Ohio Law

News and Announcements from the Supreme Court of Ohio and Other Governmental Entities Within the Buckeye State.

Friday, June 02, 2006

6/2/2006 - Supreme Court of Ohio Case Announcements

MERIT DECISIONS WITHOUT OPINIONS

2006-1029. In re Disqualification of Martin.
This cause is pending before the court upon appellant’s notice of appeal from a
decision under R.C. 2701.03. Whereas this court lacks jurisdiction to hear an
appeal from proceedings under that statute,
IT IS ORDERED by the court that this cause is dismissed sua sponte.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and
Lanzinger, JJ., concur.

MOTION AND PROCEDURAL RULINGS

2006-1007. State ex rel. Cruzado v. Zaleski.
In Prohibition. This cause originated in this court on the filing of a complaint for a
writ of prohibition. Upon consideration thereof,
IT IS ORDERED by the court, sua sponte, that an alternative writ is granted
and the following briefing schedule is set for presentation of evidence and filing of
briefs pursuant to S.Ct.Prac.R. X.
The parties shall file any evidence they intend to present within 20 days of
the date of this entry; relator shall file his brief within 10 days of the filing of the
evidence; respondent shall file his brief within 20 days after the filing of relator’s
brief; and relator may file a reply brief within 7 days after the filing of
respondent’s brief.

MISCELLANEOUS DISMISSALS

2006-0982. Watson v. Collins.
Noble App. No. 05NO327. This cause is pending before the court as an appeal
from the Court of Appeals for Noble County. Upon consideration of appellant's
application for dismissal,
IT IS ORDERED by the court that the application for dismissal is granted.
Accordingly, this cause is dismissed.

Later


Ohio Department of Public Safety Newsletters

Thanks to a story from the web site of WTOV-9 in Steubenville, I found out about the various newsletters offered by the Ohio Department of Public Safety. The most current ones are the Bureau Messenger and The Hot Sheet. The story from WTOV-9 concerned The Hot Sheet, a monthly publication that reports on the doings of the state's habitual drunken driving offenders. The latest issue (April) consists of four pages (PDF) and details the arrests made by local authorities as well as Sheriffs' departments and the Ohio State Highway Patrol. There is a box at the lower left of the first page with some statistics: From August 1, 1991 through March 31, 2006, there were 17,897 arrests made of habitual offenders (five or more convictions), and 27,313 calls were placed to 1-800-GRAB-DUI.

Later

Thursday, June 01, 2006

6/1/2006 - Supreme Court of Ohio Case Announcements

MOTION AND PROCEDURAL RULINGS

2006-0878. State ex rel. Evans v. Blackwell.
Franklin App. No. 06AP-6, 2006-Ohio-2076. This cause is pending before the
court as an appeal from the Court of Appeals for Franklin County. Upon
consideration of appellant's amended motion for immediate expedited
consideration,
IT IS ORDERED by the court that the motion is denied.
Moyer, C.J., would grant the amended motion for immediate expedited
consideration and issue an order accelerating the record transmission and briefing
schedule.
Resnick and O'Donnell, JJ., not participating.

2006-0934. Poss v. Morris.
Ashtabula App. No. 2004-A-0093, 2006-Ohio-1441. This cause is pending before
the court as a discretionary appeal and claimed appeal of right. Upon
consideration of appellant's motion for stay of lower court's decision and
imposition of sentence,
IT IS ORDERED by the court that the motion is denied.

DISCIPLINARY CASES

2006-0124. Disciplinary Counsel v. Frazier.
This cause is pending before the court on the report and recommendation of the
Board of Commissioners on Grievances and Discipline. On May 9, 2006,
respondent filed letters of recommendation with the court. Whereas the document
does not consist of a list of citations to additional authorities as permitted by
S.Ct.Prac.R. IX(7) and is not otherwise permitted under the Rules of Practice as a
filing after completion of merit briefing,
It is ordered by the court, sua sponte, that the document is stricken.

