exception rather rule in Ohio

1971Legislation which goes beyond this need, violates the Constitution.’ Herndon v. Lowry (1937), 301 U. S. 242 . “ ‘While the city has the undoubted right, under its charter, to regulate the use of its streets, it has no right to do so in a way that interferes with personal liberty of the citizen as guaranteed to him by our Constitution and laws.

1965It reads in part as follows: “No person shall abuse a child or aid, abet, induce, cause, encourage, or contribute to the dependency, neglect, or delinquency of a child or a ward of the Juvenile Court, or act in a way tending to cause delinquency in such child. * * *” In a Supreme Court decision involving the case of Herndon v. Lowry, Sheriff, 301 U. S. 242 , paragraph three of the syllabus states: “The power of a state to abridge freedom of speech and of assembly is the exception rather than the rule; and the penalizing even of utterances of a defined character must find its justification in a

2017"The rejection of expert testimony is the exception rather than the rule, [and] Daubert did not work a seachange over federal evidence law, and the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system." Rudd v. GMC , 127 F.Supp.2d 1330 , 1337 (M.D.Ala.2001).

2012Civ.R. 17(A) does not address standing; rather, the point of the rule is that “suits by representative plaintiffs on behalf of the real parties in interest are the exception rather than the rule and should only be allowed when the real parties in interest are identifiable and the res judicata scope of the judgment can be effectively determined.” Federal Home Loan Mortgage Corp. v. Schwartzwald, Slip Opinion No. 2012-Ohio-5017 , Knox County, Case No. 12-CA-13 7 quoting Lincoln Property Co. v. Roche, 546 U.S. 81, 90 , 126 S.Ct. 606 , 163 L.Ed.2d 415 (2005), citing Consumer Fedn. of Am. v. Upjohn

2012Civ.R. 17(A) does not address standing; rather, the point of the rule is that “suits by representative plaintiffs on behalf of the real parties in interest are the exception rather than the rule and should only be allowed when the real parties in interest are identifiable and the res judicata scope of the judgment can be effectively determined.” Federal Home Loan Mortgage Corp. v. Schwartzwald, Slip Opinion No. 2012-Ohio-5017 , Knox County, Case No. 12-CA-13 7 quoting Lincoln Property Co. v. Roche, 546 U.S. 81, 90 , 126 S.Ct. 606 , 163 L.Ed.2d 415 (2005), citing Consumer Fedn. of Am. v. Upjohn

2012Civ.R. 17(A) does not address standing; rather, the point of the rule is that “suits by representative plaintiffs on behalf of the real parties in interest are the exception rather than the rule and should only be allowed when the real parties in interest are identifiable and the res judicata scope of the judgment can be effectively determined.” Federal Home Loan Mortgage Corp. v. Schwartzwald, Slip Opinion No. 2012-Ohio-5017 , Knox County, Case No. 12-CA-13 7 quoting Lincoln Property Co. v. Roche, 546 U.S. 81, 90 , 126 S.Ct. 606 , 163 L.Ed.2d 415 (2005), citing Consumer Fedn. of Am. v. Upjohn

2012No. 07CA009230, 2008-Ohio-2602, at ¶ 11 .

2011It follows that there is no duty for defense counsel to file a sentencing memorandum, so Collier did not show that counsel violated an essential duty by not filing a sentencing memorandum and choosing instead to address sentencing issues at the time of sentencing. {¶ 5} Collier next complains that defense counsel should have requested a continuance to rebut the state’s sentencing memorandum, filed on the day before sentencing. {¶ 6} Reviewing courts are disinclined to second-guess matters of trial strategy, State v. Tibbetts, 92 Ohio St.3d 146, 166-67 , 2001-Ohio-132 , 749 N.E.2d 226 , and def

2011It follows that there is no duty for defense counsel to file a sentencing memorandum, so Collier did not show that counsel violated an essential duty by not filing a sentencing memorandum and choosing instead to address sentencing issues at the time of sentencing. {¶ 5} Collier next complains that defense counsel should have requested a continuance to rebut the state’s sentencing memorandum, filed on the day before sentencing. {¶ 6} Reviewing courts are disinclined to second-guess matters of trial strategy, State v. Tibbetts, 92 Ohio St.3d 146, 166-67 , 2001-Ohio-132 , 749 N.E.2d 226 , and def

2011It follows that there is no duty for defense counsel to file a sentencing memorandum, so Collier did not show that counsel violated an essential duty by not filing a sentencing memorandum and choosing instead to address sentencing issues at the time of sentencing. {¶ 5} Collier next complains that defense counsel should have requested a continuance to rebut the state’s sentencing memorandum, filed on the day before sentencing. {¶ 6} Reviewing courts are disinclined to second-guess matters of trial strategy, State v. Tibbetts, 92 Ohio St.3d 146, 166-67 , 2001-Ohio-132 , 749 N.E.2d 226 , and def

