Federal Internet employment application rules

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) back on October 7,2005, issued final regulations defining “Internet applications” and specifying what information employers have to collect & maintain for employment applications received over the Internet for federal contract jobs.

OFCCP regulations require covered federal contractors/subcontractors to collect & maintain information about gender, race & ethnicity of employees and applicants for several purposes relating to contractors’ administration of nondiscrimination & affirmative action requirements, and the OFCCP’s role in monitoring compliance with other regulations. [ 41 CFR 60-1.12 (c),
65 FR 68023, and 65 FR 26091 are cited as explanatory]

· DOL press release
· 41 CFR Part 60-1
· 70 FR 58946 (Oct. 7, 2005)


A Law.com article (registration) earlier this month discusses corporate America’s concerns about the new rules and possible discrimination lawsuits ensuing.

In March 2004, the Equal Employment Opportunity Commission, along with the Department of Labor and Dept. of Justice, issued a “coordinated document clarifying recordkeeping provisions concerning who was an ‘applicant’ in the context of the Internet and related technologies.”

· 29 CFR Part 1607
· 69 FR 10152

Carson Strege-Flora, in the Shidler Journal for Law, Commerce + Technology on Oct. 24th., had an article entitled “Proposed Federal Definition of ‘Internet Job Applicant’ Suggests Need For Revised Human Resource Policies,” in response to the initial set of rules

Hamilton County Public Defender's Office

If Hamilton County commissioners and Lou Strigari, Hamilton County’s Public Defender, get their way, Hamilton County will be getting its own felony representation division for persons unable to afford counsel on their own, which will relieve the overwhelming caseload that strains that Office and those like it, according to an article in Wednesday’s Cincinnati Enquirer.(Article appeared in paper format, but not online).

Cuyahoga County’s public defender’s office, for one, has a special felonies division already.

Right of an accused in criminal proceedings to legal counsel includes that of indigent persons under the Sixth Amendment, but that’s abridged to felonies and offenses where the accused could be sentenced to imprisonment if found guilty.(Am Jur.,Criminal Law §1197)

Each of the states have some sort of public advocacy system, but there are differences in administration, procedure, etc. (Statutory links to Ohio, Indiana & Kentucky).

New Ethics Opinions: Advertising, Client Funds

New advisory opinions on lawyer advertising and preserving client funds were issued on December 2, 2005, by the Board of Commissioners on Grievances and Discipline.

Opinion 2005-09 prohibits lawyers from using discount coupons: "A lawyer may not advertise legal services with coupons for free consultation or dollars off the cost of legal services. Advertising legal services with fee coupons is a characterization of the fees as “discount” or “special” and does not comply with DR 2-101(A)(5)." The opinion does not restrict advertisement of fees and charges that comply with DR 2-101(B).

Opinion 2005-10 discusses whether a lawyer violates DR 9-102(A) and (B) by reporting client funds as "unclaimed" pursuant to Ohio Revised Code Chapter 169: Unclaimed Funds when the client's whereabouts are unknown. The opinion says that "An attorney does not violate the ethical duty to preserve a client’s funds under DR 9-102(A) and the ethical duty to promptly deliver funds to a client under DR 9-102(B)(4) by reporting “unclaimed funds” pursuant to R.C. Chapter 169, so long as the attorney has diligently tried to contact the client at the last known address and the client’s whereabouts are unknown."

2500 Ohio lawyers suspended

2500 Ohio lawyers were suspended last week for failing to pay their required $300 state registration fee, according to articles in this morning’s Enquirer. There is also an article on Law.com this morning.

This is the first time the Ohio Supreme Court has suspended as many as it did at the same time.

While 21 Ohio counties, including Adams, Brown, & Highland didn’t have any, Cuyahoga had the most representatives on the list with 412. Of the total number, 123 are from Hamilton County, 7 from Clermont, and 16 each from Butler and Warren Counties. A complete list is attached to the Court’s order, issued Dec. 2, 2005

Suspended attorneys can be reinstated upon application and payment of the registration fee, along with a $200- fine.

Federal abortion issues

The Supreme Court heard its first abortion rights case in five years Wednesday in a consideration of a minor’s requirement to inform her parents of her intent to secure an abortion. ( Ayotte v. Planned Parenthood, 04-1144).

As many as 33 states have some sort of statutory parental notice or consent requirement for minors seeking an abortion. Ohio, Indiana, & Kentucky all require parental consent, with Ohio’s statute just having been tested in District Court last September.(See Post)

Although the outcome of Ayotte will not affect the 1973 Roe v. Wade standing that being able to have an abortion is a fundamental constitutional right, it is said to be significant in several other ways and has been getting its share of media coverage. (See SCOTUSblog and LegalBlogWatch postings yesterday & last Wednesday)

While the Supreme Court deliberates the Nebraska statute, the House Judiciary Committee will soon be considering the “Parental Notification & Intervention Act,” introduced last June. It would require written parental notification either by personal delivery or certified mail unless there is “clear & convincing evidence of parental abuse,” and a 96-hour waiting period.

And, having been passed in the House by a 270-157 vote the last part of April, the “Child Interstate Abortion Notification Act” is now on the Senate’s calendar. This bill would amend the federal criminal code to “prohibit transporting a minor across a State line to obtain an abortion, thereby abridging a parent’s right under a law in force in the State where the minor resides requiring parental involvement in a minor’s abortion decision,” unless having the abortion is a matter of life for the minor.

Not even in the mix is the “fetal pain” issue brought up last month by the Wisconsin Assembly’s bill, and the fact that three states already have that consideration in their statutes. Versions in both the Senate and House of the “Unborn Child Pain Awareness Act” are also in committee. (See Post)

"America's Most Literate Cities"

Cincinnati tied with St. Paul, Minnesota in 9th. Place, overall, in the Center for Public Policy & Social Research’s 2005 “Most Literate Cities in America” study last month according to a recent LLRX post. The study focuses on six factors seen as major indicators in the country’s major cities of 250,000 or more, including newspaper circulation, library resources, and, just this year, Internet resources.

The city tied with Seattle, Washington in 7th. Place as far as public library support, holdings & utilization were used as an index of measure, but only placed 39th. on the newly created Internet resource scale, tying with Chicago. “Of all the cities in the top ten for overall literacy,” the study said, “only Cincinnati and Pittsburg are low on the Internet variable, and they are both below the median.” Seattle, Boston, and Austin, Texas took the top three honors in that category.

“There are strong relations between three of the four internet literacy variables,” the survey noted, “including wireless internet access, and purchasing books & reading newspapers on the internet, but the availability of wireless terminals in public libraries isn’t related to those variables.”

Come Back, E-mail!

Once sent, e-mail is hard to retrieve, as Brett Burney of Thompson Hine's Cleveland office describes in this set of e-mail tips. There is a common misconception that, just because your e-mail software has a "recall" feature, that it can recall a message sent out to the Internet. What usually happens, is that the e-mail sent by mistake is followed by a second e-mail seeking to recall it. Brett offers alternative suggestions as well as tips on keeping e-mail readable, through better subject lines, fonts and formatting. Brett is a regular contributer to Law Technology News and is a legal practice support coordinator at Thompson Hine

IRS website

The IRS has a new, redesigned, website debuting last week with “a fresh look, enhanced search capabilities, and easy access to tools for both the general public and tax professionals.” (See announcement)

The Government Accountability Office (GAO) has also released its assessment of the Internal Revenue Service’s 2005 filing season performance, in which IRS’s previous website was praised. The report did, however, recommend that “IRS develop better information about the costs of mandatory electronic filing of tax returns for certain categories of tax practitioners and
establish a schedule for developing its long-term goals,” to which the Internal Revenue Service agreed.

