Tuesday, September 16, 2014

Federal judge strikes down Ohio's ban on lying in political campaigns

A judge for the U.S. District Court for the Southern District of Ohio struck down Ohio laws that ban lying in political campaigns last Thursday. Judge Timothy Black found that the laws were "more burdensome than necessary to accomplish their alleged objectives and do not satisfy strict scrutiny under the Constitution of the United States" and permanently enjoined their enforcement.

The case before Judge Black began with former U.S. Representative Steve Driehaus' re-election campaign in 2010. According to an article by the Wall Street Journal, the antiabortion group Susan B. Anthony List (SBA List) had planned to put up billboards accusing Driehaus of "voting for 'taxpayer-funded abortion,'" because he had voted for passage of the Affordable Care Act. Driehaus filed a complaint with the Ohio Election Commission (OEC), alleging that the group had violated Ohio's laws against political lies by making these allegations. The OEC found probable cause that SBA List violated those laws.

Driehaus later dropped the complaint when he lost the election, but SBA List continued to pursue legal action in the case. The organization was joined by the anti-tax group Coalition Opposed to Additional Spending and Taxes (COAST), which claimed that they had intended to make similar statements about Driehaus, but did not do so out of fear of adverse actions like those taken against SBA List. The parties pursued the case in federal court in southern Ohio. Initially, Judge Black dismissed the case, ruling that neither party met requirements of standing or ripeness, as there was no longer a complaint pending with the OEC. The case went all the way to the U.S. Supreme Court, which ruled, in a unanimous opinion drafted by Justice Clarence Thomas, that the parties could pursue their claims in the district court.

After a subsequent hearing, Judge Black found Ohio's laws unconstitutional, stating that "the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is. Ohio’s false-statements laws do not accomplish this." His decision focused on recent Supreme Court case U.S. v. Alvarez, which found that false statements were protected speech under the  First Amendment, and an 8th Circuit case, which struck down a Minnesota statute similar to Ohio's just a few days prior. The Cincinnati Enquirer reports that Black also took inspiration from popular media, as he quoted the Netflix program House of Cards in his decision, stating "There's no better way to overpower a trickle of doubt than with a flood of naked truth." According to the Enquirer, the Ohio Elections Commission is currently determining whether to appeal the decision.

Public comment sought on rule changes in Ohio

The Supreme Court of Ohio has proposed several changes to both the Rules of Professional Conduct (RPC) and the Rules of Practice and Procedure. The changes to the latter set of rules involve amendments to Ohio's Rules of Appellate Procedure, Rules of Civil Procedure and Rules of Juvenile Procedure. Public comments will be accepted until October 15.

Court News Ohio reports that some notable changes to the RPC could include:
  • "Requiring lawyers to maintain competency regarding the risks and benefits of technology (Rule 1.1), including making reasonable efforts to prevent the unauthorized disclosure of or access to confidential client information (Rule 1.6)," and
  • "Modifying Rules 7.1, 7.2, and 7.3 (Lawyer Advertising) to reflect advertising and solicitations that may be made via the Internet and in electronic format."

The same publication also reports some significant potential changes to the Rules of Practice and Procedure, including:
  • "New rules (Civ.R. 43 and Juv.R. 41) would allow live open court testimony from a location outside the courtroom," relating to two 2011 amendments to the revised code, and
  • "Proposed amendments to App.R. 3, App.R. 9, and App.R. 11.2 address expedited appeals. App.R. 3 provides notification currently lacking in some appellate districts to alert the court that there needs to be a priority disposition in a case. App.R. 9 recognizes that in an expedited judicial bypass appeal from the juvenile court, there is no requirement of a written transcript if an audio recording is available. App.R. 11.2 adds prosecutorial appeals from suppression orders under criminal and juvenile rules to the list of expedited appeals."

For comments on the proposed amendments to the Rules of Professional Conduct contact:
Richard A. Dove, Secretary, Board of Commissioners on Grievances & Discipline
Ohio Supreme Court
65 S. Front St., Fifth Floor
Columbus, OH 43215

For comments on the proposed amendments to the Rules of Practice and Procedure contact:
Jo Ellen Cline, Government Relations Counsel
65 S. Front St., Seventh Floor
Columbus, Ohio 43215

Thursday, September 11, 2014

Ohio Supreme Court on the move

Court News Ohio reports that the Supreme Court of Ohio is once again on the move - this time hearing cases from Ravenna High School in Portage County on September 24. During this session the Court will hear three appeals which students from eleven local high schools will have the opportunity to watch.

The Court holds these off-site sessions twice a year, giving Ohio students an opportunity to learn about the justice system. Directly prior to the hearings the students will be able to meet the justices and ask them questions. After the arguments are completed they will be able to discuss the cases with the attorneys and learn more about the legal issues presented.

The cases to be heard in this session are:

Johnson v. State - The appellant is challenging his drug conviction because he asserts that evidence used against him at trial was improperly obtained. Specifically, he alleges that police placing a GPS unit on his vehicle without a warrant amounted to an unlawful search under the 4th Amendment. The State asserts that the officer acted in good faith,so the evidence collected as a result of this search did not need to be excluded.  The appellant argues that the good faith exception only applies in circumstances where binding precedent from an appellate court dictates, and that no such precedent exists here.

Ganley Chevrolet v. Felix - The appellant (a car dealership) is challenging the lower court's decision to certify the case against it as a class action. The case involves the legality of an arbitration clause in a contract to purchase a vehicle, and the class is all customers who have signed agreements with that clause. The appellant argues that the case should not have been certified as a class action because individuals who did not suffer harm or damages cannot be part of the class, and very few others took issue with the arbitration clause.

Chen v. Smith - The appellant (medical practice) in a medical malpractice claim is challenging the lower court's order that a surveillance video must be disclosed to the appellee (patient) before trial. The video in question shows the patient who is suing the practice for injuries related to a back surgery. The appellant argues that the video amounts to attorney work product and the appellee has not shown good cause as to why it is discoverable.