The Magazine of the Dayton Bar Association | SUMMER 2016 | Vol. 65, No. 11
Dayton
Bar Briefs
Available Soon!
www.daybar.org
2016-2017 DBA Board of Trustees
Susan d. solle President
Brian D. Wildermuth First Vice-President
David P. Pierce Second-Vice President
Barbara J. Doseck Secretary
Jonathon L. Beck Treasurer
Lynnette Dinkler Member-at-Large
Angelina N. Jackson Member-at-Large
Hon. Timothy N. O’Connell Member-at-Large
Merle F. Wilberding Member-at-Large
Kermit F. Lowery Immediate Past President
John M. Ruffolo Bar Counsel, ex officio
William B. Wheeler DBA Executive Director, ex officio
Promoting Excellence in the Legal Profession 2
Dayton Bar Briefs Summer 2016
937.222.7902
Dayton
Bar Briefs
Summer 2016 | Vol. 65, No. 11
Dayton Bar Association Board of Trustees
CONTENTS FEATURES
2016 – 2017
Susan D. Solle President
Brian L. Wildermuth First Vice President
David P. Pierce
Second Vice President
Barbara J. Doseck Secretary
Jonathon L. Beck Treasurer
Lynnette Dinkler Member–at–Large
Angelina N. Jackson Member–at–Large
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Merle F. Wilberding Member–at–Large
Kermit F. Lowery
Immediate Past President
John M. Ruffolo, ex officio Bar Counsel
William B. Wheeler, ex officio Executive Director
DAYTON BAR BRIEFS is published by the Dayton Bar Association, 600 Performance Place, 109 N. Main St., Dayton, OH 45402–1129, as its official publication for all members. Comments about this publication and editorial material can be directed to the Bar Association office by the fifth day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through July. Paid subscription: $30 / year Library of Congress ISSN #0415–0945 William B. Wheeler, Executive Director Shayla M. Eggleton, Coordinator Publications & Design Phone: 937.222.7902 Fax: 937.222.1308 The contents expressed in the publication of Dayton Bar Briefs do not necessarily reflect the official position of the Dayton Bar Association. www.daybar.org
WOMEN IN LAW FORUM Stress Relief with Tori Reynolds, Owner of Speakeasy Yoga
By Jade K. Smarda Esq.
PEANUT BUTTER AND JUSTICE The Recap
By Mag. Bonnie Beaman Rice
2016 CELEBRATION OF LIFE MEMORIAL LUNCHEON RECAP
By David C. Greer Esq.
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2016 ANNUAL MEETING
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FROM THE JUDGES DESK
Hon. Timothy N. O’Connell Member–at–Large
Celebrating Our Legacy Of Excellence (One Year at a Time)
By Nadia A. Klarr, Law Clerk
Endeavoring to Strike a Sound Balance
By Hon. Timothy N. O’Connell
DEPARTMENTS 4
BARRISTER OF THE MONTH: APRIL A. JORDAN ESQ.
By Jennifer A. Kirby Esq.
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CONTINUING LEGAL EDUCATION
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CLASSIFIEDS & MARKETPLACE
UPCOMING EVENTS 8
2016-17 COMMITTEE MEETINGS
14 2016-17 CHANCERY CLUB LUNCHEON DATES Doors will open at 11:30am. Seating is Limited YOU must RSVP: calbrektson@daybar.org
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MARK YOUR CALENDARS
Summer 2016 Dayton Bar Briefs
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BARRISTER OF THE MONTH
April A. Jordan Esq.
“As a peacemaker the lawyer has a superior opportunity of being a good man.” ~Abraham Lincoln
A A
sk any attorney around town who you should see about a commercial real estate issue and they will likely direct you to this month’s Barrister of the Month – April Jordan. Based on April’s reputation, I think she is the only person surprised by her nomination to join this esteemed group of individuals. While my own area of practice does not cross into April’s, I have heard her name several times and only in the context of her excellence. Last week I had the pleasure of talking with April about her life and career. It was easy to see why April has a good reputation for her honesty and integrity. As it turns out, we have April’s husband Matthew to thank for bringing April to the Dayton area. April grew up in Indiana and attended Indiana State University in Terra Haute. While at Indiana State University, April majored in journalism with the intentions of becoming a journalist after graduation. A few things changed for April along the way. April noticed that the job outlook for journalism majors may not be all she hoped it would be. In addition, during her tenure with the school newspaper, April covered the local courts. April met the local judges and lawyers and started developing an interest in practicing law. Moved by this experience, April decided to attend law school. Not only did April make decisions that would impact her professional future while in college, April met the man who would forever change her personal life – her husband Matthew Wolfe. Matthew is currently an aerospace engineer and, as I said earlier, is the reason April is now in Dayton. When Matthew took a position at Wright Patterson Air Force Base, April moved with him and began attending law school at UD. While in law school, April did not know she would ultimately find her niche in real estate law. Her first position upon graduating from law school was with Millonig, Bart & Brunner, the premiere real estate law firm in Dayton at the time. April accepted a position with the firm not because of its focus on real estate law, but because of how nice everyone was during her interviews. This decision turned out to be a very good one. April quickly found mentors in Jim Hedrick
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Dayton Bar Briefs Summer 2016
By Jennifer A. Kirby Esq. Chair DBA Editorial Board Surdyk, Dowd & Turner Co., LPA
and his sister Merideth Trott, both practicing attorneys with the firm. After a few reconfigurations of the firm, April and Jim ultimately formed Hedrick & Jordan Co., LPA in 1995. April is happy to be a part of a smaller, family based firm. In fact, Jim’s son Brandon now practices with them as well. April’s practice focuses on commercial real estate matters. She represents landlords, tenants and businesses in various real estate transactions, including the development of shopping centers and office buildings. April considers her practice to be “a very ordinary practice” but loves what she does and feels fortunate for where she has ended up. April also enjoys being in Dayton, because to her, it still feels like a small town. April can walk out into the City at any given time and see someone she knows. April has also been involved in Dayton area associations, and once served as the Chair of the Dayton Bar Association’s Real Estate Committee. She likes meeting with local attorneys and hearing about their practices and experiences. Outside of the office, April enjoys spending time with her husband and returning to her home state. April and Matthew have a second home in Indianapolis that they visit frequently. As part-season ticket holders for both the Indiana Pacers and the Indiana Fever, it’s safe to say that April and her husband are basketball fans. April talks glowingly of her home state and the friends and family she still has there. April also has a love for Abraham Lincoln. She didn’t come out and tell me that, but it was obvious after he came up during her discussion of the Indiana State Museum. Moved by his ability to do extraordinary things despite being an ordinary man, April has a wealth of knowledge about Lincoln and his philosophy on how lawyers should behave. April herself reminded me of Lincoln when I asked her what she would want someone to think or know about her after meeting her for the first time. April’s response was that she hopes that person knows she is contentious, honest and a good peacemaker. I can say after my first encounter with April that she has achieved this goal. I’m sure everyone who has worked with April, or had the chance to meet with her, will say the same.
