Supreme Court upholds bulk of Obamacare

With Chief Justice John Roberts among the 5-4 majority, the Supreme Court of the United States mostly let stand President Obama’s 2010 health care overhaul, known as “Obamacare.”

We’re a law firm.  We believe that legal scholarship is important rather than just taking cues from the media spin machines.  So get out your reading glasses and read what SCOTUS decided by clicking here for the full decision.

You might want to get a cup of coffee first because it is a 193-page decision.  If that’s not brief enough for you today, you can google to your heart’s content or read some media summaries.  The New York Times has a story running here.  Our own Columbus Dispatch has one here.

Ohio Supreme Court Upholds Foreclosure Checks and Balances

They don't call it the burden of proof for nothing...

Back on January 31, 2011, I wrote about a group of foreclosure lawyers who filed a complaint against three Franklin County Common Pleas Judges (John Bender, Kimberly Cocroft, and Guy Reece) over an Order they signed requiring foreclosure lawyers to sign a certification on behalf of their clients – the foreclosing bank.

In a nutshell, the certification requires the foreclosing lawyer to verify certain facts, including that the foreclosing bank is the proper party and that it holds the original note and mortgage before it can obtain a judgment to take away a home.

The Franklin County Prosecutor’s Office (the lawyer for all County employees in their official capacity) filed a Motion to dismiss the Complaint and the Ohio Supreme Court granted that motion yesterday without any findings of fact or conclusions of law.  The Court’s decision was unanimous among the seven Ohio Supreme Court Justices:

Chief Justice Maureen O’Connor, and Justices Paul Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger, Robert Cupp, and Yvette McGee Brown.

John Futty from The Columbus Dispatch wrote today:

State attorneys general across the nation, including then-Ohio Attorney General Richard Cordray, announced in October that they were investigating fraudulent foreclosure filings. Some law firms and major lenders were using so-called “robo-signers” to complete affidavits on foreclosures without reading the documents or verifying ownership of the mortgage notes.

In late November, the three Franklin County judges began telling all lawyers who file residential foreclosure cases in their courtrooms that they must “personally certify the authenticity and accuracy of all documents” in support of the filings. If a lawyer doesn’t, the judge will not grant a motion for default or summary judgment, but will instead schedule the case for trial.

Setting a foreclosure for trial can delay the case for a year or more. However, in its motion to dismiss the lawyers’ complaint, the prosecutor’s office argued that a trial date provides a “remedy” for those who object to verifying their clients’ documents.

“The fact that the trial will delay matters does not change the fact that it is an adequate remedy,” wrote Assistant Prosecutor Patrick Piccininni. “Any issues of authentication of documents and proof can be settled at that stage.”

Personally, I think the Judges are fully within their discretion to order foreclosure attorneys to verify their cases.  Most foreclosures are pushed through the courts unopposed and as fast as possible.  Mistakes are made and big banks take advantage of the volume of cases and overload on the judges to skirt the rules to their benefit.  Thanks Judges, for watching out for the homeowners in these economic times.

Foreclosure filings, lawyers ordered to cross T’s, dot I’s.

Receiving foreclosure notices and cannot afford an attorney? Contact the Save the Dream Ohio Foreclosure Prevention Effort: 888-404-4674

I read John Futty‘s article in The Dispatch this morning about the Order of three Franklin County judges requiring lawyers to verify that all of the documents in residential foreclosure actions are valid.  This comes in response to a national outcry over fraudulent foreclosure filings.  Futty writes: “Six of the lawyers affected by the order are fighting back. They have asked the Ohio Supreme Court to prohibit the judges from requiring them to sign “certifications” on behalf of their clients.”

Common Pleas Judges John F. Bender, Kimberly Cocroft and Guy Reece have issued this Order and are the subject of the suit.  Apparently, Judges Laurel Beatty and David Fais were ready to issue the same Order, but are waiting to see the outcome of the suit.

Cleveland attorney John C. Greiner is representing the six lawyers that filed the lawsuit that, according to Futty’s article, claims the Order will require them to divulge confidential attorney-client privileged information.

What I find interesting is that a Cleveland lawyer, Greiner, is bringing this suit when his home County of Cuyahoga has required foreclosing attorneys to sign a “Certificate of Readiness” since at least 2004.

And, really, what’s the problem with the Certificate of Readiness?  I’m not sure what the Franklin County Judges are ordering, but I imagine it is something similar to Cuyahoga County’s Certificate of Readiness.  If it is, no privileged information is sought and, instead, it is more like having to turn in your High School algebra homework where you have to “show you work” – proving that you applied the correct equations to reach your answer.