2006-0395. Akron Bar Assn. v. Holder.
This matter is pending before the court on the final report of the Board of
Commissioners on Grievances and Discipline recommending discipline of
respondent. This court issued an order to show cause in this matter on March 16,
2006. On April 17, 2006, respondent filed objections. On April 27, 2006, relator
filed a motion to strike evidence not in the record or in the alternative for leave to
supplement the record to respond to such evidence. Upon consideration thereof,
IT IS ORDERED by this court that relator’s motion to strike evidence not in
the record is granted.
Resnick, J., would grant leave to supplement the record to respond to such
evidence.

MISCELLANEOUS ORDERS

On December 2, 2005, the following attorneys were suspended from the practice of
law pursuant to Gov.Bar R. VI(6)(B) for failing to file their 2005/2007 Certificate
of Registration and paying the applicable fees on or before December 1, 2005. It
has now come to the Supreme Court’s attention that the following attorneys were
deceased prior to December 1, 2005. Upon consideration thereof,
IT IS ORDERED by the court that the suspension entered against the following
attorneys be and hereby is vacated:
Name Attorney Reg. No. City and State
Charles Joseph Acker 44423 South Euclid, OH
James C. Baggott 53255 Dayton, OH
Thomas Adrian Carpenter 44408 Tiffin, OH
Lisa Anne Clifford 74185 Cleveland, OH
Constantine Gianuglou 12590 Dayton, OH
Francis X. McCarthy 49989 Cincinnati, OH
Paul Michael McKosky 32567 Lake Havasu City, AZ
Thomas Owen Miller 22943 Columbus, OH
Richard Gordon Ranke 51561 Cleveland Heights, OH
Gordon Strauss 54450 Cincinnati, OH
Robert Norton Zanville 56735 Toledo, OH


In re Report of the Commission on
Continuing Legal Education.
Jeffrey Alan Perlmuter
(#0043115)
Respondent.
Case No. CLE-05-43115
O R D E R
This matter originated in this court on the filing of a report by the
Commission on Continuing Legal Education (“commission”) pursuant to Gov.Bar
R. X(6)(A)(1)(b) and (A)(2)(d). The commission recommended the imposition of
sanctions against certain attorneys, including the above-named respondent, for
failure to comply with the provisions of Gov.Bar R. X, Attorney Continuing Legal
Education, for the 2003-2004 reporting period.
On May 16, 2006, this court adopted the recommendation of the
commission, imposed a sanction fee upon the respondent, and suspended the
respondent from the practice of law pursuant to Gov.Bar R. X(6)(B)(3) and
(5)(A)(4). The court further ordered that respondent shall not be reinstated to the
practice of law in Ohio until respondent complies with the requirements for
reinstatement set forth in Gov.Bar R. X(7); respondent complies with the Supreme
Court Rules for the Government of the Bar of Ohio; respondent complies with this
and all other orders of the court; and this court orders respondent reinstated.
On May 25, 2006, the commission filed a recommendation pursuant to
Gov.Bar R. X(7)(B)(2) finding that the respondent has paid all fees assessed for
noncompliance, has made up all deficiencies, and is now in full compliance with
all requirements of Gov.Bar R. X, and recommending that the respondent be
reinstated to the practice of law in Ohio. The commission certified that respondent
had completed the credit hours of continuing legal education required during his
suspension by this court’s order of suspension. On May 26, 2006, respondent
satisfied all the requirements of this court’s order of suspension. Upon
consideration thereof,
IT IS ORDERED by the court that the recommendation of the commission is
adopted and respondent, Jeffrey Alan Perlmuter, is hereby reinstated to the practice
of law.

Later


Wednesday, May 31, 2006

Marriage Amendment v. Domestic Violence Statute

Parsed from an article on the Gongwer Ohio Report:

For the second time this month, an appeals court in Lima has ruled that Ohio's domestic violence law is unconstitutional under terms of a Defense of Marriage Amendment voters approved in 2004. The 2-1 decision from the 3rd Ohio District Court of Appeals is the latest in a series of similar cases from around the state, one of which already is beginning to move through the Ohio Supreme Court for resolution. The Justices voted 5-2 in April to accept an appeal from Warren County in which the 12th Ohio District Court of Appeals upheld the domestic violence law. The appellate panel in that case overturned a trial judge who ruled the law was unconstitutional as applied to an unmarried individual. (For the Supreme Court of Ohio docket sheet, go to the Clerk's page and search for case number 2006-0151)

In dispute is the effect of an amendment to the Ohio Constitution that defines marriage as the union of one man and one woman. It also bars the state from creating or recognizing a legal status for relationships of unmarried individuals that intends to approximate the design of marriage.