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2006See, e.g., State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 (two prior incidents could be compared to crime to show a common plan, as long as a clear jury instruction was given explaining the limited nature of the evidence); State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239 (three murders and attempted murders were compared); State v. Noling, 98 Ohio St.3d 44 , 2002-Ohio-7044 , 781 N.E.2d 88 (two prior robberies were compared with the crime); State v. Coley (2001), 93 Ohio St.3d 253 , 754 N.E.2d 1129 (two different instances of kidnapping, robbery, and

2002The magistrate further noted that habeas corpus relief is the exception rather than the rule in child custody cases, citing Barnebey v. Zschach (1995), 71 Ohio St.3d 588 .

2002Barnebey v. Zschach (1995), 71 Ohio St.3d 588 ; Holloway, supra. To obtain a writ of habeas corpus in a child custody case, the petitioner must establish that the respondent unlawfully has custody of the child, that the petitioner has the superior legal right to custody of the child, and that petitioner has no adequate remedy at law.

2002Barnebey v. Zschach (1995), 71 Ohio St.3d 588 ; Holloway, supra. To obtain a writ of habeas corpus in a child custody case, the petitioner must establish that the respondent unlawfully has custody of the child, that the petitioner has the superior legal right to custody of the child, and that petitioner has no adequate remedy at law.

1988Id.

1988Some courts have reached the opposite conclusion, e.g., Cianci v. Superior Court (1985), 40 Cal. 3d 903 , 710 P. 2d 375 , but the better reasoned opinions, including those of the vast majority of state courts that have addressed the issue, have adhered to the view that state courts lack concurrent jurisdiction to adjudicate civil RICO claims brought by private litigants.

1988Some courts have reached the opposite conclusion, e.g., Cianci v. Superior Court (1985), 40 Cal. 3d 903 , 710 P. 2d 375 , but the better reasoned opinions, including those of the vast majority of state courts that have addressed the issue, have adhered to the view that state courts lack concurrent jurisdiction to adjudicate civil RICO claims brought by private litigants.

1969Following a similar vein is Johnson v. Anoka-Butte Lumber Co., 141 Neb. 851 , 5 N. W. 2d 114 , in which, at page 118, the court quotes from a Massachusetts case, Booth v. Meagher (1916), 224 Mass. 472 , 113 N. E. 367 , as follows: “ ‘Whether the principal defendant was negligent in not sooner seeing the plaintiff and in not so operating his automobile with reference to the concurrent right of the plaintiff and himself to travel upon the public way as to avoid a collision, was for the jury.’ ” Many times the question as to the violation of the assured-clear-distance-ahead rule is properly for t

1969Following a similar vein is Johnson v. Anoka-Butte Lumber Co., 141 Neb. 851 , 5 N. W. 2d 114 , in which, at page 118, the court quotes from a Massachusetts case, Booth v. Meagher (1916), 224 Mass. 472 , 113 N. E. 367 , as follows: “ ‘Whether the principal defendant was negligent in not sooner seeing the plaintiff and in not so operating his automobile with reference to the concurrent right of the plaintiff and himself to travel upon the public way as to avoid a collision, was for the jury.’ ” Many times the question as to the violation of the assured-clear-distance-ahead rule is properly for t

1969Following a similar vein is Johnson v. Anoka-Butte Lumber Co., 141 Neb. 851 , 5 N. W. 2d 114 , in which, at page 118, the court quotes from a Massachusetts case, Booth v. Meagher (1916), 224 Mass. 472 , 113 N. E. 367 , as follows: “ ‘Whether the principal defendant was negligent in not sooner seeing the plaintiff and in not so operating his automobile with reference to the concurrent right of the plaintiff and himself to travel upon the public way as to avoid a collision, was for the jury.’ ” Many times the question as to the violation of the assured-clear-distance-ahead rule is properly for t

1969Following a similar vein is Johnson v. Anoka-Butte Lumber Co., 141 Neb. 851 , 5 N. W. 2d 114 , in which, at page 118, the court quotes from a Massachusetts case, Booth v. Meagher (1916), 224 Mass. 472 , 113 N. E. 367 , as follows: “ ‘Whether the principal defendant was negligent in not sooner seeing the plaintiff and in not so operating his automobile with reference to the concurrent right of the plaintiff and himself to travel upon the public way as to avoid a collision, was for the jury.’ ” Many times the question as to the violation of the assured-clear-distance-ahead rule is properly for t