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Summer 2016 Dayton Bar Briefs
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DBA EVENTS
A gathering for DBA Members BOTH Women & Men
Stress Relief with Tori Reynolds, Owner of Speakeasy Yoga
T
he DBA's Women in Law recently kicked off their heels, literally, for a topic that should be near and dear to the hearts of all legal professionals: stress relief. On June 30, 2016, Tori Reynolds, founder of Speakeasy Yoga on Third Street in Downtown Dayton, spoke to the Women in Law Forum about how performing a few simple yoga moves at home or even at the office can help decompress and clear the mind. The discussion was interactive, and on multiple occasions Reynolds had attendees on their feet at the DBA's headquarters learning basic moves that can make a big difference. Reynolds is a Dayton native, who fell in love with yoga while studying psychology at Wright State University. Her studio (which opened in February of this year) is a "breath-and-flow" studio, meaning that all classes – whether for beginners or advanced "yogis" – emphasize the breath-to-movement connection. In fact, in her "Go with the Flow" classes that she has taken on the road, Reynolds sets the tempo with the live music of Ben Rivet, who uses acoustic guitar, vocals, and live-looped beatboxing to set the pace. Overall, the DBA's office did a great job of standing in for Reynolds' studio, with one notable exception: the temperature! At Speakeasy, all classes are heated to 90 degrees. This keeps the muscles warm, and helps the body detox while the mind does the same with stress. Needless to say, stress affects both men and women in the legal profession. Fortunately, the DBA recognizes this reality, and has offered programming on stress in the past. Just last year, Dr. Barry Taylor of Executive Medical Centers of Ohio spoke to the Dayton Chancery Club about the havoc wreaked by excess adrenaline in the human body. The pressures of work can cause our bodies to release adrenaline, which can be vital to survival in small doses, but can lead to cardiovascular issues if our bodies are constantly in overdrive. In a nutshell, adrenaline makes our blood pump faster, which over time thickens the walls of our arteries. Such thickening causes the openings in our blood vessels to get smaller, perpetuating a vicious circle of high blood pressure. Dr. Taylor advised that exercise and meditation are among the best non-pharmacological ways to neutralize the effects of adrenaline. Yes, exercise can create adrenaline, but it is also a great way to put the adrenaline already in our bodies to optimal use and, to use completely unscientific terms, to make our bodies less "trigger happy" about producing additional adrenaline. With Speakeasy in town, perhaps we have the ideal place to start getting our bodies and minds back in balance? Thank you, Tori! And, of course, Namaste. Forum events are open to all members of the DBA, including male members By Jade K. Smarda Esq. of the bar, who are always encouraged to attend! Watch Bar Briefs and your Bar Briefs Editorial Board email for details regarding the next event. 6
Dayton Bar Briefs Summer 2016
Faruki Ireland & Cox P.L.L.
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COURT NEWS
Juvenile Court Judge Elected President-Elect of National Organization M
ontgomery County Juvenile Court Judge Anthony Capizzi will serve as president-elect of the National Council of Juvenile and Family Court Judges for 2016-17 after his election last week by the NCJFCJ Board of Directors. He is in line to become president next July. In addition to serving as an officer, Judge Capizzi also sits on multiple committees. The NCJFCJ membership approved the slate of officers at its business meeting Tuesday during the group’s annual meeting. The NCJFCJ seeks to improve the family court system and court practices and to raise awareness of the core issues that touch the lives of the nation’s children and families. Juvenile justice issues such as child trauma, implicit bias, and shackling reform and family law issues such as domestic/family violence, child custody, and family relationships effected by divorce and/or non-married families all encompass the work of the NCJFCJ. Ohio’s NCJFCJ connections run deep: The first NCJFCJ president was from Ohio and three of the first four. In fact, there have been 10 NCJFCJ presidents from Ohio. Judge Capizzi will be the 11th. The NCJFCJ membership also Tuesday approved Lucas County Juvenile Court Judge Denise Navarre Cubbon to serve a second term on the board. Before his initial election to the juvenile court in 2004, Judge Capizzi served as an acting judge on the Dayton Municipal Court and in private practice for 25 years with a focus on juvenile and family law issues. He works with the Ohio Supreme Court in several capacities: on the Advisory Committee on Children and Families and its Juvenile Justice subcommittee, on the Advisory Committee on Case Management, as an Ohio Judicial College instructor, and as a Judicial College trustee. Judge Capizzi noted that he will be sworn in as NCJFCJ president at the 80th annual conference in Washington, D.C. on July 18, 2017. He said he will be inviting and encouraging Ohio juvenile and family court judges to attend.
www.daybar.org
Congratulations Judge Capizzi!
Summer 2016 Dayton Bar Briefs
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DBA 2016-2017
Committee Chairs & Vice Chairs Administrative Committees Eikenbary Advisory Board Frank B. Williams, III, Chair *Meetings scheduled when necessary.
Judges’ Committee on Notaries Public Charles F. Allbery III, Chair Fredric L. Young, Vice Chair
*Meetings scheduled when necessary.
Service Committees Dayton Bar Briefs Editorial Board Jennifer A. Kirby, Chair Michele S. Henne, Vice Chair *Meetings scheduled when necessary.
Diversity Issues Barbara J. Doseck, Co Chair Angelina N. Jackson, Co Chair Mag. Brandon McClain - Co Vice Chair Kevin Conner - Co Vice Chair
Unauthorized Practice of Law & Fee Dispute Arbitration John M. Ruffolo, Chair
Advisory Committees Bar Exam and Qualifications Harry G. Beyoglides Jr., Chair Julius L. Carter, Vice Chair *Meetings scheduled when necessary.
1st Tuesday at noon September 13, 2016 (date change) October 4, 2016 November 1, 2016 January 3, 2017 February 7, 2017 March 7, 2017 April 4, 2017 May 2, 2017
Civil Trial Practice & Alternative Dispute Resolution Lauren K. Epperley, Chair Ryan O’Donnell, Vice Chair
2nd Tuesday at noon September 13, 2016 October 11, 2016 November 8, 2016 January 10, 2017 February 14, 2017 March 14, 2017 April 11, 2017 May 9, 2017
Corporate Counsel (In-House Counsel) Ben Watson, Co-Chair Kevin C. Quinlan, Co-Chair
Paralegal Chairs TBA Public Service & Congeniality Adam H. Krumholz, Co Chair Michael J. Jurek, Co Chair
Professional Ethics Jeffrey A. Hazlett, Chair D K (Rudy) Wehner, Vice Chair Daniel J. Brandt, Chair Tabitha Justice, Vice Chair
Substantive Committees Appellate Court Practice Chairs TBA 2nd Wednesday at noon September 14, 2016 October 12, 2016 November 9, 2016 January 11, 2017 February 8, 2017 March 8, 2017 April 12, 2017 May 10, 2017
September 9, 2016 October 14, 2016 THURSDAY - November 3, 2016 February 10, 2017 March 17, 2017 April 21, 2017 May 12, 2017
4th Thursday at 4:00pm September 22, 2016 October 20, 2016 (date change) November 17, 2016 January 26, 2017 February 23, 2017 March 23, 2017 April 27, 2017 May 25, 2017
Criminal Law & Its Enforcement Michael P. Brush, Chair Michele S. Henne, Vice Chair
3rd Wednesday at noon September 21, 2016 October 19, 2016 November 16, 2016 January 18, 2017 February 15, 2017 March 15, 2017 April 19, 2017 May 17, 2017
Domestic Relations Adam R. Mesaros, Chair Craig M. Sams, Vice Chair
2nd Thursday at noon September 8, 2016 October 13, 2016 November 10, 2016 January 12, 2017 February 9, 2017 March 9, 2017 April 13, 2017 May 11, 2017
Environmental Law Nathan Hunt, Chair Dan A. Brown, Vice-Chair
Bimonthly, 2nd Wednesday at noon September 14, 2016 November 9, 2016 January 11, 2017 March 8, 2017 May 10, 2017
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Estate Planning, Trust & Probate Law Edward M. Smith, Chair David M. Brannon, Vice Chair
1st Wednesday at 4:00pm September 7, 2016 October 5, 2016 November 2, 2016 January 4, 2017 February 1, 2017 March 1, 2017 April 5, 2017 May 3, 2017
Labor & Employment Law Beverly A. Meyer , Chair Adam R. Webber, Vice Chair
2nd Tuesday at noon September 13, 2016 October 11, 2016 November 8, 2016 January 10, 2017 February 14, 2017 March 14, 2017 April 11, 2017 May 9, 2017
3rd Thursday at noon September 15, 2016 October 20, 2016 November 17, 2016 January 19, 2017 February 16, 2017 March 16, 2017 April 20, 2017 May 18, 2017
Federal Practice Victoria Nilles, Chair Michael Rhinehart, Vice Chair
Real Property Chair TBA Brandon Hedrick, Vice Chair
2nd Monday at noon September 12, 2016 October 10, 2016 November 14, 2016 January 9, 2017 February 13, 2017 March 13, 2017 April 10, 2017 May 8, 2017
2nd Thursday at noon September 8, 2016 October 13, 2016 November 10, 2016 January 12, 2017 February 9, 2017 March 9, 2017 April 13, 2017 May 11, 2017
Juvenile Law Chairs TBA
1st Monday at 4:00pm September 12, 2016 (date change) October 3, 2016 November 7, 2016 January 9, 2017 (date change) February 6, 2017 March 6, 2017 April 3, 2017 May 1, 2017
START THE NEW DBA FISCAL YEAR OFF RIGHT!
