Wednesday, June 29, 2005

Identity Theft

We have headlines on’s site this morning that “ID theft concerns are growing, but that the tools available to combat it are lacking,” and one on FindLaw reporting that the Internal Revenue Service is looking at its ChoicePoint contract from a security point of view.

"Meth Lab" updates

While at least 44 states have passed or are considering legislation to restrict products containing pseudoephedrine, and the U.S. Senate is considering a bill that would impose stricter standards on medications containing it, “makers of many cold medicines,” according to an article in yesterday’s USAToday, “are reformulating their products to make it nearly impossible to convert them into illegal methamphetamine.”
Additional information is available on our previous “meth lab” post from the 21st.

Hearsay at Sentencing

The 2nd. Circuit U.S. Court of Appeals last Friday clarified some aspects of hearsay at sentencing hearings, according to a article this morning, the court ruling that “recent U.S. Supreme Court decisions on a defendant’s right to confront witnesses at trial and have a jury find the facts critical to longer sentences do not bar a judge from considering hearsay testimony at sentencing.” ( U.S. v. Martinez, 04-2075-cr, decided June 24, 2005 )

Sexual Predator GPS Tracking

“Under one of the provisions in Ohio’s fiscal budget bill, sex offenders likely to commit similar acts again would be required to wear sensors around their ankles for the rest of their lives,” according to an article in last Friday’s Enquirer.

Those provisions begin on Page 693 of House Bill 66; an explanation begins on Page 512 of the Legislative Service’s analysis.

This form of monitoring was piloted in Massachusetts in Sept. 2004. Last month Florida and Oklahoma passed laws requiring lifetime GPS satellite tracking for certain sex offenders.

Ohio House Bill 227, introduced April 28th., encompasses similar monitoring provisions, and Pennsylvania, New Jersey, and New York all have bills pending.

There’s legislation in the U.S. Senate that would require all repeat sex offenders to wear the GPS ankle bracelet for life.

"Eminent Domain"

Am Jur says “eminent domain, in its simpliest terms, is the inherent power of a governmental entity to take privately owned property and convert it to public use.”

The Ohio Jurisprudence 3d says eminent domain is “one of the last vestiges of sovereign power remaining in a republician form of government… (and that) although the constitutional & statutory authority in Ohio may differ slightly from that in other states, it may be said generally yhat the same broad principles involved are applicable in all jurisdictions.”

"Eminent domain," though, like other areas of law, is also fluid, and we can see that with recent local & national occurrences. Our Feb 23rd. post preambled some of this. Many people found the Supreme Court’s decision in Kelo v. New London last week interesting, and there were a lot of articles such as CNN/Money’s and MSNBC’s reflecting that.

Thursday, June 23, 2005

Spousal Support revisions

The May/June 2005 issue of the Domestic Relations Journal of Ohio is carrying an article about the OSBA’s Spousal Support Subcommittee’s two and one-half year endeavor which is resulting in “a proposal for new legislation designed to create the framework for a unique approach to securing more predictability & consistency throughout all 88 counties regarding the duration and amount of compensatory spousal support awards.”

The Subcommittee concluded that “if there were very little, if any, economic advantage to be gained by either party as a result of docket delay or multiple continuances there would be more interest by both parties in accelerating settlement negotiations, or in using arbitration to resolve some issues, rather than waiting for what may be a distant future trial date in many counties.”

The article also noted that there had been very little use of arbitration procedures that have been available in domestic relation cases under Sup.R. 15(B) since 1993.

An earlier version of the DRJO article is posted on the OSBA website, but we weren't able to get a current copy.

The Subcommittee’s now having a draft proposal, exchange is underway with domestic relation judges in the State for their input and approval.

Tuesday, June 21, 2005

"Meth Labs"

Last May there were a number of media articles on the growth in the number of illegal methamphetamine labs resulting in Kentucky, Indiana, and nine other states starting to approve legislation restricting access to hundreds of popular over-the-counter cold and allergy medicines. Indiana was reported as leading the area in “meth lab incidents” with 1,002 in 2004; Kentucky had 562, and Ohio 211.

