State and Local Government Law Commons^™

In Re Barzak: Access To Children Services Board Files, David Hazelkorn

Akron Law Review

In the recent court decision, In re Barzak, the Trumbull County Court of Appeals ruled that parents in child abuse, neglect, or dependency proceedings have a right of reasonable access to Children Services Board investigation files. While this was a case of first impression in Ohio, it puts state law in line with that of other jurisdictions.

Ohio's Abrogation Of Sovereign Immunity - A Rude Awakening, Roger D. Emerson

Akron Law Review

The Ohio Supreme Court's recent decisions have practically abolished the defense of sovereign immunity for state subdivisions and municipal corporations. For many years, governmental units such as municipal corporations have used this ancient legal doctrine to defend themselves from tort suits arising out of the negligence of their employees. The court's decisions have sent municipalities searching for insurance coverage and have sent plaintiffs attorneys back into court, filing motions to vacate previous adverse judgements.

The effect of such decisions have become more pronounced since the court's decision in Marrek v. Board of Commissioners. In Marrek, the Ohio Supreme …

Employment At Will In Ohio: Working From Within, Brian Wilson

Akron Law Review

This comment seeks to measure the parameters of Ohio's exceptions to the at-will rule in relation to other states' views on this issue. Also included is an examination of the interplay between the legislature and the judiciary in affecting change in Ohio. A proposal designed to "solidify" the public policy exception to the at-will rule after Phung v. Waste Management, Inc., a recent Ohio Supreme Court case, will also be presented.

Ohio's "Sacred Seal Of Secrecy": The Rules Of Spousal Incompetency And Martial Privilege In Criminal Cases, Wilson R. Huhn

Akron Law Review

In the remainder of this essay the rules of spousal incompetency and marital privilege are compared and contrasted, the history of the rules in Ohio is traced, the underlying justifications for the rules are discussed, and a pitch is made for repeal of both rules, substituting the single rule of spousal immunity described above.

Shareholders Do Not Have Standing To Bring An Individual Action Against Third Parties Who Have Damaged The Corporation: Adair V. Wozniak, Frank Carrino

Akron Law Review

Apart from the context of a derivative action, can a shareholder in a corporation sue individually for wrongful acts committed against the corporation by third parties?

The general rule of corporate law states that a shareholder cannot attain standing for such a suit. This rule is grounded on the theory that all shareholders should incur loss from third party wrongdoing in proportion to the amount of shares he or she holds, and likewise should proportionately benefit when the corporate entity wins an action. In addition, courts are fearful that if this rule were not in force, then there would be …

The Recent Amendment To Ohio Revised Code Section 2317.48, Kim M. Aumiller

Akron Law Review

Revised Code § 2317.48 was designed to enable a plaintiff to obtain information necessary to the drafting of a complaint. This discovery statute is one of the few statutes which was not repealed with the enactment of the Ohio Rules of Civil Procedure in 1970.

What one will not find, however, is the precise procedure to be followed in utilizing this discovery action. The procedural statutes which existed in the Revised Code were repealed upon enactment of the Civil Rules. Since then it has been difficult to know which procedural rules apply to Revised Code § 2317.48. Before the enactment …

The Ohio Supreme Court's Move Toward Quality Control Of Court-Appointed Counsel For Indigent Defendants Charged With Capital Offense Crimes, George J. Ticoras

Akron Law Review

This comment outlines the law in Ohio concerning court-appointed representation of indigent defendants in capital offense cases. A brief look at Ohio's "pre-C.P.Sup.R. 65" period provides the proper backdrop in which to examine C.P.Sup.R. 65's relation to the Ohio Public Defender's Regulations and the impact this rule may have throughout the State.

Updating Ohio's Medical Practice Act (O.R.C. 4731): Automatic And Summary Suspensions Of Physicians' Licenses, Lynne O'Neill

Akron Law Review

The main purpose of this comment is to review two major areas of change in Ohio's Medical Practice Act. The first area deals with automatic suspensions of physicians' licenses. The second area deals with summary suspensions of physicians' licenses. In both of these areas, the Ohio State Medical Board now has the authority to suspend a physician's license before conducting a disciplinary hearing.