10-Year Mark for PACER/ electronic federal case filing

The Federal Judiciary’s Case Management/Electronic Case Filing system (PACER) reaches the 10-year milestone this month, having heard more than 24 million cases in that period.

The electronic filing system, launched in Nov. 1995 when a team from the U.S. Court Administrative Office assisted the U.S. District Court in Northern Ohio process in excess of 5,000 document-intensive asbestos cases, is currently used by 85 district and 91 bankruptcy courts, some of the federal appeals courts, including those in Ohio, Indiana, and Kentucky; the Court of International Trade, and the Court of Federal Claims. Not all federal courts are fully operational at this point, but are expected to be by the end of next year. (See press release, list of participating courts, and overview)

Last month, the Judicial Conference issued a set of proposed rule amendments addressing public access to electronically filed case material which are intended to implement portions of the 2002 E-Government Act requiring federal courts to make those filings available online while not sacrificing privacy or security concerns. The public comment period for those amendments is until Feb. 15, 2006. (Additional information)

Federal Legislative Site Gets New Look

Thomas, home to a wealth of U.S. legislative information hosted by the Library of Congress, has been given a face lift. The new look is more compact and is easy to navigate. There is more information available on the front page than before, although some might argue the smaller font means that it's harder to find the link to the Public Laws search. The current Congress' information can be searched quickly from the front page, using keywords, bill number, or sponsor's name. Some of the other search features - like combining multiple Congresses in a single search - are nice improvements, if not in functionality than in interface. The universal left side menu means that you can keep moving forward in your navigation to a new location, rather than having to return to the top of the site. Links to the Congressional Record and Treaties follow you around the site. The site's About Thomas page succinctly explains scope of databases and links to the search queries for bill text since 1989, bill summaries and status since 1973, and the multi-Congress search.

Ohio commercial activity tax rule changes

The Ohio Department of Taxation has announced two revisions in its Commercial Activity Tax (CAT) rules, along with issuing a draft rule defining “nonprofit organizations” for CAT purposes

In a third revision, ODOT issued a release on the situsing of gross receipts from various services. The new version, CCH’s State Tax Review reported, indicates proposed situsing rules are still being developed with respect to construction contractors, contract manufacturing, directors’ fees, and transportation brokers. (See information release CAT 2005-06)

A second release was issued containing a draft of a proposed rule clarifying “common owners” for purposes of consolidated elected & combined taxpayer groups under CAT. (Release 2005-05)

Finally, in addition to a nonprofit organization’s being organized for purposes other than pecuniary gains or profit of members, directors, officers, or other private persons, ODOT has issued a draft rule adding that “the entity’s net earnings must not be distributable to those individuals, but that the payment of reasonable compensation for services rendered & the distribution of assets upon dissolution would not be considered pecuniary gain or a distribution of net earnings.’ (Release 2005-14)

Kentucky income tax pension exclusion

Kentucky’s personal income tax pension exclusion, CCH’s State Tax Review reports, remains unchanged at $41,000 for 2006 tax year, the annual inflation adjustment for the pension exclusion being repealed by the Tax Modernization Plan last March. (Press release)

Internet search engines/ Digital TV

The latest Pew Internet & American Life Project survey, released this morning, shows that while e-mailing is still the top Internet activity, search engine usage is climbing fast behind it, jumping 55% from June 2004 thru last September.

“Several factors explain the quick rise in search activity,” a MercuryNews article (registration) this morning quotes Pew Director Lee Raine, “including the spread of high-speed Internet connections…. The ubiquity of broadband—70 percent of Internet users have access to it at work or home—is prompting people to shift from using phone books and other offline information sources to the Web.”

SearchEngineWatch has additional information along with a link to the 9-page PDF report.



Meanwhile, the House of Representatives last Friday backed a plan to require television broadcasters to convert to digital transmissions by Dec. 2008, three months earlier than provisions in the Senate’s version of the same bill, according to a FindLaw article this morning. (H.R.921)

Automation Proposed to Replace Court Reporters

Hamilton County's Board of County Commissioners is proposing to require new judges to forego a court reporter and use video and audio recording equipment instead, according to the Cincinnati Post. The story, also picked up by UPI, discusses the costs of court reporters, alternative technology, and the opposition of some Hamilton County judges. The experience of judges in Northern Kentucky's Boone, Kenton, and Campbell counties is cited for the benefits of an automated reporter system.

Proposed Ohio Supreme Court Rules of Professional Conduct

The Ohio Supreme Court has issued a set of proposed rules of professional conduct “reflecting current practices & ethical standards in the legal community which they are asking for feedback on.

A task force appointed by Chief Justice Thomas Moyer in 2003, issued its report recommending rules of conduct more closely conforming to the ABA model rules, and replacing the current Code of Professional Conduct adopted in 1970. ABA model rules serve as a basis for ethical standards in 46 states.

At its initial meeting, the task force had identified six primary benefits resulting from adopting rules of professional responsibility based on the ABA model—one of the most frequently cited being “the substantial reliance on a body of rules that are a better reflection of the current practice of law and the subject of frequent updates,” according to the draft posted. Fifty-four changes are being proposed.

Copies of the proposed rules are posted on the Supreme Court’s website and also being published in the Nov. 14th. Special edition Ohio Official Reports Advance Sheets and the OSBA Report. (Press Release)

Public comments are being accepted until Feb. 15, 2006.

Ohio third-party child custody

In June 2000 the U.S. Supreme Court handed down its landmark third-party visitation decision, Troxel v. Granville, a Washington state case holding that state statutes regarding who—other than parents-- can get court-ordered visitation rights had to defer to parents’ wishes. It’s been a discussion since.

FindLaw columnist & Hofstra law professor Joanna Grossman this morning looks at the way state supreme courts have been doing that—including the Ohio Supreme Court’s decision last Oct. 10th. in Harrold v. Collier. The article links to both cases, and Collier was briefed in the daily summaries on our website when it was issued.

Ohio’s child custody statutes are ORC § 3109.11 and 3109.12, Kentucky’s pertinent statutes are KRS §403.320 and 405.021 ; and Indiana’s are Ind. Code 31-14-14 and 31-17-5.

Bird Flu Pandemic resources

With world health experts estimating that combating a possible bird flu pandemic could cost some $1.5 billion, President Bush’s strategy for this country talks in terms of $7.1 billion and relys heavily on individual state & local government participation. Questions facing the states are whether they’d be able to afford that kind of effort, as well as what can or might be done, and a number larger companies—especially those with global interests—are looking at options from their perspective.

Ohio, Indiana, and Kentucky all have plans posted on their health department websites. The national plan is under the auspices of the Homeland Security Council.

Procter & Gamble v. Amway

The 10th. Federal District Court of Appeals on Oct. 19th. reinstated the lawsuit brought by Procter & Gamble against Amway Corporation on allegations that Amway’s president at some point in the late 1970s or early ‘80s, told a talk show host that P&G’s president worships Satan and that a portion of their profits goes to the Church of Satan, according to a FindLaw article last Friday.

P&G had made several allegations suggesting that “the district trial court’s rulings at issue were so ‘plainly deficient’ as to demonstrate ‘serious antipathy’ toward P&G..”

The district court’s judgment was affirmed in part and reversed in part, the case being remanded back to the district court for further proceedings.

Wisconsin abortion bills

Questions centering around abortion issues have been in the news since before Roe v. Wade back in 1973, and the last couple of weeks hasn’t been much different. Roe secured a woman’s right to have an abortion, but a reversal of that would not outlaw abortion nationwide, according to a recent CNN article; the issue reverting back to the states with a patchwork of possible consequences.

The Wisconsin Assembly, Tuesday, passed a measure which would add a new requirement for women seeking an abortion at or beyond their 20th week of pregnancy that there is suggestion that the unborn fetus has the physical structures at that age necessary to feel pain, and that abortions can cause substantial pain to a fetus. A comparable measure was passed by the Wisconsin Senate earlier, although Gov. Jim Doyle has indicated that he would veto the measure.