personally and professionally ugh committee participation! Log on to view “Interest Groups”
www.daybar.org www.daybar.org
Small Firm/Solo Office Brian Sommers, Chair Marty Beyer, Vice Chair
1st Monday at noon September 12, 2016 (date change) October 3, 2016 November 7, 2016 January 9, 2017 (date change) February 6, 2017 March 6, 2017 April 3, 2017 May 1, 2017
Workers’ Compensation / Social Security Douglas S. Jenks, Chair Lindsey C. Posey, Vice Chair
Young Lawyers Division Cassandra Rice - Co Chairs Michael Rice - Co Chairs Jeremy Smith - Co-Vice Chairs Kate Epling - Co-Vice Chairs
1st Wednesday at noon September 7, 2016 October 5, 2016 November 2, 2016 January 4, 2017 February 1, 2017 March 1, 2017 April 5, 2017 May 3, 2017
SHARE & LEARN! Summer 2016 Dayton Bar Briefs
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FOUNDATION
the dayton foundation Tax-Free IRA Transfers to Charity Now Permanent Option for Clients W
ith the passage of the Protecting Americans from Tax Hikes (PATH) Act in December 2015, the annual question that donors and charitable organizations have asked, “Will the IRA Charitable Rollover Provision be extended?” will no longer be necessary. PATH made the Rollover Provision a permanent part of the tax code. Since the Provision now is permanent, this is a good time to review client information to identify individuals who may want to use their Individual Retirement Account (IRA) as a charitable giving vehicle.
What the Charitable Rollover Provision Means for Clients
The Charitable Rollover Provision allows individuals age 70½ or older to donate annually up to $100,000 from their IRA to any 501(c) (3) charitable organization without treating the distribution as taxable income. Married couples with two separate IRAs may take up to $200,000 tax free each year. The distribution satisfies the required minimum distribution (RMD), however clients may not claim a charitable contribution on their tax return for the amount of the IRA rollover since this contribution is excluded from their gross income. Although donations also cannot be made to a donor-advised fund, supporting organization or private foundation, The Dayton Foundation, as a qualified public charity, is a great resource. They can help clients execute the transfer to a new or existing scholarship fund, designated fund, field-of-interest fund or unrestricted fund. Prior to the Provision’s introduction, a client would pay state income tax, if applicable, on the IRA distribution and possibly federal income tax on a portion of the distribution, if the client was subject to a limitation on the deductible amount of the donation on his or her federal tax return. For charitably inclined individuals with significant IRA balances, the Provision creates a planning opportunity by reducing the personal tax impact of the RMD. The maximum annual donation is $100,000, however there is no requirement that states the entire amount must be made in one transfer or go to a single qualified charitable organization. Clients can elect amounts less than $100,000 to donate to charities in a year, but only $100,000 will be excluded from income as an IRA charitable distribution. PATH has proven to be advantageous for clients who have significant annual RMDs but don’t have an immediate need for the distributions. It also allows us, as advisors, to use the Provision to help our clients
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Dayton Bar Briefs Summer 2016
By Patricia L. Ioas, CPA, CMA, Director, Brady Ware & Company
minimize tax burdens, while providing financial resources to charitable organizations. This is a win-win for clients and charities.
Case Example
George, age 82, has $3,000,000 in his IRA and a required annual minimum distribution of $300,000. He has designated a charitable organization as his IRA beneficiary, as well as his estate beneficiary, but doesn’t make annual gifts. Assuming there is no further appreciation on his account, if George withdraws $300,000 a year at a 45% tax rate, he will have $1,650,000 available for charity after 10 years (10 years at $165,000). Instead, if George donates $100,000 out of his required minimum distribution to establish a fund through The Dayton Foundation that designates his favorite charity as the beneficiary, he will have $1,100,000 available for charity at the end of 10 years ($200,000 times 55% equals $110,000 for 10 years). He also will have donated a separate $1,000,000 directly to charity ($100,000 annually). At the end of 10 years, he has been able to provide his designated charity with $2,100,000, instead of just $1,650,000 had he declined the direct IRA gift. Even if George does make annual gifts, making them directly out of his IRA can be more tax efficient. For example, the state in which George resides uses adjusted gross income as the starting point for determining state taxable income. Reducing George’s adjusted gross income by the charitable donation will reduce George’s state income tax. Other examples where a lower adjusted gross income can possibly save money would be if George has significant medical deductions, miscellaneous itemized deductions or passive activity losses or has a liability for the net investment income tax.
In Conclusion
For charitably minded clients with significant IRA RMDs, utilization of the now permanent Charitable Rollover Provision should be reviewed annually. In many cases, it will save significant tax dollars and increase the amount available to gift to a charitable organization. The Dayton Foundation staff is happy to work with donors and their advisors to find the best option to meet their charitable goals. Patricia L. Ioas, CPA, CMA, is a director with Brady Ware & Company, where she manages the firm’s Nonprofit Services Group and leads the Employee Benefits Audit Practice. She has more than 30 years of experience working with nonprofit organizations in both a professional and volunteer capacity.
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BAR HUNGER INITIATIVE
Peanut Butter and JUSTICE
By Bonnie Beaman Rice Bar Hunger Initiative
I
t all started during the Greater Dayton Volunteer Lawyer’s Pro Bono week with a viewing of the film American Winter, a movie about families struggling to keep their homes heated, struggling, in fact, to even keep their homes and struggling to keep their children fed. A discussion followed about poverty and the incredibly detrimental impact it has on children. Statistics were cited. Depending upon the study, we discovered that the City of Dayton ranked either fourth or ninth in the nation in its number of “food Insecure” households. The ranking wasn’t the issue; rather, it was the fact that families, real people, our neighbors were in trouble. As lawyers who advocate for the needs of our clients, we saw this problem through the lens of social justice. We needed to use our skills of advocacy to reach the hearts of the “jury” through our words, our compassion and, most importantly, through our own actions. Thus was born the Bar Hunger: Peanut Butter and Justice Challenge. Simple in its execution, the Challenge was to ask each and every Bar Association member to bring peanut butter to each and every Dayton Bar Association event. The underlying challenge was to get this initiative on the ‘radar’ of our membership. By December at our annual meeting, we provided the “star power,” our very own local hunger hero, Ambassador Tony Hall. When he told us that: 1) tubes of peanut butter are given to refugee children because of its strong nutritional power, and 2) we can all contribute to ending hunger by working on the problem ‘in front of us,” we knew we were on the right track. He inspired our membership to act through both his words and the very fact that he has dedicated his life to ending hunger. You, our members, rose to The Challenge. I am so proud to report that we had 100% participation from every Bar committee, with 90% of those committees each contributing 100 pounds or more. Individual members, law firms, our courts…all contributed to the cause. It is so tempting to single out the many people and entities who participated, but I wouldn’t want to leave anyone out nor diminish the fact that even the donation of one jar of peanut butter helped a child in need. Our actions inspired others to contribute, as well. Generosity is contagious and by the conclusion of The Challenge we had multiple community partners helping us, including: churches, synagogues, mosques, non-profits, law enforcement, businesses, colleges and elected officials. The Challenge was structured to make our generosity competitive for, after all, what lawyer doesn’t enjoy a little competition?! So, you might be interested in knowing that our top three Bar committee contributors were: • Coming in third place with 978 pounds: the Paralegal Committee chaired by Kathy Miller; • Coming in second place with 1,373 pounds: the Public and Member Services Committee chaired by Adam Krumholz and Michael Jurek; and, • Coming in first place with 1,425 pounds, the Winner of The Challenge: the Corporate Counsel Committee chaired by Melissa Koppenhoefer and Lindsay Posey. In conclusion, thanks to the incredible generosity and example set by all of you, our members, the Dayton Bar Association donated a total of:
6,685+ pounds of peanut butter, the equivalent of 3 1/3 tons, to the food pantries in our area!
