New Ohio Public Records Act

Ohio Governor Bob Taft yesterday signed a bill reported to be an effort “designed to better arms citizens in enforcing their right to access public records.” (Article)

Taking effect in late March, the law revises a number of aspects of public record law in Ohio, including requiring the Attorney General’s Office to develop and require “all public offices a model public records policy for responding to public records requests,” and requiring that “all elected officials or their designees attend training programs & seminars about public record laws.”

The law, inspired by an Ohio newspapers project back in 2004 revealing problems encountered by people trying to get records, the new law will also make it possible for an aggrieved person filing a mandamus action against a public office to recover damages & court costs, and under some conditions attorney fees incurred. (More on Report)


HB 9
(Summary )

Ohio unauthorized practice of law

The Ohio Supreme Court, Wednesday, held that while it was “not the unauthorized practice of law for a nonlawyer to represent another in union-election matters or the legislation of a collective-bargaining agreement when the activities of the nonlawyer are confined to providing advice & services not requiring legal analysis, conclusions, or training;” it was unauthorized practice “to draft or write a contract or other legal instrument on behalf of another that is intended to create a legally binding relationship between an employer and a union, even if the contract is copied from a form book or one previously prepared by a lawyer.”

Opinion
Court’s summary

California appeals court on inmates' right to vote

California’s 1st. District Court of Appeals last Thursday directed its Secretary of State to issue a memorandum informing county clerks & election officials that the only inmates disqualified from being able to vote in that state were those incarcerated in a state prison or those on parole by virtue of a felony conviction, and does not include those confined to county jails or other local facilities.

(Article)
(Opinion)

Ohio bill updating language

A bill introduced in the Ohio House on December 5th. Would do some semantic “housecleaning”, replacing archaic terms such as “insane” and “lunatic” with more appropriate ones such as “incompetent.” Other terms such as “drunkard,” “idiot,” and “imbecile” would just be struck.

Other instances, such as in ORC § 701.01, include ,“unless the context (of the statute) shows another meaning was intended, ‘person’ includes a private corporation, ‘writing’ includes printing, and ‘oath’ includes affirmation.”

Areas include court administration, health & liquor control; real property, taxation, and public utilities; and veterans’ affairs statutes.

H.B. 698

Prisoner Rights-- Internet Access

Prisoner rights are in the picture again down in Georgia where an inmate serving a life sentence for murder filed a pro se suit back in July 2001 challenging that State’s correctional institute’s ban on allowing inmates to have direct access to the Internet.

Cases about inmate rights to the Internet focus, according to a National Law Journal article yesterday, on whether to allow prisoners online correspondences, with advocates professing it’s a free speech right under the First Amendment, and opponents citing arrays of safety & security issues.

“There is no state or federal legislation regarding an inmate’s rights to Internet access,” the Journal article says, “but in recent years there have been successful challenges to prison policies banning the receipt of material from cyberspace,” citing Clement v. Calif. Dept. of Corrections in 2004, and, more recently this past October, Jordan v. Hood, in Colorado.

A second article, posted on USAToday back in November, said in some states crime victims and prison officials have launched legal & informal campaigns to block Internet access by inmates with largely unsuccessful results, again citing the California case above, and noting a 2003 Arizona case in which prisoner rights groups successfully sued and had a statute from that state banning inmates from creating web profiles thru outside sources, overturned, similar to the current situation.

A magistrate from the Middle Georgia District District Court recommended in September that the policy here considered was unconstitutional and the standard in question ceased to be used (Report)

Pension Protection Act regulatory guidance

The Department of Labor, last Wednesday, issued some initial guidance on the “periodic pension benefits statements” which are soon to be required employers & others under the new Pension Protection Act of 2006, generally applicable to plans commencing after the first of the year.

Section 508(a) of the Pension Protection Act amends ERISA section 105, making significant changes to pension benefit statement requirements for both individual account and defined benefit plans, which raised a number of interpretive & compliance issues.

The Department of Labor issued this generalized guidance “in recognition of expressed concerns, including the fact that major changes in what, how, and when pension benefit statement information is furnished to participants & beneficiaries may, in the absence of regulatory guidance from DOL, result in plan sponsors, or participants & beneficiaries incurring excessive or unnecessary compliance costs.”

DOL guidance bulletin @ http://www.dol.gov/ebsa/regs/fab_2006-3.html

Ohio smoking ban rules

The Ohio Health Department posted a set of proposed rules yesterday, which will be used to implement the State’s new public smoking ban. Public comment is being invited until January 10, 2007, after which a public hearing is going be held.

More Information

ORC § 3794.01 et seq
Proposed Rules

Ohio Supreme Court death penalty case appealed per juror "smoke breaks" denied

The Ohio Supreme Court upheld the convictions & death sentence, yesterday, of a man who robbed and murdered an ex-girlfriend back in June 2002, rejecting more than a dozen allegations of legal & procedural error by the trial court including one that the trial court had violated his fair trial rights by denying a request from a juror to take smoke breaks during the case’s deliberation. (Article)

Opinion
Opinion Summary

Ohio health care initiatives

Senate Bill 5, which would permit small businesses in Ohio new ways to save money on health insurance by allowing them to band together into “purchasing alliances,” was passed by the General Assembly yesterday an article in this morning’s Enquirer said.

The bill also contains a provision requiring health care insurers to provide good-faith estimates to those with health savings accounts asking about medical treatment.

(Bill Analysis)

2007 U.S. Court of Appeals/Bankruptcy fee schedule revisions

The U.S. Judiciary has announced that beginning January 1, 2007, revised fee schedules for the federal Courts of Appeals and U.S. Bankruptcy Courts will go into effect. Additional information below.