If you haven’t gathered this already, I have not read the Franklin County Judge’s Order.  This post is simply a reacton to John Futty’s article from the perspective of a lawyer who knows this system well.

At the end of the day, there are two lessons to be learned.  (1)  Lawyers should check their work and the current economic climate and “factory produced foreclosures” give credence to the Order and, (2) Administrative Judge Charles C. Schneider is right that the Order is redundant because Civil Rule 11 already requires lawyers to check their work.  The fact that the two lessons oppose one another begs the question: if all foreclosure attorneys are checking their work, then why does Cuyahoga County have the Certificate of Readiness and why are Franklin County Judges creating their own Orders on this topic?

You can read John Futty’s article, here, and you can consider whether the foreclosure process is spinning out of control.

Supreme Court OK’s Judge’s use of facebook / twitter

You can "like" me now!

On December 3, 2010, the Ohio Supreme Court’s Board of Commissioners on Grievances & Discipline issued an advisory opinion saying that Ohio Judges can have facebook friends and twitter followers that are also attorneys appearing before them in Court.  The Supreme Court’s website issued this release:

In one of the most comprehensive and detailed examinations in the nation, the Supreme Court of Ohio’s disciplinary board has issued an advisory opinion examining the ethical implications of judges using social media sites like Facebook and Twitter.

The opinion from the Board of Commissioners on Grievances & Discipline advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.

“This is a topic of great interest to the legal community because, like the rest of the nation, more judges are experimenting with social media in both their personal and professional lives,” said Jon Marshall, the board’s secretary. “For those judges who choose to use this technology, we hope this opinion gives them practical guidance on how to do so and maintain their obligations under the Code of Judicial Conduct.”

A recent national study found that 40 percent of judges report using social media profile sites like Facebook and LinkedIn, a proportion roughly equal to that in the general U.S. adult population. Smaller numbers reported using microblogging sites like Twitter and other less popular social media, but the numbers are expected to grow.

Opinion 2010-7 finds that a judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge, but cautions: “As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Code of Judicial Conduct.”

Some very logical restrictions include that (1) a  judge may not give anyone legal advice through social media sites, (2) judges may not comment on matters pending before the judge, and (3) judges cannot communicate with an attorney appearing before the judge about the matter.  The advisory opinion goes on to say that a judge should disqualify herself from a proceeding if her social media relationship with a lawyer on that case creates bias or prejudice.  All very fair rules and it demonstrates the pervasive qualities of social media and that, like it or not, it is here to stay.

You can find the entire advisory opinion here.

The Second Amendment’s Arms get Beefier

Woo-hoo! Mr. Blasty gets to stay at home with me!

In a 5-4 decision issued today by Justice Samuel Alito in McDonald v. Chicago, the U.S. Supreme Court signaled the strengthening of the Second Amendment’s right to keep and bear arms with respect to a state law out of Illinois.  For the AP, Mark Sherman writes:

WASHINGTON — The Supreme Court held today that the Constitution’s Second Amendment restrains government’s ability to significantly limit “the right to keep and bear arms,” advancing a recent trend by the John Roberts-led bench to embrace gun rights.

By a narrow, 5-4 vote, the justices also signaled, however, that some limitations on the right could survive legal challenges.

Writing for the court in a case involving restrictive laws in Chicago and one of its suburbs, Justice Samuel Alito said that the Second Amendment right “applies equally to the federal government and the states.”

The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority.

Two years ago, the court declared that the Second Amendment protects an individual’s right to possess guns, at least for purposes of self-defense in the home.

That ruling applied only to federal laws. It struck down a ban on handguns and a trigger lock requirement for other guns in the District of Columbia, a federal city with a unique legal standing. At the same time, the court was careful not to cast doubt on other regulations of firearms here.

Gun rights proponents almost immediately filed a federal lawsuit challenging gun control laws in Chicago and its suburb of Oak Park, Ill., where handguns have been banned for nearly 30 years. The Brady Center to Prevent Gun Violence says those laws appear to be the last two remaining outright bans.

Lower federal courts upheld the two laws, noting that judges on those benches were bound by Supreme Court precedent and that it would be up to the high court justices to ultimately rule on the true reach of the Second Amendment.

The Supreme Court already has said that most of the guarantees in the Bill of Rights serve as a check on state and local, as well as federal, laws.

Monday’s decision did not explicitly strike down the Chicago area laws, ordering a federal appeals court to reconsider its ruling. But it left little doubt that they would eventually fall.

Still, Alito noted that the declaration that the Second Amendment is fully binding on states and cities “limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”

The Opinion effectively strikes down Chicago’s hand gun ban, however the case was remanded back to the Illinois’ federal court for further proceedings.  The five Justices concurring in the Opinion are Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas in addition to Alito.  The dissenting Justices were John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.  You can read their bios here.