Although fetal pain is an unsettled medical question, Arkansas, Georgia, and Minnesota all have similar provisions in effect.; and both the U.S. Senate and House of Representatives have pending legislation on the matter.

Sixth Circuit Rule 31 amendment

The Sixth Circuit Court of Appeals has amended 6 Cir. Rule 31 with the addition of a new section (c), which allows parties to file their briefs in CD-ROM format in addition to the required paper copies of the brief. Rule 31 as amended is effective August 12, 2005. The rule does not just apply in those cases in which briefs have yet to be filed; counsel in pending cases who have already filed their brief may file a CD-ROM version, as set forth in the rule, if they choose to do so. (http://www.ca6.uscourts.gov/internet/documents/ntc_CA6-RevisedRule31.pdf )

Sexual Predator Residency cases

The U.S. Southern District Court of Ohio yesterday ruled that convicted sex offenders who had sued to block enforcement of Ohio’s sexual predator requirement barring residence 1,000 feet from a school, lacked legal standing to pursue their case.

An Enquirer article this morning quotes David Singleton, a lawyer with the Ohio Justice & Policy Center as saying that the position taken by the Court was “completely wrong,” and that he hopes it will reconsider in order to avoid appealing it.

The OJPC has filed an amicus brief with the Supreme Court in the matter of Doe v. Miller, an 8th. Circuit case upholding Iowa’s sex offender residency statute which has a 2000-foot requirement. The Association for the Treatment of Sexual Abusers (ATSA) argues in that brief that “research has shown that criminal offenders with stable housing, employment, and social support are less likely to commit new offenses compared with those who lack stability,” and assert that “residency requirements like those passed in Iowa, Ohio, and other states, deprive sex offenders of those things (which) may increase the risk of recidivism.”

OJPC’s press release of the brief makes the statement that “the Iowa case, if taken by the Supreme Court, could have enormous implications for sex offender residency statutes nationwide. If the Supreme Court declares Iowa’s statute unconstitutional, it’s likely that similar statutes across the country would also be found unconstitutional.”

Deer Season

Pennsylvania ranks first in the number of accidents in which deer on hit on the nation’s highways, according to a CNN/Money article this morning.

Second & third highest were Michigan and Illinois, followed by Ohio and Georgia.

Indiana, eighth on the list, is adopting a program modeled after one in Iowa in which hunters killing antlerless deer on the first weekend of the firearms season, are being offered a coupon for their replacement deer licenses if they donate the meat to area food banks.

EPA rule proposal: stationary pollution controls

The Environmental Protection Agency issued a proposed rule that would allow power plants to modify existing facilities without having to install more modern pollution controls if their hourly emission rates don’t increase. This changes the EPA definition of emissions increase to “an increase in maximum achievable emissions measured on an hourly basis, as opposed to being measured over the course of an entire year,” according to a U.S. Law Week article last week.

The article notes that the 4th. Circuit Court of Appeals held on June 15th. that “an emissions increase occurs only when a modification increases a plant’s maximum potential hourly emissions rate.” (U.S. v. Duke Energy, 411 F3d. 539), but a week later, on June 24th., the District of Columbia Circuit Court ruled in favor of the current annual emissions test. (New York v. EPA, 413 F3d. 3). These are addressed in the proposed rule, which is seeking a remedy to uncertainties between the two cases and the associated regulations.

Comments on the proposed rule are due by December 19th.

US Supremes: Pro Se Not Guaranteed Law Library Access

A right to law library access is not clearly established, nor is there any specific legal aid owed to a pro se criminal defendant by a State, according to the U.S. Supreme Court per curiam opinion in Kane v. Espitia. The Court noted that appellate circuits were split as to whether Faretta v. California, 422 U.S. 806 (1975), "which establishes a Sixth Amendment right toself-representation, implies a right of the pro se defendant to have access to a law library." The opinion notes our own Sixth Circuit's opinion in United States v. Smith, 907 F.2d 42 (6th Cir. 1990), which found that a pro se waives access to a law library when he waives his right to counsel.

The Court commented that, by electing to be pro se, Espitia "had declined, as was his right, to be represented by a lawyer with unlimited access to legal materials."

Death Penalty issues

The bill seeking to reauthorize the USA Patriot Act has “little-noticed provisions that would dramatically transform the federal death penalty system, allowing smaller juries to decide on executions and giving federal prosecutors the ability to try again if a jury ends in deadlock on sentencing issues,” an article in Wednesday morning’s Washington Post reveals. (bill summary)

As the Supreme Court entered its new session this month, death penalty issues seemed to rank high on its agenda, according to media outlets.

Capital punishment for juveniles was ruled unconstitutional last March in Roper v. Simmons, and a bill seeking to abolish the death penalty altogether for Federal laws, introduced in January, is in the Senate Judiciary Committee. (More).

Addressing the ABA in August, Supreme Court Justice Stevens commented about concerns he had with respect to the death penalty & recent exonerations of death row inmates thru scientific evidence. Pending is House v. Bell, which addresses standards of proof for granting new hearings for capital defendants based on new DNA evidence

In 2002, the Supreme Court held in Ring v. Arizona that a jury, as opposed to a judge, has to make findings of “aggravating factors” where the death or a lesser penalty lies in the balance. Now, in Brown v. Sanders, the issue is revisited, being extended to determine whether a death sentence is improper when a jury had relied on aggravating factors later found invalid.

Two cases, Oregon v. Guzek and Kansas v. Marsh, are considering whether evidence questioning guilt can be presented at sentencing and whether the death sentence should be imposed when jurors find the arguments both for & against have equal weight.

Death row inmates don’t automatically have a right to a jury trial on claims that they’re mentally retarded and therefore can’t be executed. (See Schriro v. Smith)

The Court decided not to hear a case where the issue was whether a second jury should consider whether guilty parties should receive the death penalty or a lesser sentence.

Judicial Conference e-government rule amendments

The United States Judicial Conference has a set of proposed amendments posted to the federal rules of civil, criminal, appellate, and bankruptcy procedures, addressing privacy & security concerns surrounding public access to case filings electronically. ( amendment proposal draft )

The amendments implement portions of the 2002 E-Government Act, which requires federal courts to make filings available online while not sacrificing privacy or security concerns. (summary of act)

Comments on the rule amendments are due by Feb. 15, 2006, and can be made in writing or electronically.

There are public hearings scheduled on the civil rule amendments in Chicago on Nov. 18th. and Washington, D.C. on Dec. 2nd. Hearings on the appellate, bankruptcy, and criminal rule amendments are scheduled for Jan. 9, 2006 in Phoenix, Arizona. Requests to testify at a hearing have to be made to secretary of the standing committee at least 30 days prior to the hearing.

Federal Bankrupctcy Law "domestic support obligations"

With the effects of the 2005 federal bankruptcy reform being as widespread & encompassing as they are, an article in the Sept./Oct. Probate Law Journal of Ohio, which addresses changes in bankruptcy relative to family law, might be helpful to some.

The distinction between alimony, child support, and property settlement obligations have now been merged under a heading called “domestic support obligations,” which include “any obligation owed to or recoverable by, a spouse, former spouse or child of a debtor, child’s parent, legal guardian or responsible relative, or any governmental unit involved in the collection or enforcement of support obligations,” and it includes obligations incurred before or after the filing of a petition for bankruptcy. DSO obligations are also nondischargeable under Chapter 7 filings. ( summary of the priority child support provisions)

Also, the new law requires bankruptcy trustees, “if there is a claim for a domestic support obligation, to provide written notice to the holder of the claim and the applicable state child support enforcement agency.” (See DOJ “trustee program” post).

