Oral Argument Previews

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Wednesday, Nov. 28, 2007

Linda Ackison, as Administratrix of the Estate of Danny Ackison v. Anchor Packing Co. et al., Case nos. 2007-0219 and 2007-0415
4th District Court of Appeals (Lawrence County)

State of Ohio v. Danielle Smith, Case no. 2007-0268
1st District Court of Appeals (Hamilton County)

State of Ohio v. Andre Davis, Case no. 2007-0325
1st District Court of Appeals (Hamilton County)

Cuyahoga County Bar Association v. Patrick Leneghan, Jr., Case no. 2007-1569


May 2004 Asbestos Legislation Be Applied To Dismiss Claims Filed Before Law Took Effect?

Linda Ackison, as Administratrix of the Estate of Danny Ackison v. Anchor Packing Co. et al., Case nos. 2007-0219 and 2007-0415
4th District Court of Appeals (Lawrence County)

ISSUE: Section 28, Article II of the Ohio Constitution prohibits the General Assembly from enacting a “retroactive law” that takes away or impairs a substantive right that was vested before the law was passed. In this case, the Court is asked to decide whether the legislature violated the constitution by making new evidentiary requirements for asbestos-related lawsuits enacted in September 2004 retroactive to suits that were filed before the effective date of that legislation.

BACKGROUND: Danny Ackison retired in 2000 after 36 years of working as a laborer at the Dayton Malleable plant in Ironton. One year later he was diagnosed with asbestos-related thickening in the walls of his lungs. In 2003 he was diagnosed with cancer of the esophagus. Following Mr. Ackison's death in December 2003, his widow, Linda Ackison, filed suit in May 2004 against his former employer and multiple other defendants alleging that her husband's illnesses and death were caused by long-term exposure to asbestos in his workplace.

Effective Sept. 2, 2004, the General Assembly adopted H.B. 292, an extensive revision of the state laws governing asbestos litigation. Among other provisions, the bill established threshold requirements that the plaintiff in any new or pending asbestos lawsuit must file with the court specified medical evidence of current disease or medical impairment, and that such evidence must be supported by the written opinion of a competent medical authority who had personally treated the claimant stating that the claimant's exposure to asbestos was a substantial contributing factor to his medical condition. The bill provided that, in light of a backlog of thousands of asbestos claims in Ohio courts, the case of any plaintiff who did not file the required preliminary medical evidence and physician's statement would be automatically dismissed “without prejudice,” meaning that the plaintiff would not be time-barred from refiling his claim in the future when and if he could meet the new evidentiary requirements. The bill included a statement of legislative intent that the amended evidentiary requirements and administrative dismissal provision should be applied to all asbestos cases pending in Ohio courts, regardless of whether they were filed before or after the effective date of H.B. 292.

When Ms. Ackison failed to file documentation required under the amended statute by a specified deadline, the trial court dismissed her case. She appealed the trial court's ruling, and the 4th District Court of Appeals reversed and reinstated her case. In its opinion, the court of appeals held that retroactive application of the H.B. 292 evidentiary requirements and administrative dismissal provision to Ackison's claim was unconstitutional because her suit had been filed prior to the effective date of the statutory changes, and she therefore had a vested substantive right to pursue recovery for her husband's illness and death under the less-restrictive statutes that were in effect at the time her complaint was filed. The 4th District certified that its decision in this case conflicted with a 2006 decision of the 12th District, Wilson v. AC&S, in which that court held that retroactive application of the H.B. 292 evidentiary standards was not unconstitutional. The Supreme Court has agreed to hear arguments to resolve the conflict between appellate districts.

Attorneys for the defendants, supported by amicus curiae (friend of the court) briefs filed by multiple state and national business and trade associations, urge the Court to reverse the 4th District and reinstate the trial court order dismissing Ackison's suit. They note that enactments of the legislature are entitled to a strong presumption of constitutionality, and they point out that the state constitution does not bar retroactive application of new laws to pre-existing cases so long as the new legislation is remedial rather than substantive in nature. In this case, they argue, the evidentiary requirements and administrative dismissal provision of H.B. 292 do not take away any substantive cause of action (legal claim) that could be asserted under the prior asbestos statutes, but merely change the way asbestos cases are litigated by giving priority to the claims of those who can reliably demonstrate current disease or medical impairment over those who cannot.

Attorneys for Ackison, supported by an amicus brief from the Ohio AFL-CIO, argue that H.B. 292 was not “remedial” but rather made substantive changes in the state laws governing asbestos litigation by imposing a number of new or heightened evidentiary requirements on plaintiffs that were not required to sustain a claim under the statutes in effect prior to Sept. 2, 2004. Among those changes, they say, are new requirements that a medical expert who attests to a claimant's condition must have personally treated the claimant rather than reviewing his file and test results, and that plaintiffs must now show not only that they were exposed to asbestos over an extended period, but that asbestos, rather than any other possible factor, was the “predominant” cause for their illness.

