State and Local Government Law Commons^™

Sovereign Immunity For Political Subdivisions, Kathy Sue Magoline

Akron Law Review

The Ohio Supreme Court continued in 1983 to expand and define its abrogation of the doctrine of sovereign immunity for municipal corporations and political subdivisions. The court's decisions in this area have resulted in a significant increase in tort liability for local governments and school districts, who may now be found liable for tortious acts in the same manner as private individuals.

Tortious Liability For Bad Faith Refusal To Pay, Jeffrey Schobert

Akron Law Review

In Hoskins v. Aetna Life Ins. Co., the Ohio Supreme Court imposed on insurers a good faith duty in any refusal to pay claims made by their insured. Its decision placed Ohio among a growing number of jurisdictions that have recognized this good faith duty. The court adopted its rationale by relying heavily on existing insurance case law in the refusal-to-settle third-party claims type actions. The court defined the standard of good faith in terms of a reasonable justification by the insurer in refusing to pay a claim "because it believed there was no coverage of the claim." The …

Judicial Application Of Ohio's Comparative Negligence Statute, Michael J. Olah, Paul F. Meyerhoefer

Akron Law Review

In the case of Wilfong v. Batdorf the Ohio Supreme Court reexamined the issue of the retroactive application of Ohio's comparative negligence statute. Ohio's statute abolishing the defense of contributory negligence in a tort action was passed with an effective date of June 20, 1980, and the court faced the task of deciding whether comparative fault measurements could be used in an action arising prior to the effective date of the statute, but not coming to trial until after the effective date of the act. Previously the court had the opportunity to examine this issue in the case of Viers …

Public Sector Collectice Bargaining In Ohio: Before And After Senate Bill No. 133, Steven B. Chesler, Shawn E. Smith

Akron Law Review

When 1983 ushered in a new administration more sensitive to the glaring absence of such legislation, the passage of a comprehensive public employees' collective bargaining law was clearly imminent. This article will examine the inadequacies of Ohio's law prior to the enactment of Senate Bill No. 133; summarize the provisions of this new statute; and note its impact on public employees and their employee organizations.

Capital Punishment Of Children In Ohio: "They'd Never Send A Boy Of Seventeen To The Chair In Ohio, Would They?", Victor L. Streib

Akron Law Review

This article presents first an overview of the national legal environment and actual executions in American history and then a focused, in-depth analysis of Ohio as a reasonably representative American jurisdiction. Each of the nineteen verified and documented Ohio cases are examined in some detail to determine, so far as is possible, the reasons they were selected for capital punishment. The cases are discussed within the context of the legal environment existing at the time they were decided.

Parent-Child Tort Immunity Law In Ohio, Jeffrey L. Hall

Akron Law Review

In light of the abrupt change in Ohio concerning the parental immunity doctrine, this comment will examine the historical justifications for the doctrine, with an extended discussion of the Ohio experience with the immunity prior to its change in Kirchner. This comment also analyzes the present Ohio position, contrasting it with the approaches of other states, and cautions against the increasing use of family exclusion clauses in liability insurance policies which have the practical effect of retaining the immunity where the court has abrogated it.

The True Story Of Lawyer Discipline In Ohio: 1967-1983, Stanley A. Samad

Akron Law Review

Ohio is pointed out as among a small minority of states (three) that "still uses procedures identified in the Clark Report . . . as fostering abuse." Although overdrawn, their criticism is not unfair, if the Clark Report's recommendations and the ABA Standards are accepted as norms. For, the investigative and prosecutorial ("relatorship") functions are highly decentralized in Ohio. Moreover, Ohio differs markedly from the ABA Standards with regard to several fundamental conceptions of sanctions, namely in Ohio's "permanent disbarment," irrevocable voluntary resignation, and "indefinite suspension." Further, Ohio has failed to avail itself of several other useful sanctions that help …

Civil Servant Employee Disciplinary Proceedings: A Comparative Analysis And Recommendations For A Uniform Statute, Carlos J. Cuevas, Leonard M. Baynes

Akron Law Review

The purpose of this article is to analyze the disciplinary proceedings for non-probationary civil servants on the state and federal level. The article will focus on the procedures adopted by the states of California, Illinois, and New York, and the Federal statutes and regulations. Furthermore, recommendations will be offered to establish a model statute regulating the procedural aspects of employee disciplinary proceedings.

Refereeing The Referees: The Continuing Procedural Muddle In Cases Of General Reference Pursuant To Ohio Rule Of Civil Procedure 53, Richard P. Perna

Akron Law Review

The judicial reference device set out in Rule 53 of the Ohio Rules of Civil Procedure was touted in 1974 as a procedure capable of relieving the "problem of justice delayed" by "easing the increasing judicial burden" on a besieged judiciary." While judicial reference is certainly no panacea for the problem (if numbers alone are a valid indicator), it is difficult to refute claims that the reference device contributes to a more efficient and speedy administration of justice.

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 …