgage is refinanced, and this practice is not unconscionable.  [But, see, DISSENT:  Apart from a legislative enactment, one source for barring a lending institution from charging interest during a rescission period is the common law; because such a practice is both substantively and procedurally unconscionable, a lending institution in Ohio is not entitled to charge interest before the loan proceeds are disbursed to the borrower.] Judgment AFFIRMED.
 

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

 

Beck-Wilson v. Principi (March 17, 2006) (Appeal from N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0100p-06.pdf
-  The plaintiffs are seventeen current and former nurse practitioners ("NPs") employed by the Department of Veterans Affairs ("VA") at the Cleveland Veterans Affairs Medical Center ("VAMC") in Brecksville, Ohio. The plaintiffs brought suit against the VA under the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d) et seq., alleging that, as predominantly female NPs, they are paid at a lower rate than the predominantly male physician assistants ("PAs") for performing jobs of equal skill, effort, and responsibility under similar working conditions. Plaintiff Laura Beck-Wilson also brought a wage-discrimination claim under Title VII, 42 U.S.C. § 2000e et seq. Although the district court held that plaintiffs had established a prima facie case of wage discrimination under the EPA, it granted summary judgment to the VA because it concluded that the VA had established its affirmative defense that "a factor other than sex," the separate statutory-based pay scales, was responsible for any sexually discriminatory difference in pay. We agree with the district court's conclusion that plaintiffs established a prima facie case under the EPA, but because we conclude that plaintiffs have raised a genuine issue of material fact regarding the reason for the pay differential between predominantly female NPs and predominantly male PAs, we REVERSE the district court's grant of summary judgment to the defendant and REMAND for further proceedings consistent with this opinion.

Broom v. Mitchell (March 17, 2006) (Appeal from N.D. Ohio)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0101p-06.pdf
-  Petitioner-Appellant Romell Broom ("Broom") appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Broom was sentenced to death in Ohio in 1985 for aggravated murder. We review the following six issues raised by Broom: Brady violation, admission of other acts testimony, ineffective assistance of counsel at the mitigation phase, prosecutorial misconduct, denial of a continuance, and denial of the suppression of a "show-up" identification. Broom's Brady claim is based upon the fact that certain police reports were not made available to Broom's counsel prior to the trial but were later obtained as a result of Ohio Public Records Act requests and as a part of federal habeas discovery. The State argues that Broom's Brady claim is procedurally defaulted due to the fact that the police reports were not used and the Brady claim was not presented during Broom's state postconviction relief proceedings. Broom responds that Ohio case law prevented him from using the police records at issue and that he has demonstrated the requisite cause and prejudice such that his claim may be reviewed in spite of the procedural default. For the reasons discussed below, we AFFIRM the district court's judgment denying Broom habeas relief.
 

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

 

ACLU TN v. Bredesen (March 17, 2006) (Appeal from M.D. Tennessee)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0099p-06.pdf
-  In this case we are required to decide the constitutionality of Tennessee's statute making available the purchase of automobile license plates with a "Choose Life" inscription, but not making available the purchase of automobile license plates with a "pro-choice" or pro-abortion rights message. See TENN. CODE ANN. § 55-4-306. Although this exercise of government one-sidedness with respect to a very contentious political issue may be ill-advised, we are unable to conclude that the Tennessee statute contravenes the First Amendment. Government can express public policy views by enlisting private volunteers to disseminate its message, and there is no principle under which the First Amendment can be read to prohibit government from doing so because the views are particularly controversial or politically divisive. We accordingly REVERSE the judgment of the district court invalidating the statute on First Amendment grounds.

Brentwood Acad v. TSSAA (March 17, 2006) (Appeal from M.D. Tennessee)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0102p-06.pdf
-  This appeal represents the third trip to this court for the parties to this litigation. The case has also been before the United States Supreme Court, which made a notable ruling that defendant-appellant Tennessee Secondary School Athletic Association ("TSSAA") was a state actor. The parties' dispute began when the TSSAA imposed a number of penalties on plaintiff appellee Brentwood Academy ("Brentwood") as a result of asserted violations by Brentwood of the TSSAA's rule governing recruiting of student athletes. Brentwood sued the TSSAA and its executive director, defendant-appellant Ronnie Carter, alleging violations of the First and Fourteenth Amendments, federal antitrust laws, and Tennessee law. After the United States Supreme Court determined that the TSSAA is a state actor, this court on remand held that the recruiting rule was content-neutral and subject to intermediate scrutiny. We remanded to the district court with instructions about the proper analysis in the case on the First Amendment issue. The district court conducted a ten-day nonjury trial. The district court found for Brentwood on the First Amendment issue, holding that the application of the rule to Brentwood was not narrowly tailored to further the TSSAA's legitimate, substantial interests. The district court also found for Brentwood on its substantive and procedural due process claims against the TSSAA, as well as on its procedural due process claim against Carter in his individual capacity. The district court enjoined the TSSAA's penalties against Brentwood. The district court also held that the TSSAA was entitled to immunity from Brentwood's antitrust claims. The parties cross-appealed to this court on these issues. For the reasons set forth below, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

Daily Case Updates