Home
June 2008

Judge Colleen Falkowski, Lake County Domestic Relations Court

COMMUNICATION IS THE KEY

A common fact pattern within the Division of Domestic Relations occurs where a Domestic Violence Civil Protection Order allocating parental rights and responsibilities precedes a companion divorce filing between the spouses. In due course, an order as to the temporary allocation of parental rights and responsibilities is also forthcoming through the pending divorce. An often asked question is which order controls as to the allocation of parental rights and responsibilities?

The starting point for analysis is Revised Code Section 3113.31(G), the statute which authorizes a Domestic Violence Civil Protection Order proceeding. The statute provides in part:

Therefore, a civil protection petition filed pursuant to Revised Code Section 3113.31 is a separate and independent action from that of a divorce. I note not all Domestic Relations Courts share the above statutory interpretation. Some permit consolidation of a divorce case with a domestic violence proceeding. It must also be emphasized only a Court with Domestic Relations jurisdiction may issue a CPO pursuant to Revised Code 3113.31(A)(2).

In further analyzing which parenting order controls, Revised Code Section 3113.31(D)(3)(b) provides the answer:

"…any order under division (E)(1)(d) of this section shall terminate on the date that a court in an action for divorce, dissolution of marriage, or legal separation brought by the petitioner or respondent issues an order allocating parental rights and responsibilities for the case of children or on the date that a juvenile court in an action brought by the petitioner or respondent issues an order awarding legal custody of the minor children."

This section appears straightforward and simple, doesn’t it? Perhaps too simple. We know a domestic violence civil protection proceeding is an extraordinary legal action filed in exigent circumstances for the physical protection and safety of the petitioner and designated protected persons. In the DV case, if the parents are restrained from communication and contact with each other, and parenting time is limited, how does parenting time occur once a parenting order is issued in the divorce case?

This question was before the Supreme Court of Ohio in the State of Ohio v Price, Slip Opinion No. 2008-Ohio-1974. On May 1, 2008, the Supreme Court decided an allocation of parental rights in a divorce decree can modify a CPO BEYOND THE CIVIL PROTECTION ORDER’S SECTIONS CONCERNING PARENTAL RIGHTS AND RESPONSIBILITIES (emphasis added). In the case before the Court, the CPO issued in 2000 preceded the parents’ 2001 divorce. In the CPO, Mother and the parties’ minor son were the protected persons. Mother was granted temporary custody of the child and Husband’s parenting time was suspended, "until he engages in regular counseling for his bipolar disorder and takes medication." The subsequent divorce decree also provided Mother was to have custody of the minor child; and "visitation shall be at the Mother’s discretion. Upon proof of completion of this Court’s Parenting Seminar, Father may petition the Court for visitation." This was a broader parenting order than in the DV, Father had regular visits with his son for three years after the divorce. Mother then suspended visitation. In early 2005, Father pled guilty to a misdemeanor charge of violating the CPO due to messages he left on Mother’s answering machine for Mother.

A few months later, Father again left messages on Mother’s answering machine. Father wound up being indicted with a felony for recklessly violating a CPO due to his earlier misdemeanor conviction. Father was found guilty by a jury and sentenced to five years of community control. The Court of Appeals affirmed his conviction. The case facts as to the divorce itself and subsequent visitation were sparse to say the least.

The Supreme Court aptly noted the parents’ divorce decree was the "very model of imprecision." The Court found "where the divorce decree is imprecise as to the particulars of visitation or encourages the respondent and protected parties to engage in dialogue to resolve visitation issues, that divorce decree would modify the paragraph 6 of the CPO". Incidentally, there was nothing in the record as to how visitation took place for the three years after the divorce. The vagueness of the visitation provision in the divorce decree resulted in the Supreme Court deciding Husband had insufficient notice for the criminal charge as to what specific conduct of his was prohibited despite the terms of the CPO. The Court reversed the judgment of the Court of Appeals.

The four messages which led to Husband’s criminal conviction on the felony charge were as follows: "Check your front door"; "I love you [J]; talk to you later"; "I love you, [J]"; "[J] I love you; I’ll see you on your birthday." [J] was the parties’ minor child. After receiving the first message, Mother found an Easter basket at the front door for [J]. Query: are these messages a dialogue as to visitation issues or conduct prohibited by the CPO?

The forms and judgment entries used in a 3113.31 filing are mandatory forms approved by the Supreme Court for statewide use. In the revised forms used since May 1, 2007, paragraphs 5, 6, 7, 12, 13, and 21 are the crux of concern in a State v Price situation. Paragraph 5 orders the Respondent not to "enter or interfere with the residence, school, business, place of employment, or child care providers… including the buildings, grounds and parking lots at these locations." Paragraph 6 is the distance restriction between the Respondent and protected persons which is normally 500 feet. Paragraph 7 reads "Respondent shall not initiate or have any contact with the protected persons named in this order or their residences, businesses, places of employment, schools, day care centers, or child care providers. Contact includes but is not limited to, telephone, fax, e-mail, voice mail delivery service, writings, or communications by any other means in person or through another person." In Price, supra, the Supreme Court held that "the very nature of parental visitation must necessarily yield a temporary relaxation of the conduct forbidden in paragraph 6 of the CPO."

Paragraphs 12 and 13 are the standard allocation of temporary parental rights and responsibilities provisions for the CPO. Paragraph 21 is the last part of the order which provides "Except for paragraphs 12, 13, 14 and above, this order survives a divorce, dissolution of marriage, or legal separation."

How does counsel and the Court mesh the safety and lethality factors present in a Revised Code 3113.31 action with a broader parenting time order in a divorce case? In Price, supra, the Supreme Court held a divorce decree automatically overrides the paragraphs of the CPO regarding visitation and the allocation of parental rights. This holding reaffirms Revised Code Section 3113.31(D)(3)(b). The Court went on to state: "Depending upon how a divorce decree allocates parental rights and responsibilities, it may modify multiple aspects of the CPO beyond the paragraphs dealing with parental rights and visitation." In a subsequent divorce case, communication is key for a specific, workable order. Everyone in the case needs to be on the same page as to what the DV order provides. For example was the DV based on long time abusive conduct or a single event. Then a temporary order can be constructed in the divorce where supervised parenting time occurs at a safe place for the child, with supervised pick ups and drop offs.

Often the parents cannot agree on a third party to supervise parenting time who is satisfactory to both. We now have a community resource in the Crossroads Safe Family Access program which fills this critical need for families in extraordinary situations. The program was developed through Crossroads, this Court, Juvenile Court and the Lake County Department of Job and Family Services to provide a safe and secure setting for parents battling anger issues, substance abuse, or mental health issues to spend time with their children on a regular basis.

A last thought to ponder from State v. Price, supra is the Supreme Court noted the investigating officer in the criminal case reviewed the CPO, but not the divorce decree. The Court noted the Detective who approved the charge did not read the divorce decree either. Is such a review better suited for the Prosecutor?

The Magistrate and myself always welcome counsel’s input as to a workable parenting arrangement in this scenario in that the Respondent in the DV can be subject to criminal prosecution for violation of the physical safety/abuse provisions of the DV.