Research Tools

FindLaw.com is previewing a new homepage today, “designed to make it easier for both non-lawyers and legal professionals to find features most relevant to them.” (Link under masthead at right)

Also, Sabrina Pacifici at LLRX.com, last Friday, had a posting about the Federal Judiciary's having set up a new court locator map on its site, searchable by city & state, zip code, county & state, or area code.

Bankruptcy Abuse Prevention & Consumer Protection Act of 2005

The new federal bankruptcy law is just a little more than 12 hours old now, but as an article this morning on Law.com says, “although the effect on debtors has been well publicized… repercussions for attorneys and their practices are at least as dramatic .” We felt one more post perhaps prudent.

Bankruptcy attorneys will now be held personally liable for the accuracy of their clients’ petitions, the article states. “They will be required to advertise themselves as ‘debt relief agencies,’ be barred from telling clients pertinent information such as the fact that it’s legal to incur new debt on the eve of bankruptcy, and be required to give advice that some practitioners say is directly contrary to other sections of the Bankruptcy Code, potentially pitting their ethical obligations against their legal responsibilities.”

FindLaw has a special section on which articles designed to help in the understanding of the new law are posted, including a “checklist of key changes.”

Interim Rules, Official Forms, and additional information are available through our previous posting.

Federal Bankruptcy Rules

The new 500-plus page Federal Bankruptcy law generally going into effect on Oct. 17th. did not allow sufficient time to formally promulgate formal rules of procedure. Courts are therefore being urged to adopt, and attorneys made aware of, Interim Bankruptcy Rules, which have been approved by the Advisory Committee on Bankruptcy Rules and the Committee on Rules of Practice & Procedure.

The Advisory Committee on Bankruptcy Rules met last week in Santa Fe to review the need for changes to the interim rules. It was decided that five additional amendments, and an amendment of an existing interim rule, be adopted by the Standing Committee and recommended to the courts prior to October 17. The recommendations were made on “the strong consensus that the changes could not await the normal Rules Enabling Act process, but were not subject to any significant controversy.” ( 28 USC §2075 specifically on bankruptcy )

Additional updates and information are available on the Federal Courts Rulemaking and Bankruptcy Court’s websites.

F.B.I. alert

The F.B.I. Thursday issued a warning about an ongoing scheme involving community jury duty. Further information is available at the U.S. Courts’ website in the “Newsroom” article, “Warning: Bogus Phone Calls on Jury Service May Lead to Fraud,” Aug. 19, 2005.

Sex Offender Residency

An article in this morning’s Enquirer is about a bill to be introduced in Kentucky which would “toughen that state’s laws on prosecuting & tracking sex offenders… (by) requiring they be outfitted with ankle bracelets and tracked using satellite & global positioning technology. The most serious offenders would also be placed on life-time parole. Patrick Crowley’s Enquirer N.Ky. Politics blog has more information there.

Senate bill 980, referred to in one of our previous posts, is still in the Judiciary Committee up in Washington, but an Associated Press article this morning is reporting that the Iowa Civil Liberties Union has petitioned the U.S.Supreme Court to have that state’s sex offender residency law overturned. Sioux City’s Online Journal has more background information on that development.

Mortgage Fraud/Predatory Lending

An article posted by the Enquirer Wednesday morning looked at Ohio’s increasing foreclosure rate, which is the highest in the country at 3.3% compared with the national 1 percent incidence. Indiana (2.8%), Kentucky (1.9%), and Mississippi (1.7%) are next in line, according to a recent Newsday article. All of which’s led to calls for mortgage reform and predatory lending laws.

Ohio and Virginia are the only two states which haven’t expanded consumer protection laws to include mortgage practices.

Last week a bill was introduced in the Ohio Senate which, according to the Enquirer article, would allow the attorney general’s office take action against inflated appraisals & equity stripping—which have been at the heart of an ongoing federal probe brought to light in August 2003 as part of an investigation by that paper. Additional information there by the Columbus Dispatch.


Not to be outdone, there are two bills in the House of Representatives which are getting a little more than usual attention. HR 1182 (Miller-Watt-Frank), among other things, seeks to amend the Truth in Lending Act to impose restrictions & limitations on high-cost mortgages and prohibit unfair or deceptive lending practices.

HR 1295’s stated purpose is “to protect consumers against unfair & deceptive practices in connection with higher cost mortgages transactions, strengthen civil remedies available to consumers under the existing law, provide for certain uniform lending standards, and enhance appraisal standards & oversight. (Ney-Kanjorski)

The Ohio Mortgage Bankers Association and the Center for Responsible Lending both have posts opposing the latter bill, saying that it “would create a weak federal standard for addressing predatory mortgage lending practices and dilute existing laws in 36 states —including Ohio.

Appellate briefs online

Michael Whiteman, associate dean of Law Library Services & Information Technology at Chase College of Law, Northern Kentucky University, has taken the time and energy to put together a list of free & fee-based online resources for appellate court briefs, posted on Sabrina Pacifici’s LLRX.com last week.

The material is an appendix to an article by Whiteman entitled, “Appellate Court Briefs on the Web: Electronic Dynamos or Legal Quagmire?” [ 97 Law Libr. J. 467 (Summer 2005)], in which he says, “ As courts continue to adopt electronic filing systems (like the federal CM/ECF system), the search for appellate court briefs will become as seamless as the search for trial court documents is becoming… With the leap to the Internet, electronic access has shined a bright light on these unique resources. Nonetheless, although this bodes well for cheap, efficient access to briefs, some issues must be kept in mind. Preservation, equal access, and potential copyright pitfalls line the road to free and effective use of these legal dynamos.”

"Succeeding as a Lawyer"

Carolyn Elefant, blawged at MyShingle.com, yesterday had a post which I’m sure a lot of you saw but, wanted to repeat for whoever may not have.

HIPAA claim attachments

The Department of Health & Human Services, Sept. 23rd., issued a set of proposed rules which would add claim attachments to eight types of electronic transactions already subject to HIPAA standards. Comments are due by November 22.

“Setting standards for electronic attachments for health care claims, “ Health Secretary Mike Leavitt said, “is a natural step in our goal of ensuring that clinical information be available when it is needed. These steps lead to a future in which electronic health records are complete and electronic medical record systems are beneficial.”

Davis-Bacon Act/ Hurricane Cleanup & Rebuilding

In response to the damage & destruction done by Hurricane Katrina (and then Rita), President Bush on September 8th. issued a proclamation suspending the application of the Davis-Bacon Act wage requirements on federal projects in Alabama, Florida, Louisiana, and Mississippi. Davis-Bacon requirements are that federal construction contactors pay locally prevailing wages on all projects costing more than $2,000; Congress had stipulated that the President could suspend application of that statute in a national emergency under 40 USC §3147.

The President’s proclamation was met with a ripple of bills in Congress. H.R 3684 echoes the President’s proclamation and would suspend Davis-Bacon wage rate requirements “in any area the President determines to be a major disaster… not to apply for a period of 1 year from the date on which the President makes such determination.”

HR 3763 and S 1749 would reinstate the application of wage requirements “notwithstanding the proclamation of the President.”

And HR 3834 seeks to “repeal the authority of the President to suspend the prevailing wage requirements of the Davis-Bacon Act … and reinstate the application of such requirements…”


A related article this morning on USAToday.com looks at the federal government’s response to Hurricane Katrina and FEMA’s awarding of some contracts without the competitive bidding normally required for governmental purchases.

U.S. v. Councilman

The 1st. Circuit Court of Appeal’s decision in U.S. v Councilman on August 11th., according to a recent Law.com article, was acknowledged even by the bench majority as having broad ramifications. “The significance of the latest Councilman ruling,” the article stated, “can only be fully appreciated by tracing the origins of the litigation, for it was not decided in the vacuum of a single case. Rather, the numerous decisions issued by both the federal trial and appellate courts during the course of this prosecution were interwoven within the tapestry of other court rulings issued across the country.”

