Cleveland Law Library Weblog

The U.S. Constitution is Now an iPhone/iPod Touch App

The Legal Current reports that the U.S. Constitution is now available as an iPhone/iPod Touch application created by West Publishing Company.  An article from the St. Paul Pioneer Press indicates that West has been publishing a pocket Constitution since Chief Justice Burger asked West to do it in the 1980's.  Click here to watch a YouTube video about the new app. from West's Director of New Product Development.

Officer Who Personally Observes Traffic Violation Has Probable Cause for Stop Outside His Jurisdiction

In State v. Jones, Slip Opinion No. 2009-Ohio-316, the Supreme Court of Ohio held that a police officer's extra-territorial stop for a traffic infraction does not violate the Fourth Amendment, thereby invoking the exclusionary rule.  The court relied upon its opinion in State v. Weideman (2002), 94 Ohio St.3d 501 and the recent United States Supreme Court case, Virginia v. Moore (2008), ____ U.S. _____, 128 S.Ct. 1598, 170 L.Ed.2d 559, to support its holding.  The Cout held that an extra-territorial stop by a law-enforcement officer is not per se unreasonable under the Fourth Amendment when the officer personally observes the traffic violation upon which the stop is made.  Although the stop may be unlawful under R.C. 2935.03, the court held that this does not rise to a constitutional violation, thereby resulting in a suppression of evidence. The Supreme Court of Ohio pointed out that the Ohio Legislature did not provide a remedy for a violation of R.C. 2935.03 and stated it is not the court's place to rectify a possible legislative oversight by applying the exclusionary rule for a violation.

U.S. Supreme Court Holds Exclusionary Rule Does Not Apply to Invalid Arrest

In Herring v. United States, No. 07-513, the United States Supreme Court upheld the United States Court of Appeals for the Eleventh Circuit holding that the exclusionary rule does not bar evidence seized after an arrest based upon a recalled arrest warrant.  The warrant had been recalled by the court, but the withdrawal was never entered into the police computer system.  By the time the police realized the mistake, the arrest and seizure of drugs and a weapon had already been made.  In a 5-4 decision, the Court held that police mistakes leading to an unlawful search, which are the results of isolated negligence rather than systemic error or reckless disregard of constitutional requirements, do not require the application of the exclusionary doctrine.

Akron's Speeding Laws Are Valid Under Home Rule

Yesterday, the Ohio Supreme Court provided guidance to a Cleveland federal district court that certified a question concerning the legality and enforceaiblity of Akron's speeding ordinance. In Mendenhall v. Akron, 2008-Ohio-270, the Ohio Supreme Court held that Akron has the authority under the "home rule" provisions of Ohio's Constitution (Section 3, Article XVIII) to create an automated system for traffic enforcement that does not conflict with state law. The Court further held that Akron's speeding ordinance is a valid exercise of its police powers. The Court's recitation of the certified question indicates that the federal court would apply the same reasoning to issues regarding red-light cameras. However, the Court did not address other potential challenges to the legality of either speeding red light camera ordinances. The dockets and court documents in the underlying federal cases can be found at PACER, using case nos. 5:06 CV 0139 and 5:06 CV 0154. Click here to read the Supreme Court's Press Release.

Ohio Pit Bull Laws Ruled Constitutional

The Ohio Supreme Court issued an opinion in Toledo v. Tellings, 2007-Ohio-3724 which reversed a Sixth District Court of Appeals decision and upheld the constitutionality of 2 state statutes and a Toledo, Ohio ordinance which regulate the ownership of pitbulls. Specifically, the Court held that the state of Ohio, under ORC 955.22 (defining dangerous and vicious dogs) and 955.11(A)(4)(a)(iii), as well as the City of Toledo, have legitimate interests in protecting citizens from dangers associated with pitbulls. The Toledo ordinance under which Tellings was originally cited limited ownership of dogs identified as pit bulls to one per household and required owners to muzzle and confine their animals when off their owner's premises. After the Trial Court conducted an evidentiary hearing and ruled that the aforementioned laws were a valid exercise of police power, Tellings appealed, where he successfully argued that the laws were unconstitutionally vague and denied pit bull owners procedural due process.

Statute Prohibiting Funeral Protests is Constitutional

The federal court, Northern District of Ohio, upheld the portion of 126th General Assembly Am. H.B. 484 , which prohibits picketing and protesting within 300 feet of a funeral service.  The court struck down the portion of the statute which created a 300 foot buffer zone around funeral processions as unconstitutionally broad. Phelps-Roper v. Taft (Mar. 23, 2006), ND Ohio Case No. 06-CV-2038. To read the opinion Download phelpsroper_v. Taft.pdf . See Church Group to Picket Ohio Soldier's Funeral by Carrie Spencer Ghose, Associated Press, The Plain Dealer, Mar. 25, 2007; Judge Upholds Funeral-Protest Ban by Mike Tobin, The Plain Dealer, Mar. 24, 2007. 