May 2008
Judge Eugene A. Lucci, Lake County Common Pleas Court
 

New cases continue to be filed at an ever-rising rate in Lake County. As a result, the general division courts continue to seek ways to manage the growing caseload more efficiently, with the same number of personnel, while meeting the Supreme Court guidelines for the length of time it should take to terminate various kinds of cases.

For instance, the following chart shows how new civil cases and foreclosure filings have been rising rapidly in recent years:

These record-setting increases in the filing of new foreclosure cases and civil cases cannot be explained by the recent minor increases in population. In 2000, Lake County’s population was 227,511, and in 2006, it was estimated to be 232,892. This represents a population increase of only 2.4% over six years (or, 0.4% per year on average). Since the population of Lake County is more or less stable, it is unreasonable to look to additional taxpayer funds as the main source to pay for the management of the increasing caseload. Instead, in order to increase the court’s capacity to manage these cases, the general division has relied upon user fees, paid by those who file these cases. The fees are used to maintain special project funds for the acquisition and maintenance of new technology, including computer software and hardware systems, and to pay for a foreclosure magistrate and the magistrate’s staff.

New software solutions – such as case management software, jury management software, document imaging, and electronic filing and electronic serving software – are constantly being evaluated and added in order to manage the expanding docket.

One of the newest additions to the common pleas courts’ software "toolbox" is an internet and phone conferencing system called "WebEx." I am currently testing this system in my court. No other court in this state is using anything comparable to this tool. Using the WebEx system, the court will be able to conduct Case Management Conferences (CMCs) over the internet and by phone, saving the parties and the attorneys travel time to and from the court, and providing the court and the parties with access to a recorded copy of the conference. It is estimated that by conducting CMCs at the close of the pleadings, the court will reduce the case management timeline by 2-3 months on the fastest-growing and largest single area of the docket – civil cases.

Previously, after a civil complaint was filed, I would have my staff wait approximately four months to do anything with the file in order to allow all of the parties to be served, and to allow the defendants sufficient time to respond to the complaint. A hearing notice would then be issued by regular U.S. mail, setting a pretrial date and a trial date. The pretrial typically would be scheduled to occur approximately six months after the filing of the complaint. The trial would also be scheduled at that time to begin approximately eight months after the filing of the complaint. The dates for the pretrial conferences and the trials would be set without any consultation with counsel or with any pro se parties. Of course, inevitable scheduling conflicts would result in the attorneys making numerous requests to change the date of the pretrial or the trial or both.

Unfortunately, even when pretrial conferences went forward as scheduled, many of the pretrial conferences revealed that – notwithstanding having had at least 6 months since the filing of the complaint – the parties had not begun the discovery process in earnest. As a result, the trial date would often have to be postponed, needlessly consuming valuable time and space on the court’s schedule.

Beginning with certain selected civil cases filed in my court in May 2008, I intend to conduct CMCs immediately upon the closing of the pleadings. Many of those CMCs will be conducted using the WebEx teleconferencing system. During the CMC, the court and counsel (and any pro se parties) will establish firm dates for all aspects of the case. In this way, I will be able to accelerate the management of new civil cases. In order to implement this change, I have altered the language in the Order of Procedure that is filed whenever a civil case is assigned to my court. The new language, pertaining to the CMCs, will read as follows:

{¶2} In order to facilitate online communication between the court and the parties, and in keeping with Rule 11 of the Ohio Rules of Civil Procedure, if the signature block on the complaint does not already include all current email addresses for the attorneys for the plaintiffs and for each pro se plaintiff, then each attorney and each pro se plaintiff must notify the court of his or her email address within 28 days after the filing of the complaint. Similarly, all answers or other responses to the complaint must include a current email address for each defense attorney and each pro se defendant. If a third-party complaint is filed, then those responding to the third-party complaint must include a current email address for each third-party defense attorney and each pro se third-party defendant. Notice of a current or changed email address must be given to the court by filing the notice with the Lake County Clerk of Courts and sending an email to commonpleasiv@lakecountyohio.gov.

{¶3} Shortly after each party has filed an answer, or has otherwise responded to the complaint, the court will schedule a case management conference (CMC) which will be conducted by using either: (a) the court’s ordinary telephonic conference call system, or (b) the telephonic and internet conference call service provided by WebEx. The scheduling notice will designate how the court will conduct the CMC.

{¶4} If the court’s scheduling notice designates that the CMC will be conducted using the court’s ordinary telephonic conference call system, then the court will initiate the conference calls.

{¶5} If the CMC is scheduled to be conducted using the WebEx service, then counsel and all pro se parties must respond to the emailed notice by clicking on the "accept" button. In addition, each person will have to initiate their participation in the WebEx conference. This is done by clicking on the link in the email notice and connecting to the WebEx internet conference call online via the internet at the appointed time. Once the internet connection has been made, then the participant should telephone (800) 699-3239 to participate in the audio portion of the CMC. It is also possible for participants who do not have internet access at the time of the CMC to participate in the CMC solely by telephone by calling the 800 number. However, those attempting to participate solely in the audio portion will still need to know the meeting identification number. When prompted to enter their participant identification number, simply press the # symbol on the telephone.

{¶6} If you have any problems connecting to a scheduled WebEx CMC, or the training recording, please call WebEx support at (866) 229-3239. WebEx technical support is available to participants free of charge, 24 hours a day, and 7 days a week.

{¶7} If the court’s hearing notice designates that the WebEx service will be used for the CMC, then each party will pay a fee of $25.00 through the court’s PayPal account to cover the cost of the WebEx service for the CMC. The court’s PayPal account is accessed by using the PayPal button on the WebEx login screen for the CMC. The court’s PayPal account accepts MasterCard, Visa, and American Express credit cards for payment.

{¶8} For a WebEx CMC, the login information (meeting ID number and password) will appear on the court’s email notification. As noted above, participants can join the internet meeting by clicking on the link in the email notification of the CMC. Prior to clicking on the link, participants should make a note of the meeting date and time, the meeting ID number, and the meeting password.

{¶9} During the CMC, the court and counsel will: (a) discuss the complexity of the case, the relationship of the case to other pending cases, and whether additional pleadings are likely to be filed (e.g., a third-party complaint); (b) set discovery cut-off dates for written discovery, depositions, exchange of expert witness reports, and expert depositions; (c) set cut-off dates for all dispositive motions and responsive briefs; (d) establish firm dates for the initial pretrial conference, final pretrial conference, and trial; and (e) discuss whether the case is amenable to mediation or arbitration. Once the dates have been set at the CMC, the court will not grant any continuances of the pretrials or trial, except in the most dire of circumstances.

{¶10} After the CMC has concluded, the court may send to each participant a link which can be used to access a recorded copy of the meeting. The recorded copy of the CMC may or may not be downloadable, as the court sees fit. This feature will be particularly useful or appropriate for any participant who was able to attend the CMC by telephone only."

Once the court has fully implemented the use of WebEx software to conduct CMCs, it will also begin to use it for pretrial conferences and final pretrial conferences in appropriate cases.

In addition to using WebEx to conduct CMCs, pretrial conferences, and final pretrial conferences, the court and the Lake County IT Department are considering using the WebEx conferencing system as an efficient training tool for conducting either synchronous or asynchronous training sessions for software upgrades or new software systems used by county personnel. This particular in-house use of the WebEx software is included at no additional cost in the WebEx license which has already been purchased. Similarly, orientation seminars can be prepared for newly-hired county employees, and the orientation seminars can be presented for self-paced instruction via WebEx as many times as necessary. These seminars can include job descriptions, procedures, chain of command, tips and tricks for performing the job properly, instructions on who to contact for help, and other similar information to help new employees go up the learning curve as quickly as possible.