Bradford Councilman, vice president of an online “rare & out-of-print book listing service,” had his employees intercept and copy incoming communications to subscriber dealers from Amazon.com, in the hope of gaining a commercial advantage over competitors. A grand jury returned a two-count indictment charging wiretap violations, which Councilman had moved to dismiss, arguing that the intercepted e-mail was in “electronic storage” and therefore not subject to the prohibition on “intercepting electronic communications” under 18 U.S.C. §2511(1)(a). The trial court initially denied the motion, but then reconsidered in light of the 9th. Circuit’s recent decision in Konop v Hawaiian Airlines.

“For law enforcement purposes,” the article concludes, Councilman may solve many problems. It appears to provide a bright-line standard that an electronic communication is not considered to be in ‘electronic storage’ until it arrives at its final storage destination…. (still), it demonstrates that our system of government is still years, if not decades, away from developing a full technological & legal grasp of the very difficult issues raised when creating a legal framework consistent with long-standing privacy issues conceptualized by American society.”

Ohio Uniform Trust Code

An article in the Sept./Oct. Probate Law Journal of Ohio overviews key provisions of the Ohio Uniform Trust Code, still in embryonic form at this time. Adoption of the OUTC is intended to constitute a comprehensive codification of trust law in Ohio.

The article cites three principal areas for discussion. First is a trustee’s duty to inform. Under the new provisions “a new trustee must notify current beneficiaries of its acceptance of trusteeship and the trustee’s name, address, and telephone number within 60 days.”

Trustees will no longer be able to maintain a settlor’s desire for complete secrecy, the OUTC seeming to favor a beneficiary’s right to information over the settlor’s intent. OUTC will, however, allow the settlor to waive or modify mandatory notice provisions if a “’beneficiary surrogate’ to receive notices, reports or other information required to go to a current beneficiary is designated.”

The OUTC “allows for modification or termination of noncharitable irrevocable trusts if both settlor and beneficiaries consent, even if inconsistent with the material purpose of the trust.

The Ohio Bar Association has a draft copy of Trust Code posted, along with a corresponding report.

The ABA has a 2003 white paper entitled, “Enacting the Uniform Trust Code,” by Michelle Clayton, legislative counsel with the National Conference of Commissioners on Uniform State Laws, available online which promotes NCCUSL's trust code concept.

Unpublished Opinions

The Law.com blog was alive with news yesterday about the Federal Judicial Center’s endorsement of the use of “unpublished opinions” in federal courts nationwide beginning in 2007. (See Law.com article )

The proposed rule ( Appellate Procedure Rule 32.1 ) was first published back in August 2003, and the present practice governing the citation of “unpublished opinions” varies across the nation. The 6th. Circuit’s position is “to disfavor, except for the purpose of establishing res judicata, estoppel, or law of case [ 6 Cir.R. 28(g) ].

The proposed rule would apply only to discussions issued on or after the January 1, 2007 effective date.

On the state court level, the Ohio Supreme Court, back in May 2002, amended Ohio court rules, abolishing the distinction between “controlling” and “persuasive” based on the form of publication. [Rule 4 ( c ) ]

Ohio Ethics Opinion: Attorneys as "experts"

The Sept. 13th. issue of BNA’s U.S. Law Week, has an article relating that “Ohio disciplinary rule against claiming special competence or experience makes it improper for lawyers to participate in a television station’s ‘Ask the Expert’ program,” citing the Supreme Court’s ethics board in an Aug. 8th. opinion.

The problem was with the program’s inclusion of the term “expert” in its title. The ethics board advised that that poses the possibility of problems under DR 2-105(A)(6) of the Code of Professional Responsibility, which, with some exception, prohibits attorneys to claim or imply special competence or experience. Gov.Bar R. XIV, on “attorney specializations,” is one of those exceptions. Lawyers can conduct seminars and participate in radio talk shows, but the board cautioned about things like answering anonymous e-mail requests with generalized responses as they would be otherwise unable to rule out possibilities such as creating conflicts of interest with current or former clients.

The article, in referencing the Aug 8th. ethics opinion, noted that Op.94-13 and Op.99-9 could be referred to as “guidelines for attorneys who answer questions from the public on the radio and by e-mail.”

The Supreme Court on its website provides a wealth of related information including a link to “attorney specialization” and a “nutshell” overview.

Ohio Supreme Court Hurricane Katrine Response

“Almost every lawyer in the path of Hurricane Katrina had the wherewithal to get out of the storm’s path,” a Law.com/National Law Journal post last week says. “What they couldn’t do is take their offices with them.”

Large firms had disaster recovery plans, but many solo practitioners and small-firm lawyers didn’t far as well. “Bar associations & professional organizations around the country are raising money and listing office space, housing, and other forms of assistance,” the article continues.

The Ohio State Bar Association and ABA have both established relief efforts.

Chief Justice Thomas Moyer last Thursday issued orders relating to 1) the temporary admission to the practice law in the State of Ohio for lawyers displaced by Hurricane Katrina, and 2) waiver of attorney registration deadlines, late fees, and suspension provisions for Ohio lawyers who either live or work in Alabama, Louisiana, or Mississippi. (Posting)

The Hurricane Katrina Tax Relief Act, meanwhile, which would provide for penalty-free use of retirement funds; employment relief, including work opportunity credits; charitable giving incentives, and additional relief measures including modifications to casualty loss rules and a renewal of special mortgage financing rules for residents in the disaster area—engrossed with HR 3768—was passed by the Senate.

Ohio Revised Code Chapter 5751

Every so often a statute is repealed and then, several years later, the number “reinstituted,” and used over. Such is the case with Ohio Revised Code Chapter 5751.
Originally titled “Coal Consumption Tax ” the chapter was repealed in 1981 after being found unconstitutional on both State and Federal levels. [See Dayton Power & Light v.Lindley, 58 OSt.2d 465 and Mapco, Inc. v. Grunder , 470 FSupp. 401]. Now, by virtue of House Bill 66, passed last June, Chapter 5751 will be titled “Gross Receipts Tax” and cover a number of tax topics, including the new “commercial activity tax,” “electronic filings & payment,” and “refunds.”

To read new provisions of ORC Chapter 5751 as it appeared in HB 66, “click here”

Federal Conformity-- Asset Expense Elections under IRC §179

CCH’s September 7th. State Tax Review had an article about state conformity to Internal Revenue Code §179.

The Jobs & Growth Tax Relief Reconciliation Act (PL 108-27) increased the expense limitation from $25,000 to $100,000, and the investment limitation from $200,000 to $400,000 back in 2003.

The American Jobs Creation Act of 2004 (PL 108-357) extended the Sec. 179 asset & investment limitation expiration date to Dec. 31, 2007, provides that off-the-shelf computer software qualifies for expensing, and, for vehicles put in service after Oct. 22, limits the cost of sports utility vans that can be expensed to $25,000 if it’s exempt from Sec. 280F depreciation limits.

But response to the provisions has been varied among the states, and that neither Ohio, Indiana, nor Kentucky statutes conform to IRC Sec. 179, according to the article. The Ohio Dept. of Taxation has an information release posted which explains the amount of allowable depreciation expense deductions for corporate or franchise and personal income tax purposes including examples of IRC §179 depreciation expense addbacks.

Ohio Tax Notes

The Ohio Dept. of Taxation, last month, issued an information release of a proposed rule defining “foreign corporations” for the purposes of the new commercial activity tax (CAT). The term is used in two different contexts within the CAT statutes: ORC §5751.011, addressing consolidated elected taxpayers, and §5751.04, concerning registration requirements. The rule is intended to clarify those usages.