Some local & national retailers began taking action in advance of the new laws restricting public access by moving medicines like Sudafed and Claritin-D into their pharmacies rather than selling them from the aisles.

Kentucky’s new law in response to this went into effect yesterday, with Indiana’s next month.

An article in this morning’s Enquirer reported that restrictions similar to those in Kentucky and Indiana had been dropped from Ohio’s appropriations budget bill. Senate Bill 53, however, introduced in back in February, shadows the above trend.

Friday, June 17, 2005

Tri-state railroad issues

Last week’s accident up in Mason involving the runaway boxcar is now bringing calls for improved crossing safety in that community. A article back in May reported that fatalities from railroad/ passenger car accidents in the Tri-state were among the highest in the nation, with Ohio being 6th. highest. Indiana and Kentucky were 3rd. and 13th., respectively.

This is in part a federal/state overlap, but the states do have a say.

Statutory provisions covering railroad crossings in Ohio are in ORC §4905.04, 4907.47, 4907.471, and 4907.52, with there being provision made in the Administrative Code for filing complaints “relating to dangerous crossings.”

Indiana’s are at IC §8-6-4 et.seq., and Kentucky’s at KRS §189.560 and 277.190

Thursday, June 16, 2005

Telecommunication tax news

CCH’s June 7th. State Tax Review has a couple of telecommunication tax articles with news worth passing on to you this morning.

The “Telecommuter Tax Fairness Act of 2005,” as it’s being called, “would specifically prohibit a state from deeming a nonresident individual to be present in the state on the grounds that the individual is working at home for his or her own inconvenience.”

There are two bills now pending. Senate Bill 1097 was introduced by Connecticut senators Christopher Dodd and Joseph Lieberman. House Bill 2558 by Reps. Christopher Shays (R-Conn.), Rosa DeLauro (D-Conn.), and Tom Davis (R-Va.).

And the Council on State Taxation, a nonprofit trade association consisting of some 750 multi-state corporations engaged in interstate & international business, is saying that “the telecommunications tax system should be overhauled to eliminate discriminatory administrative and tax burdens on providers & services,” according to a survey just released. Press release with further information.

Montana's Public Defender icon

An article in the June 6, 2005 National Law Journal (subscription) reports the State of Montana’s having established “the first statewide indigent defense system that meets national standards for delivering high-quality representation.”
The act, spurred in part, at least, by a 2002 class-action lawsuit that had alleged defendants were not being provided public defender services in a fair & consistent manner,” remedied those accusations. ACLU senior staff attorney Vincent Warren said in that organization’s press release that, “A national movement is underway to protect the legal rights of poor people, and Montana is leading the way.”
“The Montana law,” that press release continued, “is the first in the nation crafted with the intent of addressing the ‘Ten Principles of a Public Defense Delivery System,’ adopted by the American Bar Association in 2002.”

Ohio’s public defender statutes are contained in ORC § 120.01 et seq.

Kentucky’s are at KRS §31.010 et.seq., and Indiana’s are at IC §33-40-1 et.seq.

Wednesday, June 15, 2005

Patriot Act updates

Articles on the front-page of Monday morning’s Cincinnati Enquirer and elsewhere on the Internet spoke about Ohio’s and President Bush’s efforts, promoting the respective State’s & the National Patriot Acts.

The President last Thursday spoke in Columbus where he “urged lawmakers to disregard ‘unfair criticisms’” of law, saying it has already been used to break up terrorist cells in New York, Oregon, Virginia, and Florida. The White House has also posted a press release recounting the President’s address to the National Counterterrorist Center in McLean, Virginia.

The Washington Post, however, had articles yesterday and again this morning shedding less favorable light on the Law’s apparent record.

The Enquirer article, above, and the ACLU’s website report that the current bill, now in the House, has been substantially revised from it’s original form, and provide additional information.