Thank you, one and all.
www.daybar.org
Congratulations Corporate Counsel Committee chaired by Melissa Koppenhoefer and Lindsay Posey! Summer 2016 Dayton Bar Briefs
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Peanut Butter and JUSTICE
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Dayton Bar Briefs Summer 2016
937.222.7902
Foundation Fellows
Class of 2016
The DBA Foundation has initiated the Foundation Fellows Program to recognize those members of the Dayton legal community who have maintained the highest standards of the legal profession and who are dedicated to the welfare of the community and furtherance of the purposes and ideals of the Dayton Bar Association and Foundation. Foundation Fellow nominees have distinguished themselves at the bench or the bar, demonstrated integrity, high character, have been involved in legal and/or community affairs and have made a commitment to the future success of the Dayton Bar Association Foundation.
Jonathon L. Beck
F. Ann Crossman
Hon. Frederick W. Dressel
David E. Izor
Jeffrey B. Shulman
Michael L. Wright
When clients come looking...
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For more information contact:
Bill Wheeler, bwheeler@daybar.org Chris Albrektson, calbrektson@daybar.org Summer 2016 Dayton Bar Briefs
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DBA EVENTS
2016-17 Chancery Club Luncheon Dates The Old Courthouse September 9, 2016 October 14, 2016 Thursday - November 3, 2016 February 10, 2017 March 17, 2017 April 21, 2017 May 12, 2017
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Dayton Bar Briefs Summer 2016
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Celebration of Life
DBA
Wednesday, May 25, 2016 | Sinclair College
J
une has come and gone. All over this land, filled with hope, optimism and ambition, thousands of high school students have graduated. Some are heading to a heaven of intellectual stimulation and personal enrichment. Some are heading to the tedium of boring pedagogues dispensing information and advice of dubious educational value and providing nothing more than access to life’s blind alleys. Lemmings to the sea? Adventurers in new odysseys? Nobody knows. Every year the DBA holds a memorial lunch for those of our peers who are graduating from their earthly existence. The members of this year’s class were truly remarkable and truly deserving to be held in memory, no matter where their departures will take them. Lee Falke presented the memorial to Carroll Hunt, a likeable lawyer who also happened to be a relaxed and highly skilled airplane pilot. In 1974, Carroll brought Lee back to Dayton in a small plane scheduled to land at the South Dayton Airport. The runway lights failed to activate. After circling a couple of times, Carroll calmly announced that he thought he could land in darkness. Lee counted in his mind all of the Dayton lawyers who have met self-inflicted death in private plane crashes. His consternation turned to gratitude as Carroll with grace and ease accomplished his difficult task. Hopefully, all of this year’s DBA graduates match Carroll’s skill at landing in darkness. If so, they will have rich rewards in one another’s company. Dave Williamson presented memorial remarks concerning Winfield Kinney and Steve Yuhas. Win grew up in an apartment above what is now the Oakwood Club. It was natural that he should become Dayton’s leading lawyer in the acquisition and retention of liquor licenses for bars and restaurants. It is nice to think that there will be martinis as well as manna in heaven. Steve grew up with Dave in Youngstown, a place that – despite a reputation for exploding cars and aggressive encounters – apparently breeds gregariousness in its inhabitants. Steve was a founding member of the Volunteer Lawyers Project and he was the president for an eight year span of the University of Dayton Law School Alumni Association which named its Outstanding Alumni Award after him. It is nice to know that there will be good fellowship in heaven. Music, too! Merle Wilberding presented a memorial to Professor Dennis Greene who was a nationally recognized rock star with Sha Na Na before he came to Dayton with degrees from Columbia, Harvard and Yale to inspire many years of students of law and leadership at the University of Dayton Law School. Sports, too! Chris Conard recounted the life of William A. Krebs who subordinated his law school degree to a career as a teacher of engineering at Sinclair College while, at the same time, amassing an impressive collection of trophies as a tennis star. Beer, too! I had the honor of remembering Joseph G. Nauman not just as a leading Dayton patent lawyer and the tenor saxophone player in the DeMinimis Cats, the assortment of musical lawyers which annihilated silence at the unforgettable Bar Gridiron shows of yesteryear. He also did all the patent work that protected Ernie Fraze’s invention and reinvention of the tear-off tab for drink cans. Gary Weston provided a memorial for Gwendolyn D. Coles who became a heroine to countless citizens in need of legal aid with her expertise in consumer law and social security matters. She came from Texas via Florida to Yellow Springs, Ohio. I trust that heaven will be as much like Yellow Springs as possible. Jack Meagher presented continued on page 30 www.daybar.org
Summer 2016 Dayton Bar Briefs
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DBA EVENTS
Annual
Celebrating Our Legacy Of Excellence (OneYear at a Time)
Meeting Friday, June 10, 2016 | Sinclair College, Bldg 12
By Nadia A. Klarr Bar Briefs Editorial Board Law Clerk, Bieser Greer & Landis, LLP
A
legacy is often measured at the end of a career, or a life, or an organization. But rarely do we take stock in the legacy we actively forge on a daily, weekly, monthly, and yearly basis – goals set, fears conquered, energy expended, decisions made, relationships built, mistakes realized, milestones achieved, time given, and memories created. The 2016 Annual Meeting, held on June 10 at Sinclair Community College, was a fitting celebration to the previous year’s achievements and undertakings. The Annual Meeting was not only a celebration honoring the DBA’s long legacy of excellence; it also served to commemorate the many individuals who have contributed to that enduring legacy. The evening served to start a new year, new ventures, and new efforts, each aimed at bettering the legal profession and the Dayton community at large. As guests assembled and mingled prior to the commencement of the evening’s formalities, they were met with hors d’oeuvres, cocktails, and music featuring The Eric Zaden Trio. Once the beautifully decorated hall was full and bustling with conversation and laughter, Bill Wheeler, Executive Director of the DBA, provided opening remarks. He welcomed the DBA’s special guests, Dr. Warren Muth and Carol Muth from the Montgomery County Medical Society, and he gave special thanks to the DBA’s Platinum Partners, including the Estabrook Charitable Trust, administered by Porter Wright Morris & Arthur, and Faruki Ireland & Cox P.L.L.; Gold Partner, Thompson Hine, LLP for their financial support and continued support of the DBA’s mission. Bill then thanked the Annual Meeting sponsors (listed to the right) for helping make this a special evening. The DBA’s commitment to furthering a legacy of excellence was epitomized in the Peanut Butter & Justice presentation given by Magistrate Bonnie Beaman Rice. Her excitement for and dedication to the cause were instantly apparent when she shared a story of finding her husband, Hon. Walter H. Rice, in the kitchen with a tub of peanut butter, to which she responded, “Walter, drop the spoon and back away from the peanut butter.” All jesting aside, she remarked: “Generosity is contagious!” And she was right. Before she announced the winning DBA committees, she revealed the total amount of peanut butter donated through the Peanut Butter & Justice initiative. The DBA, through its members, donated 3 1/2 tons pounds of peanut butter to benefit the Dayton community! The committees to donate the most peanut butter, thereby obtaining bragging rights for the entire year, include the following committees: First place: Corporate Counsel Committee (1,425 pounds) Second place: Public and Member Services Committee (1,373 pounds) Third place: Paralegal Committee (978 pounds) The celebration turned next to the DBA Foundation. Jeff Ireland, President of the DBA Foundation, recognized Foundation Fellows in attendance and welcomed the Class of 2016 DBA Foundation
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Dayton Bar Briefs Summer 2016
Platinum Estabrook Charitable Trust Administered by: Porter Wright Morris & Arthur Faruki Ireland & Cox P.L.L. Gold Premier Health Thompson Hine Silver Dinsmore & Shohl LLP LexisNexis Bronze Ohio Bar Liability Insurance Company (OBLIC) Roger McNay Insurance Agency Subashi & Wildermuth Patron Ferneding Insurance John M. Ruffolo Mood Media Murr Compton Claypoole & Macbeth Young & Alexander Co., LPA
Fellows, underscoring their commitment to maintaining the highest standards of the legal profession while also furthering the welfare of the community and ideals of the DBA and Foundation. Jeff wasted no time in introducing the Foundation’s new venture with the Dayton Legal Heritage Foundation, at which time he introduced Gordy Arnold, President of the Board managing the Dayton Legal Heritage Foundation. Jeff and Gordy shared their vision of combining the organizations into one single effort to benefit the community through continued on page 17
937.222.7902
ANNUAL MEETING
continued from page 16
law, justice, and public service. Gordy explained that the Dayton Legal Heritage Foundation was born of the Dayton Bar Association for the purpose of managing the law library. Bringing the two entities back together, Gordy remarked, quoting David Greer’s Sluff of History’s Boot Soles, “seems like a very appropriate closing of that circle.” Transitions soon became the theme of the night. Bill Wheeler returned to the podium to introduce DBA President, Kermit F. Lowery. Bill recalled Kermit’s first address as President of the DBA. Kermit spoke of three types of leaders – creators, sustainers, and whiners – and he made a promise to the members of the DBA. He said that he would only create if the proposed creation would add or improve a benefit, he would only sustain those things proven continued on page 21
From top to bottomleft to right:
*2016-17 DBA President SusanD. Solle *Rick Perna, Meredith Trott and Bill Wheeler *Foundation Fellows in attendance *DBA Board of Trustees swear in *A few Leadership Development c/o 2016 members *2015-16 Outstanding Committee Chairs *Outgoing DBA President Kermit F. Lowery
Welcome! DBA Leadership Development Class of 2016 Andrew Anastasi
City of Dayton Prosecutor’s Ofc
Christina Back Advocates for Basic Legal Equality
Jennifer Cunninghan-Minnick Montgomery Cty Public Defender’s Ofc
Chance Cox LexisNexis, a division of RELX, Inc.