Also, in the way of a reminder, trusts that continue to be subject to Ohio personal income tax, or which are now subject to tax by virtue of the passage of HB 66, do not need to file 2005 estimated quarterly returns until Sept. 15th.. On September 15th. any taxable year 2005 estimated quarterly payments that would have been due prior to the 15th. are now due on the 15th. (See Information Release)

A news release on August 5th. explains the new “Ohio Business Gateway” and what’s available on it. OBG may be used by Ohio businesses to submit selected filings, registrations, and payments to the Dept. of Taxation, Workers’ Compensation, the Dept. of Job & Family Services, and the Dept. of Commerce.

Indiana Property Abatements

Indiana property tax abatements for new manufacturing equipment, that used for research & development, logistical distribution, or information technology, installed in economic revitalization areas, have been extended to equipment installed on or before December 31, 2011, as opposed to the original Jan. 1, 2006 date.

Abatements approved before July 1, 2005 remain in effect according to abatement provisions as they were on June 30, 2005.

(HB 1182)

Wife Can't Sign Candidacy Petition for Husband: Board of Election

From the Forest Hills Journal. A candidate for township trustee in Anderson Township was dropped from the running when his petition was invalidated by the Hamilton County Board of Elections. The Board found that a petition signatory had also signed for her husband, and this invalidated Kevin O'Brien's attempt to run.

Court Reaffirms That Foot and Leg Are Different Limbs for Workers Comp

Ohio News Now reported on the International Paper v. Trucinski opinion issued by the Ohio Supreme Court today (2005-Ohio-4557). In it, the Court reaffirms a 2002 ruling that held that loss of a whole extremity could equate to the loss of two limbs required for permanent total disability (PTD) under the Ohio worker's compensation statutes.

Ohio Mandatory Electronic Support

In the way of a reminder—or perhaps notification-- court-ordered child support payments in Ohio are going to be mandatorally “electronic” throughout the state by early next year.

An announcement by the Ohio Department of Job & Family Services last summer stated that there were more than 920,000 child support cases in Ohio, being the fourth largest such caseload in the nation. Ohio is also second in the amount of total payments ($1.92 billion in 2003).

Individuals responsible for support payments, now, typically send their checks to Columbus, where a record of the payment is made and then a second, state check, is then sent to the recipient. That second step is now being eliminated. In addition to paying 55 cents to process & mail each paper-based transaction now, the state receives as many as 11,000 returned checks each month because of incorrect addresses.

In July 2004, the ODJFS initiated a pilot program called “Ohio e-QuickPay” which offered recipients in Clermont, Fairfield, Franklin, Greene, Holmes, and Richland counties the option of having their support payment directly deposited into bank or checking accounts, or on debit cards. That program was voluntary.

After October 1st., as part of the provisions of HB 66, mandatory electronic payments are going to be phased in a few counties at a time until the full state is complied.

Recipients will be given the option of either “direct deposit” or the state-issued debit card, but if no choice is made by the individual receiving support payments, the debit card option will be effected.

Hamilton County’s Job & Family Services department is in the process of putting together a “fact sheet” on the new electronic disbursements which will be posted on their website shortly. (press release) Information, applications, and online access options relative to Butler, Clermont, and Warren (under “related links”) counties will also be available.

Sex Offender Residency Challenge

A Cincinnati Post article back on Sept. 6th. reports “sex offenders who are longtime residents of a school neighborhood should be sheltered from Ohio’s new sex offender residency law,” according to lawyers filing suit in U.S. District Court.

David Singleton, executive director of the Prison Reform Advocacy Center, a nonprofit public interest group whose stated mission is to “remedy unconstitutional and dangerous conditions of confinement for Ohio prisoners, and to empower prisoners and ex-offenders to become contributing members of society,” filed the 30-page class-action complaint April 6th. and appeared before the U.S. District Court on Sept. 6th..

The Prison Reform Advocacy Center and Ohio Attorney General’s Office both have statements posted on their respective websites.

Ohio’s sexual predator law is embodied in Chapter 2950 of the Revised Code, with the residency requirements being specified in § 2950.031. The residency restriction went into effect on July 31, 2003, with minor amendments taking effect April 29, 2005. SB 5 (2003) established the rule prohibiting sex offenders from residing within 1,000 feet of a school, and gave landlords the right to evict those who did, back in 2003. (See ORC §5321.051 and 5321.03 ).

Questions such as this concerning the rights of sex offenders have been expressed elsewhere, such as in a New York Times article on Aug. 22nd. (registration required)

Marci Hamilton and Julie Hilden had articles on the constitutionality of “pedophile-free zones” on Findlaw last month.

Armchair Supreme Court Interviewer

Courtesy of the Gray Lady. For those of you who, like me, sometimes need the refresher chart in the newspaper to explain what a "statute of liberty" play looks like or who an off side tackle is during football season, now you can get the same coverage for Supreme Court questions!

Can't remember what Griswold v. Connecticut was about? Never read United States v. Lopez? Here is a primer to explain the shorthand that Senator Spector, chairman of the Senate Judiciary Committee, and his peers will discuss with Judge Roberts.

Librarian Ungagged in Patriot Act Decision, Stayed for Appeal

Saw this in the New York Times, among other places. The United States District Court for Connecticut, in Doe v. Gonzalez, ruled today in favor of a librarian's motion for preliminary injunction, finding both a substantial likelihood of success on the merits and irreparable harm. The librarian had received a "national security letter" (NSL) which invoked 18 U.S.C. § 2709 barring disclosure that the FBI had requested information. The librarian sued on constitutional grounds. The FBI argued that the gag order was necessary to avoid tipping off targets of their investigation. The ACLU argued that it infringed on free speech, because the librarian could not participate in the USA Patriot Act discussion if gagged by the FBI's letter.

The judge allowed the FBI to present classified information for ex parte review by the court. This had been opposed by the ACLU on due process grounds.

The ruling is stayed until September 20, to allow the FBI an opportunity for an expedited appeal.

Intuit Offers Tax Almanac Wiki

Intuit has launched a test site using software for creating a "wiki". A wiki is a Web-based collaboration tool, where many users can add content to a single site (wiki is short for the Hawai'ian term, "wiki wiki" meaning "quick".

Tax Almanac is not Intuit-ive to navigate, relying primarily on searching to get to content pages. It's using the same software as that found at Wikipedia. There's a good search tool and links on the front page to take you into a current version of the Internal Revenue Code, Tax Court cases, and Treasury Department Regulations. The News function clips current articles out of popular news resources.

Thanks to Nancy at Stark County Law Library for the tip.

Ohio Supremes Take on Priest Sex Abuse Appeals

The Toledo Blade reports that the Ohio State Supreme Court has agreed to review two appellate decisions that split on the same issue, coming out of the 1st District Court of Appeals, here in Hamilton County, and the 3d District Court of Appeals, on a case coming out of Shelby County. The cases are all styled Doe v. Archdiocese of Cincinnati, with the Shelby County case at 2005-Ohio-960 and the two Hamilton County cases at 2004-Ohio-7003.

The Supreme Court will look at whether the plaintiffs can sue the priests and Archdiocese of Cincinnati when the statute of limitations on the offense has expired. The 3d District reversed a trial court opinion that dismissed that case. The 1st District affirmed a trial court opinion dismissing a similar case. An Ohio General Assembly bill aimed to extend the statute of limitations passed the Senate but has stalled in the House, where it is before the Judiciary committee.

"Blog-posting" Case

Last September Ellen Simonetti, then an airline attendant for Delta Airlines, was suspended and later fired by the airline for posting pictures of herself on her personal blog. Delta had viewed the photographs as “inappropriate.”

