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8th Circuit decision in Arneson is out — squarely addresses each and every issue outstanding in SBA List

Author By Christopher P. FinneyPosted on

The timing could not have been better.  On the eve of our Motions for Summary Judgment hearing before Federal District Court Judge Timothy Black on the SBA List case, the 8th Circuit Court of Appeals today released its decision on remarkably parallel litigation challenging a similar statute in Minnesota.

It addresses and dispenses with every single defense raised by the Ohio Elections Commission in the Ohio case, and a few more.

It is exceedingly well-reasoned and well-written.  This Court of Appeals clearly understands the First Amendment.

Read it here.

 

SBA List case: Oral argument on cross Motions for Summary Judgment this Thursday

Author By Christopher P. FinneyPosted on

One would expect that after a 9-0 victory at the US Supreme Court, a case finally would be “over,” but that’s not always the case.

In SBA List and COAST v. Ohio Elections Commission such is the posture of the litigation.  The Supreme Court ruling merely ended the procedural skirmish over the question of whether the Plaintiffs has standing to even be in court to challenge the law that criminalizes political speech in Ohio.  After four years working through the Courts, that question finally was answered in the affirmative.

Now we are back before the Federal District Court judge, Timothy Black on the merits of the case — is Ohio’s “False Claims” statute constitutional.  Our client, COAST, along with the Susan B. Anthony List, maintains that it is not.

That topic quickly has become the subject of cross motions for summary judgment.  The matter has been fully briefed and is now the subject of oral argument before Judge Black this Thursday, September 4th at 2:30 PM on both those MSJ motions, and alternately Plaintiff’s motion for Preliminary Injunction.

It is our hope and expectation that Judge Black will rule on one or both of those motions quickly so that all Ohio candidates and the public can proceed in the Fall elections knowing if they are subject to Ohio’s statute regulating electoral conduct.

We will keep you advised as to progress.

A reminder: Electronic signatures have same legal effect as inked documents

Author By Christopher P. FinneyPosted on

It’s old news, as the law was enacted in 2000, but we are asked this from time to time: Are electronic signatures just as enforceable as physical or “inked” signatures?

Yes.  The Electronic Signatures in Global and National Commerce Act (ESIGN) passed in 2000 specifically proves that a contract or signature “may not be denied legal effect, validity, or enforceability solely because it is in electronic form.”

SignatureMany of those engaging in commerce of all sorts are commonly using electronic signatures today, including on real estate contracts and other documents.  Documents that require an “acknowledgement” or “notary seal” still must be signed in-person, but otherwise, the act makes the e-signature just as effective.

Because of proof of signature, there may still be instances in which we want personal signatures, but for many of not most commercial arrangements, e-signatures suffice.

 

First District Court of Appeals takes up the “Firefighter’s Rule”  

Author By Finney Law FirmPosted on

In 2008 two firefighters perished while answering an emergency call to a house fire in Colerain Township.

Investigators determined the source of the fire was a fan used in a basement orchid cultivation room. In another part of the basement was a marijuana cultivation room. The family of one of the firefighters brought a wrongful death suit against the homeowner alleging that the orchids were being used as a subterfuge to camouflage the illegal marijuana operation. The suit also included claims against the manufacturers of the radio and other equipment used by the firefighters.

In Ohio, property owners are generally immune from liability for such suits. The “Firefighter’s Rule” is a judicial rule that provides a general immunity to property owners from liability to injuries or death to firefighters incurred in the call of duty.

Imagine if a property owner was afraid to call 911 to report a fire for fear of being sued if the firefighters were injured. As a society, we want to encourage people to report fires and utilize our emergency services to combat fire. Indeed, we spend a great deal of money to provide those services and make sure that firefighters are prepared to fight fires. We teach our children to dial 911.

Firefighting is a dangerous job; that danger is accounted for via financial compensation and benefits, as well as life insurance for the firefighter’s family.

The Firefighter’s Rule provides four exceptions to the broad immunity for property owners: (1) where the injury resulted from the owner’s willful or wanton misconduct or affirmative negligent act; (2) where the injury is a result of a hidden trap on the premises; (3) where the injury resulted from the owner’s violation of a duty imposed by law enacted for the benefit of firefighters; or (4) where the owner knew of the firefighter’s presence on the premises but failed to warn the firefighter of a known, hidden danger on the premises. Hack v. Gillespie, 74 Ohio St.3d 362, 365, 658 N.E.2d 1046, 1049 (Ohio, 1996) quoting Scheurer v. Trustees of Open Bible Church (1963), 175 Ohio St. 163, 23 O.O.2d 453, 192 N.E.2d 38.

In this case, the firefighter’s family alleged that the marijuana growing constituted willful or wanton misconduct, but failed to establish (a) that cultivating marijuana is per se willful or wanton conduct or (b) that the marijuana cultivation caused the firefighter’s death.

In reviewing the facts of the case and the above exceptions to the Firefighter’s Rule, the trial court found that none of the exceptions applied and granted summary judgment to the homeowners.

While the trial court’s decision may seem like harsh justice, the Firefighter’s Rule represents a public policy choice that recognizes that Firefighters have dangerous jobs, and as such, the cost of that risk is spread across the entire community and in effect “prepaid” in the form of salaries and benefits, rather than assessed against individual property owners via lawsuits after the fact.