Joe Hyde Montgomery Cty Public Defender’s Ofc
Brian Gravunder Siemann & Associates Co., LPA
Steven Swick Dungan & LeFevre Co., LPA
www.daybar.org
Summer 2016 Dayton Bar Briefs
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daybar.org/cle Juvenile Law Certification (video replay) Wednesday, August 17, 2016 9:00-4:45pm 6.0 CLE Hours • Seminar #016 M $215 | NM $300 | PP $0
If you were not on the Juvenile Court appointment list by August 17, or have never been on the appointment list, you must attend this seminar for certification.
Professional Conduct: The Top 10 Ethics Mistakes (video replay) Tuesday, August 23, 2016 1:00-4:15pm 3.0 CLE Hours Prof. Conduct • Seminar #017 M $105 | NM $150 | PP $0 Presenters: John Ruffolo Esq., DBA Bar Counsel Marc Tuss Esq. Denise Platfoot-Lacey, Assoc. Prof. of Externships, UDSL Annual Estate Planning, Trust & Probate Law Institute (video replay) Wednesday, August 24, 2016 9:00-4:45pm 6.0 CLE Hours incl. 1.0 Prof. Conduct • Seminar #040 M $105 | NM $150 | PP $0
Program Agenda: Ethics on the Edge: Diminished Capacity – What You Should Know Karen Rubin Esq., Thompson Hine Elder Financial Abuse • Amy L. Kurlansky Esq., Cincinnati Probate Case Law Update • Mag. Nancy Miller Montgomery County Probate Court “Hour of Power” Hon. Alice McCollum Password Estate Planning and Administration • Robert C. Ellis Esq. Pot-Shots at Gun Trusts and Firearms Law Update Sean Culley Esq., Green & Green, Dayton
2016 DBA Annual Domestic Relations Seminar (video replay) Wednesday, August 31, 2016 9:00-4:30pm 6.0 CLE Hours, incl. 1.0 Prof. Conduct • Seminar #041 M $215 | NM $300 | PP $0 Program Agenda: Case Law Update – Gary Gottfried Esq. GAL Prep – Mag. Elaine Stoermer Vocational Assessments – Ken Manges Esq. DR Mediation Techniques and Tips – Sasha Blaine Esq. Professionalism and Ethics – Diane DePascale Esq. Dividing Military Retirement and FERS/CSRS – David Kelley
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Dayton Bar Briefs Summer 2016
The Rules of Evidence (video replay) Thursday, September 8, 2016 1:00-4:15pm 3.0 CLE Hours • Seminar #020 M $105 | NM $150 | PP $0 Presenter: Hon. Mary Katherine Huffman, Montgomery County Common Pleas Court
Program Agenda: This session will focus on the scope of the rules of evidence, the rule of completeness, judicial notice, privileges, relevance, character evidence, evidence relating to habit and routine, the admissibility of prior convictions and the admissibility of original and duplicate documents.
NLT Core Components: Professionalism, Law Practice Management, and Client Fund Management (video replay) Wednesday, September 14, 2016 1:00-4:15pm 3.0 General Hours and 3.0 NLT Hours incl. three mandatory hours on Professional Conduct, Law Office Management, and Client Fund Management Seminar #022 M $105 | NM $150 | PP $0 Presenters: John M. Ruffolo Esq. Jonathan H. Hollingsworth Esq. James H. Greer Esq.
This program is tailored to satisfy the new subject matter requirements for newly admitted attorneys; however, all can benefit from the materials covered.
U.S. and International Trademark Practice Seminar Friday, September 23, 2016 8:30-11:45am 3.0 CLE Hours • Seminar #044 M $105 | NM $150 | PP $0 Presenter: Roger Bora Esq., Partner, Thompson Hine LLP
This comprehensive trademark seminar will cover the following topics: • Trademark Selection and Protection Considerations: Client Conversations |Marketer’s Perspective • Navigating the U.S. Patent and Trademark Office ‘Trademark Electronic Search System’ (TESS) Database • U.S. & International Trademark Protection: What Clients Need to Know for U.S. & Global Brand Expansion The target audience includes attorneys (both in-house and private practice) who are interested in gaining more knowledge regarding trademark law. In addition, those individuals in marketing and senior leadership roles in companies with significant intellectual property assets will find this beneficial.
937.222.7902 visit daybar.org/cle for future listings + updates & full agendas
THE GTMO MISSION Friday, October 21, 2016 9:00-12:15pm 3.0 CLE Hours • Seminar #042 M $105 | NM $150 | PP $0
All You Ever Wanted to Know About Hearsay Thursday, September 29, 2016 9:00-11:45am 2.5 CLE Hours • Seminar #043 M $105 | NM $150 | PP $0 Hon. Mary Katherine Huffman, Montgomery County Common Pleas Court
The Story Behind the Headlines – Guantanamo Bay, Cuba Hear from a distinguished panel, who were there, serving in a legal capacity Learn more about the background and current happenings in the Guantanamo Bay, Cuba situation as well as insights into military law.
Program Agenda: Join the DBA for a new seminar series for new attorneys who want an in-depth primer on the Rules of Evidence and experienced attorneys looking for a refresher on evidence. This will be part two of a series reviewing and analyzing each Rule of Evidence in detail.
Featuring a Most Distinguished Group of Panel Members
Cement Marketing: Client Development in the Digital Age Thursday, October 13, 2016 9:00-12:15pm 3.0 CLE Hours • Seminar #028 M $105 | NM $150 | PP $0 Presenter: Alaina Shearer, President, Cement Marketing
• Indiana Supreme Court – Justice Steven David Served in the United States Army Judge Advocate General’s Corps, incl. two post 9-11 mobilizations – one in Iraq and one as the Chief Defense Counsel, GTMO. Served as Trial Counsel, Defense Counsel, Military Judge, Staff Judge Advocate, Retired Colonel.
Program Agenda: 9:00–10:30: Legal Marketing: How to Win on Any Budget • Overview of the State of Marketing Today • Winning Marketing Strategies • Building your Marketing Plan in Today’s Multi-Channel World • Marketing on a Budget
• DBA President – Kermit Lowery Vice President and Assistant General Counsel –Lexis Nexis Served in the United States Army Judge Advocate General’s Corps incl. a mobilization as Habeas Corpus Counsel with the Joint Task Force, Guantanamo Bay, Cuba. Retired Colonel, United States Army.