Ms. Simonetti filed a complaint with the Equal Employment Opportunity Commission, which decided not to sue Delta itself, but issued a “right to sue” letter, according to a USA Today article yesterday. She has now filed suit in U.S. District Court in Atlanta.

“The case,” the article says, “ could plow fresh ground on whether a company can take action against an employer for operating a blog.” A law.com article back in April surveyed the topic of employee blogs and disciplinary measures by employers.

Phony Feds Phone, Phishing for Facts

The Administrative Offices (AO) of the Federal courts issued a press release in August warning potential jurors to be wary of calls seeking personal information. The release explains that scammers have been phoning potential jurors, impersonating Federal staff, and coercing personal information out of those called with threats of prosecution for failing to comply with jury service requirements.

Ohio Law on Parental Consent for Minors Seeking Abortions Found Constitutional

The Cincinnati Enquirer reports that a case first filed by the American Civil Liberties Union (ACLU) in 1998 has finally been resolved. The United States District Court for the Southern District of Ohio, based in Cincinnati, issued its ruling yesterday, finding that the law requiring minors to seek parental consent was constitutional.

Sentencing Quandaries

An article on Law.com Aug. 30th., from the Fulton County Daily Record, explores yet another sentencing quandary and reference to Booker. Senior Judge James Hill of the 11th U.S. Circuit Court of Appeals, in joining the rest of the Court’s panel in U.S. v. Bordon, No. 04-10654 (Aug. 25, 2005) in holding that “Booker was irrelevant to the case as a result of a long-standing 11th. Circuit precedent stating that ‘issues & contentions not timely raised in briefs are abandoned,’” none-the-less had reservations.

“Stare decisis is an important doctrine,” Hill was quoted as saying, but continued by adding that he trusted that might be tempered with justice being done. The 11th. Circuit’s precedent was set in November 1990 in a case in which the question was also how that court should handle changes in precedent from the Supreme Court. Hill had dissented then, writing of Civil Rule 11 ( timely filing of motions ) that, “despite the numerous instances in which this Court has found sanctions to be appropriate, the majority now forces attorneys into a Hobbesian dilemma: either refrain from making an argument because case law contains no basis & significant adverse precedent exists, or make the argument and risk sanctions for spurious claims.” [See McGinnis v. Ingram Equipment Co., 918 F2d. 1491 (1990)]

New Jersey’s “presumptive sentencing scheme,” however, an article in Lawyers Weekly, USA reports, “violates a defendant’s 6th Amendment rights, although that defendant may be disqualified from parole eligibility and subject to consecutive sentences based on facts found by a judge rather than a jury.” (See State v. Natale per presumptive sentencing scheme, State v. Franklin re consecutive sentences, and State v. Abdullah re parole disqualifications)

Church bankruptcy holdings

“By ruling that parish property should be included in the estate of a bankruptcy, Judge Patricia Williams of the Eastern District of Washington Bankruptcy Court also laid down an important marker on just what the legal structure & financial responsibility of the Catholic Church is in America, “ an article on Law.com said last week.

“As part of an adversary motion for summary judgment filed by a committee of tort litigants, Williams ruled last Friday that the parish property should be included, rejecting arguments that, as leader of a parish, Spokane Bishop William Skylstad held church property in trust for individual parishes. Williams wrote that “the named beneficiary is the diocese itself, and the bishop, in his official capacity, hold the property in trust for the debtor diocese.”

Cases are posted on the Eastern District’s website

Jail Space Shortage Leads to Reduced DUI Sentence

The Cincinnati Post reported in a story on a shortage of space in the Hamilton County (OH) jail. One of the outcomes the article reports is that the County's Municipal Court judges may be giving shorter sentences because of the jail crowding. Prosecutors for the City of Cincinnati appealed a reduced sentence for a drunk driver, saying that he was a 2d time DUI, so the law required a longer sentence, and there plenty of spaces to accommodate him.

Criminal Law Analyses of 6th Circuit Opinions

A group of posters, including Paul Rashkind, Chief of Appeals for the Federal Public Defender in the Southern District of Florida, have a blog with regular analysis of U.S. Court of Appeals for the Sixth Circuit opinions related to criminal law. Mr. Rashkind is involved with similar Web logs for other Circuits. The 6th Circuit blog group has been posting since December 2004.

Rashkind's personal Web site has a number of other links for criminal defense attorneys, including resources like the Department of Justice guidelines for use of confidential informants and the Reference Manual for Scientific Evidence.

Federal Estate Tax

A USAToday article last Friday spotlighted the approach of the Senate’s consideration of the “Death Tax Repeal Permanency Act of 2005,”introduced last July 29th., which would effectively eliminate the Federal estate tax. (HR 8)

The House passed the bill April 13th. without amendment.

The bill “declares that the sunset provisions of the Economic Growth & Tax Relief Reconciliation Act of 2001 (Pub.L. 107-16), which terminates its application to estates of decedents dying, gifts made, or generation skipping transfers after Dec. 31, 2010, shall not in fact apply to Title V, which repeals estate and generation-skipping transfer taxes, thus making the repeal permanent.”


Portions of Ohio’s operating budget (HB 66), passed last June 30, “constructively repealed Ohio’s additional estate sponge tax and generation-skipping sponge tax for decedents dying on or after it’s effective date.” (Prior posting)

Public Defender Fee

Effective October 1st., there are new statutory provisions in HB 66 implementing a $25 fee to be charged to all persons requesting or being provided with a public defender or private counsel in Ohio. Forms and additional information, including the pertinent portion of HB 66, are available on the Ohio Public Defender’s website

DNA Database Legislation

Ohio Gov. Robert Taft on February 15th. signed H.B 525 from the 125th. General Assembly into law, which is now going to “expand the existing collection mechanism which requires DNA samples to be taken of all persons convicted or pleading guilty to a felony or specified misdemeanors, and from all minors adjudicated delinquent for committing acts which would be felonies or those specified misdemeanors if committed by an adult.”

It is also going to permit “any blood relative to submit a DNA sample for inclusion in the Relatives of Missing Persons Database, along with parents and siblings of missing persons.”
The law expands the rationale for the Bureau of Criminal Identification & Investigation’s (BCII) sharing of DNA information with other law enforcement agencies, and now provides for the “’unidentified remains,’ in addition to unidentified bodies, to be sent to the county’s morgue for identification and disposal, and requires coroners to take fingerprints, photographs, and DNA samples from unidentified remains & transfer that information to the BCII.”

The new legislation also extends by one year the deadline for Ohio’s DNA exoneration testing program. The new deadline is October 29, 2005. Additional information & application are available on the Ohio Public Defenders’ Office website.


Ohio began collecting DNA samples in 1996 from its most violent convicted felons, according to a statement by the Attorney General’s office, and broadened the scope of “qualifying offenses” in August 2002. DNA samples, once collected, become part of the FBI’s Combined DNA Index System (CODIS).

The American Society of Law, Medicine & Ethics has an excellent survey overviewing DNA database statutes on its website.

Duty to Report Finding of Corpses

Findlaw had an article posted this morning on the Missouri Court of Appeals (Western District) overturning a man’s conviction in a case for abandoning a friend’s dead body because “friendship” is not a close enough relationship to warrant a duty to report the finding.

Death Penalty Legislation

A Knight’s news service article Wednesday reviewed death penalty issues, focusing on the “Streamlined Procedures Act” now in Congress. House & Senate versions are the same.

“The legislation,” the article states, “would dramatically change what is known as habeas corpus review, protections against violations of constitutional rights that date back to the Civil War. In most instances, those changes would prevent habeas corpus review by federal judges unless there is firm proof of innocence, particularly difficult because in many cases such evidence isn’t unearthed until appeals reach federal court.”

In addition to the “Streamlined Procedures Act,” there are several other death penalty bills pending in Congress, including Senate Bill 122, which would abolish the death penalty for federal offenses altogether and commute those already sentenced to death to terms of life imprisonment without parole.