Court of Appeals fees
Bankruptcy fees

Final HIPPA nondicriminatory/wellness program rules

Final rules implementing Health Insurance Portability & Accountability (HIPPA) nondiscrimination provisions, and applying them to employee wellness programs, were announced Dec. 12 by the Departments of Labor, Health and Human Services and Treasury, replacing the interim nondiscrimination rules and finalizing proposed wellness program rules, both of which came out in 2001.

The effective date on the final regulations is February 12, 2007. They will be applicable to plan years beginning on or after July 1, 2007.

Today’s Federal Register states, “In general, these final regulations do not change the 2001 interim rules or the proposed rules on wellness programs.” But they don’t republish expired transitional rules regarding individuals denied coverage based on health factors prior to the applicability date of the 2001 interim rules. They do republish, and slightly modify, the special transitional rule for self-funded non-federal government plans denied individual coverage due to the plan’s election to opt out of the nondiscriminatory requirements. ( See 71 FR 75014 )

Ohio Biz Tax Forms Online Only

Tax forms would not be distributed this year by the Business Tax Division, according to an e-mail alert sent out by the Ohio State Department of Taxation. No instructions for the FT 1120, FT 1120FI, FT 1120S, IT 4708, IT 1140, or IT1041 will be sent. The alert says that "[t]axpayers will receive abbreviated instructions along with their taxpayer identifying information (FEIN, NAIC CODE, address)."

FMLA request for regulatory comments

The Department of Labor began taking the first steps to possible overhauls of Family & Medical Leave Act regulations Dec. 1st., requesting public input on those regulations. Due in by Feb. 2, 2007.

DOL identifies 12 specific areas in which it’s requesting input & guidance, according to BNA’s U.S. Law Week’s Legal News update on Dec. 5, but emphases that those wishing to comment are not limited to those 12 areas.

The request for information was published in the Federal Register Dec. 1st., with additional information both in general and on the request available on the DOL website.


Press Release

Ohio domestic violence inclusionary case

The Ohio Supreme Court, this morning, will be considering a challenge against enhancements made to the State’s domestic violence statutue in 2004. Warren County Prosecutor Rachel Hutzel argues it applies only to unmarried couples, and Thomas Eagle that the law, a constitutional amendment, repealed the state’s right to treat unmarried people in the same manner as those married.

An article in yesterday’s Enquirer reported that the Supreme Court cannot overturn the amendment, but will rule on how broadly it can be applied.


Ohio domestic violence statute (ORC § 2919.25)
12th. District’s opinion

Council of State Governments' Justice Center Portal

The Council of State Governments last Tuesday announced the creation of its new “Justice Center” project – a national resource program on criminal justice policy. (Press release)

CSG is a multibranched organization, founded in 1933 by Colorado Senator Henry Toll as a plan for a national association serving state leaders & their institutions; forecasting social, economic, and political trends, offering policy response information to individual states, and advocating multi-state problem-solving.

The new program evolved over a 10-year period out of group’s eastern regional conference, now intended to serve all states in “promoting effective data-driven practices—particularly in areas in which the criminal justice system intersects other disciplines such as public health, criminal justice professionals’ responses to mental illness & crime victims, racial disparities, “justice reinvestment,” prisoner re-entry, and other complex justice-related issues.

Justice Center’s website

Ohio smoking ban challenged

Ohio’s “Smoke-free Workplace Act” has met with first opposition here in Cincinnati with the filing of a lawsuit on behalf of businesses such as locally-owned bars & restaurants which currently allow smoking at least in parts of their establishments.

The suit, filed in Hamilton County Common Pleas Court yesterday, challenges the constitutionality of the new law from a business point of view and not necessarily individual smokers. (Motion for restraining order)

The law, passed by a little more than half of Ohio voters last Nov. 7th., became effective at midnight last night. A combined 67.3% voted for the law in Hamilton, Butler, Warren, and Clermont Counties, according to an article in this morning’s Enquirer.


Ohio Health Dept. “smoking ban guidance”

"Commercial Speech" Rights 6th. Circuit Appeal

In a case surmised as having “national influence over freedom-of-speech issues & redefining ‘commercial speech rights” – at least in a small portion of the Midwest – the 6th. Circuit Court of Appeals tomorrow will be in what’s described as an “unusual hearing before all 14 appeals court judges.” (Article)

The case revolves around a village ordinance prohibiting the sale of automobiles or advertising on public or private streets or unimproved property. Filed initially in July 2003 as a constitutional rights action, the District Court found that the ordinance was not a violation of the plaintiff’s First Amendment rights and denied his motion for summary judgment.

ABA draft of Model Rules of Judicial Conduct

The American Bar Association, last Oct. 31st., released its final draft revision of its “Model Rules of Judicial Conduct,” addressing a host of issues relating to propriety in judicial conduct, among them increasing pressure on judges and judicial candidates on political issues & limits on their accepting gifts, including free attendance at seminars.

BNA’s Lawyers’ Manual on Professional Conduct noted last week that the new judicial rules are modeled after a format comparable to the Rules of Professional Conduct, being “black-letter rules followed by explanatory comments,” and that they’ve been streamlined down to four canons from the current five.

The BNA article says “one of the commission’s most controversial decisions was retaining the current code’s prohibition against judicial conduct that has the ‘appearance of impropriety,’ with critics saying the language is too vague to be useful and, in fact, may prove to be unconstitutional.” “Impropriety” is defined in the proposed model code as conduct “that violates the law, court rules, or provisions of this Code, and conduct that undermines a judge’s independence, integrity, or impartiality.”

