News from Ohio
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Politeness doesn't constitute reasonable suspicion, court says
Court: Ohio Eighth District Court of Appeals
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| The Ohio Eighth District Court of Appeals has ruled that being polite does not constitute reasonable suspicion of criminal activity.[6]
In its Wednesday ruling, the Eighth District Court of Appeals threw out evidence seized by police officers in a December 12th, 2012 incident where motorist Joshua A. Fontaine was pulled over in Strongsville, Ohio for travelling 45 miles-per-hour in a 35 mile-per-hour zone. When Ohio State Highway patrolman Jared Haslar asked Fontaine for his license, registration and proof of insurance, he found him to be “overly polite.” Haslar observed that the cordial speeder was “breathing heavily at times while I was talking to him,” and that his body language seemed “unusual.”[7]
Fontaine’s cheerful disposition caused Haslar to suspect criminal activity, so he called a canine drug sniffing unit to inspect the vehicle while he was writing up a warning for speeding. When the canine unit arrived, Fontaine was ordered out of the car and searched for weapons. The drug-sniffing dogs then located a small bag of marijuana in Fontaine’s glove compartment, where police also found a .40 caliber Sig Sauer handgun in his possession. Fontaine was then arrested for possession of the drugs and firearm.[8]
At issue in the court’s decision was whether or not police “unreasonably prolonged the traffic stop to conduct the canine sniff,” and whether or not police had cause for a “reasonable suspicion of criminal activity.”[9] In her majority opinion, Judge Mary Boyle found that the policeman’s testimony revealed that detaining Fontaine for the canine sniff was unrelated to the traffic violation. In this case, the law would have required Haslar to have “a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop.”[9] Boyle wrote that no such evidence existed, stating that “overly polite” and “heavy breathing” are not sufficient indicators that give rise to a reasonable suspicion of criminal activity.”[9]
Thus, the court ruled that the evidence obtained from Fontaine during the incident in question constituted an unreasonable search and seizure under the Fourth Amendment of the United States Constitution, and subsequently overturned his conviction.[8] |
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News from Minnesota
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After decades, Catholic church must release names of accused clergy
Court: Minnesota Second Judicial District
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| Decades after reports of Catholic clergy members sexually abusing minors, a Minnesota court has required the publication of the names of all accused priests. In Ramsey County, Minnesota, a judge ruled the Archdiocese of St. Paul and Minneapolis must release names of 33 accused priests, while the Diocese of Winona must release the names of its 13 accused. Both lists are due by December 17.[10]
In addition to requiring the names of the accused, Judge John Van de North of the state’s Second Judicial District ruled Monday morning that the church must disclose each priest’s year of birth, when each priest was ordained, which parishes he served, his current ministerial status, his current residence and whether he is still alive. Archdiocese attorney Thomas Wieser said Monday that nine of the 33 accused are now dead.[10][11]
Attorneys and advocates for the abused children have been seeking the release of these names for almost three decades.[12]
Previously, a 2009 ruling allowed the archdiocese to keep its list of names secret. It was Archbishop John Nienstedt who last month, following new allegations of clergy sex abuse, created a task force to review the church’s response, and also pledged to publicize some of the priests’ names. Several church leaders abruptly resigned or were removed after the recent allegations, including Nienstedt’s vicar general Reverend Peter Laird. Archdiocese attorney Thomas Wieser offered 29 of the 33 names, but the court ruled the church must release all 33.[10]
Wieser said that allegations against three of the accused could not be substantiated and one was not on record as having served in the archdiocese. Because of this, the archdiocese opposed release of these four names. Van de North said that if the archdiocese provides a convincing explanation, the names could be withheld. However, Wieser said Nienstedt believed the issue had become a “distraction” and “wants the healing to begin.”[10][11]
The archdiocese released a statement of approval Monday night that read,
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The Archdiocese of St. Paul and Minneapolis is grateful for the approval of Ramsey County court to release information relating to priests who have been credibly accused of sexual abuse of minors in our archdiocese.[10][13]
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Van de North also ordered the release by January 6 of names added to the list since the original one was assembled in 2004. According to Wieser, there is only one such priest, Rev. Curtis Wehmeyer, who is serving a five-year prison sentence for child sexual abuse and child pornography.[11]
“The era of secrecy around the identities of those offenders is now drawing to and nearing an end,” St. Paul attorney Jeffrey Anderson said.[12] He added, “Survivors who suffered alone in silence, thinking they are the only ones abused now know they may not be alone.”[12]
According to an attorney for the Diocese of Winona, the diocese still opposes releasing its list.[11] |
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News from Oregon
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Oregon Supreme Court sides with unions in re-wording ballot title
Court: Oregon Supreme Court
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| A ballot measure's title was changed on November 27, but it took a ruling by the Oregon Supreme Court to do so. People on both sides of the issue agree that the ballot measure's wording is a big factor in its success.
