The identities of the wounded police officers would place them at the risk of  serious bodily harm and possibly even death from a perceived likely threat and  that the disclosure of their identities was not narrowly tailored to achieve  the public purpose of examining the performance of the police. Therefore, the court of appeals correctly held  that the requested names of the wounded police officers were protected from  disclosure under R.C. 149.43(A)(1)(v) by the constitutional right of privacy.”

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The Court reversed a decision from the Ninth Circuit that a private attorney retained by the City of Rialto, California, to investigate alleged misconduct of a city firefighter was not entitled to qualified immunity from a federal suit later brought under § 1983 by the firefighter alleging violations of his Fourth and Fourteenth Amendment rights.

In that case, a firefighter (Delia) missed work after becoming ill on the job.  Suspicious of his extended absence, the City hired a private investigation firm to con­duct surveillance on him.  When Delia was seen buying fiberglass in­sulation and other building supplies at a home improvement store, the City initiated an internal af­fairs investigation.  Believing that Delia was absent from work to fix up his house rather than recover from an illness, the City hired a private attorney (Filarsky) to interview the firefighter.  At the interview, which Delia’s attorney and two fire department officials also attended, Delia acknowledged buying the supplies, but denied having done any work on his home.  To veri­fy Delia’s claim, Filarsky asked Delia to allow a fire department offi­cial to enter his home and view the unused materials.  When Delia refused, Filarsky ordered him to bring the materials out of his home for the official to see.  Delia’s attorney repeatedly threatened to sue Filarsky if he issued an order compelling Delia to produce the materials.  Nevertheless, Filarsky did in fact prepare the Order, which was signed by the fire chief.  Pursuant to the Order, city officials followed Delia to his home, where he produced the materials.  The fire department officials thanked Delia for producing the materials and immediately left.

Delia brought an action under 42 U. S. C. §1983 against the City, the Fire Department, Filarsky, and other individuals, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights.  The District Court granted summary judgment to all the individual defendants on the basis of qualified im­munity.  The Ninth Circuit affirmed with re­spect to all individual defendants except the attorney, concluding that he was not entitled to seek qualified immunity because he was not a City employee.

In deciding that the attorney was entitled to assert qualified immunity for his role in the investigation, the Supreme Court looked to the underlying purposes of the legal doctrine granting immunity to persons engaged in government work.  In writing the opinion, Chief Justice Roberts gave a compelling history of private individuals involved in public service.  He could find no reason to make a distinction between a private individual paid by the government and clearly engaged in government service versus a full-time government employee.  Of particular importance to the Court was the fact that persons taking on public service, whether on a temporary or full-time basis, should not be timid in their performance or shy away from such service altogether out of fear of lawsuits.

On a side note; there has been some additional controversy since the SCOTUS decision.  A popular legal blog has reported that, after the decision came down, attorney Filarsky sent letters to both the plaintiff and the attorney he had at the time of the investigation, essentially telling both of them to “Go to hell.”  After six years of litigation going all the way to the United States Supreme Court for Delia’s hurt feelings, it is not difficult to sympathize with Mr. Filarsky’s need to vent on this one.

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For instance, in a medical malpractice case, the jury would first hear evidence of and determine whether a doctor made a mistake and the plaintiff sustained personal damages.  If, and only if, the jury concluded that medical malpractice occurred, the same jury or another jury would hear evidence of financial matters and other evidence supporting damages that would “punish” the physician for his conduct.  The purpose of bifurcation is to avoid interjecting confusing and prejudicial punitive damages evidence in the underlying lawsuit.

In Havel, the Supreme Court was asked to answer, “Whether R.C. 2315.21(B), as amended by S.B. 80, effective April 7, 2005 is unconstitutional, in violation of Section 5(B), Article IV of the Ohio Constitution, because it is a procedural law that conflicts with Civ.R. 42(B).”  This question ultimately turned on an evaluation of the separation of powers between the judicial and legislative branches of government.  If the bifurcation statute was merely a procedural rule, then the judiciary would be found to have the prevailing right and the statute would be unconstitutional.  If, however, the statute created a substantive right, the statute would prevail.

The Supreme Court concluded that R.C. 2315.21(B) does not violate Ohio’s constitutional separation-of-powers clause, because it creates a new substantive right for the parties to civil litigation, which prevails over the courts’ more general procedural rules.

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The Wills for Heroes program will be in Mason, Ohio this weekend.  This program provides free wills for first responders and their spouse or domestic partner.  Three members of the Subashi & Wildermuth team will be volunteering their services at this event –Tabitha Justice, Lauren Epperley, and Brittany Radin.

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In each of these cases, a student had used offensive language online, after school hours, to berate school administrators or fellow students.  School officials disciplined the students for the behavior, and the students filed suit on First Amendment grounds.  The 3rd Circuit decided the school districts violated the students’ Constitutional rights to free speech because the online conduct had not caused substantial disruptions in school.  The Court relied upon prior Supreme Court precedent in Tinker v. Des Moines Ind. Comm. Sch. Dist.  The 4th Circuit, however, relying upon that same precedent, decided the school district had a compelling interest in regulating speech that interfered with or disrupted the work and discipline of the school, including online bullying. The only apparent factor distinguishing the 3^rd Cir. and 4^th Cir. decisions is that J.S. and Layshock both dealt with student-on-administrator bullying, while Kowalski dealt with student-on-student bullying.

Many entities, including the ACLU and the National School Board Association weighed in on these cases in an effort to get the Supreme Court to resolve the question.  While these scenarios are occurring more frequently as students have greater access to technology, school administrators currently have very little guidance on how to proceed.  On the one hand, the public is critical of schools for not doing more to stop bullying.  On the other hand, the students have free speech rights.

Without explanation, the Supreme Court declined to resolve the conflict of law, and schools across the country will continue to struggle with this issue.

Fortunately, most school law attorneys, including those at Subashi & Wildermuth, have crafted recommendations and advice on this topic.  When the next teacher or parent comes into the Superintendent’s office to complain that little Johnny slandered them on Facebook, the first call should be to legal counsel.

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Super Lawyers are selected based on statewide nominations, peer evaluations in their primary practice area, and independent research.  All candidates are evaluated on twelve specific indicators of peer recognition and professional achievement.  Fewer than 5% of Ohio lawyers receive this recognition.

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