Part I of this comment begins by reviewing the current composition of the Board so that the reader will understand how the Board functions in taking disciplinary action against a physician. Part I then explains the new …

Interpreting The Pollution Exclusion Clause In The Comprehensive General Liability Policy - Ohio's Next Step, W. Roger Fry, Jonathan P. Saxton

Akron Law Review

Our purpose here is to analyze the courts' treatment of the pollution exclusion clause. From the context of insurance policy interpretation, decisions regarding the exclusion will be reviewed and placed in a national perspective. The Ohio decisions will be examined against the backdrop of current trends and the national consensus.

We conclude, for the reasons which follow, that the Ohio Supreme Court, when presented with the issue, should not adopt the findings of the Ohio appellate courts in interpreting the pollution exclusion clause, but should recognize that those decisions were wrong and follow the law which finds sudden and accidental …

Rocky River V. Serb: Second-Guessing The State Legislature, Timothy D. Rudy

Akron Law Review

This note discusses why Rocky River was wrongly decided as a matter of constitutional adjudication and why it is likely to be overruled, irrespective of a personnel change on the court. The note concludes that the decision, written by Chief Justice Thomas Moyer, was weak and based on questionable policy. The majority misapplied recent precedent on local government's home-rule powers, ignored another provision of the state constitution granting the state legislature unlimited authority in the field of public employee welfare, and ignored the stare decisis effect of its recent decisions which found the Act was a general law of statewide …

Revisions To Ohio Securities Laws Needed, David E. Weiss

Akron Law Review

The purpose of this article is to discuss several proposed revisions to Ohio's securities laws which were addressed during the Registration Advisory Committee meeting held at the Division's annual conference in October 1989 and to recommend prompt action to amend those provisions of Ohio's securities laws to effectuate these revisions.

Lawyer Discipline In Ohio, 1988: Some Observations, Stanley A. Samad

Akron Law Review

Table I summarizes the disposition of disciplinary cases reaching the Supreme Court of Ohio for final action in 1988, and eight earlier years. This note discusses the volume of activity during 1988 compared with earlier years, the sanctions that were given, and rule changes affecting discipline. It comments on the types of offenses and the shortfall of Ohio's disciplinary system as measured by the American Bar Association Standards for Lawyer Discipline and Disability Proceedings (hereinafter "ABA Standards"). It recommends a further change in the rules.

Judicial Misuses Of The Word Fraud To Defeat The Parol Evidence Rule And The Statute Of Frauds, Morris G. Shanker

Akron Law Review

The courts, of course, continue to recognize that the Parol Evidence Rule exists and to pay lip service to it. However, they have developed a series of so called "exceptions" to its application, and lawyers for litigants have learned these "exception" lessons well. Thus, whenever a client becomes unhappy with one or of more of the terms of a written contract which he signed, his lawyer likely will fish out one of these "exceptions" in an effort to excuse his client from it.

Unfortunately, many Ohio lawyers will not realize that their Supreme Court in its Marion Production Credit Association …

Financing America's Public Infrastructure: Issues For Local Governments, Shelley C. Vazmina

Akron Law Review

This comment examines the role state and local government financing has played in America's infrastructure crisis. This comment also recognizes that infrastructure financing issues in declining cities differ from infrastructure issues due to population expansion.

Part I is particularly relevant to declining cities. It reviews traditional methods by which state and local government obtain operating revenues, and the use of these revenues for infrastructure. It discusses trends and developments which have made traditional financing schemes less useful for infrastructure.

Part II applies in large part to growing cities. Growth creates demand for new infrastructure while straining existing core infrastructure. Alternative …

Ohio Hazardous Material Transportation Act: An Overview, David J. Leland, Steven D. Lesser

Akron Law Review

On June 24, 1988, in Miamisburg, Ohio, Governor Richard F. Celeste signed into law H.B. 428, (known as Ohio's Hazardous Material Transportation Act, hereinafter referred to as the Act) a comprehensive legislative initiative regulating the transportation of hazardous materials. The signing of the Act was the culmination of a two year effort to solve a problem that Ohioians, and the nation as a whole, became aware of in July, 1986 in Miamisburg, Ohio. The new law provides for: a registration system with a graduated fee structure, pre-notification and route assessments for "ultra-hazardous" materials, and a civil forfeiture system with penalties …

Taking It With Them The Dynamics Of Changing A State Income Tax Residence, Hamlin C. King

Akron Law Review

Since nonresidence is taking on "hot issue" status in Ohio, it is the purpose of this article to closely focus on two issues regarding the taxation of such nonresident income. The first issue is what constitutes a state income tax residence change. The second is to identify the income items originating from Ohio sources that may pass out to nonresidents free of the Ohio income tax. As we go along, we will take notice of how these two issues impact the taxpayers' federal income tax, as well as their Ohio and federal estate taxes.