The measure, called the Public Employee Choice Act, would make union dues optional for public employees. The original wording was as follows:
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Prohibits compulsory payment of union representation costs by public employees choosing not to join union.[14][13]
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The unions, along with others who oppose the measure, started a group called Keep Oregon Working. They sought to get the title changed to something that would, as spokesman Scott Moore put it, "help voters understand the basic unfairness of the measure."[15] The unions argued that they would have to pay the representation costs for anyone who decided not to pay their union dues. They also claim that the measure is trying to hurt the unions in order to serve corporate interests and decrease wages for workers.[16]
The court approved a new title, which reads:
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Allows non-union member public employees receiving required union representation to refuse to share representation costs.[14][13]
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The measure's sponsor, attorney Jill Gibson Odell was disappointed by the change. She said that the new title will "require a lot more work on my part to educate voters on what the measure does." She has presented the measure as a fairness issue and thinks the title should put more emphasis on the fact that it gives a choice to the workers. However, she still expects to get enough signatures to qualify for the 2014 ballot.[15] |
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News from Mississippi
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No same-sex divorce in Mississippi, chancery court rules
Court: Mississippi 3rd Chancery District
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| Mississippi cannot dissolve the marriages of gay couples who were wed in other states, a chancery court judge ruled on December 2—because those marriages were never recognized by state law to begin with.[17]
Lauren Beth Czekala-Chatham, a DeSoto County woman who was married in California in 2008, filed for divorce from her lesbian partner in September. But her request was denied, and it was not the first such situation to arise across a country divided on the topic of same-sex marriage.[17]
Right-to-divorce cases have surfaced in other states with constitutional bans on gay marriage. Just last month, the Texas Supreme Court heard arguments on the topic after an appeals court blocked a same-sex divorce. According to Assistant Attorney General James Blacklock, it is impossible for Texas to grant such a divorce because of the constitutional ban. "There's no marriage here, so there can be no divorce," he said in oral arguments.[17]
A similar case has arisen in Kentucky, where two women wed in Massachusetts are seeking to dissolve their marriage.[17]
Czekala-Chatham said in a phone interview that Judge Mitchell Lundy seemed sympathetic to the cause. Her lawyer added that the judge felt his hands were tied by state law, which in 1997 was amended to say that any same-sex marriage considered valid in another jurisdiction "does not constitute a legal or valid marriage in Mississippi."[17] The state constitution itself was changed in 2004 when 86 percent of Mississippi voters approved a constitutional amendment banning same-sex marriage.
Czekala-Chatham expressed disappointment with the Mississippi ruling but speculated that "either way [the judge] ruled, it was going to be appealed."[17] |
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News from Georgia
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Gross Negligence: Georgia Supreme Court sides with plaintiff in overturn of medical malpractice case
Court: Georgia Supreme Court
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| The Supreme Court of Georgia determined that a summary judgment issued by a lower court is invalid in a medical malpractice lawsuit started in 2008.
Dr. Price Paul Omondi had received Shaquille Johnson of Albany, Georgia, in the Phoebe Putney Memmorial Hospital for complaints of chest pains and difficulty breathing. Johnson, a fifteen year old boy, had undergone typical knee surgery procedures related to football injuries eight days prior.[18]
Dr. Omondi instructed regular tests and administered drugs to Johnson to treat Pleurisy after his visit. According to court documents, the chest pains had subsided. Dr. Omondi also prescribed pain medication to Johnson. Around two weeks after being discharged from the emergency room, Johnson was rushed to the hospital for difficulty breathing, where he died of bilateral pulmonary embolism.[18]
Johnson’s parents sued the doctor for medical malpractice. Georgia law insulates ER doctors from malpractice suits unless “gross negligence” can be proven. The Georgia Court of Appeals granted summary judgment in favor of the doctor, which means that the facts of the case clearly showed that the doctor was not in violation of the law. The Georgia Supreme Court tossed out the ruling of summary judgment in November. This will allow the case to go to jury trial. Presiding Justice P. Harris Hines issued the unanimous ruling overturning the lower court.[19]
This case calls into question the meaning of “gross” negligence, and the ramifications it will have on the meaning of the phrase as applied in Georgia is unclear. The courts will need to determine what is a hiccup in medicine and what is malpractice. Additionally, the standard of “gross” negligence will be called into question, and why it is applied to doctors instead of standard negligence. This case indicates how the standard may be interpreted in the future and indeed sets precedent, but is not a guarantee of a new trend in interpretation. Medical malpractice is a common issue given the life and death nature of medicine, and the emergency room in particular. Legislators often try to insulate doctors from suits to control medical costs, but opponents of such protections contend that liability is necessary to good service. |
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News from Connecticut
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Kennedy cousin granted new trial after ten years of appeals
Court: Tolland District Superior Court, Connecticut
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| Although Michael Skakel's appeal hearing took place in the Tolland Judicial District Superior Court in April 2013, and a ruling granting him a new trial was issued on October 23, 2013, it wasn’t until a bail hearing, the following November 21, that Skakel was freed from custody to await a new trial. Skakel has spent 11 years in jail, after a jury found him guilty of murdering his neighbor in 2002. Prior to this appeal, his attorneys had filed multiple appeals on his behalf which were denied.