Much consideration went into the decision to purchase a WebEx license for the common pleas courts. I want to thank Eric Folkman, CIO of the Lake County Information Technology Office, for his tireless investigation of the alternatives, and for his recommendation that WebEx will serve Lake County well as the next software tool to be added to the court’s software toolbox.

April 2008
jUDGE TIMOTHY P. CANNON, 11TH DISTRICT COURT OF APPEALS

First of all, many thanks to all of my friends in the bar and judiciary for the encouraging, kind and thoughtful notes and messages received since my appointment. They are much appreciated. As Judge Cicconetti mentioned at my investiture, it has been about 30 years since three guys from Painesville headed back and forth to night school at Cleveland Marshall. Who would have bet that students Lucci, Cicconetti and Cannon would one day find themselves on the bench? Thanks to both of them for their advice, thoughts and insights.

About one year ago, I was on vacation with my wife, Lisa, sitting in Florida, minding my own business. While catching up with the local news on the internet, an article appeared that indicated Judge William O’Neill intended to resign from the bench at the Eleventh District Court of Appeals. He was required to resign as a result of his announced intention to become a candidate for the United States House of Representatives against the incumbent congressman, Steve LaTourette. I gave casual thought to who might be appointed to replace him for about 30 seconds before moving on to a seemingly more significant subject – the results of the Cleveland Indians spring training B team against other major league farm players. It would not be long before the aforementioned news would prove much more significant to me and my family.

I have always felt that the court of appeals is, in some respects, the most important level of our judicial system in Ohio. For most litigants, it is the court of last resort. Somehow, the issue of the vacancy never seemed to stray far from my mind. After discussions with several persons whose advice I respect a great deal, I downloaded the application and started the process. During the next couple months, a course of events occurred that ultimately resulted in my appointment to the bench. I won’t bore you with the details. As I have never really done so in a public forum, it was suggested for this article that I share a few thoughts about my legal background and the judiciary in general.

As most of you know, I practiced law in this district for nearly 27 years. My private practice was mentored by my father, Charles Cannon. We spent close to 23 years in practice together before his retirement. He is the finest combination of lawyer, counselor, and professional that I have ever known. I cannot imagine anyone who has practiced law with a higher regard for his profession, or dedication to his clients. It is my sincere goal that in everything I do on the bench, I do with his standard of professionalism, competence, and approval in mind.

There are three things that come to mind when I think about the judiciary: experience, integrity, and method of selection. Anyone who embarks on a new career path brings along his or her past experiences and values. I was fortunate enough to have been affiliated with a very broad-based law practice throughout my entire legal career. This has given me a solid foundation to approach the issues that come before us at the Eleventh District Court of Appeals. In the past eight months, I can’t think of an area of law that I have considered for the first time.

In addition, I have had the opportunity to be involved with cases before almost all of the judges in Lake County, and a majority of the judges in the district. This has proven invaluable in the analysis and review of cases. Familiarity with a wide variety of issues and arguments in areas such as criminal law, jury instructions, discovery disputes, and the need for trial court discretion is critical in the appellate process.

The maintenance of integrity in our judicial system is critical. The best way to ensure it is maintained is to guarantee that the judiciary remains strong and independent. This has been recognized for a long time. President Andrew Jackson felt the judiciary was the most important of the three branches of government. He once said: "All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary."

This was recognized again more recently by retired Supreme Court Justice Sandra Day O’Connor when she stated: "The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation."

That brings us to the third issue, our method of judicial selection in Ohio. There has been a debate for centuries about how judges are selected. Thomas Jefferson, a firm believer in the need for independence of the judiciary, nevertheless questioned the lifetime appointment of federal judges. Instead, he favored some type of periodic review. He once stated:

"The Judicial Branch must be independent of other branches of government, but not independent of the nation itself. It is rightly responsible to the people for irregular and censurable decisions, and judges should be appointed for limited terms with reappointments resulting from approved conduct."

However, it is not clear that Jefferson favored appointment as the process for judicial selection. In 1816 he wrote:

"It has been thought that the people are not competent electors of judges learned in the law. But I do not know that this is true, and, if doubtful, we should follow principle. In this, as in many other elections, they would be guided by reputation, which would not err oftener, perhaps, than the present mode of appointment."

In contrast, Justice O’Conner left no doubt about where she stood. In the 2002 case of Republican Party of Minnesota, et al. v. White, et al., she stated:

"Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. *** If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges."

The method of selection varies widely among the fifty states. There are at least 11states that have adopted either the Missouri Plan, or some modified version thereof. Under this plan, the initial appointment to the bench is typically done by an independent panel. This panel is usually comprised of a non-partisan group of citizens, attorneys, and judges. They make a recommendation to the governor, usually in the form of three or more names, who then makes the selection. After the judge has served at least one year on the bench, he or she is on the ballot for a "retention" election. There is no opponent in this election. The electorate simply decides if the judge should be retained. The retention period varies from four, six, eight, twelve and even fifteen years before the judge is required to be retained again. Some states, such as Maryland, have adopted a modified version of the Missouri Plan. This version distinguishes the appellate level courts from the trial level courts. All judges are initially selected by appointment. However, at the "retention" election, an opponent may file against the trial level judges.

While there are pros and cons with any method of selection, one should always keep in mind the goal of maintaining judicial independence and integrity. There are two factors in the election process that are always at issue. One is the necessary expense involved in any campaign. You either need to be independently wealthy, or ask people for money to support your campaign. Some estimate that the upcoming Ohio Supreme Court race will require an expenditure of $2,000,000 to elect a candidate. While the need to raise and spend money would not be completely eliminated in a format that calls for a "retention" election, it would be significantly curtailed.

The second factor that is always at issue in the election process is the name recognition factor. Typically, the number of voters who turnout for an election is far greater than the number of voters who actually vote for judicial candidates. The fall-off rate in some cases is remarkable. In many instances, there are well-qualified candidates who are simply not financed or equipped to overcome a popular or well-known political name, regardless of their qualifications.

In the March/April issue of Ohio Lawyer magazine, Deborah Cooper wrote about the Cuyahoga County Judicial Candidates Rating Coalition, also known as "Judge4Yourself." This is apparently the brainchild of Attorney Jim Robenalt, the former chair of the Cleveland Bar Association Judicial Selection Committee. The coalition is a collection of individuals from a variety of organizations, designed to combat the election of judges in Cuyahoga County that seemed for many years to be based on name recognition only. Its process includes completion of a detailed questionnaire, an interview of approximately 20 minutes with each candidate, and a post-interview discussion among coalition members, which at this time includes 60-70 members. The group started in 2001, and has become a significant resource for Cuyahoga County voters looking for guidance. Getting the message out is the challenge. The group now features a web page (www.Judge4Yourself), e-mail campaigns, and public relations assistance. The ratings appear in major area newspapers, local radio, and public television.