10:30–10:45: Break 10:45–12:15: Search Marketing for Lawyers: How to Rank in Google and Win More Clients • Necessary Steps to Rank your Website in Search Engines • Content Strategy Formation Guide • Tips and Tricks to Turn Professional Accolades into Positive Search Rankings
Upcoming CLE!
Bench Bar Conference Friday, November 18, 2016 Criminal Law Certification Thursday, December 1, 2016 www.daybar.org
• Ohio Attorney General’s Office, Principal Assistant Attorney General – Dale Vitale Served in the United States Army Judge Advocate General’s Corps incl. a mobilization as Habeas Corpus Counsel with the Joint Task Force, Guantanamo Bay, Cuba.
Program Agenda: 9:00 GTMO Establishment and History - The Early Years - Location and Concept - Initial Mission/First Detainees - Evolving Mission 10:00 GTMO Legal Processes - Detainee processing (incl. CSRTs and ARBs) - Habeas Corpus rights (incl. the logistics of representation) - Collateral Legal issues (Uighur declaratory judgment actions, other criminal prosecutions in the US) - Commissions Investigations and Prosecutions 11:00-11:15 Break 11:15 Other Unique Legal Issues - Detainee abuse allegations - Detainee interrogations - FOIA Requests/International Non-Governmental Organizations - Security violations - Detainee suicide and forced feeding - Repatriation - Closing GTMO
Summer 2016 Dayton Bar Briefs
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Dayton Bar Briefs Summer 2016
937.222.7902
ANNUAL MEETING
continued from page 17
effective, and he would be Miami Valley’s biggest whiner if the DBA diminishes value in any way. In thanking Kermit for his passion, commitment, and service, Bill regarded the DBA’s 101st President as true to his word. At an early 8:49 p.m., Kermit called the meeting to order. He recognized the 100% Club Member Firms, as well as the DBA’s Sustaining Members who make voluntary payments over and above normal dues and whose contributions are essential to the work of the DBA. Kermit went on to honor the past presidents of the DBA, and specifically recognized the twelve past presidents in attendance. Committee leaders were also acknowledged, and members of the 2015 Leadership Development Program were recognized and celebrated before the 2016 class was introduced. The final transition of the night occurred with the election of officers for the 2016–2017 year. A vote was taken to approve the slate of nominees, David P. Pierce as Second Vice President, and Jonathon L. Beck as Treasurer. A vote was taken, the nominees were approved, and Judge Donovan administered the oath, swearing into office the 2016–2017 DBA Board of Trustees. In reflecting upon his term, Kermit thanked his family, friends, colleagues, the DBA’s executive directors and staff, and all of the members of the DBA who made his presidency so gratifying and worthwhile. He observed, “Never once did I have an opportunity to whine.” After again thanking the members of the DBA for a year and job well done, Kermit passed the torch to his successor, Susan D. Solle. Susan jumped headfirst into her new role, like her many predecessors, eager to roll up her sleeves and get to work. In addition to thanking her family and friends who have shared in her journey, she expressed special gratitude to her friend and mentor, Tom Whelley. She shared stories of going to his office down the hall for advice and guidance over the years for absolutely anything and everything. Susan spoke about the value of his mentorship in her career, and it didn’t take long for her to turn her attention and efforts to those attorneys “practicing without a net.” Susan emphasized the importance of reaching out
to millennials and providing new and young attorneys with the support they need. To that end, she committed herself and the DBA to helping anyone in our legal community in need of help, guidance, or direction. She highlighted several new initiatives she seeks to bring to life during her term, including a Bench-Bar Collaborative with a goal to further strengthen Dayton’s bench and bar, and an Evening at the Bench event where new lawyers and judges can spend a social evening together, allowing young lawyers to become better acquainted with the local (and greatest) judiciary. Susan proclaimed that “we have the greatest bar association in the state and in the country. We have it all.” And Susan made clear that her mission during her term would include bringing the greatness of the bar association to every single one of its members, which she said are “the heart and soul of the association.” Susan’s concluding remarks were concise, but significant: “My door is open.” Susan’s promise is revealing not only of the passion she has for maintaining the high standards of our local legal profession and the well-being of the Dayton community, but also for the DBA’s continued legacy of excellence. At the start of her term and a new year, we can already see the workings of that legacy in action – new officers installed, objectives recorded, passions reignited, and doors opened. In a matter of hours, the annual meeting adjourned and the new year was off to a great start.
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FROM THE JUDGES DESK
Endeavoring to Strike a Sound Balance By Hon. Timothy N. O’Connell Montgomery Cty Common Pleas Court
T
he most recent United States Supreme Court’s term produced important decisions regarding abortion, affirmative action, patents and political activity by non-judicial elected officials. It also produced a determination by virtue of a non-decision with respect to powers of the Chief Executive, in this situation on the issue of immigration. In addition to those cases, there was an important decision in the area of constitutional criminal procedure. In Utah v. Strieff the Supreme Court applied the attenuation doctrine to effectuate an exception to the exclusionary rule. The case illustrates the strong and conflicting views the justices have about police investigative behavior. In a 5-3 decision the Court reversed the Utah Supreme Court and ordered evidence admitted in an illegal drug possession case.1
FACTS
This case began with an anonymous tip. In December 2006, someone called the South Salt Lake City Police’s DrugTip Line to report “narcotics activity” at a particular residence. Narcotics Detective Douglas Fackrell investigated the tip. Over the course of about a week, Officer Fackrell conducted intermittent surveillance of the home. He observed visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent to raise his suspicion that the occupants were dealing drugs. One of those visitors was respondent Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. The Officer had not observed what time Strieff entered the suspected drug house, so he did not know how long Stieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. In the convenience store’s parking lot, Officer Fackrell detained Strieff, identified himself and asked Strieff what he was doing at the residence. Officer Fackrell demanded Strieff talk with him, he did not ask whether Strieff would speak with him. As a part of the stop, Officer Fackrell requested Strieff ’s identification, and Strieff produced his Utah Identification Card. Officer Fackrell relayed Strieff ’s information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell then arrested Strieff pursuant to that warrant. When Officer Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia. 22
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The state charged Strieff with unlawful possession of methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that the evidence was inadmissible because it was derived from an unlawful investigatory stop. At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband. The trial court agreed with the state and admitted the evidence. Strieff conditionally pleaded guilty to reduced charges of attempted possession of a controlled substance and possession of drug paraphernalia, but reserved his right to appeal the trial court’s denial of the suppression motion. The Utah Court of Appeals affirmed. The Utah Supreme Court reversed. It held that the evidence was inadmissible because only “a voluntary act of a defendant’s free will (as in a confession or consent to search)” sufficiently breaks the connection between an illegal search and the discovery of evidence. Because Officer Fackrell’s discovery of a valid arrest warrant did not fit this description, the court ordered the evidence suppressed. The United States Supreme Court granted certiorari to resolve disagreement about how the attenuation doctrine applies where an unconstitutional detention leads to a discovery of a valid arrest warrant.
LEGAL ANALYSIS
This decision offers a good review of the attenuation doctrine exception to the exclusionary rule. The attenuation doctrine is one of three indicated exceptions to the exclusionary rule. The independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if the officers independently acquired it from a separate, independent source.2 Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source.3 The third exception to the exclusionary rule is the attenuation doctrine. Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”4 The attenuation doctrine involves the court’s consideration of three factors. The first is “temporal proximity between the initially unlawful stop and the search.” The second factor is the presence of intervening circumstances. The third factor is the purpose and flagrancy of the initial misconduct.5 The attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions. The logic of the Supreme Court’s prior attenuation cases is not limited to independent acts by the defendant.