North Carolina domestic violence law

An article on MSNBC this morning reports North Carolina’s legislature passing a bill that “encourages guns for battered spouses.”(House Bill 1311). GS 14-415.15(b) is on the issuance of handgun permits.

North Carolina’s General Statutes on domestic violence are contained in Chapter 50B, to which this bill is directly related. A second bill, pending, would “clarify & enhance” specifically the relief segments of those statutes. (SB 1029)

Both bills would become effective October 1, 2005

Oregon prescription law against methamphetamine

The State of Oregon became the first in the country to attempt to stem methamphetamine abuses by requiring prescriptions for everyday cold & allergy medications that can be converted into the substance, according to USA Today this morning. A second bill, enhancing the penalties for methamphetamine-related crimes, was also signed by Gov. Ted Kulongoski.

“Meth has robbed many Oregon children of the right to grow up in a happy & healthy home,” he stated in his press release yesterday, “Limiting the availability of pseudoephedrine and providing long-term treatment will give hope for these kids to get their families back.”

A National Conference of State Legislatures (NCSL) report updated last Monday, states that “as of June, more than 600 separate bills & resolutions in all 50 states proposed to address a wide array of policies affecting access, affordability, payment and other regulation of prescription drugs.” A list of bills subjected to consideration by state legislatures the first half of this year is attached.

We’ve had two previous postings on this topic which might have additional information of interest. (See June 21 and 29)

Patient Safety & Quality Improvement Act

The Patient Safety & Quality Improvement Act of 2005 (S. 544), was signed by President Bush on July 29th..

BNA’s U.S. Law Week reports that “the law creates a system for voluntary reporting by health care providers of medical errors to patient safety organizations, and provides legal privilege & confidentiality protection to ‘any data, reports, records, memoranda, or analyses” developed by a PSO or prepared by a health care provider and delivered to a PSO.” (Bill Summary)

A report done by the Congressional Research Office back in March said both House and Senate versions of this legislation were in response to a 1999 Institute of Medicine publication, To Err Is Human, which had found that “medical errors are primarily the result of faulty systems, processes, and conditions that lead people to make mistakes, and recommended establishing a national mandatory reporting system to hold hospitals accountable for serious medical errors, as well as voluntary, confidential ones for reporting errors that result in little or no harm …”

The Report states that 22 states already mandate medical error reporting by hospitals. Additional information on state activity can be obtained on the National Conference of State Legislatures’ and National Academy for State Health Policy’s websites.

Kentucky Casemaker

An article in Friday’s online Business Courier makes the announcement of the Ohio State Bar Association’s adding Kentucky to its Casemaker online research consortium beginning in April 2006, bringing to 22 the number of states participating in the program since its inception in 1999. (OSBA press release)

The libraries of each individual participating state bar association are called unique because they are the domain of that association and tailored to local needs rather than other services which might be more generalized. Member states post their own “user manuals” reflecting their particular contents.

There’s a good background article on Casemaker on LLRX.com by T.R. Halvorson and Margi Heinen from back in September 2002.

IRS Pension Regulations

In simultaneous releases Aug. 12th., the Internal Revenue Service issued both final and proposed regulations affecting the so-called “anti-cutback rule” for pension plans, according to a Thompson briefing.

“The ‘anti-cutback rule’ under ERISA (and the tax code) generally forbids plan amendments that eliminate or reduce optional forms of benefits, early retirement benefits, or retirement-related subsidies that were in place before the amendment,” Thompson reported, “The new rules intending to reflect the Supreme Court’s holding in Central Laborers’ Pension Fund v. Heinz, (541 U.S. 739, June 7, 2004) that “a plan could not enforce a ‘suspension’ of benefits against retirees who had taken new jobs as supervisors in the same industry, where plan provisions purporting to deny them benefits didn’t restrict supervisory work until after the participants had accrued their benefits and had worked for two years as supervisors following their initial receipt of plan benefits.”

The final regulations became effective August 12, 2005

Comments can be made in writing or electronically on the proposed regulations until November 10, 2005, with the IRS having scheduled a public hearing on December 6th..

Ohio Supreme Court Ethics Opinions

Three ethics opinions have been issued by the Ohio Supreme Court:

Opinion 2005-6 “…lawyer or law firm should not participate in local TV station advertising & public service program if entitled ‘Ask the Expert’”

Opinion 2005-7 addresses questions regarding attorney participation in public education and pro bono activities.

Opinion 2005-8 “ … In the absence of express ethical or statutory restriction, retired judge who engages in practice of law may also serve a private
judge pursuant to ORC §2701.10 “

'Booker'/Sentencing news

There’s an article on Law.com this morning entitled “Survey Reveals Little Change in Sentencing Habits After ‘Booker’,” which is going to be interesting to some.

--- and the Sentencing Commission has a new “Post-Booker Sentencing Update” posted, prepared using data extracted as of July 12, 2005.

Also, there are two days left to make public comments to the U.S. Sentencing Commission on proposed amendments to the Federal Sentencing Guidelines.
“Notice of proposed amendments was published in the Federal Register on February 23, 2005 (see 70 FR 8868). The Commission held a public hearing on the proposed amendments in Washington, D.C., on April 12, 2005. On April 29, 2005, the Commission submitted these amendments to Congress and specified an effective date of November 1, 2005.”

"Small Business Health Fairness Act"

The House of Representatives, on July 27th., passed the “Small Business Health Fairness Act” (HR 525), sending it to the Senate where it is now under consideration. (Press Release)

The bill would “provide for the establishment & governance of ‘association health plans,’ which are group health plans whose sponsors are trade, industry, professional, chamber of commerce, or similar business associations which meet certain ERISA certification requirements…” (Summary).

Medical/Health Care News

The Dept. of Health & Human Services is developing and will be implementing a “strategic plan to guide the nationwide implementation of health information technology in both the public & private health care sectors,” according to an article in Aspen’s Medical Benefits newsletter .
A 92-page report by the GAO identifies “lessons learned from the Dept. of Defense and Veterans Affairs toward implementing a national IT infrastructure.”

Also in the July 30th. newsletter, for those interested in health issues, was an article addressing the fact that “comprehensive information on the full range of medications that people take, including prescription & over-the-counter drugs, vitamins/minerals, herbal/natural supplements, is not available.” The Sloan Epidemiology Center at Boston University in May 2005, however, issued the “first population-based survey to provide comprehensive & ongoing information on use in the United States of the broad range of medications.”

Small Business Loan Legislation

Maine Senator Olympia Snowe, who chairs the Senate’s Committee on Small Business & Entrepreneurship, introduced a bill that would “provide small businesses with easier access to loans and increases efficiency in the Small Business Administration’s largest loan program.”

The bill, SB 1603, is titled “Small Business Lending Improvement Act of 2005”, and more information is in the Committee’s Aug. 1st. press release.

Municipality Evictions of Sex Offenders

The City of Norwood has filed suits against three registered sex offenders who are residing within 1,000 feet of schools. A recent amendment to state registry statutes that took effect April 29th. now gives municipal & township legal officials the authority to file evictions against those violating this prescription.

While at least one of those filed against told the Cincinnati Post that he intended to fight the action and that the law is of a “feel-good” nature and doesn’t protect anyone, Norwood Law Director Rick Gibson said the law doesn’t go far enough, “saying nothing about parks, day care centers or malls, where kids congregate.”

H.B. 118, introduced on March 8, 2005 and S.B. 146, introduced May 10, would take part of that additional step, extending residency restrictions to 1,000 feet of any preschool premise or school bus stop, respectively.


The City of Cincinnati was reported to be initiating like proceedings starting next week.
Previous postings on Aug. 3rd. and May 12th. have additional information