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Are cruiser cam videos public records in Ohio?

Author By Christopher P. FinneyPosted on

We are used to seeing cruiser camera videos of DUI arrests, and other police activities on the evening news.  This is so, at least in part, because Ohio public records law provides that these videos are public records.

But as we reported here, at least Ohio’s 12th District Court of Appeals ruled in May of last year that these videos are not public records under Ohio law, meaning citizens and news organizations have no right to obtain them.  This conflicts with rulings of the Ohio Supreme Court and other Ohio appellate districts.

With the protection of the 12th District opinion, the Ohio State Highway Patrol is apparently now broadly taking the position that cruiser camera videos are not public records.  Today’s Enquirer reports here that the newspaper has filed a direct mandamus action before the Ohio Supreme Court to force a ruling on the issue.

The Enquirer is seeking the cruiser cam video, the 911 tape, and the police report of an incident in January of this year involving a police chase from Warren County into Hamilton County.  The Ohio Highway Patrol apparently did not cite a legal basis for the denial of the records, as the law requires, but rather simply said it was acting at the request of the Prosecutor, which is not an exception to production under the law.

We anxiously await a clear pronouncement from the Ohio Supreme Court on the topic.  The last public records decision we received from the Ohio Supreme Court took 11 ½ months after full briefing for them to make a decision, so it may be a while.

 

Redistricting battle before SCOTUS

Author By Christopher P. FinneyPosted on

Can the voters of a State take from the legislature the prerogative to draw lines of legislative districts and place it in the hands of an independent redistricting commission?

That is the issue squarely  before the United States Supreme Court in Arizona State Legislature v. Arizona Redistricting Commission, heard at oral argument on March 2.

The United States Constitution at Article 1 Section 4 seems to place the responsibility for setting the “Times., Places and Manner” of elections in the hands of the several legislatures, but the question is whether the electors of a State can modify that right by ballot initiative.

It’s a simple but important question.  The answer should be in hand no later than the end of May.

Another Finney Law Firm case accepted at SCOTUS? Not quite.

Author By Christopher P. FinneyPosted on

It is a Herculean accomplishment for an appellate attorney to have a case accepted at the United States Supreme Court.  After all, they take only about 75 cases per cycle out of more than 10,000 petitions requesting that they take a case.  That’s a 99.3% rejection rate.  Most attorneys go through their entire career never asking to have a case accepted at the Supreme Court.  A tiny fraction of those applying ever have one accepted.

Thus, lightening struck two times in the first year of the Finney Law Firm when the Supreme Court accepted and reversed two cases from the 6th Circuit Court of Appeals for our clients.

As we addressed here, this year the Finney Law Firm had another petition before the U.S. Supreme Court, a First Amendment case addressing yard sign regulation in the City of Garfield Heights, Ohio.  That case has virtually identical legal issues to another case before the Supreme Court, Reed v. Town of Gilbert that was heard on oral argument on January 12th of this year.  A decision in the Reed case is expected before the end of April.  Thus, we wrote in our certiorari petition to the Supreme Court that the Court should dispose of the Garfield Heights case in the same manner as the Reed case.

Friday, that petition was considered in conference by the US  Supreme Court.  And … all we can say with certainty is they did not deny the petition, as the Court does with 99% of the petitions before it.  Rather, it appears to us at present that they agree with our argument that the case mirrors the Reed case, and is holding our petition pending disposition of that case.

If so, it’s not quite like having another oral argument at the Supreme Court as we did just after Easter of last year, but it is still an utterly remarkable accomplishment.

Congratulations to attorney Curt Hartman and our Public Interest law team on this great achievement, three times in two years!

 

6th Circuit rules on defamation portion of Susan B. Anthony List case

Author By Christopher P. FinneyPosted on

In yet another important First Amendment decision emanating from the case of Susan B. Anthony List v. Driehaus, the 6th Circuit Court of Appeals today upheld the decision of the trial court granting summary judgment to the Susan B. Anthony List on the defamation claim portion of the litigation.  That decision is here.

As background, the matter commenced with an administrative proceeding before the Ohio Elections Commission, where Congressional Candidate Steve Driehaus claimed that the Susan B. Anthony List made certain false statements in the 2010 Congressional election, namely that Driehaus supported legislation that included the spending of taxpayer monies for abortion.

The Susan B. Anthony List then proceeded into Federal Court, claiming that prosecution under Ohio’s “False Claims” statute violated its First and Fourteenth amendment rights.  That matter eventually ascended to the United States Supreme Court on standing grounds, wherein Plaintiffs prevailed 9-0 and the matter is now proceeding before the 6th Circuit on appeal on the substantive issues.

But Driehaus filed a counterclaim in the Federal action, claiming that the statements of the Susan B. Anthony List defamed him. District Court Judge Timothy Black initially sided with Driehaus in allowing the defamation claim to proceed to trial, but later reversed himself and dismissed the case on Summary Judgment initiated by Susan B. Anthony List.