Another new imperative, Rule 2.14, would require judges to take “appropriate actions” if they have “reasonable belief” that the performance of a lawyer or another judge is “impaired by drugs, alcohol, or other mental, emotional, or physical condition.”

The model rules will be presented to and voted on at the ABA House of Delegates meeting in Miami, Florida in February.

Press Release

Rules of Electronic Discovery

The much advertised, talked about, and consternated Federal Rules of Civil Procedure and electronic discovery go into effect today.

A recent Law.com article made the observation back in April that the “rule changes reflect that litigation discovery has been revolutionized by electronic storage of vast amounts of information and were preceded & informed by judicial application of the existing procedural rules to electronic discovery issues.”

“The federal procedural changes concerning electronic discovery,” the article also notes, “reflect that discovery of e-mail and other electronic information is now a routine yet critical aspect of virtually every litigated case. States will undoubtedly adopt similar rules and procedures, even when state court rules don’t mirror the federal rules…”

The new civil rules are not alone in their activation. Appellate Rule 25, Bankruptcy Rule 9037, and Criminal Rule 49.1 all “address privacy and security concerns arising from electronic case filings.”

A ComputerWorld article as recent as last week said that few corporations were prepared for the new federal rules, and that according to a survey it ran about 32% of IT managers said their companies weren’t prepared at all, with another 42% saying they didn’t know whether they were or not.

For those who have not seen it before, specific changes to the federal rules aimed at electronically-stored information can be read here, with more digested information here.

In advance of state rules and related activity, the National Center for State Courts has a set of “Guidelines for State Trial Courts Regarding Discovery of Electronically-stored Information,” compiled in August, posted online, as well.

U.S. currency discriminatory to blind

D.C.’s district court last Tuesday ruled that the Government’s “failure to differentiate between the different denominations of U.S. currency amounts to illegal discrimination” and has ordered the Treasury Department to determine the best way to resolve the problem. ( Ruling )

An article in this morning’s Washington Times highlighted other immediate problems in finding alternatives to the single sized, basically same colored format now used—the cost to the vending machine industry and others in having to retool equipment to major currency changes. During the trial an amicus brief was filed with the court bringing some of those considerations to light.


( Articles in Forbes and L.A. Times )

California "medical marijuana" update

The California Supreme Court yesterday “expanded” that state’s affirmative defense of possession and/or cultivation of marijuana when such is for medical purposes, including the transportation of relatively large amounts if it can be shown that that is consistent with the patient’s prescription and recommendation by a licensed physician. (Articles in L.A. Times and San Francisco Chronicle)

Case Ruling
Calif. Health & Safety Code § 11362.5

Medical Monitoring for Lung Cancer

Lung cancer and heart disease have been noted as major causes of death in this country for a number of years now. Early detection of symptoms offers the best chances of survival for both, but in the case of lung cancer it’s about the only. When diagnosed in its early stages it’s often curable, but when not found until later stages prospects for successful treatment are dim.

A procedure referred to as “Low Dose CT Scanning” of the chest is a safe, proven technique providing an effective means of discovering growths or tumors at a much earlier stage than is afforded by more traditional procedures such as chest x-rays or sputum cytology. The problem is that they are relatively expensive and not covered by most medical insurances.

District of Columbia’s district court now has a case before it in which the plaintiffs – three long-term, pack-a-day smokers -- are seeking just that treatment as their only compensation in a class-action against cigarette manufacturer Philip Morris.

A Law.com article, last Tuesday, relates that lawsuits seeking medical monitoring for smokers have not been successful in the past, being rejected by the majority of trial & appellate courts since the first such action was filed in New Orleans in 1994.

“Courts have long struggled with the question of whether a compensable tort has occurred when claimants have no present physical injury, rather, being exposed to substances that might, or might not, cause diseases in the future,” a second article said, and a surprising few state supreme courts have ruled on whether to recognize “medical monitoring.” Five states have expressly adopted the concept, but another five – Kentucky, for one – expressly reject it.

Part of the problem are “individual issues” seemingly common to such class-actions. The Ohio Supreme Court, for example, affirmed, two years ago, a refusal to certify medical monitoring in a workers’ compensation case on exposure to a toxic substance because individual issues predominated, and the class was not “cohesive” when spanned 46 years, multiple contractors, and multiple locations within a plant. (See Wilson v. Brush Wellman, Inc.)

Massachusetts same-sex divorce

A lesbian couple, married in Massachusetts where the supreme court ruled it unconstitutional to ban same-sex marriages, has filed for divorce in Rhode Island where the law hasn’t been extended to same-sex marriages. (Article)

Following a November 2003 supreme court decision, Massachusetts became the first, and only, state in the Union to license same-sex marriages. Belgium, Canada, the Netherlands, and Spain also recognize them.

The case appears another innovation.

Massachusetts Trail Court Law Libraries have information on both about Massachusetts “Marriage” and “Same-sex Marriages” posted on the Internet, including a “Guide for Rhode Island Same-sex Couples.”

Reutgers University has an overview pathfinder on same-sex marriages posted as well.

Kentucky Supreme Court marriage to minor/statutory rape case

The Supreme Court of Kentucky ruled last Wednesday that a man, married to a 14-year-old, should not have been convicted of statutory rape in one instance, but that four other counts would stand because he had had sex with the girl prior to their marriage when she was only 12 years old. ( Decision )

At issue were “trying to harmonize the language of KRS § 510.035, which excludes offenses if the couple are married, and Chapter 402, which are Kentucky’s marriage statutes.