Five state appellate courts, including those covering Cuyahoga and Franklin counties, that have considered challenges to the domestic violence law have found it constitutional notwithstanding the marriage amendment.

District appellate courts in Dayton and Lima, however, have ruled the domestic violence statute unconstitutional as a result of the amendment. There are 12 appellate districts statewide.

In the latest case from the 3rd District, the panel reversed the domestic violence conviction of David Shaffer in Union County that involved his live-in girlfriend. The charge was elevated to a felony of the third degree due to the defendant's two previous convictions in Virginia for assault and battery against a family member.

Defense attorneys argued on appeal that the domestic violence law was in part unconstitutional because it defines a "family or household member" as being a "person living as a spouse" in violation of the marriage validity amendment.

As it did just over a week ago in a similar case, the appellate majority found the domestic violence law unconstitutional when applied to individuals in Mr. Shaffer's position.

Later

5/31/2006 - Supreme Court of Ohio Case Announcements

MERIT DECISIONS WITH OPINIONS

In re Ohio Criminal Sentencing Statutes Cases, 2006-Ohio-2626.
Dispositions of currently pending appeals based on the decision in State v. Mathis,
109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. See entry.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and
Lanzinger, JJ., concur.

Criminal law — Felonies — Sentencing — Cases accepted and disposed of on
the authority of State v. Mathis.


2003-1429. State v. Tenace, 2006-Ohio-2417.
Lucas App. No. L-00-1002, 2003-Ohio-3458. Judgment affirmed in part and
reversed in part, and cause remanded.
Moyer, C.J., Pfeifer, Lundberg Stratton and Lanzinger, JJ., concur.
Resnick, O'Connor and O'Donnell, JJ., concur in part and dissent in part.

Criminal law — Aggravated murder — R.C. 2929.04(B)(7) “other factors” —
Death penalty reversed.


2004-1101. Estate of Cowling v. Estate of Cowling, 2006-Ohio-2418.
Lorain App. Nos. 01CA007944 and 03CA008226, 2004-Ohio-2665. Judgment
reversed and trial court's order modified.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor and Lanzinger,
JJ., concur.
O'Donnell, J., concurs in judgment only.

Joint and survivorship accounts — Presumption of equal ownership
rebuttable by evidence of individual net contributions — Constructive
trusts — Tracing of property over which constructive trust is
imposed — Burdens of proof.


2004-1293. Smith v. Smith, 2006-Ohio-2419.
Hancock App. No. 5-03-12, 157 Ohio App. 778, 2004-Ohio-3553. Judgment
affirmed.
Moyer, C.J., Resnick, Pfeifer and O'Connor, JJ., concur.
Lundberg Stratton, O'Donnell and Lanzinger, JJ., dissent.

Domestic relations — Child-support arrearages — R.C. 3111.13(F)(3)(a)
violates Section 28, Article II of Ohio Constitution when applied to
judgment ordering payment of child-support arrearage that existed prior
to the statute’s amendment.


2005-0304. Castle Aviation, Inc. v. Wilkins, 2006-Ohio-2420.
Board of Tax Appeals, No. 2003-M-146. Decision affirmed.
Moyer, C.J., Resnick, Lundberg Stratton, O'Connor, O'Donnell and
Lanzinger, JJ., concur.
Pfeifer, J., concurs in judgment only.

Sales and use tax — Exception for purchases by public utility —
Air carrier’s claim to be public utility rejected.


2005-0702 and 2005-0734. Doe v. Archdiocese of Cincinnati, 2006-Ohio-2625.
Shelby App. No. 17-04-10, 2005-Ohio-960. Judgment reversed and cause
dismissed.
Moyer, C.J., Lundberg Stratton, O'Connor and O'Donnell, JJ., concur.
French, J., concurs in part and dissents in part.
Whitmore and Pfeifer, JJ., dissent.
Beth Whitmore, J., of the Ninth Appellate District, sitting for Resnick, J.
Judith L. French, J., of the Tenth Appellate District, sitting for Lanzinger, J.