Endnotes:
1 Utah v. Strieff, 579 U.S. (2016), Case No. 14-1373 argued February 22, 2016 – decided June 20, 2016. 2 See Murray v. United States, 487 U.S. 533, 537 (1988). 3 See Nix v. Williams, 467 U.S. 431, 443-444 (1984). 4 Hudson v. Michigan, 547 U.S. 586, 593 (2006). 937.222.7902 5 Brown v. Illinois, 422 U.S. 590 (1975)
FROM THE JUDGES DESK:
continued from page 22
So the Court here had to address whether the discovery of a valid arrest warrant was a sufficiently intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff ’s person.6 The majority found that the first factor, temporal proximity between the initially unlawful stop and the search, favored suppressing the evidence. Officer Fackrell discovered drug contraband on Strieff ’s person only minutes after the illegal stop. The majority reviewed the second factor, the presence of intervening circumstances, and found that it favored the state. The majority held the warrant was valid, predated Officer Fackrell’s investigation, and was entirely unconnected with the stop. The majority felt that Officer Fackrell’s arrest of Strieff was a ministerial act that was independently compelled by the pre-existing warrant. Finally, the majority considered the third factor, “the purpose and flagrancy of the official misconduct”. The majority found Fackrell’s actions negligent. Fackrell could have approached Strieff and asked him what he was doing at the house. Fackrell was exercising a valid step when deciding to run a warrant check. That activity was negligibly burdensome to Strieff. The unlawful stop was not part of any systematic or recurrent police misconduct; it was an isolated incident of negligence that occurred in connection with a bona fide investigation of a suspected drug house. Applying the factors, the majority held that the evidence discovered was admissible because the unlawful stop was sufficiently attenuated by the preexisting arrest warrant. The discovery of that warrant broke Endnotes:
the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. There is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct. Justice Sotomayor vigorously dissented by written opinion. Justice Ginsburg joined three parts of that dissent. Justice Kagan also dissented in writing and Justice Ginsburg joined that dissent. The three dissenting Justices disagreed with the majority with regard to the second and third factors of the attenuation doctrine. The dissenters found that the second and third factors weighed in favor of the defendant and not the State. Justice Kagan wrote that the officer engaged in purposeful misconduct. She asserts that Fackrell’s seizure of Strieff was a calculated decision taken with so little justification that the state has never tried to defend its legality. Fackrell acknowledged that the stop was designed for investigatory purposes and frankly admitted that he had no basis for his action except that Strieff was “coming out of the house”. Fackrell repeatedly acknowledged that the purpose for his action was for investigation and he
embarked upon this expedition for evidence in the hope that something might turn up. With respect to the second factor of presence of intervening circumstances, Justice Kagan called upon tort law. She asserts that the Fourth Amendment attenuation analysis looks to whether the constitutional violation was the proximate cause of the discovery of the evidence. A circumstance counts as intervening only when it is unforeseeable. Rather than breaking the causal chain, predictable effects are its very links. Fackrell’s discovery of an arrest warrant-the actual only event the majority thinks intervened – was an eminently foreseeable consequence of stopping Strieff. Fackrell testified checking for outstanding warrants during a stop is the “normal” practice of South Salt Lake City police. The department’s standard detention procedures – stop, ask for identification, run a check – are partly designed to find outstanding warrants. Finding a warrant is likely because there are a staggering number of such warrants on the books. continued on page 24
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6 Utah v. Strieff, at 5.
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Summer 2016 Dayton Bar Briefs
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FROM THE JUDGES DESK:
continued from page 23
The United States Supreme Court has established a simple framework for determining whether to exclude evidence obtained through a Fourth Amendment violation: suppression is necessary when, but only when, its societal benefits outweigh its costs. Davis v. United States, 564 U.S. 229, 237 (2011). The exclusionary rule serves a crucial function – to deter unconstitutional police conduct. Barring the use of illegally obtained evidence, courts reduce the temptation for police officers to skirt the Fourth Amendments requirements. See James v. Illinois, 493 U.S. 307, 319 (1990). But suppression of evidence also “exacts a heavy tool”: its consequence in many cases is to release the criminal without just punishment. Davis, 564 U.S., at 237. The Supreme Court’s decisions have thus endured to strike a sound balance between those two competing considerations – rejecting the “reflexive” impulse to exclude evidence every time an officer runs afoul of the Fourth Amendment, but insisting on suppression when it will lead to “appreciable deterrents” of police misconduct. Davis at 238: Herring v. United States, 555 U.S. 135, 141 (2009). Justice Kagan argues that suppressing evidence in this case would have struck a sound balance. She writes, “consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissible , he is likely to think the unlawful stop not worth making – precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: so long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in
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stopping individuals without reasonable suspicion – exactly the temptation the exclusionary rule is supposed to remove.” Utah v. Strieff, Kagan, J., dissenting, page 6.
CONCLUSION
Defense attorneys, prosecutors, and judges in the Second Appellate District remember the case of Dayton v. Click Montgomery Appellate Number 14328, 1994 Ohio Appellate Lexis 4515, 1994 WL 543210 (October 5, 1994). This case was raised by prosecutors to defeat suppression motions when there was apparently an illegal stop, but during the course of the stop an arrest warrant was found. The argument was that the arrest warrant “cleansed” the illegal stop and the evidence was admissible. The Click theory was eventually found not to be good law, first by the Second District itself and then the Ohio Supreme Court in State v. Gardner. State v. Gardner, 135 Ohio State 3rd 99 (2012). The Click theory was somewhat different that the attenuation doctrine. It was based on the idea that someone who is subject to an arrest warrant does not have a reasonable expectation of privacy. The Fourth Amendment clearly is to protect one’s interest in privacy and essentially the right to be left alone. That interest is not sufficiently valued if an arrest warrant is present so there is no constitutional violation. Utah v. Strieff is different in its theoretical underpinning since it relies on the attenuation doctrine. Nevertheless, the Utah v. Strieff case as a practical matter requires that prosecutors, defense attorneys, and judges be sensitive to the effect of an arrest warrant in the context of apparently improper stops. The court and counsel must again place the item of arrest warrant on the checklist in their initial factual inquiry. Left unanswered in this writer’s mind is how far legal professionals can go in scrutinizing the factors of intervening circumstance and purposeful and flagrant misconduct in this context.
937.222.7902
our year in review... Photo captions, left to right:1) June 2016 Women in Law Forum Tori Reynolds, from Speakeasy Yoga and Anne Keeton Esq. 2) DBA President Kermit Lowery with Farquhar Family for District Mock Trial Competition 3) Charles Lowe Esq. speaking at the Celebration of Life Memorial Luncheon 4) Bench Bar Conference Chairs Judge Dennis Adkins, Terry Posey Jr. & Keynote Speaker Prof. Nicholas Vincent 5) Judge Walter Rice, GDVLP Exec. Dir. Kelly Henrici and Keynote Speaker Congressman Tony Hall at the Holiday Luncheon 6) Judge John S. Pickrel retires 7) Corporate Counsel Committee monthly meeting at BRAVO Cucina Italiana 8) DBA Trustee Dale Creech II. providing musical accompaniment at Holiday Luncheon 9) Paralegal Committee Chair Kathy Miller at Paralegal Day10) Diversity Day Chairs Barbara Doseck, Angelina Jackson and Keynote Speaker David Singleton
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member info updates
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ATTORNEY ALP, James A. Admitted to Ohio Bar: 5/16
BLEVINS, Kathy R. WilmerHale Admitted to Ohio Bar: 11/05 BRODOF, Matthew A. WilmerHale Admitted to Ohio Bar: 10/14 EDMONDS, Alonzo H. Montgomery County Auditor Admitted to Ohio Bar: 2/07 MILLS, Sara E. City of Kettering Admitted to Ohio Bar: 5/01
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NICHOLSON, Anthony L. WilmerHale Admitted to Ohio Bar: 5/15
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PETERSON, Nathaniel S. Hammond Stier & Stadnicar, LLC Admitted to Ohio Bar: 5/16, CA 12/14 REXROAD, Ian R. US Dept. of Energy Admitted to Ohio Bar: 11/04, IL 11/11 ROSSOW, Andrew L. Gregory M. Gantt Co., LPA Admitted to Ohio Bar: 5/16
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Chancery Club Luncheon(s) The Old Courthouse September 9, 2016 October 14, 2016 Thursday - November 3, 2016 February 10, 2017 March 17, 2017 April 21, 2017 May 12, 2017
50 Year Honoree Luncheon Sinclair College: Great Hall - Building 12 Wednesday, October 19, 2016 Annual Bench Bar Conference Sinclair College: Great Hall - Building 12 Friday, November 18, 2016