(Article )

Ohio eminent domain ballot issue

Voters in Ohio may get the chance next Fall to limit the State’s “home rule” authority in so far as eminent domain rights are concerned. (Article)

Following the U.S. Supreme Court ruling in Kelo in June 2004, and Norwood v. Horney/ Gamble earlier this year, the Ohio legislature responded with a moratorium on eminent domain takings until the end of this year, and the formation of a state-wide task force on the issue, which filed its final report last August.

Ohio DUI/ Federal highway safety regulations

The onset of the holiday season also brings to focus renewed emphasis on the part of media & law enforcement on matters such as driving under the influence, car accidents, and deaths due to car accidents. Mothers Against Drunk Driving (MADD) is taking the opportunity, too, to kick off a more extensive campaign, part of which is trying to persuade the individual states to implement stricter laws including the use of devices such as ignition interlocks on the cars of those who drive impaired.

New Mexico was the first, and is the only, state to pass a law requiring interlocks on first-time offenders’ cars, and though the results have been less than perfect, it has apparently been being viewed as a model for other states. (Article)

But there’s more to DUI than state or local law enforcement per se, too.

Over the years Ohio has made a number of changes to its DUI law, but remains one of 11 states lagging behind federal standards calling for mandatory license suspension, jail time, treatment programs, and ignition interlock or vehicle immobilization devices, according to a number of news articles last week.

Part of the Federal Transportation Equity Act for 21st. Century Restoration in 1998 created a compliance program to encourage states to adopt laws providing for enhanced sanctions for repeat DUI offenders ( 23 CFR § 1275). To comply with those standards states have to have certain repeat offender provisions in place, and those without those criteria are subject to transfers of Federal aid highway construction funds. As of January, 39 states were in compliance with those requirements, according to a National Highway Traffic Safety Administration report, including Indiana & Kentucky -- Ohio was not. (More..)

Several publications and aids are available from the NHTSA, including a “Guide to Sentencing DWI Drivers” and sentencing checklist.


Ohio DUI statutes (ORC §4511.19)
Kentucky ( KRS §189A )
Indiana ( IC § 9-30-5 )

Ohio wireless/ broadband task force legislation

A bill introduced in the Ohio House of Representatives last month would be creating a “broadband & wireless telecommunications task force” consisting of business and government representatives to “examine & make recommendations on the availability of broadband & wireless telecommunications in rural southeast Ohio and any economic impact that would create, the future availability, and any other issues deemed appropriate,” reporting to the Governor and General Assembly by the summer of 2008. ( H.B. 676 )

SEC online search engine

The Securities & Exchange Commission last Tuesday announced the availability of registration statements, annual & quarterly reports, and other filings by publicly-owned companies and mutual funds over the past four years on its new online search tool.

“Each year 15 to 18 million pages of filings are submitted SEC by more than 15,000 companies and other filers via the EDGAR system,” SEC chairman Christopher Cox reported. “Edgar full-text searches allow the user to enter keywords or conceptual search queries and retrieve lists of related filings, along with Boolean operators and wildcard capacities.”

EDGAR’s (Electronic Data Gathering, Analysis, and Retrieval system) primary purpose is to increase the efficiency & fairness of the security market for the benefit of investors, corporations, and the economy,” according to SEC’s statement. But not all documents filed with the Commission are available on EDGAR. Some are not yet permitted to be filed electronically; some may be voluntarily filed or not. (More information here)

A Law.com article yesterday relates that SEC last month awarded contracts for its “extensible business reporting language” program (XBRL), intended to make data in periodic financial reports easier for the public to find and understand. That new system will eventually be replacing EDGAR.

SEC’s new online tool is still being developed and refined, and the Commission invites user comments & suggestions. (E-mail link on search tool)


SEC webpage
search tool

Ohio abortion law in part too restrictive

The U.S. Sixth Circuit Court of Appeals yesterday ruled that Ohio’s abortion law was too restrictive in giving minors only one chance in court to avoid getting their parents’ consent to having an abortion, while also upholding a provision requiring women to meet face-to-face with a doctor at least 24 hours before having an abortion and remanding the case back to the district trial court. (Decision)

Until 1998, Ohio law had no restrictions on the number of times a minor could petition the court for a judicial bypass of a prior parental-notification rule. In 1998, the General Assembly passed HB 421, which became ORC § 2991.121, making “substantial changes in Ohio’s laws regulating abortion,” two of which – on parental notification -- were at issue here. The current case appeals the Sept. 2005 Southern Ohio District Court decision.

Tax Notes-- Kentucky administrative regulation for criteria establishing probable cause for waiver of penalties

The Kentucky Department of Revenue has adopted a tax administration regulation that establishes a 13-point criteria to be used to determine whether a taxpayer has demonstrated reasonable cause for waivers of penalty, finalizing & replacing in modified form an emergency regulation previously in effect. The final form went into effect September 1, 2006. ( See 103 KAR 1:040 )

Tax Notes-- Indiana Liquidating Limited Liability Corporations

The Indiana Department of Revenue ruled on July 24th. that a liquidating limited liability corporation formed to liquidate corporate assets in compliance with a court ordered bankruptcy plan, was required to file an Indiana partnership return, but not required to withhold personal income tax withholding from its partners because it had no Indiana sourced income. The LLLC was treated as a partnership for federal income tax purposes with its “partners” being the creditors of the bankrupted corporation. (See Indiana Revenue Ruling IT-06-03)

When Are Ballot Initiatives Effective?

Want to know when an initiative becomes law? Voters in Ohio had a number of ballot initiatives to consider yesterday. For those that were successful, the state Constitution outlines the process by which they become law. The short answer is in Article II, §1b of the Ohio State Constitution:

"Any proposed law or amendment to the constitution submitted to the electors as provided in section 1a and section 1b, if approved by a majority of the electors voting thereon, shall take effect thirty days after the election at which it was approved and shall be published by the secretary of state."