Our posting from back in March also has more information.

Proposed "medical marijuana" bill amendments

In the track of last week’s Supreme Court “medical marijuana” decision and our postings there, an article on yesterday’s’s describes proposed amendments intended to be made by Congressmen Maurice Hinchey (D-NY) and Dana Rohrabacher (R-CA) that would effectively prohibit the Justice Department from using any of its 2006 appropriation to prosecute those using marijuana for medicinal purposes. Additional information is posted on Hinchey’s webpage.

Friday, June 10, 2005

"Medical Marijuana"

Last Tuesday on our “medical marijuana decision” posting, we erroneously included Ohio as one of the states allowing the medical use of marijuana. We thank the Cleveland Law Library for bringing this to our attention.

On August 10, 1995, Am.Sub. S.B. 2 created an affirmative defense for the possession of marijuana for medical use. [§2925.11(I )].
That was subsequently repealed on March 12, 1997, also, ironically, by a Senate Bill 2 [§ 2925 (I)].

Senate Bill 74 now pending up in Columbus, in proposing to again re-establish the affirmative defense for medical uses of marijuana [@ §2925.11 (B)(4)(5)], also would enact the fairly lengthy §3701.148 which includes a “registry identification card issued by the director of health identifying the person as a qualifying patient,” [ §3701.148 (A)(8)] and a “confidential registry of persons who have been issued cards.” [§ 3701.148 (B)(1)].

Tuesday, June 07, 2005

Supreme Court's Medical Marijuana Decision

The Supreme Court, yesterday, decided that federal authorities could prosecute individuals using marijuana for medicinal purposes even in those states which have legalized the practice—of which Ohio is one. Neither Indiana, nor Kentucky, have medical marijuana legislation.

Gonzales v. Raich, case 03-1454, decided June 6, 2005.

Justice Sandra Day O’Connor, writing in dissent, commented that “The states’ core police powers have always included the authority to define criminal law and protect the health, safety, and welfare of their citizens.” An article posted this morning on Law.Com explores the “states’ rights” connotation which may encourage Congressional action.

H.R. 2087, introduced May 4th. by Rep. Barney Frank of Massachusetts and currently in the House’s subcommittee on Health, proposes “to provide for the medical use of marijuana in accordance with the laws of the various states.”

The medical uses of marijuana have been being discussed for some time. An article appearing in Perspectives on Addictions Nursing in June 1993 provides some background & history for those interested, and a Chicago Tribune article, Sunday, prophetically focused on the “long-smoldering debate over how dangerous the most widely used illegal drug in America really was, and whether it should be the central focus of the nation’s war on drugs.”

Ohio’s current provisions were authorized in August 1995 with the passage of Senate Bill 2, creating an affirmative defense “pursuant to the prior written recommendation of a licensed physician, possessed solely for medicinal purposes.” Senate Bill 74, introduced Feb. 22nd., would further amend Ohio’s medical marijuana law.

Wednesday, June 01, 2005

Pending Ohio legislation

Some recently introduced bills up in Columbus that might be interesting.....

H.B. 223 (Judgment exemptions).- to increase amount of general homestead exemption from execution, attachment or sale to satisfy judgment; exempt property used as resident by defendant against judgment rendered in civil action on medical, dental, optometric or chiropractic claim & delay enforcement of judgment lien on said property until its sale or transfer.

H.B. 243 (Impact of administrative rules/ Pending legislation).- to require certain state agencies to include in summaries of proposed rules assessment of impact of each rule on family formation, maintenance & well-being; require assessment of impact of proposed legislation on same prior to action being taken by General Assembly.

H.B. 244 (Title insurance).- to require title insurance agents to notify purchasers of availability of owner’s title insurance when issuing lender’s title insurance in conjunction with residential mortgage loans & explain what owner’s title insurance covers; requires title insurance agents to maintain errors & omissions insurance and authorize title insurers to issue settlement protection.