Because these new requirements were not in force at the time Ms. Ackison filed suit, but were later invoked as grounds to dismiss her case, and because Mr. Ackison is deceased and cannot possibly comply with the new requirements in order to support a new suit in the future, they assert, the retroactive application of H.B. 292 to Ackison's case violates the constitution by depriving her of her vested right to seek recovery for her husband's death under the less stringent legal standards that were in effect both at the time her cause of action accrued and at the time she initiated her suit.

Contacts
Richard D. Schuster, 614.464.5475, for Anchor Packing Co. and other defendants.

John J. McConnell Jr. 401.457.7711 or Richard Reverman, 513.721.1200, for Linda Ackison.

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Is Theft a ‘Lesser Included Offense' of Robbery?

State of Ohio v. Danielle Smith, Case no. 2007-0268
1st District Court of Appeals (Hamilton County)

ISSUE: In a trial where the defendant was charged with a felony count of robbery, did the trial court err in entering a conviction for felony theft, which the court held to be a “lesser included offense” of robbery?

BACKGROUND: Under R.C. 2945.74, when an indictment charges a criminal offense, a judge or jury may find the defendant not guilty of the degree of offense charged in the indictment, but instead find the defendant guilty of a lower degree of the charged offense or of a “lesser included offense.”

Danielle Smith of Cincinnati was indicted on a second-degree felony count of robbery for participating in a shoplifting scheme in which she allegedly used physical force while attempting to flee from a store security guard who had apprehended and detained her. After waiving a jury, Smith was given a bench trial in the Hamilton County Court of Common Pleas at the conclusion of which the judge found that the state had not proved all elements of the charge of robbery, but had proved that Smith was guilty of the lesser included offense of theft. The court convicted Smith of a fifth-degree felony count of theft and sentenced her to an 11-month prison term with credit for time she had already spent in jail. On review, the 1st District Court of Appeals upheld the ruling of the trial court. In its decision, the court of appeals cited State v. Davis, a 1983 decision of the Supreme Court of Ohio which held that theft by threat was a lesser included offense of robbery.

Smith now asks the Supreme Court to reverse the rulings of the trial and appellate courts and vacate her conviction for felony theft. Her attorneys note that under Ohio case law, one crime may only be a lesser included offense of another if the greater offense cannot be committed without also committing the lesser offense. They point to two Supreme Court cases decided after Davis, State v. Deem (1988) and State v. Carter (2000) in which this Court held that theft was not a lesser included offense of robbery because it was possible to commit robbery while merely attempting to obtain control or possession of the property of another, while the mere attempt to obtain control of property without actually doing so is not sufficient to support a conviction for theft. Because it is thus possible for an offense to constitute robbery without constituting theft, they assert, Smith's conviction for theft as a lesser included offense of robbery was in error and must be reversed.

The state, represented by the Hamilton County prosecutor's office points to language in the state law defining the crime of robbery which states that an offender is guilty of robbery if he or she uses or threatens to use force in committing or attempting to commit a theft offense. In light of that statutory language, they assert, it was clearly the intent of the legislature to include both theft and attempted theft as lesser included offenses of robbery, and Smith's conviction should therefore be affirmed.

Contacts
Michaela Stagnaro, 513.241.0500, for Danielle Smith.

Judith A. Lapp, 513.946.3009, for the State of Ohio and Hamilton County prosecutor's office.

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Does Failure to Raise Ineffective Counsel Issue in Supreme Court Appeal Bar Later ‘Murnahan’ Claim?

State of Ohio v. Andre Davis, Case no. 2007-0325
1st District Court of Appeals (Hamilton County)

ISSUE: Under Ohio Appellate Rule 26(B), a defendant who has been convicted and sentenced for a criminal offense and whose direct appeal of that conviction has been denied by a court of appeals is permitted to apply for reopening of his appellate case based on a claim that he received ineffective assistance by the attorneys who represented him in his initial appeal. Because a defendant's right to apply for this type of relief was set forth in the Supreme Court of Ohio's decision in State v. Murnahan (1992), applications for reopening of an appeal under App .R. 26(B) are widely referred to as “Murnahan” cases.

In this case, the Supreme Court is asked to determine whether a court of appeals acted properly in summarily dismissing a Murnahan claim asserted by a felony offender on the ground that, before filing his Murnahan action, the defendant had appealed the denial of his initial appeal to the Supreme Court and had not asserted in his Supreme Court pleadings a claim of ineffective assistance by his appellate counsel.