You might also want to look at Chapter 3519 of the Ohio Revised Code for additional laws relating to initiatives and elections.

The initiatives on Ohio's ballot passed through the Ohio Attorney General's office as well as the Ohio Secretary of State. The Secretary of State's Web site has advisories, directives, and other information relating to elections, including procedures for getting an initiative or referendum on the ballot. The Attorney General reviews the submissions, and you can see both approved and rejected ballot initiatives.

AFL-CIO files "supervisory" complaint

In a follow-up to yesterday’s NLRB posting, the AFL-CIO, it has been learned, filed a complaint with the International Labor Organization on Oct. 23, claiming the Oakwood Healthcare ruling and those of two other related cases violate international labor law standards.

An article in BNA’s U. S. Law Week on Oct. 31st. said that according to the AFL-CIO the international committee had previously stated that “the expression ‘supervisors’ should be limited to cover only persons genuinely presenting the interests of the employer.”

The AFL-CIO is also seeking to form a legislative movement “to restore the traditional, more balanced test for supervisory status, limiting it to genuine supervisors and managers,” according to that article, asking the ILO to send a delegation to the United States to investigate the effects of the recent Oakwood decisions.

NLRB defines "supervisor"

Guidelines for determining whether an individual is a “supervisor” under the National Labor Relations Act were set forth September 29th. by the NLRB in what’s being described as a major decision from that body. (Oakwood Healthcare, Inc., 348 NLRB 37 )

An Oct. 3rd. press release stated, “in NRLB v. Kentucky River Community Care, the Supreme Court criticized the Board’s extant interpretation of Section 2(ll) [of the National Labor Relations Act] of the term ‘independent judgment.’ As a result, the Board endeavored today’s Oakwood Healthcare decision to re-examine & clarify its interpretations of that term as well as the terms ‘assign’ and ‘responsible to direct,’ as those terms are set forth in said Section 2(11).”


NLRB v. Kentucky River Community Care

§ 2(11) National Labor Relations Act

Ohio Commercial Activity Tax Proposed/Final Rules

The Ohio Department of Taxation has revised its proposed rule relating to the situsing of services under commercial activity tax for the sixth time. “In general, except as otherwise provided in the rule, gross receipts from services are sitused to the State of Ohio in the proportion that the purchaser’s benefit in Ohio with respect to whay was purchased bears to the purchaser’s benefit everywhere with respect to what was purchased.” (CAT 2005-06, revised October 2006)

Other new updates in Ohio’s CAT rules include those concerning changes in ownership, record retention requirements, situsing receipts from periodic payments for mobile property, qualified distribution centers (finalized rule), “bright-line presence” & situsing (finalized rule), cash discount defined ( finalized), and “agent” defined (finalized rule).

List of all proposed & recently finalized rules

Federal Trade Commission/ Internet Privacy & Advertising

A complaint filed with the Federal Trade Commission yesterday is calling for an immediate formal investigation of online advertising practices, alleging that “the data collection & interactive marketing system shaping the entire U.S. electronic marketplace is being built to aggressively track Internet users wherever they go, creating data profiles used in ever-more sophisticated and personalized ‘one-on-one’ targeting schemes.”

Press release
Complaint

Federal Trade Commission's Rambus Opinion

“The Federal Trade Commission with a single stroke last month, may have restored the value of the handshake & good-faith promises among high-tech competitors, yet opening the door to potential new litigation,” a recent National Law Journal article begins.

A great many of life’s everyday, ordinary objects—lightbulbs, electric plugs, screws—bear standardization thru the work of voluntary, nongovernmental groups collectively referred to as “standard-setting organizations,” and, historically, the law has had a very limited role in them, resulting in vaguity of any future patent interests or obligations. That changed in the 1990s when Rambus, Inc., a developer &licensor of computer memory technology, tried to corner the memory chip market by secretly securing patents on what it knew would become an industry standard.

The FTC, on August 2, found those actions violations of federal antitrust law and, while questions remain on how to best determine an appropriate remedy, the “Commission believes it would exercise its remedial powers most responsibly after additional briefings and, if necessary, oral arguments devoted specifically to remedial issues were held.”


FTC press release
Rambus opinion

Domain Name Suit in Ohio District Court

A 17-strong company which manufactures tube & pipe mill and rollform machinery, last Monday filed suit in U.S. District Court against California Internet giant YouTube, Inc., seeking preliminary and permanent injunctions, damages, and costs & attorneys’ fees.

Universal Tube & Rollform Equipment Corporation in suburban Perrysburg, Ohio, has used it’s domain name—“utube.com”—in the pursuit of its business since 1996, and has spent more than $1.5 million in advertising & promotion of its trade name, products, and services. It alleges that YouTube, Inc., not launching its services until December 2005—using the domain name “YouTube”—has caused sufficient “confusion in the minds of its consumers that the spillover of nuisance traffic to its website has destroyed the value of its trademark, repeatedly caused the shutdown of its site, increased its internet costs by thousands of dollars a month, and damaged its reputation” as one of the leading manufacturers of its product in the world.

Complaint

2007 Medicare Enrollment

“It’s time to start learning all over about Medicare and the options that’ll be available next year already. “It was confusing the first time around,” an article on USAToday.com says, “Now there are even more plans to consider for 2007—the enrollment period which runs from November 15 thru December 31—and officials are once again saying that those who wait past early December could face delays once again.”

An article in the New York Times relates that congressional Democrats are arguing against the new 2007 Medicare handbook being sent Medicare recipients, saying it “presents a misleading & biased view of Medicare coverage and options, favoring private insurance plans over the traditional government-run program.” The Administration defended the handbook, saying beneficiaries could save “significant amounts” of money thru private plans.