Unfortunately, not every county has a resource such as this group. With the ever- increasing cost of judicial campaigns, and history of electing "names" rather than qualified candidates, perhaps it is time for Ohioans to review how we select our judges.

As for the Eleventh District Court of Appeals, we will soon be updating our web site, hopefully including new features to make the appellate process more efficient. This should include downloadable forms, brief templates, and eventually the ability to electronically file documents. The goal is to make the entire process more "user-friendly" and efficient, without sacrificing the careful review and decision-making process for pending cases. I would also encourage any practitioner to call the court at any time if you have questions about procedure or form. I believe you will find the staff here to be very responsive and helpful. We are supportive of anything that will make the process more pleasant and efficient.

Finally, some of you may remember former Painesville Township Fire Chief Larry Thompson who passed away after a career in public service that lasted over 50 years. He gave some great advice to his successor, Frank Whittaker. He told him: "Always take the job serious, but never take yourself too serious." If at some point any of you think I am not following that advice, please feel free to let me know.

March 2008
Judge Larry Allan, Willoughby Municipal Court

There are 46 ways that you can loose your Ohio Driver’s License, according to the Director of the Bureau of Motor Vehicles (BMV).  Despite this large number, only one brings a parade of defendants to the Municipal Court….."Driving under an FRA Suspension" or, simply, driving without insurance coverage.  Many of these men and women want to shun welfare and work to support their families but when the budget gets tight, payment for the intangible insurance is delayed.   And thus begins a spiraling saga that sets many motorists up for failure as they struggle to restore their operator’s license.

Let me give you an example.  If you overlooked your auto insurance payment for a single day (unless your policy has a grace period)  and you are stopped for the slightest infraction and found to be driving under an insurance suspension, you would be subject to these potential penalties at your mandatory Court appearance:  a fine up to $1,000, jail up to 180 days,  an additional suspension of your driving privileges for up to one (1) year, mandatory impounding or immobilization of your car for 30 to 60 days and, if 3 or more suspensions in 5 years, forfeiture of the vehicle to the State of Ohio. (ORC 4510.16)

And it continues after you leave the courthouse with BMV imposed "civil penalties".   These include loss of driving privileges for a period of 90 days to 2 years, a license reinstatement fee of $125 for the first violation, $300 for the second violation and $550 for the third and subsequent violations, the filing of an SR-22 Bond (High Risk) for a minimum of 3 years and up to 5 years from the date of suspension and possible inability to register a vehicle for 5 years. (ORC 4509.101)

Some people may say, "Serves them right", "So get insurance" or "So don’t drive", and in many instances, they could be right.  The mandatory insurance law, however, has been in effect for many years and still you and I pay for the uninsured through higher premiums and uninsured motorist coverage. 

Is there a solution?  I doubt that it will ever be completely solved but lets at least try to reduce the numbers.

Let’s start at the beginning.  You recall signing that statement at the License Bureau that states in part, "I affirm that I now have insurance or other financial responsibility coverage," (Drivers License Application), or "I affirm that all owners now have insurance or other FR coverage and will not operate or permit the operation of this vehicle without FR coverage.…" (BMV Form 3135).  With but a signature, the motorist pays the fee, gets his registration and new plates or sticker and starts driving.  At no time is the applicant asked to produce insurance verification. That is left for the police officer to inquire at a roadside stop or a Judge during a busy traffic docket.  Don’t we deserve better?

Fourteen years ago as a new Judge, I directed that very question to the then BMV Registrar.  The response was basically that requiring the applicant to show proof would be ineffective as once they have the registration, they could cancel their insurance coverage.  Of course that is possible and would require the cooperation of the insurance industry to monitor such occurrence.

Presently, if a payment for an SR 22 bond is late, the insurance industry is required to notify the BMV electronically and instantly the license is suspended.  And even if the driver reinstitutes the bond timely, not only does it take 10 to 14 days to show the license as valid, but he or she is subjected to the "civil penalties" above, and the spiral continues.

During a recent meeting of Municipal and County Court Judges from around the State, the present Registrar of the BMV was asked about insurance companies giving notice relating to all licensed drivers that cancel their insurance as soon as they left the License Bureau or on other premature dates.  The answer was basically that the insurance companies didn’t want to and thus it is not happening.  The reason was, not that it couldn’t be done, but in part that it would be too expensive.

Along the same lines, one can only speculate what forces are delaying the enactment of House Bill 109 which is captioned, "To amend sections 4503.20 and 4507.212 of the Revised Code to require proof of financial responsibility to be submitted as a condition of registering a motor vehicle and of being issued or renewing a driver’s license."  This Bill was introduced in March, 2007 and, according to the Ohio General Assembly web site, it has not even been referred to Committee for hearing.

This article is not intended as BMV bashing, (well, maybe a little) for to its credit it generally does a good job administering the law with regard  to the 8,984,004 licensed drivers and Ohio ID card holders.  According to the Registrar Mike Rankin, the Bureau issued 3,360,835 drivers licenses in 2007 and collected $35,933,306 in legislatively mandated reinstatement fees with another $250,000,000 still to be collected.  The Registrar added that this is occurring with a less than an adequate computer system and within the budget constraints that Governor Strickland has imposed on all State agencies.

The above outlines in general the penalties, criminal and civil, for suspension under the financial responsibility law. For specific questions I suggest you read the applicable section of the Ohio Revised Code as well as the BMV web site at WWW.OHIOBMV.COM. You can also review your own driver’s license at that site.  Additionally, I suggest you review your auto insurance policy as some have eliminated or significantly reduced any grace periods.

February 2008
JUDGE DIANE GRENDELL, 11TH DISTRICT COURT OF APPEALS

 

Justice Kennedy said "[t]he law makes a promise—neutrality. If the promise gets broken, the law as we know it ceases to exist. All that’s left is the dictate of a tyrant, or perhaps a mob." Judicial independence is essential to maintaining the rule of law. Judicial courage and integrity are critical to achieving judicial independence.

January 2008
Honorable Paul H. Mitrovich, Lake County Common Pleas Court
 

YULE SEASON, A TIME TO REFLECT

In the midst of the Christmas season and the approaching New Year, we tend to get wrapped up with gifts, family and friends, and we ignore the mundane activities which we address daily. Those of us who work in the Lake County Court system have much to be thankful for as we administer our responsibilities throughout the year.

Lake County is truly blessed to have dedicated public officials working for it. All branches, from the executive/legislative, the judicial and all the way down to law enforcement, work together to achieve better government and a better way of life for all citizens of Lake County throughout the year. One governmental function which is consistently overlooked, but is vital to the court system, is the Lake County Probation Department. The function of this department is to save broken lives and families. The Probation Department staff attempt to bring order and responsibility to the lives of criminal defendants who would otherwise be sent to prison. For many, it is the last and only opportunity for salvation.

Because Christmastime is a time of peace and goodwill to our fellow man, we are drawn to organizations which are dedicated to assisting the needy. Yet the Probation Department performs its function year-round without any thought or consideration for its philanthropic work. As an arm of the Lake County Court of Common Pleas, the Probation Department directly assists the Court in overseeing persons who are given the opportunity for community control. Under community control, we attempt to take individuals who have thus far demonstrated that they are irresponsible to themselves, their families and society and try to teach these persons to become responsible and good citizens. The enormous benefits to the social order are worth striving for because if the process is successful, the individual becomes a productive member of society. He becomes a taxpayer as opposed to a tax taker. His family is improved with better relationships and economic well-being, and the prison system has been spared another life-long resident and career criminal.