If you have some time on your hands, you can read the Court’s entire 214 page opinion here.  The Court’s opinion is actually 51 pages, with the rest dedicated to a concurring opinion by Scalia, Thomas’ opinion concurring in part,  and dissenting opinions by Stevens and Breyer.

What do you think?  Should states be able to ban handgun possession by private citizens, or does the Second Amendment guarantee our right to keep guns?

Speeding tickets based on a guess are OK, Ohio Supreme Court says

If I guess 5 MPH over, you get a green frog. If I'm under, you get a $100 fine.

In a 5-1 decision, the Ohio Supreme Court upheld a conviction on a speeding ticket solely based on the arresting officer’s guess as to how fast the car was moving.  No radar.  No lasers.  Just a cop that said, “Man, it looks like he’s going 79 miles per hour in this 60 mile per hour zone.”  That’s right, 79.  Not 75 and certainly not 80.  Exactly 79.

Officer Christopher R. Santimarino testified that he had worked traffic enforcement since 1995 and received specialized training to visually estimate the speed of a vehicle.  This training means that Santimarino was able to correctly guess the speed of a vehicle within 4 miles per hour of its actual speed. It must have been plain luck that Santimarino did not write the driver a ticket for going 64 in a 60.

The real kick in this case is that Santimarino claimed that his radar gun clocked the driver at 82 miles per hour – but he could not produce a copy of his radar training certificate on the day of trial so that evidence was thrown out.  But the trial court allowed his guess to be considered as evidence and convicted the driver based on that alone.

From an academic standpoint, I understand what Justice Maureen O’Connor is saying in her opinion.  She’s saying that a properly trained police officer’s account of the event is admissible evidence so the jury should be allowed to hear the officer’s guess.  Maybe that is admissible persuasive evidence, but maybe a guess is not “sufficient evidence” to convict.

Ohio appellate courts were split on this “guess evidence.”  Six appellate districts have held that a guess is good enough and three districts have held that a guess is not enough to overcome the presumption of innocence and the burden of proof beyond a reasonable doubt for conviction.

The theory here is that machines, like radar guns, are exacting instruments, but humans can make mistakes – even the highly trained ones.  Just ask Major League umpire Jim Joyce who mistakenly called a Cleveland Indians runner safe at first base robbing the Detroit Tigers’ Armanda Galarraga of a perfect game this season.  Joyce has officiated major league baseball games for 21 years including All-Star games, division championships, league championships, and World Series games.  The Indians runner was out by a mile and Joyce called him safe based solely on his visual observation and standing just a few feet away.  He later acknowledged his mistake upon seeing the replay footage.  Human error.  Highly trained human error.

You can’t reverse a bad call like Joyce’s in baseball because it is accepted that human error is a part of the game.  But, is human error an accepted part of our justice system to the point where an erroneous allegation can result in a criminal conviction?  Our Nation’s “presumption of innocence” and the necessity for “proof beyond a reasonable doubt” does not sound like guess work to me.

You can read the decision in Barberton v. Jenney right here.

Filling the shoes: Judge Eric Brown to be sworn in as the Chief Justice on Monday, May 3, 2010

Franklin County Probate Court Judge Eric Brown will be sworn in as the Chief Justice of the Ohio Supreme Court on Monday.  This follows Brown’s appointment by Governor Strickland on April 14, 2010. 

The Ohio Supreme Court released the following news update yesterday:

The Honorable Eric Brown, Judge of the Franklin County Probate Court, will be sworn in on Monday as Chief Justice of the Supreme Court of Ohio at a public ceremony at 11:30 a.m. at the Ohio Statehouse.

The event will include the administration of the oath of office by Justice Paul E. Pfeifer and remarks by Judge Brown.

On April 14, Gov. Ted Strickland named Judge Brown to the vacancy on the Supreme Court following the late Chief Justice Thomas J. Moyer’s unexpected death on April 2.

What: Swearing-In Ceremony
When: 11:30 a.m., Monday, May 3, 2010
Where: Ohio Statehouse, North Hearing Room, Senate Annex

The ceremony will be broadcast live at www.sc.ohio.gov and on cable television via The Ohio Channel. Visit www.ohiochannel.org for channels and rebroadcast times.

Judge Brown is campaigning to retain this position in this fall’s election.  As referenced in our post on the passing of Chief Justice Tom Moyer, there are some very large shoes for Judge Brown to fill.  Here’s to the hope of Judge Brown maintaining order, justice, progress, and excellent administration as Moyer did.

How do you feel about the Governor’s appointment of Judge Brown?  Let us know in the comments.