Meanwhile, Medicare has a new online “plan finder,” and media-release pages on plan options for the individual states.

• Ohio
• Kentucky
• Indiana
  

Proposed Ohio Rule of Government of Bar

The Ohio Supreme Court will be entertaining comments on a proposal to add a third section the “Professional Responsibility” portion of Ohio’s Rules of Governance of the Bar. The amendment is summarized as requiring “a lawyer to make readily available to each client a statement of commitments to the client, and associated client responsibilities..”

Language of the amendment and other pertinent information appear on the Supreme Court Reporter’s page.

Comments on the proposal will be accepted until November 22, 2006


Present Rule 4

Ohio Fuel Quality Legislation

Passing Senate Bill 383, would enable Ohio to join the other 46 states in the Union to “establish requirements modeled on the uniform laws & regulations of the National Institute of Standards and technology published in Handbook 130 and that incorporate standards for motor fuel based on standards developed by the American Society for Testing & Materials Committee D02 on petroleum products and lubricants.” (Article)

Alaska, Nebraska, and Pennsylvania are the only three states reportedly not having similar laws.

The bill also re-enacts Ohio Revised Code § 319.56, which had been repealed in 1974, now designating county auditors to be inspectors of commercially sold motor fuels in their respective areas.


(Auditor as inspector of weights & measure, ORC § 319.59 )
See also OAC § 901: 6—2—01 et.seq.

Sentencing Enhancements Based on Acquitted Conduct Unconstitutionual

The U.S. District Court for the Eastern District of Virginia , last Oct. 5th., ruled that “although (Federal) Sentencing Guidelines require district courts to consider acquitted conduct under certain circumstances when calculating custody ranges…sentencing a defendant for a crime for which he was acquitted is constitutionally questionable.”

(See United States v. Ibanga)

Ohio death penalty conviction upheld

The Ohio Supreme Court affirmed the conviction & death sentence of John Drummond in a 4-3 decision October 18th..

Drummond had been found guilty of two counts of aggravated murder, one of the victims being a 3-month old child. He and an accomplice were members of a local street gang, the accomplice having been tried separately and convicted to a 54-year prison sentence

During the trial there had been several incidents in the courtroom, and the trial court judge had at one point proceeded with the room having been cleared of all in attendance save the news media. Drummond’s appeal was based on a Sixth Amendment claim that that action denied him of his right to a public trial.

Justice Judith Ann Lanzinger, writing for the majority, noted that “the right to a public trial is not an absolute, and in some instances must yield to other interests, such as those essential to the administration of justice.” Chief Justice Moyer, dissenting, disputed that holding with regard to the partial closure of the trial, viewing it as a “structural error violating the fundamental constitutional right to a public trial, and requiring a reversal of the conviction & death sentence.”

Supreme Court’s case summary

"Private Property Rights Implementation Act, 2006"

The “Private Property Rights Implementation Act,” authored & introduced in the House of Representatives by Steve Chabot back in mid-February, is stirring up a little bit of a whirlwind in Congress and around some of the states these days.

An article in last Sunday’s Enquirer says opponents of the bill “—including environmentalists, city planners, and 36 state attorney generals including Ohio’s Jim Petro—say the bills would eviscerate local control over land use, allowing big land developers bulldoze local zoning laws to build what they want, where they want.” Indeed, a major portion of the bill is the opportunity to contest eminent domain actions either in state or federal court, where a judge could throw out local zoning & land use regulations, requiring that those regulations “be proportional to the impact a development might have on the surrounding community,” according to Mr. Chabot. But where many are likening the bill as part of a “national backlash against Kelo v. New London last year, Chabot says it’s more in response to the 2004 Supreme Court case, San Remo Hotel v. San Francisco in which the plaintiff party relied on a holding that “takings claims were not ripe until a state failed to provide adequate compensation for the taking,” and that unless courts disregarded the full faith & credit statute, plaintiffs would be forced to litigate their claims in state courts without any realistic possibility of ever obtaining federal review. The Court in San Remo refused to disregard the full faith & credit statute.

Missouri Death Penalty Moritorium

The U.S. District Court in Missouri for the second time has declared that state’s lethal injection protocol unconstitutional, reaffirming Judge Fernando Gaitan’s ruling in June that the procedure now used could cause undue pain & suffering, and continuing a halt in further executions until changes are made.
(Article and Opinion)

MSNBC news article re June decision
June decision

Waiver of Confidentiality

The Ohio Supreme Court back on Oct. 11th. held that “the only means by which a client can waive confidentiality of privileged direct communications with his or her lawyer are those spelled out in ORC § 2317. 02 (A).” The Court held further that “in order for a litigant to establish ‘good cause’ compelling discovery of an opposing attorney’s work product under Civil Rule 26(B)(3) was showing that the materials sought are relevant to the current issue and not available from other sources.

Court’s Opinion
Summary

Ohio Environmental Vehicle Inspection Suit

John Frank, a resident of Clermont County, Ohio, has filed suit in Southern Ohio District Court Wednesday to compel the state to reinstitute emission inspections of all cars licensed here. (Article)

The Federal Clean Air Act (1990) requires each state to submit an implementation plan as part of the EPA’s “national ambient air quality standards.” Ohio’s plan is codified at 40 CFR § 52.1870

In 1991, according to plaintiff’s complaint, EPA designated Cincinnati as a “moderate ozone non-attainment area.” The Ohio EPA included vehicle inspection & maintenance guidelines in its proposed plan to improve our air quality, which was authorized by the General Assembly and became law in 1993.