The task for the Probation Department is herculean. The Department is charged with taking persons who are debilitated by drugs, mental problems, or both, and seeing to it that they receive the appropriate treatment. It monitors whether individuals attend their AA meetings, take medication, follow up with medical care, attend parenting and anger management classes, receive mental health counseling, and obtain or maintain employment. As if these tasks are not enough, the Probation Department also collects fines, costs, supervision fees, and restitution for victims.

The probation system does work and it is worth the effort and expense of its administration, particularly when one considers the cost of housing persons in jail or prison. The Ohio Department of Rehabilitation and Correction reports that there are now 50,000 inmates housed in Ohio prisons and we are back to the pre-Senate Bill 2 era, where admitting one criminal requires the release of another. The DRC is investing more funds in community correction activities in order to keep more violators in the community rather than in prison. With this new emphasis, there will be a greater strain on the Probation Department and staff. NEOCAP, for example, has a new mission--to accept placement of high risk continued criminal offenders into treatment in the hope this will keep them out of prison.

Random drug testing is one method of monitoring and ensuring probationers remain drug free. All probationers are drug tested and their classification (intensive versus lower end supervision) determines the frequency of testing. The drug testing program is highly successful. The equipment to conduct the tests is new and is very accurate for the Department’s purposes. Probationers are tested for a broad range of drugs. During 2007, the Department conducted 9,378 tests and found only about 4 percent in violation. Marijuana, opiates and cocaine topped the list of positive tests. Heroin, amphetamines and creatinine have shown some increases in usage in the last couple of years, but the overall numbers are still small in comparison to the totals. Though most probationers have a drug or alcohol problem of one form or other, the threat of testing helps to keep them from offending.

During 2007, the Department monitored 564 offenders of which 188 were on intensive supervision. Of the 548 offenders, 88 entered the Jail Treatment Program, 41 obtained their G.E.D.’s, 71 were sent to NEOCAP, 18 were sent to a halfway house, 91 had after-care, 63 were sent to mental health counseling and 72 were assigned community service hours. Fifty-three intensive supervision probationers violated their probation. This is about 30 percent and is a little less than the recidivist rate, which is not unusual for this classification.

On the low end of supervision is the First Felony Offenders program. In this classification, are the Treatment in Lieu of Conviction participants and those who are first time felony offenders with little or no record. The thrust of this program is to save jail time expenses. Persons in this classification typically receive little or no jail time, unless they are required to attend treatment while in jail. The Department currently supervises 50 Treatment in Lieu of Conviction offenders with a success rate of 85 percent. In this program, the County has been saved 870 days of jail time for a savings of $57,000.

In 2007, the Department has collected $85,982.79 in court costs, $1,600.00 in fines, $172,306.13 in restitution, and $34,670.00 in supervision fees, totaling $294,558.92. Since these are funds which probably would never be collected if the person were not on probation or had been sent to the penitentiary, the benefit to government and the victims is readily apparent.

Though enough praise cannot be given to the Department for its efforts, there are still offenders who do not respond to intervention. For these unfortunate souls, there is nothing that can be done but to send them to prison. These are people who refuse to change their lives and want to continue in criminal activity. The important point, however, is that these individuals were given an opportunity to help themselves. In 2007, there were 121 terminations of probation where the offenders were ultimately sent to prison. This merely means that the judge guessed wrong in 21 percent of the cases and is not a criticism of the program or the efforts of the members of the department. In 2006, there were only 91 terminations, but given the poor economy and rise in crime, the increase is not surprising.

The next time you see any of our fourteen probation officers and the six support staff members, give them a big hug and tell them how much they are appreciated. The Court could not function without them.

MAY YOU AND YOURS HAVE A VERY MERRY CHRISTMAS AND A HAPPY AND PROSPEROUS NEW YEAR!

December 2007

 by Honorable Michael A. Cicconetti, Painesville Municipal Court

For the past 14 years, the December issue of the Lake Legal Views is the only opportunity I have to address all of the members of the Lake County Bar Association. If there is one thing I miss from practicing law it would be the daily contact with my fellow lawyers in Lake County. Sitting in a limited jurisdiction court narrows my bench-relationships to a minority of our members.

As Judge Tim Cannon will soon discover, a Judge will find himself or herself in societal isolation if not taking some type of preventative self-help.

I recently attended a social function with other judges and their spouses. One particular judge and I were discussing his years of service on the Bench and years in the Public Retirement System. His total years of cumulative service would allow him to retire today, at nearly full pension. I asked him about his plans for retirement when his wife interjected, "He’ll never retire, he has no other hobbies". I know this individual to be an excellent jurist but it was somewhat surprising to hear this comment by his spouse. Undoubtedly, there are Judges, attorneys and people in every walk of life who find themselves in this same situation.

I firmly believe it is never too late to venture into an area unrelated to one’s occupation. Life is so much more enjoyable and enriching when your "free time" is spent in an activity totally detached from your work.

Until about six or seven years ago my non-judicial activities were limited to golf in the summer and bowling in the winter months. My wife, Kelly and I have two younger sons, ages 10 and 12, who are the absolute highest priority in our lives. When the boys reached the ages 6 or 7 years old I found myself returning to coaching Little League baseball, as I had done many years ago with my older children. Each practice and game renewed the enjoyment of instructing children in the simple tasks of catching and hitting a baseball then watching them experience the thrill of their first hit or catching a pop-up. As my boys have grown older, my coaching "career" has moved from T-ball to being a coach of the Little League All Stars.

During the past few years I have rediscovered my earlier and youthful interest in the sport of fishing during the summer months, and deer and waterfowl hunting in the fall and winter months; hobbies which now keep me busy year-round and the opportunity to introduce these activities to my sons. Unlike 40 years ago, I find the enjoyment is not necessarily in the pursuit of game or fish, but the relaxation and appreciation of nature that is mind-clearing, relaxing, and restful.

I enjoy my judicial career involvement with the American Judges Association, and find my days are busier, yet more rewarding than my earlier years on the Bench.

Whether it is a hobby such as woodworking, painting, gardening or jogging, it is mentally and physically healthy to enjoy a daily break from one’s profession or job.

I suggest becoming involved in community, fraternal or charitable organizations, completely unrelated to your everyday work, and socialize with folks outside of your profession. Isolation is preventable.

The challenges of each of these activities may not make one younger, but it leaves little time to think about being older!

As most of you know, I am the past president of the American Judges Association and, with the uneventful "dethroning", find myself relegated to an ordinary member’s floor seat at our conferences.

A couple of months ago, the 2007 Annual Conference was held in Vancouver, Canada, a history-making joint meeting of American and Canadian judges. The total attendance was approximately 600 judges, all different jurisdictions, from the two countries.

It was interesting to note the differences, not only in the procedural aspects, but also in the degree of formality found in the French-speaking areas of Canada versus the lesser formality of the courts located in the English-speaking parts of the country. Quebec judges, for instance, are suited in a "black tie’ version of courtroom attire versus the typical attire worn by judges in the other provinces and in the United States.

