Thursday, August 28, 2014

New CLE rules in effect for Ohio attorneys

Attorneys admitted to practice in Ohio are no longer required to file a final reporting transcript for CLE credit, according to a recent article by Court News Ohio. This is one of several changes to rules for CLE requirements passed by the Supreme Court of Ohio in November 2012 that became active this year. The first group of attorneys not required to file the final transcript are those whose names begin with M through Z, whose biennial compliance period ends on December 31, 2014. Other significant changes include that attorneys are no longer required to earn separate credits for ethics, professionalism and substance abuse sessions, but must complete 2.5 hours in the area of professional conduct, and that attorneys may now earn CLE credit for pro bono work. There are also changes for judges, magistrates and new lawyers.

The Office of Attorney Services of the Ohio Supreme Court has published comparison charts highlighting the differences between the old and new rules as well as FAQs and other useful information, which is available here. The full text of the rules as well as recent amendments can be found at Attorney Services website.

Monday, August 25, 2014

Several specialized courts in Ohio obtain final certification

Court News Ohio reports that 23 specialized dockets in Ohio courts have recently received final certification by the Supreme Court of Ohio Commission on Specialized Dockets. This includes a Veterans Treatment docket in Hamilton County Municipal and Common Pleas courts and an OVI docket in Clermont County. You will find Hamilton County's participant handbook here and program information and eligibility guidelines here.

There are currently over 150 specialized dockets in Ohio courts. These dockets provide a “therapeutically oriented judicial approach to providing court supervision and appropriate treatment to individuals” (Rules of Superintendence 36.20). This is a non-adversarial approach to the justice system wherein court and treatment personnel collaborate to provide treatment instead of prison time for defendants dealing with issues such as mental health and drug and alcohol abuse. This involves a treatment team that can include prosecutors, defense counsel, probation officers, case managers and licensed treatment providers, among other community and court personnel.  The team is led by a specialized docket judge. According to Court News Ohio, "the success of specialized dockets is measured by reduced recidivism, improved treatment, and cost savings."

Specialized courts must undergo an application and certification process with the Supreme Court of Ohio Commission on Specialized Dockets before hearing cases. They must be re-certified after three years of certification or within six months of a change in judge for that court. For more information on the rules for specialized dockets see Appendix I of the Rules of Superintendence for Ohio Courts.

Wednesday, August 20, 2014

Same-sex marriage cases governed by 1972 SCOTUS decision?

Could a 1972 SCOTUS decision cause a divide among circuits and send same-sex marriage cases on a fast track to the U.S. Supreme Court? This is the question raised in a recent Washington Post article about the case of Baker v. Nelson (1972), in which the U.S. Supreme Court summarily dismissed a challenge to Minnesota’s ban on same-sex marriage with one line: “Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.” Baker involved Richard Baker and James Michael McConnell, who applied for a marriage license in Minnesota in 1970 and were denied based on the state’s law limiting marriage to opposite sex couples. They pursued a legal challenge to this law, asserting that it violated their fundamental right to marry under the U.S. Constitution. The Minnesota Supreme Court denied their claim and the ACLU petitioned the U.S. Supreme Court to hear their case. The high court responded with their one line dismissal.

Baker has been widely disregarded as no longer relevant by judges in the circuits that have struck down same-sex marriage bans. This is largely due to the swath of decisions that have come from the high court since Baker was decided that have been more favorable to gay rights, including Romer v. Evans (1996), Lawrence v. Texas (2003) and U.S. v. Windsor (2013). According to an article on Slate.com, although summary dismissals from the U.S. Supreme Court are generally binding on lower courts, it is possible that “doctrinal developments” from future cases could undermine such a decision’s value as legal precedent. The Supreme Court’s decisions in cases like Romer, Lawrence and Windsor did not specifically overrule Baker, but have given lower courts some latitude to disregard it when reaching decisions about the constitutionality of same-sex marriage bans.

Baker may be a pivotal issue in the 6th Circuit’s forthcoming decision about the six cases it heard on August 6 involving various issues related to same-sex marriage from all four states in its jurisdiction. According to the Post, during oral arguments in those cases Justice Sutton “repeatedly asked lawyers challenging the bans why his court should not feel bound by Baker, since the Supreme Court has never found reason to overturn it.” Slate, however, reports that Justice Sutton then “walk(ed) back his statement, musing that “the legal reasoning in other cases”—Romer, Lawrence, and especially Windsor—were “totally inconsistent with Baker.” ” According to Slate, Sutton is known as a swing vote, as he was appointed by George W. Bush and served as law clerk to Supreme Court Justice Antonin Scalia, but recently upheld the Affordable Care Act when it was challenged in the 6th Circuit.

A decision to uphold the states’ gay marriage bans couched in the precedent of Baker would avoid dealing with difficult constitutional questions surrounding these issues, and would almost certainly send the issue swiftly to the Supreme Court for decision.