BACKGROUND: Andre Davis was convicted in the Hamilton County Court of Common Pleas of involuntary manslaughter and having a weapon under disability. He appealed his convictions to the 1st District Court of Appeals, alleging various legal and procedural errors during his trial but not asserting either a claim of prosecutorial misconduct or ineffective assistance by his trial attorneys. One of the two attorneys who had represented Davis during his trial served as his sole legal counsel in the direct appeal. The 1st District rejected all assignments of trial court error Davis had asserted, and affirmed his convictions and sentence.

Davis subsequently hired a new attorney who filed a timely appeal of the 1 st District's ruling with the Supreme Court of Ohio, which declined to accept jurisdiction. While the Supreme Court action was still pending, Davis' new attorney also filed a timely Murnahan action in the court of appeals, asking the 1st District to reopen his case on the basis that he had received ineffective assistance by his original appellate counsel. As the basis for his Murnahan motion, Davis' new counsel raised for the first time a claim that the trial court prosecutor had engaged in multiple acts of misconduct that deprived Davis of his right to a fair trial, and that his original appellate counsel had been ineffective in not raising the issue of prosecutorial misconduct – and her own deficient performance in not immediately objecting to that misconduct – as assignments of error in Davis' original appeal.

Without ruling on the merits of his Murnahan claim based on prosecutorial misconduct, the 1st District denied Davis' application to reopen his case. In its judgment entry, the court of appeals stated that Davis was barred by the doctrine of res judicata from raising a Murnahan claim based on prosecutorial misconduct because he had the opportunity to raise the issues of ineffective assistance and prosecutorial misconduct in his direct appeal to the Supreme Court, but had failed to do so and therefore waived his right to raise those issues in any subsequent action. Res judicata is a legal doctrine that prohibits settled legal cases and issues between the same parties from being relitigated, except in limited circumstances.

Attorneys for Davis, supported by amicus curiae (friend of the court) briefs filed by the Ohio Public Defender's Office and the Ohio Association of Criminal Defense Lawyers, now ask the Supreme Court to reverse the ruling of the 1st District and order that court to hear and decide his Murnahan claim of ineffective assistance of appellate counsel on its merits. They point to a 2003 decision, State v. Hutton, in which the Supreme Court held that res judicata did not apply to bar a Murnahan claim, even though ineffective assistance of counsel had not been raised in the defendant's prior appeal, when one of the attorneys representing a defendant on appeal also served as trial counsel in the case.

They assert that, by refusing to consider Murnahan petitions unless the defendant has first raised an ineffective assistance claim in a direct appeal to the Supreme Court, the 1st District in this and other cases has effectively refused to do what App.R. 26(B) mandates, which they say is to consider and decide the merits of each applicant's claim that he or she did not receive effective assistance of appellate counsel – regardless of whether ineffective assistance was asserted in prior appeals and regardless of whether or not the defendant has exercised the option of seeking discretionary review of his case by the Supreme Court.

The state, represented by the Hamilton County prosecutor's office, argues that a defendant's failure to previously assert a claim of ineffective assistance of counsel in a direct appeal is grounds for a court of appeals to invoke the doctrine of res judicata to summarily deny a application to reopen a case under Murnahan, unless the court finds that application of res judicata under the specific facts of that case would cause an unjust result.

Contacts
H. Fred Hoefle, 513.579.8700, for Andre Davis.

Scott M. Heenan, 513.946.3227, for the State of Ohio and Hamilton County prosecutor's office.

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Attorney Discipline

Cuyahoga County Bar Association v. Patrick Leneghan, Jr., Case no. 2007-1569

The Board of Commissioners on Grievances & Discipline has recommended that Cleveland attorney Patrick Leneghan Jr. be publicly reprimanded for neglecting the case of a municipal court client whose appeal of a traffic offense he filed but failed to follow through with, resulting in summary dismissal of the client's appeal and the immediate imposition of her jail sentence and fine .

The Cuyahoga County Bar Association, which prosecuted the complaint against Leneghan, has filed objections to the board's dismissal of several additional counts of misconduct that were included in the complaint, and to the sanction recommended by the board. Attorneys for the bar association argue that aggravating factors in the case, including the harm suffered by the client whose case was neglected and Leneghan's lack of cooperation and alleged false statements during the disciplinary process, are grounds for an actual suspension of his license rather than a reprimand.

Contacts
Ellen S. Mandell, 216.771.7080, for the Cuyahoga County Bar Association.

Patrick Leneghan Jr., pro se: 216651.4600.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.