Any meeting of the Canadian Provincial judges requires, by law, an interpreter’s booth and headsets for use by the attendees, as some sessions are in French and some sessions are English. Even stranger are the session where the speakers prefer to give their presentations in both languages, obviously doubling the length of the session. Procedure and language aside, the fundamental philosophies of judges are basically the same. One surprisingly, striking difference between the American and Canadian judges occurred at day’s end; let me assure you, there is no lack of "party attitude" amongst our fellow Canadian jurists when the formalities of the daily agenda are put to rest!

The educational highlight of the Conference was the presentation of the American Judges "White Paper on Procedural Fairness". The authors, Judge Kevin Burke, the 2003 William H. Rehnquist Award recipient and Judge Steve Leben, the Immediate Past President of the American Judges Association, produced this paper with the belief that Americans are highly sensitive to the processes of procedural fairness and that the perception of unfair or unequal treatment is the singlemost important source of popular dissatisfaction with the American legal system.

The authors concluded that most people care more about procedural fairness, the kind of treatment they receive in court, than they do about winning or losing the particular case.

It is their belief that those who felt they were treated less fairly, were less satisfied with the court process, and were less likely to view the court as legitimate, were more likely to have new criminal cases. Judges Burke and Leben’s research concluded litigants make a strong correlation between their ability to speak and a judge’s respectful treatment of them as individuals and, from the litigant’s point of view, if the judges does not respect litigants enough to hear their side or answer their questions, how can a judge arrive at a fair decision?

The authors’ research indicates that non-verbal clues are often more important than verbal ones in ordinary communication. In one study by researcher, Lorinda Porter, she conducted in-court observation of trial judges’ non-verbal behavior. Porter’s study suggests that this is an area of great potential for improvement by judges. Examples of non-verbal communication include facial expressions, the speed of speech, the pitch and volume of the voice, the use of gap-fillers like "uh" and "umm," gestures, posture and body position, attire, eye contact, and the distance between speaker and listener. Her in-court observations showed how judges specific behaviors in court might affect litigants by detracting from the messages the judges were trying to convey.

Judges Burke and Leben concluded the White Paper with recommendations for change. Their recommendations addressed what the court can do, what court administrators can do, what researchers can do, what judicial educators can do, what court leaders can do, and most importantly, what an individual judge can do. Recognizing there will be some disagreement, a summary of their recommended changes for an individual judge are:

I have quoted and paraphrased from the White Paper and will gladly provide copies of the entire text to anyone who wishes a copy. The White Paper will be expanded as comments and suggestions are received by the American Judges Association.

At judicial conferences there are always new topics and recycled topics for judges’ information. These educational conferences and the courses of education offered at the National Judicial College in Reno, NV. will, hopefully, help us serve the Bar and public a little better.

Until next year, the staff of Painesville Municipal Court and I wish you and your family a Happy Holiday Season and healthy and prosperous 2008.

November 2007

   Judge Cynthia Westcott Rice

The Eleventh District Court of Appeals has seen a remarkable year in 2007. Normally, I write on a current case or on an area of the law that has required considerable focus from the court. However, as I contemplated this article, it appeared that the most significant impact on the court this year was the retirement of our two most senior judges and the resulting effect. The appearance of the court has significantly changed both literally and figuratively. I believe these changes warrant a report on the state of the court of appeals.

Judge Donald Ford served the court for 24 years and was Presiding/Admin Judge for most of his tenure. Judge Ford provided our court with extensive experience and a depth of knowledge that was irreplaceable. There was concern that his retirement would create a void. While Judge Ford’s departure had its impact on the court, he was replaced by an experienced, well-respected trial attorney, Judge Mary Jane Trapp.

Judge William O’Neill’s decision in April to run for the U.S. Congress posed a challenge to the court. All the judges on our court scrambled to pick up extra cases so that hearings that had already been scheduled could go forward. We also enlisted help from the Seventh District Court of Appeals and brought back Retired Judges Robert Nader and Judith Christly. The court’s business never missed a beat.

We all waited anxiously to see how Governor Strickland’s new judicial selection process would work. In May, the Governor’s Office assured me that we would have a new judge named by the end of July. They were true to their word as on July 27^th, Lake County’s Timothy Cannon was appointed to the court of appeals bench. Judge Cannon came to the bench armed with 27 years of legal practice in varied areas of the law.

Judge Trapp and Judge Cannon bring with them a solid respect for precedent, an appreciation for the work of our trial judges throughout the district, and a sound common sense approach to case review. Perhaps the most important quality they bring to the court of appeals is their judicial temperament. This is reflected in the consideration they have for members of the bar who appear before the court and their respect for their fellow judges.

The new members of the court complement each other. Judge Grendell, Judge O’Toole and I rely on the unique experience each brings to our cases. Although at times we may disagree on how an issue should be handled, these disagreements are always tempered by the regard we have for each other and our mutual desire to achieve a just result for the parties. Our court has already seen a significant benefit and will continue to benefit from their experience.

The court has also successfully implemented alternative dispute resolution in the form of its mediation program. We initiated appellate mediation in 2005 and have watched it become increasingly more effective. In 2006, 31% of civil cases filed with our court were settled and dismissed after mediation. Shibani Sheth-Massacci, appellate court mediator, attempted mediation with 55% of new civil cases and has achieved a 56% success rate. The advantages to the parties are obvious. Their disputes are resolved mutually and expeditiously through a more cost effective means.

The court is sensitive to the principle that justice delayed is justice denied. With this in mind, we have implemented various ways to decrease the time from the filing of briefs to the issuance of the opinion without affecting the integrity of the decision. We have asked parties to indicate on their brief whether they need oral argument. See Local Rule 21 eff. 8-1-05. This courtesy to the court improves our scheduling of oral arguments and ultimately results in opinions being released sooner. We schedule cases in the originating county as soon as the briefing is completed and allow parties the option of having their cases heard in an adjoining county if it will expedite their case. See Eleventh District Court of Appeals Docketing Statement eff. 8-1-05. If no oral argument is necessary, the court can act on the case as soon as practicable.

Our court’s efforts are summarized by the graph below. It shows that we have decided/terminated more cases than new cases filed. The additional cases terminated eliminated a backlog of cases and allows us to be more current with our caseload. This reduces the amount of time parties wait for their decision.

It goes without saying, none of these achievements can be accomplished by any one judge. The court of appeals is truly a team effort. We are always attempting to improve the administration of our cases and appreciate any comments or suggestions from the bar. Most importantly, we strive to achieve a thoughtful and efficient administration of justice to ensure confidence on the part of litigants and their counsel that their case will be timely and fairly heard.

October 2007
Judge Richard L. Collins, Lake County Common Pleas Court

The court also held that because R.C. 2907.323 does not specify any degree of culpability, the degree of culpability required to commit the crime is recklessness.  Id. at &37.  To show recklessness, the state may offer evidence such as the Internet search terms used by the defendant to find the child pornography, the text on the website where the pornography was found, the file names and titles of the images, whether an identifiable victim is portrayed, whether the defendant was secretive and surrepti-tious in his obtaining, trading or selling of the images and whether there is any technical information (e.g. metadata, etc.) regarding the images themselves.  Id. at &40. 