Deregulation Of Telephone Services In Ohio, Frank P. Darr

Akron Law Review

Part I reviews the market changes that exist and which, in part, drive the regulatory changes and have emerged because of them. Parts II and III establish the basic regulatory schemes that existed prior and subsequent to divestiture and deregulation at the federal level. Part IV sets out the Ohio regulatory structure which previously controlled the actions of the Ohio commission. Parts V and VI then address the response of the Ohio commission and supreme court to the changes at the federal level and note some potential institutional barriers to deregulation. Part VII introduces the legislative response to deregulation, House …

The Constitutionality Of State-Passed Congressional Term Limits, Martin E. Latz

Akron Law Review

In Part I, this article explores the underlying policy debate surrounding this issue. Our Founding Fathers debated variations of these arguments in the Constitutional Convention. Academics and political columnists are currently tackling this issue in the popular press. Part II examines the debate over whether to allocate the power to limit congressional terms to each individual state instead of to the federal government (through a constitutional amendment or federal law). Part III investigates potential constitutional challenges based on the qualification and election clauses in the Constitution. Finally, Part IV addresses possible first amendment free speech and fourteenth amendment equal protection …

Attorneys' Perspectives On Choice Of Forum In Diversity Cases, Victor E. Flango Ph.D.

Akron Law Review

This report will first outline the arguments relating to proposals to change diversity of citizenship jurisdiction from the perspective of how additional empirical evidence can advance the arguments, and then provide data on lawyers' perceptions of factors that are important in the decision to file in either state or federal court.

Jenkins V. James B. Day & Co.: A New Defense Of State Tort Law Against Federal Preemption - Is It Legitimate?, Richard J. Scislowski

Akron Law Review

This Note will recount the general law of federal preemption and its recent developments. Next, it will describe the Jenkins case, the facts leading to the litigation, the prior procedure in the lower courts, and the Ohio Supreme Court's reasoning in the opinion. Lastly, this Note will critically evaluate the court's new argument supporting the preservation of state tort claims in light of familiar principles of statutory construction.

Can Soldiers Be Peace Officers? The Waco Disaster And The Militarization Of American Law Enforcement, David B. Kopel, Paul M. Blackman

Akron Law Review

One of the most significant trends of federal law enforcement in the last fifteen years has been its militarization. The logical, perhaps inevitable, consequence of that militarization was seen in the disaster at Waco, Texas, resulting in the deaths of four federal agents, and seventy-six other men, women, and children. In this article, we use the Waco tragedy as a starting point to examine the militarization of federal law enforcement, and similar trends at the state and local level.

Part Two of this article sets forth the details and rationale of the Posse Comitatus Act--the 1878 law forbidding use of …

Utilizing School Voucher Programs To Remedy School Financing Problems, Dominick Cirelli

Akron Law Review

This comment will focus on the existing problems in school financing, and the judicial treatment of these problems. Additionally, this comment will address whether school voucher programs are a viable option in addressing school financing inequities,"' with a particular focus on the existing voucher programs in Cleveland and Milwaukee." Finally, this comment will evaluate whether a voucher program would survive equal protection scrutiny.

Equal Protection Challenges To The Use Of Racial Classifications To Promote Integrated Public Elementary And Secondary Student Enrollments, Kevin Brown

Akron Law Review

This essay is entitled Equal Protection Challenges to the Use of Racial Classifications to Promote Integrated Public Elementary and Secondary Student Enrollments. I delivered this essay as a speech in Akron, Ohio, at a conference titled “Education and the Constitution: Shaping Each Other and the Next Century” in March of 2000. The topic of this essay is particularly relevant for a conference with this title because it addresses one of the most significant issues in race and public education since the Supreme Court started America on the path of desegregation. Discussion of this topic in Akron, Ohio, is also particularly …

Humphrey V. Lane: The Ohio Constitution's David Slays The Goliath Of Employment Division, Department Of Human Resources Of Oregon V. Smith, Jeffrey D. Williams

Akron Law Review

This Note explores the renewed relevance and power of the Ohio Constitution’s free exercise language in combating the weakened protection afforded an individual’s free exercise of religion under current federal analysis. The Goliath of the Smith analysis is slain by the David of the Humphrey analysis, which is rooted in the Ohio Constitution.