Statute of limitations — Sexual abuse of minors — A minor who is the
victim of sexual abuse has two years from the date he or she reaches the
age of majority to assert any claims against the employer of the perpetrator
arising from the sexual abuse when at the time of the abuse, the victim
knows the identity of the perpetrator, the employer of the perpetrator,
and that a battery has occurred. (Doe v. First United Methodist Church (1994),
68 Ohio St.3d 531, 629 N.E.2d 402, followed.)


2005-0851. State ex rel. Coffman v. Indus. Comm., 2006-Ohio-2421.
Franklin App. No. 04AP-303, 2005-Ohio-1519. Judgment affirmed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and
Lanzinger, JJ., concur.

Workers’ compensation — Violation of specific safety requirement —
Ohio Adm.Code 4121:1-5-23(A) — Isolation from voltage source —
Unilateral-negligence doctrine inapplicable.


2005-2053. Lake Cty. Bar Assn. v. Ryan, 2006-Ohio-2422.
On Certified Report by the Board of Commissioners on Grievances and Discipline,
No. 05-019. Patrick T. Ryan, Attorney Registration No. 0022478, is suspended
from the practice of law in Ohio for two years, with one year stayed on conditions.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and
Lanzinger, JJ., concur.

Attorneys at law — Misconduct — Conduct involving fraud, deceit,
dishonesty, or misrepresentation — Neglect of an entrusted legal matter —
Failure to carry out contract of employment — Failure to cooperate in
disciplinary investigation — Failure to maintain records of and account
for client funds — Failure to promptly return client funds — Failure to
preserve client funds in a separate, identifiable account — Two-year
suspension partially stayed on conditions.


2005-2356. Cincinnati Bar Assn. v. Washington, 2006-Ohio-2423.
On Certified Report by the Board of Commissioners on Grievances and Discipline,
No. 05-025. David Samuel Washington Jr., Attorney Registration No. 0055406, is
suspended from the practice of law in Ohio for two years, with 18 months stayed
on conditions.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and
Lanzinger, JJ., concur.

Attorneys — Misconduct — Engaging in conduct involving fraud,
deceit, dishonesty, or misrepresentation — Charging excessive fees —
Failing to maintain separate account — Two-year suspension, with
18 months stayed on conditions.


2005-2393. Cleveland Bar Assn. v. James, 2006-Ohio-2424.
On Certified Report by the Board of Commissioners on Grievances and Discipline,
No. 05-007. Ronald Dennis James, Attorney Registration No. 0041120, is
suspended from the practice of law in Ohio for one year.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and
Lanzinger, JJ., concur.

Attorneys — Misconduct — Failure to cooperate in a disciplinary
investigation — One-year suspension.


MISCELLANEOUS ORDERS

2006-0357. Cleveland Bar Assn. v. Woods.
On Objections to Order of the Board on the Unauthorized Practice of Law. Sua
sponte, cause dismissed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and
Lanzinger, JJ., concur.

Later


Department of Taxation Issues Release Regarding Employment Services

The Ohio Department of Taxation has issued an updated information release regarding the taxable service of employment service. The release, titled ST 1993-08, "Employment Service," supersedes previous releases on this topic issued in September, 1993; October, 1993; and December, 2000.
This latest release clarifies the law as to what constitutes an employment service and provides as well interpretations of the law since 1993 by the Ohio Board of Tax Appeals and the Ohio Supreme Court. It spells out the legal definition of employment service and also defines the sale and the selling of the provision of this service. A multitude of examples are provided to further understanding of the law.

Later

Tuesday, May 30, 2006

5/30/2006 - Supreme Court of Ohio Case Announcements

DISCIPLINARY CASES

2005-2109. In re Resignation of Zaremsky.
On affidavit of resignation from the practice of law of Michael
Lee Zaremsky, Attorney Registration No. 0038372, and on report
filed under seal by Disciplinary Counsel.
Resignation accepted with disciplinary action pending.

MEDIATION REFERRALS

The following case has been returned to the regular docket
pursuant to S.Ct.Prac.R. XIV(6)(E):
2006-0652. Meijer Stores Ltd. Partnership v. Defiance Cty.
Bd. of Revision. Board of Tax Appeals, No. 2003-T-2035.

Later