 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State ex rel United Auto Aerospace & Agricultural Implement Workers of America2/3/2005
searches with no constitutional basis, and no remedy for most victims other than a subsequent statement that the search had been impermissible. Just as it is true that one cannot "unring a bell," United States v. Murray (C.A.6, 1986), 784 F.2d 188, 189, one cannot erase the indignity of a bodily search that is later found to be legally impermissible, and the court's use of extraordinary proceedings appeared to be based in part on the need for prompt action to prevent thousands of unjustified personal searches. Thus, the circumstances in AFL-CIO differ significantly from those in the present action.
{ } Likewise, the situation in United Auto Aerospace presented an unusual dispute suitable for prompt resolution in an extraordinary action. There, the Administrator of the BWC had a clear and unambiguous legal duty to promulgate a rule in certain circumstances, and he failed to promulgate a rule before implementing an exercise of authority regarding premiums. United Auto Aerospace, at --10. However, the Administrator mooted the issue by subsequently promulgating a rule. Although the Supreme Court did not state explicitly that such violations of clear duty were likely to evade review of any kind unless addressed in the action before it, such a concern appears to underlie the court's ruling.
{ } In the present action, S.B. 227 may or may not pass constitutional review, but the legislation reveals no attempt to divest the courts of judicial powers granted by the state constitution as in Sheward, nor has the General Assembly attempted to usurp the Supreme Court's authority by refusing to recognize its holdings. Likewise, this action does not present a moot but significant issue that could evade review completely unless addressed in the present action. Further, an action in declaratory judgment or in tort has not been demonstrated to be inadequate for resolving the issues presented here.
{ } The magistrate recognizes that the holdings in AFL-CIO and United Auto Aerospace regarding mandamus relief could be expanded to include the present action. However, such an expansion of the court's extraordinary jurisdiction in mandamus is not appropriate where ordinary remedies appear to be readily available.
{ } In summary, the magistrate concludes that relator has not met its burden in mandamus of proving that the BWC has refused to comply with Holeton or Glaspell. To the extent relator seeks a holding that S.B. 227 is unconstitutional under the principles articulated in Holeton, relator has raised serious and substantial questions, but extraordinary relief in mandamus is not warranted because relator and/or the injured workers it represents have adequate remedies in the ordinary course of law.
{ } Accordingly, the court should deny the requested writ of mandamus or grant respondents' motion to dismiss.
P. A. DAVIDSON MAGISTRATE
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|