Sometime around February 2005, Ohio EPA recommended to the General Assembly that the “E-check” program be terminated at the end of that year. The recommendation was rejected, with the General Assembly instead revising those pertinent sections of the Revised Code to require “continued implementation of an enhanced motor vehicle inspection & maintenance program in counties in which such a program was federally mandated.” (HB 66, codified as ORC §3704.14 and §3704.143 )

In March, and again in May 2005, Ohio EPA submitted proposed revisions to the State’s implementation plan to the Federal government, requesting that the Cincinnati and Dayton areas be redesignated as “ozone attainment areas,” and other measures which would’ve effectively terminated E-checks in those cities.

The U.S. Environmental Protection Agency redesignated Cincinnati as an “ozone 1-hour attainment area,” but expressly rejected the request to terminate vehicle inspections, warning that “an implemented vehicle I/M program is currently required by the approved (plan), and should Ohio terminate the vehicle I/M program without submittal and EPA approval, it would be in violation of (its approved plan)..” (See 70 FR 35954)


Complaint

Unified Gun Control Effort

“The Mayors Against Illegal Guns Coalition,” led by New York Mayor Michael Bloomberg and Boston Mayor Thomas Menino, announced that the mayors of more than 100 U.S. cities had joined in efforts to get illegal guns off American streets yesterday, pledging increased gun control in their communities, imposing stiffer penalties for traffickers of illegal weapons, plans for regional intelligence databases to track illegal firearms, and a new website on gun-trafficking legislation.

Area representatives to the Coalition include: Mayors Donald Plusquellic (Akron), Frank Jackson (Cleveland), Michael Coleman (Columbus), Rhine McLin (Dayton, Oh.), Jerry Abramsom (Louisville), James Brainard (Carmel, Ind.), Graham Richard (Fort Wayne, Ind.), and Stephen Luecke (South Bend).


Press Release

Ohio voter ID statute unconstitutional

The U.S. District Court for Northern Ohio held Wednesday afternoon that those parts of Ohio’s new voters’ registration rules requiring naturalized citizens to provide proof of citizenship if challenged by poll workers was unconstitutional. (Opinion)

The rule in question was part of a voter identification bill enacted in May (See HB 3 §3505.20(A) (2), (3), and (4); starting on Pp. 129)

An article in yesterday’s Post indicated that the decision is believed to be the first of its kind in the country, and Judge Christopher Boyko asked that it “be disseminated to other states” as the current Ohio rule raised profiling concerns detrimental to the voting rights of naturalized citizens.


Further, the United States 9th. Circuit Court of Appeals in Phoenix, yesterday, blocked enforcement of a similar Arizona statute requiring voters to submit proof of citizenship when registering, and identification before casting a ballot. (Article and Opinion)

Kentucky District Court Ruling on Regulation of Sexually-oriented Businesses

In a case possibly having national significance, the U.S. District Court for Eastern Kentucky ruled last Saturday that Kenton County’s annual $3,000 licensing fees and “distance restrictions” on nude or semi-nude dancers and customers, were constitutional. (Opinion, Part 1 Part 2)

The Supreme Court has held that communities have the right to zone, license, and regulate sexually-oriented businesses to protect their citizens from adverse secondary effects often associated with those types of businesses. (Article) Kenton County Attorney Gary Edmondson, however, told the Enquirer that to his knowledge “no other court in the nation has been asked to decide whether a community’s prohibition of erotic dancers co-mingling with patrons is an extension of their free speech.”

At issue with the current case was Kenton County Ordinance 113.35(A)(10), requiring that “entertainers maintain a minimum distance of five feet from areas on an establishment’s premises being occupied by customers for a minimum of one hour after that entertainer appears …”

Ohio Public Records Act Clarified, Limited

The Ohio Supreme Court yesterday ruled that “private entities are not subject to the Public Records Act absent a showing by clear & convincing evidence that that entity is a functional equivalent of a public office.” (Opinion)

The decision both limits & clarifies the use of Ohio’s public records act, having broader implications as an update to open records law governing privately-run agencies receiving tax dollars. Justice Paul Pfeifer, in the majority opinion, said “a private business does not open its records to public scrutiny merely by performing services on behalf of the state or a municipal government.”

On the other hand, in determining whether a private entity is a public institution, and thus a public office for the purposes of public record requirements, some jurisdictions have developed functional- equivalency tests and courts have come to consider exhaustive lists of factors, including whether the entity performs a governmental function, the level of governmental funding given that institution, and whether the entity was created another governmental body.

In dissenting with the majority opinion, Chief Justice Moyer pointed out that in the current case the entity in question received 88 percent of its funding from public sources.



(Article)
(Ohio Public Records Act)

Poetic Bankruptcy Justice

“Every once in a great while a bankruptcy court opinion is published that’s as entertaining as it is instructive,” a Law.com article yesterday morning by John Gough begins. He relates the entire ruling in his article, ending with “It has been well said that: ‘To gild refined gold, paint a lily… is wasteful.. excess.’ (Shakespeare, King John) So the writer will do neither.”

His honor’s a poet and now we all know it, but beyond that we’ve nothing to say.


Southern District Florida’s decision

6th. Circuit Court of Appeals Proposed Rules

The 6th. Circuit Court of Appeals voted to amend Local Rules 28(g) and 45(a)(7) and is entertaining comments on the proposed changes until December 20, 2006.

Rule 28(g) is reference to the citation of unreported opinions, which are currently “disfavored” by the 6th Circuit “except for the purpose of establishing res judicata, estoppel, or the law of a case.” Allowing the citation of unreported cases follows new Rule of Appellate Procedure 32.1 which will become effective Dec. 1, 2006 .