Republican Legislators Sue to Overturn Strickland Veto

Senate President Bill Harris and House Speaker Jon Husted filed a mandamus action with the Ohio Supreme Court in an attempt to overturn Strickland's veto of  Am. Sub. SB 117.  SB 117 limits noneconomic damages in Consumer Sales Practices Act cases, and prohibits nuisance lawsuits against manufacturers, such as lead paint manufacturers.  Governor Taft allowed the bill to go into law without signing it.  Incoming Governor Strickland believes he was able to veto the bill, because the 10 day time limit provided in the Ohio Constitution had not lapsed.  He believes the count began the day after the governor received the bill, and Sundays are not counted in the 10 days.   See our prior post:  Incoming Governor Vetoes CSPA Limits.

The lawsuit alleges that the 10 day period should be counted differently, and Strickland was not within the 10 days. The complaint points to Ohio Constitution, Article II, Section 16, which states that if the general assembly adjourns, the governor has 10 days from the date of adjournment to veto the bill.  The relators believe that Sundays are counted in the 10 days.   The suit also asserts that Secretary of State Brunner should not have forwarded the bill to Strickland, after the previous Secretary of State had already accepted it from Taft and signed it.   According to the complaint, the Secretary of State has no power to determine the validity of laws, and did not act in accordance with her constitutional duties. The complaint can be viewed at the Ohio Supreme Court's docket page for State ex rel. The Ohio General Assembly et al. v. Jennifer Brunner, Secretary of State of Ohio , Case No. 2007-0209.   

Source:  Lawsuit Accuses Brunner in Bill's Veto by Reginald Fields, The Plain Dealer, Feb. 3, 2007. 

Cincinnati Panhandler Registration Ordinance Unconstitutional

A Cincinnati ordinance requiring panhandlers to obtain licenses was unconstitutional because it did not provide for a prompt appeal of a denial or revocation of a panhandling license.  The ordinance merely stated that the Office of Administrative Hearings shall hear the appeal "within a reasonable time as set forth within its regulations".  Provisions prohibiting verbal solicitation in certain areas were upheld as constitutional.  State v. Dean (Jan. 12, 2007), Hamilton App. No. C-050871, 2007-Ohio-91.  Source:  Cincinnati panhandling registration ordinance in part unconstitutional by Chuck Kallendorf, Cincinnati Law Library Blog, Jan. 18, 2007. 

A similar suit filed in the federal court, Southern District of Ohio, remains pending.  That suit,  Henry v. Cincinnati, S.D. Ohio Case No. 1:03-cv-00509-SJD, is discussed in our prior post: Licenses for Panhandlers: Crime Deterrent or Free Speech Violation?.  Also, see our prior post concerning Cleveland's aggressive solicitation ordinances:  Council Renews Aggressive Panhandling Ordinance, Tweaks Language, Read the New Cleveland Panhandling Ordinance.

Sixth Circuit Upholds Cleveland Noise Ordinance

In Gaughan v. City of Cleveland, 06-3010 (6th Cir., Jan. 5, 2007), the court denied  abortion protestors' constitutional challenge to a Cleveland noise ordinance,  Cleveland Codified Ordinances 683.01 and 605.01.  The protestors were loudly playing a recording of a 911 tape outside an abortion clinic.  The court found the noise ordinances have a legitimate purpose, are content-neutral, and were not overbroad or vague as applied.  Source: Sixth Circuit Rejects Noise Ordinance Challenge from Abortion Protester by Robert Loblaw, Decision of the Day Blog, 1-6-2007.  See our prior post:  Sixth Circuit to Hear Constitutional Challenge to Cleveland Noise Ordinance.

Is Summary Judgment Unconstitutional?

University of Cincinnati Law Professor Suja Thomas asserts that summary judgment is unconstitutional, and the U.S. Supreme Court has never truly determined whether the procedural device is constitutional.  While the Court has considered whether jnov and directed verdicts are constitutional under the Seventh Amendment, the Court has never actually considered the same for summary judgments.  The beginning of the article acknowledges the importance of summary judgment in today's judicial system, noting that before the civil rules (1938), nearly 20% of federal cases went to trial, while less than 2% went to trial in 2003.  The article is: "Why Summary Judgment is Unconstitutional", Suja A. Thomas, 93 Virginia Law Review, Spring 2007, and is available for free at the Social Science Research Network.

Thanks to Jack Sargent for alerting us to this thought provoking article.