Culpability Evaluations In The State Supreme Courts From 1977 To 1999: A "Model" Assessment, Dannye Holley

Akron Law Review

A key premise of this article is that a fair assessment of the performance of state supreme court judges with regard to culpability evaluations must begin by differentiating among the states based upon the relative quality of statutory guidance available to each court on this crucial substantive criminal law issue. In light of the above discussion defining culpability evaluation and legislative action with regard thereto, this article categorizes states based on relative improvement in their statutory culpability evaluation scheme: first are those states with a set of hierarchical culpability concepts, which are specifically defined in relation to types of objective …

Is Justice For Sale In Ohio? An Examination Of Ohio Judicial Elections And Suggestions For Reform Focusing On The 2000 Race For The Ohio Supreme Court, Kara Baker

Akron Law Review

“Is justice for sale in Ohio?” asked a television advertisement in October 2000. Another advertisement informed voters that “today in Ohio, instructors teach and students learn, in spite of Justice Alice Resnick.” These advertisements are examples of the derogatory judicial campaigning that is becoming prevalent in the United States.

Part II of this comment will focus on the 2000 Ohio Supreme Court campaign between Alice Robie Resnick and Terrence O’Donnell as an example of current problems in judicial campaigning. The effect of this campaign and of similar other campaigns on the judicial system and public perceptions of justice will be …

Citizens Not Subjects: U.S. Foreign Relations Law And The Decentralization Of Foreign Policy, Nick Robinson

Akron Law Review

After surveying in Part I these judicially created limitations on localities’ actions that affect foreign relations, Part II then explores how international tribunals increasingly circumscribe state and local actions. Although none of these tribunals’ decisions are directly binding on localities, these bodies can penalize the United States as a whole for a locality’s action that brings the U.S. into noncompliance with an international treaty or agreement. In turn, U.S. courts may find that these tribunals’ decisions, or simply a tribunal’s attention to a complaint, constitute enough interference with foreign relations to strike down the locality’s suspect policy. Indeed, the mere …

Calculating Credibility: State V. Sharma And The Future Of Polygraph Admissibility In Ohio And Beyond, Vincent V. Vigluicci

Akron Law Review

Almost a century after its inception, the polygraph test remains one of the most fascinating forms of evidence. Firmly entrenched in popular mythology, the polygraph offers the promise of calculating truth and credibility with scientific certainty, a proposition that continues to capture the public’s imagination. At the same time, the polygraph has also been viewed with great trepidation as a flawed and dangerous instrument of oppression. Commonly called a “lie detector,” the polygraph does not actually detect lying; it measures subtle changes in blood pressure, pulse, respiration, and the skin’s resistance to electricity that are thought to result from the …

Waiting For Good Dough: Litigation Funding Comes To Law, Stephen Gillers

Akron Law Review

In this Article, I want to examine Rancman. The court’s treatment of one issue it raised—the question of champerty —is myopic, hostile, and superficial. The resolution of this issue on the facts before the court promotes injustice. The court introduced the issue into the case without the benefit of briefing. The Ohio legislature has since overruled Rancman. There is reason to believe that the Ohio Supreme Court will defer to the legislation, although we cannot know for certain until it addresses the question, as discussed.

Another Missed Opportunity In Shoemaker V. Gindlesberger: Strict Privity Lives On In Ohio Legal Malpractice Cases, C. Chase Senk

Akron Law Review

This Note surveys the development of the strict-privity rule in Ohio and other jurisdictions and will argue that the Ohio Supreme Court missed yet another opportunity to modify its outmoded strict-privity rule. This Note only suggests that the Ohio Supreme Court should again reevaluate its strict-privity rule to at least provide relief to intended beneficiaries of negligently prepared wills. Part II provides a brief overview of the development of the strict-privity rule in legal malpractice cases in Anglo-American law, particularly Ohio, as well as a few of the arguments for and against the strict-privity rule. Part III provides the statement …