The case is currently before the Hamilton County Court of Appeals, Case No. C 1400274.

 

 

Criminal trial of NAACP President is Tuesday at 10:30 AM before Judge Heather Russell

Author By Christopher P. FinneyPosted on

In March of this year, the new NAACP President Ishton Morton was charged with criminal assault over an incident at the NAACP headquarters in Bond Hill that occurred in January.

The trial on those charges will proceed Tuesday before Judge Heather Russell at 10:30 AM.

It is our expectation to show not only that the charges are entirely unfounded, but that the police and prosecutor’s office failed to properly investigate the “crime” or to pursue the charges with any degree of responsibility.

We are proud to act as counsel to President Morton in these proceedings.

Constitutional battle moves before Judge Black this Thursday at 2:30 PM

Author By Christopher P. FinneyPosted on

Just shy of four years since this legal battle began, lawyers from Cincinnati, Columbus and Washington, D.C. will descend upon the courtroom of Judge Timothy Black to argue cross motions for summary judgment in SBA List and COAST v. Ohio Elections Commission.  The Finney Law Firm represents COAST in this action.

Until June of this year, the parties were wrestling solely over the issue of whether the plaintiffs even had standing to sue.  That issue, and a companion case from 2011 involving the same client group, were resolved in June of this year by the US Supreme Court in two 9-0 decisions in our clients’ favor.  You may read about those victories here.

Those decisions thus returned the cases back to the District Court for either trial or summary adjudication.  The first of those to advance is before Judge Timothy Black, and this Thursday, he holds a hearing on cross-motions for summary judgment filed by both Plaintiffs and the Defendants.

The Plaintiffs’ motions were filed in anticipation that the unconstitutional law — making criminal claimed false political statements and empowering an Ohio “Ministry of Truth” (consisting of non-judges and non-attorneys) to decide truth and falsity — will be enjoined before this fall’s election

Thus, we expect — or are at least hopeful for — quick resolution of the motions by Judge Black.

Christopher P. Finney has been invited to speak at the Potter Stewart American Inn of Court

Author By Christopher P. FinneyPosted on

Christopher P. Finney has been invited to speak at the Potter Stewart American Inn of Court on September 16 along with Terrance Nestor, acting City Solicitor of Cincinnati.

The group is an organization of attorneys designed to improve the skills, professionalism and ethics of the bench and bar.

The topic will be fee shifting in federal and state litigation.

Finney Law Firm retained to sue City of Maple Heights over refusal to place Charter Amendment on the ballot

Author By Christopher P. FinneyPosted on

A citizens group in Maple Heights, Ohio organized this year to place on the ballot a Charter Amendment to ban red light and speeding cameras in their City.  In doing so, they sought the assistance of the Finney Law Firm to draft their petition and in early August submitted the petitions with the requisite number of signatures to the City Council.  The right to place the issue on the ballot is set forth in the Ohio Constitution.

The City Law Director responded to that petition and a subsequent taxpayer demand letter from the petitioners by refusing to either place the issue on the ballot, or even submit the question to a vote of the Council.  Indeed, his response letter was dripping with condescension aimed towards these citizens simply exercising their rights under the Ohio Constitution.

As a result, our firm was retained and this past week we filed suit, requesting a writ of mandamus, with the Ohio Supreme Court.  Copies of the Complaint and Memorandum in Support are linked here and here.

We will keep our readers advised as to the outcome of that litigation.

 

 

Understanding the role of Power of Attorney in your estate planning

Author By Isaac T. HeintzPosted on

An important component of almost any estate planning is a general durable Power of Attorney for financial matters.  Such a Power of Attorney allows the person granting the power (the “Principal”) to designate an attorney-in-fact to perform specific duties as enumerated in the document.  Unless a Limited Power of Attorney is being granted, the attorney-in-fact is typically granted full power, authority and discretion to do all things required or permitted to be done in carrying out the purposes for which the Power of Attorney is granted as fully as the Principal could do if personally present.

Typically, some of the specific powers granted to the attorney-in-fact include, but are not limited to, the authority to sell, exchange, lease and otherwise dispose of the Principal’s property, to execute and deliver deeds, leases, assignments and other instruments, to sign and perform contracts and written instruments, to endorse and receive payment for checks payable to the Principal, to sign and deliver checks on accounts of the Principal, to withdraw from and deposit to the Principal’s accounts, and to add property to a revocable trust that has been created or may be created by the Principal.

As an attorney-in-fact is granted broad powers to act on behalf of the Principal, it is imperative that the attorney-in-fact understands that he or she is acting as the agent of the Principal in a “fiduciary” capacity.  A fiduciary must act in the highest good faith for the Principal’s benefit.

The attorney-in-fact must follow the instructions set out in the Power of Attorney, must use ordinary care and diligence in everything he or she does on the Principal’s behalf, and can only do the things the Principal has empowered him or her to do.  The attorney-in-fact is held to a high standard of care when acting for the Principal.  Therefore, any transaction that may be suspect, if viewed by a third party, should be avoided, which would include checks written to the attorney-in-fact and signed by the attorney-in-fact, or even signed by the Principal.  The attorney-in-fact should not do anything that does not benefit the Principal.

If you are interested in talking to our Estate Planning team regarding a Power of Attorney or any other estate planning matters, please don’t hesitate to contact us.  We look forward to making a difference for you and your family.

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