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Earlier this year, the Finney Law Firm obtained a favorable settlement for five special needs children within the Kings Local School District who were severely mistreated by their teacher, and the firm continues to proudly represent its clients in other similar cases.  However, a decision by the Sixth Circuit Court of Appeals may have heightened the burden imposed on plaintiffs bringing substantive due process claims, which was one of several causes of action alleged in the Kings case.

Substantive due process, under the Fifth and Fourteenth Amendments, forbids government actors, including public school teachers, from intruding into the fundamental rights promised to individuals under the U.S. Constitution.  Relevant here are the “rights to be free from physical abuse at the hands of state actors, and to enjoy personal security and bodily integrity in an educational setting.” Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987).

In Domingo v. Kowalski, 810 F.3d 403 (6th Cir. 2016), the Court applied the “shocks the conscience” standard used in substantive due process cases in a way that may very well place an insurmountable obstacle in the way of students seeking to hold their teachers accountable for constitutional violations in the classroom.

The plaintiffs in Domingo, special needs students as young as six years old, brought a substantive due process suit against their teacher alleging that she:

abused her students during the 2003-2004 school year by, among other things, gagging one student with a bandana to stop him from spitting, strapping another to a toilet to keep her from falling from the toilet, and forcing yet another to sit with her pants down on a training toilet in full view of her classmates to assist her with toilet-training.

Despite finding that the teacher’s actions were improper, the Sixth Circuit refused to hold the teacher liable, reasoning that her conduct did not “shock the conscience.” In so finding, the Court borrowed the Third Circuit’s “shocks the conscience” test, which ultimately requires that the actor have malicious or sadistic intent, which the Domingo Court did not find.  Requiring such bad intent is an extremely high standard, making it challenging, at best, for many plaintiffs to meet even in cases as egregious as Domingo. In light of the conduct permitted in Domingo, it is difficult to imagine exactly what type of classroom conduct would shock the conscience.

Earlier this month, an Ohio inmate appealed a state Supreme Court decision holding that a second execution attempt would not violate the inmate’s constitutional rights.

Broom, a convicted murderer, was sentenced to death for his crimes.  In 2009, an attempt to execute him was unsuccessful after 18 stabs at finding a viable vein over a span of approximately two hours ultimately failed.  Broom argued all the way up to the Ohio Supreme Court that a second attempt to execute him would amount to cruel and unusual punishment and violate double jeopardy.  The Ohio Supreme Court rejected Broom’s arguments in a split decision.

Broom has appealed this ruling to the Supreme Court of the United States.  The last time the High Court addressed a death penalty case was in 2015 with its Glossip v. Gross decision.  In that case, the Court upheld a method of execution 5-4 over the challenge of several prisoners. The late Justice Scalia was in the majority.

We know from Glossip that at least four Justices have some concerns about the death penalty, with two of them calling for a re-examination of its constitutionality altogether.  As it takes the vote of only four Justices for the Court to hear a case, it is likely that certiorari will be granted on Broom’s appeal.  If the case is heard before Justice Scalia’s vacancy is filled, and the Justices vote as they did in Glossip, it will be 4-4, and the Ohio Supreme Court decision will stand.

However, filling the SCOTUS vacancy is proving to be a hot issue in this year’s presidential election.  This case may go either way, depending on the outcome and who is appointed by our next president to fill Justice Scalia’s seat.  Thus, it could, interestingly, be decided at the polls on November 8^th – yet another reason to get out and vote!

Deidre Shesgreen of USA Today has a great story up on the long battle that this firm’s attorneys waged on behalf of our client David Krikorian before the Federal Elections Commission.

It took the FEC five long years to act on a simple Complaint on which the facts were largely not in dispute, and they barely slapped the wrist of our former Congressman Jean Schmidt for taking an illegal gift that actually exceeded $650,000.

Our firm carefully researched the facts and the law, and prepared a complaint that irrefutably established the violations of Federal Election Law.

The gist of the story is that the FEC is hopelessly ineffectual, taking interminable amounts of time to decide simple issues and deadlocking on partisan lines over the most obvious violations of law.

Read the story here.

As we reported here, in late July, the Ohio Elections Commission made findings against Jonathan White from Dayton and his misnamed Cincinnatians for Jobs Now (misnamed because Mr. White testified that the group included no “Cincinnatians”).

Today, our client in that case, Christopher Smitherman reports, here, that the Ohio Elections Commisison has written to Ohio Attorney General Mike DeWine asking that he pursue enforcement of the subpoena against Mr. RIchardson, including “potential criminal penalties.”

You may read that letter here.

We wrote here about our important win against a state statute that harasses non-incumbent candidates for public office when they fail to place the word “for” between their name and the office sought.  It was a silly statute, and regulatory and enforcement scheme, until you realize how pernicious their work really was.

Read the Columbus Dispatch article .

Read the Court News Ohio article here.

This case is the third in a series of important wins against the statutes enforced by the Ohio Elections Commission that for years has resulted in endless harassment and intimidation of candidates for public office engaging in political speech.  Two of these cases went all the way to the U.S. Supreme Court where we attained a reversal of the 6th Circuit and District Court decisions..

The OEC has basically hung out the “out of business” sign on more than 3/4 of its work regulating elections thanks to these important cases.