That ruling on the Summary Judgment was on appeal before the 6th Circuit and is the subject of today’s opinion wherein the 6th Circuit sustained the ruling, but on alternate grounds.

It is an important First Amendment and defamation law pronouncement from the 6th Circuit.

Finney Law Firm becomes corporate sponsor of Empower U

Author By Christopher P. FinneyPosted on

As part of our commitment to “Make a Difference” for our community, Finney Law Firm has become a corporate sponsor of the Empower U adult education series.

Empower U has existed for six years, and puts out some of the very best information to citizens who want to be informed in their civic and personal affairs.  The classes are free to attendees.

Visit their web site and course offerings here.

Net Investment Income Tax (NIIT)

Author By Isaac T. HeintzPosted on

High-income taxpayers need to be aware of the Net Investment Income Tax (NIIT).  The NIIT is a tax passed in 2010 to help pay for the Affordable Care Act, a.k.a. ObamaCare.  Below is a summary of the NIIT, and a few planning opportunities to consider to avoid/minimize NIIT.

The NIIT applies at a rate of 3.8% to certain net investment income of individuals, estates, and trusts that have income above certain thresholds.  The NIIT went into effect for tax years beginning on or after January 1, 2013.

Individuals will owe the tax if they have Net Investment Income and also have modified adjusted gross income over the following thresholds:

Filing Status Threshold Amount
Married filing jointly $250,000
Married filing separately $125,000
Single $200,000
Head of household (with qualifying person) $200,000
Qualifying widow(er) with dependent child $250,000

 

At this time, the threshold amounts are not indexed for inflation.

In general, estates and trusts are subject to the NIIT if they have undistributed Net Investment Income and also have adjusted gross income over the dollar amount at which the highest tax bracket for an estate or trust begins (for tax year 2014, this threshold amount is $12,150).

In general, investment income includes, but is not limited to: interest, dividends, capital gains, rental and royalty income, non-qualified annuities, income from businesses involved in trading of financial instruments or commodities, and businesses that are passive activities to the taxpayer (meaning the taxpayer does not “materially participate” in the business).  To calculate your Net Investment Income, your investment income is reduced by certain expenses properly allocable to the income. 

To the extent that gains are not otherwise offset by capital losses, the following gains are examples of items taken into account in computing Net Investment Income: (i) gains from the sale of stocks, bonds, and mutual funds; (ii) capital gain distributions from mutual funds; (iii) gain from the sale of investment real estate (including gain from the sale of a second home that is not a primary residence); and (iv) gains from the sale of interests in partnerships and S corporations (to the extent the partner or shareholder was a passive owner). 

The NIIT does not apply to any amount of gain on the sale of a personal residence that is excluded from gross income for regular income tax purposes.

In order to arrive at Net Investment Income, Gross Investment Income (items described in items 7-11 above) is reduced by deductions that are properly allocable to items of Gross Investment Income.  Examples of deductions, a portion of which may be properly allocable to Gross Investment Income, include investment interest expense, investment advisory and brokerage fees, expenses related to rental and royalty income, tax preparation fees, fiduciary expenses (in the case of an estate or trust) and state and local income taxes.

Some planning opportunities to consider to help avoid/minimize the NIIT include: (i) receiving the purchase price from a sale of your closely held business or real estate over more than one year; (ii) generating losses to offset gains; (iii) renting property to your business; (iv) lending money to your business; and (v) take an active role in your closely held business.

Medical Malpractice and the Discovery Rule

Author By Bradley M. GibsonPosted on

The statute of limitations for a medical malpractice claim is one year. In other words, you will lose your right to seek compensation for medical malpractice if you fail to file your claim within the one-year period. While this is simple enough on its face, the right to recover on a medical malpractice claim often turns on precisely when that one-year statute begins to run. A recent case out of Ohio’s Fifth District Court of Appeals explains how Ohio courts determine this important date.

In Kelly v. Aultman Physician Center, Jaquayla Kelly sued a physician group for medical malpractice claiming that she suffered complications arising from the physicians’ negligent treatment. The physicians had placed a Mirena intrauterine device (“IUD”) in Kelly’s uterus for contraceptive purposes in June of 2008. Over the next 18 months, Kelly intermittently returned to the physicians complaining of abdominal pain. Eventually, in April of 2010, it was discovered that the IUD had pierced Kelly’s uterine cavity. As a result, Kelly underwent a total abdominal hysterectomy, removal of both ovaries and fallopian tubes, bilateral gutter abscess removal, appendectomy, and removal of multiple pelvic abscesses. Kelly then developed septic shock and multi-organ system failures, ultimately requiring her to spend four days on a ventilator in the intensive care unit and another two weeks in the hospital before she recovered.
In September of 2012, Kelly saw a legal advertisement on television advising viewers of complications related to the use of the Mirena IUD device. Kelly sought legal advice based on the commercial and her lawyers were able to obtain medical records documenting the alleged malpractice in early 2013. Kelly then filed her medical malpractice claim in March of 2013.