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Dayton Bar Briefs Summer 2016
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Summer 2016 Dayton Bar Briefs
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law-related organizations Dayton Bar Association Foundation
The DBA Foundation Board of Trustees
Salutes
The 1,700 members of the Dayton Bar Association for their support of the Foundation Which provides grant funding to worthy law-related organizations and projects in our community. As the philanthropic arm of the local legal community, the Foundation is dedicated to supporting those organizations who directly assist the disadvantaged gain access to our justice system. In so doing, the community is served and the public perception of the legal profession is improved. To obtain more information about the Dayton Bar Association Foundation
Write, Call or Email: William B. Wheeler, Executive Director Dayton Bar Association Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: bwheeler@daybar.org
Greater Dayton Volunteer Lawyers Project Countless Men, Women and Children are Denied Justice Every Day Simply Because They are Poor Please tell us what you are willing to accept as pro bono work. Personal Representation of an Indigent Client: Divorce/Family Law Bankruptcy Consumer Issues Contract/Warranty disputes SS, SSI, SSD Tort Defenses Predatory Lending Stalking Protection Orders Civil Protection Orders Wage Claims Employment Disputes Guardianships Probate Homeownership Disputes Landlord/Tenant Disputes Health Care (Insurance Claims, Nursing Home Issues Other Or, you can choose from the options below: Acceptance of 1-2 Clinics (Batched Cases) per year - GDVLP provides paralegal, secretarial and runner services for these cases. Please specify Divorce, Chapter 7 Bankruptcy, or Expungement Assistance to 1-2 Non Profit Corporations in the Western Ohio Region Acceptance of 3-5 Guardianships with guardians provided through The Guardianship Program (person only) In addition: I will be available to provide pro bono civil legal assistance to victims if there is a community emergency (tornado, natural disaster)
Please return this form to VLP: By Mail: 610 Performance Place, 109 N. Main St., Dayton OH 45402 By Fax: to (937) 461-4731 By Phone: (937) 461-3857 By E-mail: kelly@gdvlp.org Name:________________________________________________ Firm:_________________________________________________ Address:______________________________________________ Preferred County for Pro Bono Service:_____________________ Phone:_______________________ Fax:____________________ Email:________________________________________________ Attorney Registration #:__________________________________
As of January 1, 2014 every 6 hours of pro bono service through an approved pro bono provider will give you 1 hour of CLE credit to a maximum of 6 hours of CLE credit (36 hours of pro bono). The Greater Dayton Volunteer Lawyers Project will send your hours to the Ohio Supreme Court and notify you of the same. 28
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Thurgood Marshall Law Society How to Contact TMLS: President Robert Gresham 937-222-7477 rgresham@ yourohiolegalhelp.com
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Dayton Bar Briefs Summer 2016
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a memorial for Robert L. Nolan who was a personal hero to Jack as the lawyer who was his mentor in the practice of law when Jack returned from Vietnam in 1969. Chuck Lowe added his memorial thoughts on Judge Nolan as a domestic relations judge who, in a court where many otherwise wise spouses act like fools, did not suffer fools gladly. I suspect that a significant number of fools, poor people and veterans find themselves in heaven. It is nice to know that they will find helping hands and mentors. The last two members of this year’s DBA graduating class who received memorials at this year’s luncheon were both decorated heroes of the European Theatre in World War II. Don Schweller made a presentation of the career of William E. Cromer whom he accurately described as a man for all seasons. I hope that Bill meets Shakespeare in heaven since I was never able to persuade him that Shakespeare on earth actually wrote all those plays. Mike Herr presented the memorial on behalf of Walter A. Porter who, it is safe to say, graduated first in this year’s class. I don’t expect we will see another member of the Bar who will match his accomplishments – expert in probate law, prosecutor, criminal defense lawyer, Fellow of the American College of Trial Lawyers and of the American College of Probate Counsel, managing partner of Dayton’s largest law firm at the zenith of its history, President of the Ohio State Bar Association at the time it inaugurated the electronic legal search engine that became Lexis-Nexis, Common Pleas Judge. Despite those accomplishments and more, Judge Porter never touted his own record and always remained an unassuming man who could be trusted without reservation. I expect that he and Bill Cromer are enjoying a card game and swapping old stories in a pleasant corner of heaven. Alas, there was not time to provide memorials for other members of the Dayton Bar Association who were part of this year’s graduating class. Hopefully, their names will stir memorial thoughts in those of you who read this summary of our luncheon – Spiro Alex, the Honorable Jack Duncan, the Honorable Lillian M. Kern, Sandra Rakestraw-Hobson, William I. Shaman, Ruth A. Slone, Howard N. Thiele, Jr., and Dennis M. Whalen. With Carroll Hunt’s assistance, I hope they all land successfully in darkness. Like those high school graduates will discover as successive reunions rekindle memories of the mad days of their youth, may all of you be blessed by memories of your fellow lawyers who have gone before you. The 400 year old comments of Justice Shallow and his Bailiff Silence remain true today. • Jesu, Jesu, the mad days that I have spent! And to see how many of my old acquaintances are dead! • We all shall follow, cousin. • Certain, ‘tis certain, very sure, very sure. Death, as the Psalmist saith, is certain to all, all shall die. True, true. But it remains a joy to celebrate the mystery and adventure we all as lawyers share on the mad path that leads to that certain end. 937.222.7902
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CORPORATE ATTORNEY
Coolidge Wall Co., LPA, a full service Dayton firm since 1853, seeks applicants with 4-10 years of legal experience for an associate position in our corporate law department. The ideal candidate will demonstrate high academic achievement, excellent writing and speaking skills, and a strong work ethic. The candidate should demonstrate appropriate substantive knowledge of and interest in general corporate law, mergers and acquisitions, and real estate transactions. Please send resume (with GPA and class rank), law school transcript, references and writing sample to: Daniel J. Gentry Esq., Professional Development Committee Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to gentry@coollaw.com, with “Associate Application” in the subject line.
CORPORATE PARALEGAL
Coolidge Wall Co., L.P.A., a full service Dayton firm since 1853, seeks a highly motivated and qualified paralegal to work within our corporate and real estate departments. The ideal candidate will have excellent academic credentials, 4+ years of experience, and be knowledgeable regarding all aspects of corporate and real estate practice, including purchase and sale transactions. Please send resume, school transcript, references and any letters of recommendation to: Michelle D. Bach Esq., Professional Development Chair, Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to bach@coollaw.com.
LOCAL COURT RULES Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit the Dayton Municipal Court at http:// www.daytonmunicipalcourt.org/ for notice of and an opportunity to view and comment on proposed local court rules.
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MEDIATION David M. Deutsch 130 W. Second St., Ste. 310 Dayton, OH 45402 Phone: 937-223-7170 Email: deutsch.lawyer@gmail.com Over 40 years experience as a trial lawyer MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295; (937) 572-3185 judgewolff@woh.rr.com OFFICE AVAILABLE Downtown Dayton office with great view available. Reasonable overhead. If interested contact Daryl R. Douple or Harry G. Beyoglides, Jr. at (937) 2241427.
OFFICE WASHINGTON TOWNSHIP
Beautiful, class A+ office sharing available Attractive reception, large conference room, storage and kitchen. Convenient to I-675. 15 minutes to downtown. Contact Craig Matthews: 937-434-9393 or cmatthews@ctmlaw.com OFFICE SPACE 101Southmoor Circle, NW (Stroop and Far Hills). There were four, then three, and now two offices available at $550/ month/office. Furnished or unfurnished. Take one or both offices. Rent includes all utilities, remodeled full size kitchen, two completely remodeled baths, secretarial area, reception area, conference room, dry basement file storage. Email dave@ SchmidtDayton.com for info and pics.
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You are already a member of Fastcase (via the DBA), so why not take a moment to learn how to use it? Learn about everything from getting started to the more advanced features, such as Forecite and multi-jurisdictional searches. Visit www.fastcase.com/support and click on “Documentation and Downloads”. The guides offer something for everyone, from beginners to Fastcase veterans. Don’t know your login? Contact: Lori (lluebben@daybar.org) or Chris (calbrektson@daybar.org) at 937.222.7902 Summer 2016 Dayton Bar Briefs
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