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.

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March 19th & 20th, 2009

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

TOPICS:
- Judges Misconduct
- Attorneys Misconduct
- Unauthorized practice of law
- Indictment / Complaint / Juries / Prosecutor / Counsel
- Criminal Miscellaneous / Sex Offenses
- Adoption
- Sex Offenses / Disseminating matter harmful to juveniles
- Bankruptcy / Disqualifying an attorney
 

Ohio Supreme Court

 

Disciplinary Counsel v. McAuliffe (Slip Opinion)(March 19, 2009)(2009-Ohio-1151)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1151.pdf
-  Judges - Misconduct - Federal convictions for crimes involving arson, fraud, and conspiracy - Respondent disbarred.

Disciplinary Counsel v. Brown (Slip Opinion)(March 19, 2009)(2009-Ohio-1152)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1152.pdf
-  Unauthorized practice of law - Injunction issued and civil penalty imposed.

Lake Cty. Bar Assn. v. Kulbyn (Slip Opinion)(March 19, 2009)(2009-Ohio-1154)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1154.pdf
-  Attorney misconduct, including failing to promptly refund unearned fees upon discharge - Public reprimand.

Cleveland Metro Bar Assn. v. Spector (Slip Opinion)(March 19, 2009)(2009-Ohio-1155)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1155.pdf
-  Attorney misconduct, including failing to act with diligence in representing a client and engaging in conduct involving dishonesty - Indefinite suspension.

Cincinnati Bar Assn. v. Bucciere (Slip Opinion)(March 19, 2009)(2009-Ohio-1156)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1156.pdf
-  Attorneys - Misconduct - Practicing law while registered as an attorney on inactive status - Public reprimand.
 

First District Court of Appeals

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State v. Canyon (March 20, 2009)(2009-Ohio-1263)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1263.pdf
-  The failure of an indictment to specify a mens rea for the aggravated-robbery counts did not rise to structural error: The error did not permeate the proceedings because the identity, not the mens rea, of the perpetrator was the principal issue at trial; under the circumstances, the indictment’s failure to specify a mens rea was harmless error. The trial court did not abuse its discretion when it refused to dismiss two jurors or to declare a mistrial after a witness had attempted to communicate with the jurors: the trial court conducted a voir dire of the jury, questioned the witness, and determined that the jury remained fair and impartial. The prosecutor’s use of leading questions was not prosecutorial misconduct: the prosecutor used the questions to move the trial along, and the defendant did not object to most of the questions. The defendant was not deprived of the effective assistance of counsel, when the record did not demonstrate that trial counsel’s performance fell below an objective standard of reasonableness: There was no probability of success had a motion to suppress photographic identification been filed; and counsel’s conduct of the trial, including jury voir dire, failing to object to leading questions, failing to request an identification expert, and failing to request an in camera inspection of witness statements involved strategic decisions that cannot be second-guessed on appeal. Judgment AFFIRMED.

State v. Mitchell (March 20, 2009)(2009-Ohio-1264)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1264.pdf
-  To prove the affirmative defense of impossibility for a charge of failing to give the written notice required by R.C. 2950.05(A), former R.C. 2950.05(F)(1) (now R.C. 2950.05[G][1]) provides that an offender must show that (1) he did not know of the address change on the date specified for the provision of the written notice, and (2) he provided notice of the address change “as soon as possible, but not later than the end of the first business day, after learning of the address change.” The defendant’s conviction for failing to register a change of address as required by R.C. 2950.05(A) was supported by sufficient evidence and was not against the manifest weight of the evidence: the defendant had failed to provide written notice of his address change in accordance with the statute and had failed to immediately register his new address. Judgment AFFIRMED.

In re Adoption of Potts (March 20, 2009)(2009-Ohio-1270)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2009/2009-ohio-1270.pdf
-  In an adoption proceeding, the probate court properly ruled that the father’s consent was necessary before the appellants could adopt his daughter: tests confirmed the father’s paternity; and the court properly determined that he had not willfully abandoned the girls natural mother during her pregnancy, when he had offered assistance and support in providing health insurance for, and in parenting, the child, despite her mother's discouragement of such offer and her assurance that the child was not his. Judgment AFFIRMED.
 

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

 

American Booksellers Foundation v. Ted Strickland AND
Bookfriends, Inc. v. Ted Strickland  (March 19, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0108p-06.pdf
-  Plaintiffs sued Ohio’s Attorney General and county prosecutors, arguing that Ohio Revised Code § 2907.31(D)(1) is unconstitutional under the First Amendment and Commerce Clause. The district court permanently enjoined its enforcement “as applied to internet communications,” on the basis that it is overbroad and violates the First Amendment. Am. Booksellers Found. for Free Expression v. Strickland, 512 F. Supp. 2d 1082, 1106 (S.D. Ohio 2007). Defendants appealed; and Plaintiffs cross-appealed the district court’s decision that the law is not void for vagueness, nor does it violate the Commerce Clause. Although neither side addressed the issue of certification in their briefs or at oral argument, for the reasons below we sua sponte CERTIFY the questions set forth in II.B. of this order to the Supreme Court of Ohio under to Rule XVIII of the Rules of Practice of the Supreme Court of Ohio.
       

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

 

In re: Black Diamond Mining Co v. (March 19, 2009) (Appeal from U.S. Bankruptcy Court - Pikeville)
-  http://www.ca6.uscourts.gov/opinions.pdf/09b0002p-06.pdf
-  King & Spalding LLP appeals the bankruptcy court’s order of April 29, 2008, denying the debtors’ application to approve its employment. Before the Panel can address the merits of the appeal, we must determine our jurisdiction over the appeal. BN1 Telecommunications, Inc. v. Lomaz (In re BN1 Telecommunications, Inc.), 246 B.R. 845, 848 (B.A.P. 6th Cir. 2000). For that reason, the Panel requested the parties to be prepared to address jurisdictional issues at oral argument.

Daily Case Updates