The court acknowledged that the state must prove beyond a rea-sonable doubt that a real child is depicted to support a conviction under either statute.  Id. at &49.  This normally will require presentation of the images themselves.  Id. at &49.  However, an expert witness may not be needed if the state=s assertions that an actual child is involved goes unchal-lenged.  It noted that Ashcroft did not impose a heightened evidentiary burden on the state to prove that the images contain a real child.  Id. at &50.  Juries are still capable of distinguishing between real and virtual images without expert assistance.  Id. at &52.  The admissibility of such images is governed by the sound discretion of the trial judge and the state can prove its case with circumstantial evidence.  Id. at &33.  Essen-tially a trier of fact may infer that the person in the material or performance involved is a minor if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the person as a minor.  This determination is in line with various federal cases that have ruled that the state, as part of its affirmative case, was not re-quired to negate unsupported speculation that the images may have been computer generated or are other than what they appeared to be.  See, e.g., United States v. Deaton (C.A.8, 2003), 328 F.3d 454, 455.   

The Ohio Supreme Court=s ruling in Tooley is an important decision because it closes a potential loophole that would have made enforcing the two statutes against child pornography very difficult.  It denies a refuge to those who would turn a blind eye to the reality of such images and furthers our society=s goal of protecting children. 

September 2007

Judge Ted Klammer, Lake County Probate Court

            Law is not a science, but an art.  It is an ever evolving art, which has experienced the computer age.  Lawyers are equipped with new ideas, new arguments, and an array of cases.  If there is one thing any attorney should know, it’s to be prepared.

            May I suggest that you know your Judges and acquaint yourselves with their local rules and practices.  In your motions, hearings, and appeals, state facts simply – yet persuasively.  The legal argument should be concise.  If it is not convincing to you, how can the argument be persuasive to the Court.  Please forget legalese and avoid Latin.  You are turning your words into a legal product.

            To be prepared before and after your client’s death, you may wish to ask the following:

Let us now briefly review the area of estate assets and liabilities.  I must confess that too often the parties involved in an estate do not know where important legal documents, such as a will or trust, are located.

It is important to find out about any prenuptial agreements, marriages, structured

settlement and inheritance.  Your client should meet with spouse and children to discuss funeral arrangements and living will issues.  Your service is to put it all together so it complies with the law.  It sounds difficult, but you can simplify wills, etc.  Thorough preparation of these documents will not only prepare your clients for the future, but will help simplify the probate process for yourself and the court. 

Those of you who have advised your clients on leaving their bodies to science, make certain you read the fine print!  Probate Court has experienced cases in which a teaching hospital has declined the body after death.  It could be a problem.  A more significant criminal issue is the sale of body parts, corpses or living people. Even well-respected doctors and researchers use human tissue without a donor’s consent.  (See Trial, The battle over the body, October 2006).  There has been a recent wave of new litigation concerning decisions whether a patient live or dies.  Courts throughout this land differ in their conclusions as to when life should end.  (See Trial, Who decides whether a patient live or dies? October 2006).

In conclusion, I leave you with two thoughts…

            1.         "You make a living by what you get, but you make

                                    around someone else’s dog."

Take care of yourselves.

August 2007

Judge Vincent A. Culotta, Lake County Common Pleas Court

"Goodbye Megan, Hello Adam"

In 1996, the Ohio Legislature revised R.C. Chapter 2950 and enacted Ohio’s version of "Megan’s Law," a sex offender registration statute. Commonly referred to as "H.B. 180", Ohio’s version of Megan’s Law contained three primary provisions: classification, registration, and community notification. In order to determine the appropriate classification and the registration and notification requirements, Courts were mandated to conduct evidentiary hearings prior to sentencing a person convicted of a sexually oriented offense. In addition, not only did Megan’s Law apply to offenders being sentenced for committing a sexually oriented offense, but it also was to be applied retroactively. Persons who committed a sexually oriented offense prior to the enactment of H.B. 180 and who were still serving a prison term for that offense after the effective date of this legislation had to be brought back to Court for a hearing to determine their proper classification and their registration and notification requirements.

July 2007

Judge William W. Weaver, Lake County Juvenile Court

Within the last two years the Juvenile Court has undergone substantial and dramatic changes, particularly in our administrative personnel. As most of you know, about three years ago one of our Court Administrators, Dennis Vidic, suffered a health problem which ultimately required him to retire, which he did in August, 2005. At that time, Susan Kish, the other Administrator, kindly took over Dennis’ duties as well as her own and performed both functions very well until she retired in August, 2006. I find it hard to believe that anyone would give up such a pleasant, stress-free, rewarding and respected position simply to rest and relax in a new home in North Carolina, where they even had snow, once! But Sue did.

During this same period of time, Marlene Anderson, Supervisor of our Clerk of Court Department, became ill and ultimately decided to retire, and the supervisor of our Finance and Human Resources Department, Marylou DiLiberto, also decided to join her husband in retirement. Perhaps I should be getting a message from all of this. Marlene now states that she has fully recovered. We miss them all and wish each of them a long and happy retirement.

Obviously, all of this left some gaping holes for us to fill; however, we are fortunate in having many qualified and competent individuals who could step right into the shoes of those who left. As you might expect though, when one person steps up, another vacancy is left to be filled. All of this happened right in the middle of our year long conversion to a new computer system which, nonetheless, will soon be online.

Fortunately, or unfortunately, depending on your point of view, we had just begun to undertake several new and significant programs, each of which requires much research and countless hours of planning and preparation. We have continued to pursue these projects and it is our hope that by October of this year we will have in place a "drug, alcohol and mental health" Court functioning in the evening. We also hope to begin a "Truancy Court" possibly to hear these cases in the schools. We also partnered with several other child care agencies and the Ohio State Extension to conduct a ten week nationally recognized parenting course known as "The Parenting Project". The first class has successfully graduated twenty persons and the next is scheduled to start in September.

While this has created a somewhat chaotic situation throughout the Court, still, all of us agree that the rewards are worth far more than the effort.

I know that many, perhaps most, of you do not stay current on juvenile law; however, it does take place and I would be remiss if I did not mention, at least, some of the important cases of this past year, so please scan these.

1. In re Stanley, 165 Ohio App.3d 726, 2006-Ohio-1279. Here, the state requested a mandatory bindover because the charges were category I or II offenses. The Court found probable cause but also found that these charges were neither category I nor II offenses and, therefore, dismissed the bindover request. The Seventh District Court of Appeals said that in such cases, the Court must proceed to determine whether the discretionary bindover factors are applicable. It cannot simply dismiss the bindover.

2. In re Stoll, 165 Ohio App.3d 226, 2006-Ohio-346. Here, the Third District Court of Appeals found that even though the residential parent may be involved with drugs and has a meth lab in the home, still, if the other parent places the children with grandfather, who is suitable and can care for the children, then they are no longer dependent or neglected.

3. In re McBride, 110 Ohio St.3d 19, 2006-Ohio-3454, the Supreme Court held that once the Court places a child in the permanent custody of a children’s services agency, a biological parent cannot file a petition for custody of the child. The reason is that all of the individual’s parental rights have been divested, and Ohio Revised Code 2151.353 (E) prohibits such filing.

4. In re A.B., 110 Ohio St.3d 230, 2006-Ohio-4359, the Supreme Court determined that a Juvenile Court does not have the authority to place a child in PPLA (Planned Permanent Living Arrangement) unless the agency which has temporary custody requests that disposition.

5. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, the Supreme Court decided that a finding that the agency made "reasonable efforts" to maintain the child in its own home is not required in permanent custody hearings, but is required in prior emergency and dispositional hearings.

The Court also found that the Trial Court can consider the "wishes of the child" as expressed only by the Guardian Ad Litem, and is not required to personally hear the child.

6. In re T.G., 2006-Ohio-5504, the Twelfth District Court of Appeals found that a private dependency complaint filed by a relative and adjudicated "dependent" does eliminate any future requirement to prove a "change of circumstances" or "unfitness" of a parent.

Query: Does this mean that a custodial parent who does not wish to raise a child at a particular time can have a relative file a dependency complaint and agree to an adjudication and thereby have the other parent also determined to be unfit? Could be a "loophole" in cases in which a residential parent dies.

7. In re S.M., 2006-Ohio-2529, Tenth District Court of Appeals. The child was in Department custody for more than twelve out of twenty-two months and even though mother claimed that she had substantially completed the case plan, the Trial Court granted permanent custody to the Department. The Appeals Court said that "return of the child within a reasonable time" was no longer an issue. The only issue was the "best interest" of the child, and compliance with the case plan was not a best interest test.

There are many more cases, but these will have the most significant impact.

June 2007

by Honorable Colleen A. Falkowski
Lake County Domestic Relations Judge

Most of us can lay claim to the title as a successful "do it yourselfer" for a project or two. These tasks usually are for the benefit of our home’s interior or exterior; the parties we involve are normally those from whom we purchase supplies. Since our immediate families either laugh at our perceived prowess or flee from the project area, I will not include them as parties to a "do it yourself" project.

What happens when the "do it yourself" project crosses over into the courtroom? The decision of an individual to represent himself/herself in court is one of the most sacred of our democracy. Our municipal courts have long been the traditional arena for the pro se litigant, particularly in small claims court. The aggrieved individual files his/her complaint, appears in court, and the court decides the issue based on the evidence submitted. However, what are the consequences when an individual decides to undertake pro se representation in a felony case? What are the consequences when an individual decides to undertake pro se representation in a court with continuing jurisdiction, such as Domestic Relations?

In Domestic Relations, pro se representation is not new. There are numerous issues which can be and are very competently presented by pro se litigants; however, there are also issues which do not lend themselves well to pro se representation. Such issues include allocation of parental rights and responsibilities, determination of spousal support, and division and distribution of property interests.

Throughout 2006 and 2007, the Lake County Domestic Relations Court has experienced a sharp increase in the number of pro se filings for divorce, and post-decree reallocation of parental rights, both inherently complex areas. What fuels this increase? I submit two significant factors are television and the internet. Judge Judy, The People’s Court, Divorce Court, Judge Hatchett, Judge Joe, Judge Alex, and Judge Whoever Else I Forgot to List give their pro se litigants a forum and an audience. Disrespect runs rampant in these courtrooms; quips or sarcastic barbs are the modus operandi for most of the jurists. The message received by the viewer is not that of respect as to the judicial proceeding; instead, the judicial system becomes an entertainment venue, similar to the WWF. Further, there is an expectation a court case can be resolved in one hearing.

The internet has do-it-yourself guides for every issue under the sun, both legal and illegal. Forms can be downloaded; divorce kits for the computer can be purchased. Such are often grossly misleading to a pro se individual with assets. The basic ability to read, write, and file documents at a Clerk’s Office is neither adequate nor effective representation of oneself in Court.

One last, but most important factor contributing to the increase in pro se litigation, is a growing lack of respect and regard by the public for the professional service the attorney provides. Our profession is unique in that it is the attorney’s intellect which is the core of the legal services. Our basic equipment is between our ears. There are no operating rooms, uniformed staff in antiseptic settings, or stainless steel office equipment in excess of a quarter of a million dollars. I submit television has led people to believe the ability to talk is tantamount to the practice of law. Forget about the rules of evidence, procedure, statutes, and stare decisis. I have witnessed pro se litigants thunderstruck when I have informed them they are held to the same standard of practice and knowledge as an attorney licensed by the Supreme Court of Ohio. There is no middle ground.

The prudent pro se individual (and there are many) balances the issue before him/her with the individual’s abilities. I have seen numerous pro se presentations at trial rival those of counsel. I have seen separation agreements and decrees of dissolution prepared well. However, in this court of continuing jurisdiction on children’s issues, I have seen pro se litigants (and there are many) in over their heads from the inception of their litigation. Since their numerous filings demand hearings and briefed responses, the litigation costs for the other parent rise dramatically. Some pro se individuals eventually do seek legal counsel; however, at that point, they have increased their legal fees sizably by the hornet’s nest they helped create. To date, I am not aware of a vexatious litigator label in a case with continuing jurisdiction; however, the day is nearer when such will have to be addressed.

I hold our practitioners in high regard in that the factors I’ve discussed above have also caused many clients to question their attorneys at length about the attorney’s legal advice. In closing, I hope you read Judge Paul H. Mitrovich’s excellent Law Day 2007 article on the role of the attorney in today’s society and the protection of our constitutional rights. As we say in Domestic Relations, Judge Mitrovich’s article is incorporated herein, the same as if fully rewritten.

May 2007
  Judge Eugene A. Lucci, Lake County Court of Common Pleas

If you are a judge, how difficult is it to take an honest look at how well you are performing your job? If you ask the question, how can you avoid doubting the accuracy or frankness of the response? And yet, without access to someone who is kind enough to tell you the truth, how can you hope to improve?

The Ohio State Bar Association, the Ohio Judicial Conference, and the Ohio Supreme Court now have an answer. Together with the OJC’s Subcommittee on Public Confidence and Community Outreach, the OSBA’s Independent Judiciary and Unjust Criticism of Judges Committee has developed a voluntary and confidential evaluation program that is designed to give participating judges a unique and valuable mid-term glimpse of themselves as seen through the eyes of the attorneys who practice in their court. Great care is taken to protect the confidentiality of the information, as well as the anonymity of the attorneys providing the feedback.

The program, its protocol, and the forms developed to implement it, are being offered to the 84 local and seven metropolitan bar associations of the state for their adoption and use. The OSBA will also provide assistance and training in preparing the program.

Under this program, confidential mid-term evaluations will be conducted for each judge every two years during term. The evaluation may occur during the second, third, fourth, or fifth year of a six-year term. The evaluation generally will not be conducted in the first year of a judge’s term unless the first year occurs in a term to which the judge was re-elected to the same court. A judge will not be evaluated under this process during the last year of a term, which would be a campaign year.

The mid-term evaluation is intended to be a constructive evaluation tool for self-improvement, not for campaign purposes one way or the other. The mid-term evaluation is separate and distinct from the bar association survey about judicial candidates that is conducted during an election year and made public for the purpose of informing voters about the candidates.

The evaluation instrument, the responses on which are anonymous, will be disseminated to all members of the participating bar association and to lawyers who practice in the court being evaluated. Only those attorneys who represent in writing that they have been admitted to practice for three years, have appeared before the judge within the last three years, and have no personal or professional conflict of interest in objectively evaluating the judge, may complete the evaluation. Judges will be evalua