Disclosing a “Butt-Dial”: A Funny (but Important) Crack in Title III

Author: Matthew Byrnes, Associate Member, University of Cincinnati Law Review

Although many people have suffered from the potentially humiliating consequences of a so-called “butt-dial” or “pocket-dial,” it is likely that few, if any, have ever sought civil damages against the recipient. That is, until Jim Huff, chairman of the Kenton County Airport Board and his wife, Bertha, filed suit against Carol Spaw, a secretary at the airport, for receiving, recording and disclosing conversations she overheard when Mr. Huff placed a pocket-dial to her desk phone. U.S. District Court Judge David L. Bunning dismissed the lawsuit on the grounds that the Huffs lacked an objectively reasonable expectation of privacy and the Huffs have filed an appeal.[i] The case is likely one of first impression with ramifications that extend well beyond the civil context. For example, many individuals have been arrested after placing pocket-dials to 911 while discussing or in the commission of criminal acts.[ii] If an objectively reasonable expectation of privacy were to be found, this evidence would have to be suppressed under Title III’s exclusionary rule.[iii] But despite the novelty of the issue and circumstances, the history of Title III and its application in both civil and criminal contexts support dismissal of pocket-dial based claims.

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Where Personal Meets Professional:  The Difficulties of Proving Tortious Interference by Clients in the Firm Environment

Author: Bradley Dunkle, Associate Member, University of Cincinnati Law Review

Carol Sparks Drake, an Indiana attorney, recently saw her home and work lives collide in a most unfortunate manner.  For more than twenty years, Drake worked as a partner in the law firm of Parr Richey Obremskey & Morton (“Parr Richey”).  However, in 2006, the partners reconstituted the partnership, electing to leave Drake out.[i] Why did the partners of Parr Richey choose to cut out this long term partner despite Drake’s impression that “none of the partners had indicated in any way that [her] future with the firm was in any jeopardy?”[ii] Drake’s dispute with Duke Realty, a Parr Richey client, over land use near her family residence, a forty-six acre farm in Boone County, Indiana, appears to be the answer.[iii] Although Drake’s contract with Parr Richey could be terminated at-will, she claims that Duke Realty impermissibly interfered with her employment contract and influenced Parr Richey to terminate her.[iv] The Indiana Supreme Court’s determination in Drake v. Dickey that a third party can tortuously interfere with an employment contract could prove important in determining how much influence clients have on businesses.[v]

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The New Batson Challenge, Part II: Clarifying Windsor’s Standard of Review

­ [1] Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

In Batson v. Kentucky,[2] the Supreme Court held that peremptory challenges of members of a jury pool are subject to the guarantees of the Equal Protection Clause. Last year, in United States v. Windsor,[3] the Court struck down the federal Defense of Marriage Act (DOMA) as violative of the Fifth Amendment’s Equal Protection and Due Process Clauses. In January 2014, the Ninth Circuit applied these decisions in SmithKline Beecham v. Abbott Laboratories[4] to extend the protections of Batson to peremptory challenges of gay and lesbian jurors. In so doing, the court relied heavily on Windsor, essentially appropriating the Supreme Court’s reasoning in Windsor to declare that laws that classify persons based on sexual orientation are reviewed under a heightened scrutiny standard. This case is notable, first, because it represents a further extension of Batson’s growing protections, but more importantly, because it demonstrates how the Supreme Court’s decision in Windsor invited lower federal courts to declare a standard of review for laws that classify persons based on sexual orientation and initiated a legal battle to distill the “spirit of Windsor” into a manageable judicial standard.

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No “Good-Faith” Required: The Broad Interpretation of the Davis Good-Faith Exception to the Exclusionary Rule

Author: Cameron Downer, Associate Member, University of Cincinnati Law Review

On June 16, 2011, the United States Supreme Court in Davis v. United States expanded the application of the good-faith exception to the Fourth Amendment exclusionary rule.[1] The Court held that the exclusionary rule does not apply to Fourth Amendment violations when officers act in objectively reasonable reliance on binding precedent that is later overturned.[2]

The ambiguous holding in Davis failed to give a bright-line rule to help courts determine whether the good-faith exception should apply. Instead of applying the more equitable narrow interpretation, some courts are applying an overly broad interpretation of Davis that allows officers to pick and choose what law to rely on in justifying their police practices. That interpretation of Davis has led to the inequitable adjudication of Fourth Amendment violations and is converting Fourth Amendment rights into a “mere form of words.”[3] As a consequence, with the development and use of new police technology, the broad interpretation of the exclusionary rule will leave people vulnerable to Fourth Amendment violations without the right to a remedy.

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Smile…You’re on Traffic Cameras!

Author: Chris Tieke, Contributing Member, University of Cincinnati Law Review

Bradley L. Walker v. City of Toledo, et al. and the fate of Ohio’s municipal automated traffic enforcement programs.

Under Article XVIII of the Ohio Constitution, municipalities have home rule powers that provide them the “authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”[i] This year the Ohio Supreme Court will decide whether a chartered Ohio municipality has the constitutional right under its home rule powers to conduct administrative hearings as a means of enforcing punishments for violations of its red light and speed monitoring camera systems.  This case comes to the Court on appeal from a decision of the Ohio Court of Appeals Sixth Appellate District which held that a City of Toledo ordinance instituting an automated traffic enforcement system unconstitutionally attempted to usurp the jurisdiction of the municipal courts as provided to them by the legislature in R.C. 1901.20.[ii]  The Supreme Court of Ohio should affirm the Sixth District’s decision and find the Toledo ordinance unconstitutional since jurisdiction over all traffic violations rests exclusively with municipal courts and the ordinance unconstitutionally conflicts with general state traffic laws.

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Where Due Process and Equal Protection Meet: Articulating the “Fundamental Right” of Marriage

Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

Since the Supreme Court’s decision in United States v. Windsor[1] last summer, two questions have been on many court watchers’ minds. First, after Windsor articulated a lengthy reasoning for its decision to strike down the Defense of Marriage Act, under what standard of review will courts evaluate laws that discriminate against same-sex couples? Second, can the standard for invalidating the federal Defense of Marriage Act (DOMA) under the Fifth Amendment be applied to States through the Fourteenth Amendment, or even be enunciated in a meaningful way? The Supreme Court’s current line of jurisprudence on constitutional problems that implicate same-sex issues necessitates that these two questions be considered and answered together,[2] as the United States District Court in Utah did in Kitchen v. Herbert.[3] Ultimately, the Kitchen case shows that the reasoning used in Windsor might not have been the soundest way to analyze the issues presented, and that there are alternative lines of reasoning that better support same-sex couples’ efforts to overturn state bans on gay marriage.

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The Science Behind Juvenile Life without Parole: Why the Supreme Court of Ohio Should Find the Sentence Unconstitutional

Author: Cameron Downer, Associate Member, University of Cincinnati Law Review

The Supreme Court of Ohio has an opportunity to find juvenile life without parole unconstitutional as cruel and unusual punishment. Eric Long, a juvenile at the time he committed violent crimes, was sentenced to life without parole, the same punishment given to his adult accomplices. At sentencing, the trial court failed to consider the long-standing scientific evidence behind adolescent brain development that supports the conclusion that life without parole for a juvenile violates the Eighth Amendment proportionality requirement.[1] Considering this evidence severely weakens the trial court’s justifications for the sentence, the Supreme Court of Ohio should take this opportunity in reviewing Eric Long’s case to find his sentence unconstitutional.[2]

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