The trial court dismissed Kelly’s medical malpractice claim, finding that she filed the claim beyond the one-year statute of limitations period under R.C. 2305.113. On appeal, Kelly argued that the one-year statute of limitations did not begin to run until she acquired medical records containing evidence of the malpractice in early 2013. Thus, she claimed that the statute had not elapsed when she filed the claim in March of 2013.

The Fifth District Court of Appeals noted that the one-year period commences to run (a) when the patient discovers, or should have discovered, the injury, or (b) when the physician-patient relationship for that condition terminates, whichever occurs later. The appellate court further noted that the Ohio Supreme Court previously held that under the discovery rule, a “cognizable event” triggers the running of the statutory time. A “cognizable event” is something that should alert a reasonable patient that an improper medical procedure, treatment or diagnosis has taken place. Constructive knowledge of facts, rather than actual knowledge of their significance, is enough to start the statute running. The Fifth District explained that “the statute of limitations in a medical malpractice case will be triggered even if a potential plaintiff has not uncovered all relevant facts to constitute her cause of action to trigger the running of the statute of limitations. Thus, the occurrence of a cognizable event makes it incumbent upon that individual to investigate his or her case completely.”

In applying this analysis to Kelly’s case, the court determined that the discovery of the complications caused by the IUD and the resulting major surgery in April of 2010 was the cognizable event that triggered the statute of limitations. According to the court, the events in April 2010, “should have given Kelly reason to believe or at least investigate her claim that malpractice may have been committed in the placement of the IUD or during her treatment of her complaints with the IUD.” Because Kelly filed her medical malpractice claim in 2013 (after the one-year statute expired in April 2011) the Fifth District affirmed the trial court’s dismissal of Kelly’s medical malpractice claim.

This case highlights the grave consequences that may befall a patient who delays pursuing a medical malpractice claim. A person injured by a physician’s malpractice must commence his or her lawsuit within one year of the date that person discovered, or should have discovered reason to believe that malpractice may have been committed. If you believe you may have suffered an injury as a result of medical malpractice it is imperative that you seek representation immediately. The process of obtaining medical records and an independent review of the records takes time, and generally must be done before a lawsuit can be commenced. Our litigation team can obtain the necessary information to evaluate your case, and will diligently seek compensation from negligent parties. Please do not hesitate to contact us if you have reason to believe you have suffered from medical malpractice.

How the snail darter could undermine Obamacare

Author By Finney Law FirmPosted on

At the Volokh Conspiracy, Jonathan Adler draws a parallel between the activist litigation challenge to the Tellico Dam project, Tennessee Valley Authority v. Hill, insisting on a strict reading of the Endangered Species Act, and the activist litigation challenge to Obamacare, King v. Burwell, insisting on a strict reading of the ACA’s provision for state exchanges.

Adler points to the TVA decision to suggest that Court will apply a strict reading to Obamacare and undo the federal exchange that has taken the place of state exchanges in states that have not created their own. Read Adler’s analysis here.

In landmark decision that could clip the wings of regulators, SCOTUS holds that licensing boards may be subject to antitrust suits

Author By Christopher P. FinneyPosted on

In a decision that could have far-reaching implications against over-reach by state licensing Boards, today the United States Supreme Court ruled that under certain circumstances their actions could constitute violations of the Sherman Anti-Trust Act.

The issue in the case of North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13-534, addressed the attempt by the Appellant to punish the provision of teeth whitening services by non-dentists.  

SCOTUS ruled that the facts that (i) the eight-member licensing board consisted of six dentists who were selected by the state’s licensed dentists and (ii) the panel operated largely outside of supervision by the State weighed in favor of denying the panel members the same immunity granted to the State under the Sherman Anti-Trust Act.

Given that licensing panels exist, at least in part, for the purpose of limiting competition in the provision of services offered by various professions, to the extent that they have the forgoing characteristic, both public and private Sherman Anti-Trust actions may lie.

Read about the decision here in the New York Times.

Read the decision here.

Is a fish a “tangible object” for purposes of the Sarbanes Oxley Act?

Author By Christopher P. FinneyPosted on

When the drafters of the Sarbanes Oxley Act made it a crime punishable for up to 20 years in prison to destroy “any record, document or tangible object” in order to obstruct an investigation, did they intend to address the throwing overboard of fish?  

That was the issue of sufficient importance to be decided today by the Supreme Court in Yates v. United States.

(The fish in question were evidence of a crime of catching a fish too short.)

In that action the Defendant/Appellant argued that the statutory prohibition is  “a documents offense” and that its reference to “tangible object[s]” means “computer hard drives, logbooks, [and] things of that nature,” not fish.

In other words, the question was whether the Court could apply a common sense interpretation of the statute rather than a broad dictionary definition of “tangible objects,” because fish certain are “tangible objects” by that term’s ordinary meaning.

In a 5-4 majority a common sense reading of the statute prevailed, and the criminal charges were thrown out.  Fish, it seems, are not “tangible objects.” 

Read the whole article here in the New York Times.

Read the decision here.

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