The case stems from the 1975 murder of Martha Moxley, a Greenwich, Connecticut teenager. Skakel, who is related to the Kennedy family, was not arrested for the murder until 2000, 25 years after the crime took place. He was 39 at the time. The case was later transferred from juvenile court, and he was tried for the crime as an adult.[20] However, Moxley's murder occurred when both Skakel and Moxley were 15. Although Moxley was killed with a golf club which belonged to Skakel’s mother, there was very little forensic evidence actually linking Skakel to the crime.[21] However, he was found guilty following a jury trial in Stamford-Norwalk Judicial District Superior Court. He was sentenced to 20 years.
Judge Thomas Bishop held a hearing on Skakel's request for a new trial in April 2013. Bishop vacated Skakel's conviction on October 23, 2013. In a 136-page decision, Bishop granted Skakel a new trial, based upon ineffective assistance of counsel. The case was referred back to the Stamford-Norwalk Judicial District Superior Court to be retried. Judge Bishop wrote:
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. . .Although defense counsel’s errors of judgement and execution are not the fault of the state, a defendant’s constitutional right to adequate representation cannot be overshadowed by the inconvenience and financial and emotional cost of a new trial. To conclude otherwise would be to elevate expediency over the constitutional rights we cherish.[20][13]
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Judge Gary J. White ordered Skakel freed, on November 21, 2013, after setting bail at $1.2 million. Prosecutors had asked that bail be set at $2 million.[21]
Attorneys representing the state of Connecticut are appealing Bishop’s decision to grant Skakel a new trial. Skakel’s attorneys have also filed a cross-appeal requesting that their client’s previous claims made on appeal, but denied, now be considered by the court. In a prior appeal, Skakel’s attorneys argued his former attorney, Mickey Sherman, collected a flat fee for representing Skakel. However, instead of using the money he received to hire experts in the case, Sherman allegedly used the money to pay off his own back taxes. They also allege prosecutors violated Skakel’s due process rights by not turning over evidence which may have proven he was innocent of the crime.[21] |
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News from Utah
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Water source for nuclear power plant approved by court
Court: Utah Seventh Judicial District
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| A court in Utah has approved the water source for a nuclear power plant proposal. Blue Castle Holdings, the company that plans to build the state's first nuclear power plant, applied to divert the water for the plant from the Green River. Judge George M. Harmond of Utah's Seventh Judicial District Court approved the water use plan on November 27th.[22]
The evidence presented in court by Blue Castle convinced the court that the project "will not impair any existing water rights, nor will it interfere with a more beneficial use of water."[23] Judge Harmond found that legislation in Utah views power generation as beneficial as culinary, agricultural, or manufacturing use. It was also deemed that the volume of water use would not affect the affect the river in a negative way.
$17.5 million have already been invested in research for the project, including geographical, archaeological, and seismic studies. This research has not found any barriers to building the nuclear facility. Judge Harmond looked at this to weigh the physical feasibility of the nuclear facility. In the written decision, it is noted that the plant is still in the early stages of approval. Before development can begin, the project still needs the approval of an environmental studies and Nuclear Regulatory Commission. The court's ruling added another guideline for the plant--its water rights will be dependent on those of the Central Utah Project, which supplies water to 600,000 people in the region.[22]
Aaron Tilton, the CEO of Blue Castle Holdings explained how important this case ruling was in Utah, where water is a hot commodity:
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Without a source of water you don't have a project. The original approval by the State Water Engineer has now stood the test of an appeal where the relevant evidence was weighed. The ruling is a major de-risking milestone for the Blue Castle Project. It provides future utility participants greater certainty that the major asset, water for the deployment of a new nuclear plant, has been secured economically.[23][13]
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Power Engineering International, a magazine dedicated to power generation news, believes that the plant will have a positive economic influence on Utah. 1,000 workers are expected to be permanent, full-time staff at the plant, and more than 2,500 workers will be needed for the six-year construction of the facility. The plant could also increase Utah's generation of electricity by 50%. The article endorses clean nuclear energy because it "enable[s] the establishment of a multi-source energy portfolio with lower risk and higher cost predictability".[23] Opponents of the plant say that the State Engineer did not adequately weigh the potentially harmful risks.[22] |
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