Comments can be sent to Leonard Green at ca06-rules_comments@ca6.uscourts.gov

Control of Inventory Creates Tax Nexus in Indiana

Indiana’s Department of Taxation ruled last month that a corporation was subject to adjusted gross income taxes even though it was located outside of & had no property or employees within the state, because it sold goods to customers in the state, controlling that flow & inventory thru a sister subsidiary which was in Indiana.

Letter of Ruling

Kentucky's New Self-defense Law

In a test of Kentucky’s new self-defense provisions, Kenton County Circuit Court today ruled that the law is not retroactive, and therefore not applicable, to a case in which an 18-year old was stabbed and killed as the result of an argument in which his attacker had plead self defense. (Article)

The defense’s position in pretrial was that the fact situation is one such as is covered by the new statute, but the Court’s consideration disagreed. Assistant Commonwealth Attorney Jim Redwine told the Courier Journal that a defendant can only be tried under a new law if it mitigates or reduces punishment for the offense. Kentucky’s new law changes the status of what defenses can be used, not what punishments can be applied.


Kentucky’s New Self-defense Provisions

Ohio "exit polls" decision

The U.S. District Court for Southwest Ohio ruled against a 2004 directive barring “exit polls” from being taken within 100 feet of a polling place yesterday, enjoining the Secretary of State’s Office from prohibiting such surveys and ordering the issuance of new instructions to Ohio election officials on them by October 15th..

Article
Opinion

Ohio Sex Offender Registries Extended

Ohio’s latest revision to its sex offender statutes is a law—the only one in the country—that’s providing that, “In any case in which an individual is precluded from commencing a civil action for assault or battery based on childhood sexual abuse against a person solely because the limitation period under section 2305.111 of the Revised Code for the action expired on or before the effective date of this section, the attorney general or the prosecuting attorney may bring an action in a court designated in division (C) of this section for a declaratory judgment finding that the person would have been liable for assault or battery based on childhood sexual abuse but for the expiration of the limitation period under section 2305.111 of the Revised Code. The attorney general or prosecuting attorney may bring an action pursuant to this section only for childhood sexual abuse that allegedly occurred in this state.”

Further,“If the court finds by a preponderance of the evidence in an action brought pursuant to this section that the defendant would be liable for assault or battery based on childhood sexual abuse but for the expiration of the limitation period under section 2305.111 of the Revised Code, the court shall enter a judgment with that finding against the defendant and shall order that the defendant be listed on the civil registry maintained by the attorney general pursuant to section 3797.08 of the Revised Code. The court shall notify the defendant of the defendant's obligations under sections 3797.02, 3797.03, and 3797.04 of the Revised Code.”

The law became effective Aug. 3rd..

Article
Senate Bill 17 Summary & Analysis

National "Roadless Forest Land" bans upheld

U.S. District Court Judge Elizabeth Laporte (N.Dist. Calif.) yesterday struck down Bush administration parameters for developing some nearly 58.5 million acres of “roadless” National Forest land, reinstating a ban from the Clinton era on road-building, logging, drilling, and other activities, according to an article this morning on USAToday.com. (Also see L.A. Times article)

The Court’s ruling is not going to apply to Alaska’s 9.3 million acre Tongass National Forest, governed by separate rules on development, but also included in President Clinton’s ban.

Ohio, is not going to be affected since it has no federal forest lands. Kentucky and Indiana have 3,000 and 8,000 acres respectively.


Case Opinion

“Roadless Area Conservation “ Final Rule, Jan. 12, 2001
66 FR 3243

National Forests
Forestry Service’s “roadless area conservation” maps

Proposed U.S. Criminal Procedure/ Evidence Rules

The U.S. Judicial Conference Advisory Committee on Criminal Rules, last Aug. 10th., released for public comment a set of proposed amendments to Federal rules of criminal procedure, while the Committee on Evidence Rules is seeking input on a proposal that would add a new rule on privilege waiver. Comments are due by Feb. 15, 2007, with public hearing in Washington on Jan. 26, 2007 and in San Francisco on Feb. 2

The proposed criminal rule amendments are implementing the Crime Victims’ Right Act, codified at 18 U.S.C. §3371


Proposed Amendments
Report of Advisory Committee on Criminal Rules [ Dec. 2005] [May 2006]
Report of Advisory Committee on Evidence Rules, May 2006

2005 FBI Crime Rate Report

The FBI’s 2005 Crime in the United States report, released Monday, showed that the nation’s violent crime rate increased 2.3 % from 2004 to 2005, but that property crime rate had decreased 1.5 percent in the same period.

Robbery increased 3.9 %, murder and non-negligent manslaughter 3.4 percent, and aggravated assault 1.8 percent, but forcible rape – the only violent crime to do so – showed a decrease of 1.2 %. Burglary was the only property crime to show an increase this past year.

The Enquirer yesterday reported that while Cincinnati is the 56th. largest city in the United States, its homicide rate is the 15th. highest, while its overall crime rate is 34th. out of 254 cities with populations of 100,000 or more. While the nation’s violent crime rate rose 2.3 %, Cincinnati’s increased 3.2 percent; with the biggest factor being reported a 15% increase in aggravated assault.

The large city with the highest crime rate in the country was Dallas.

New York City remained the safest of the nation’s ten largest cities last year, where the number or reported crimes dropped 4.3 %. With the national rate of violent crime up 2.3 percent, New York’s dropped 1.9 %

San Jose was the second safest city according to the FBI report, followed by Los Angeles, San Diego, Chicago, and Philadelphia.

(Also see Findlaw article)

Britain's "double jeopardy" reform

Between CSI-Las Vegas, -Miami, -wherever, and CBS’s “Cold Case” series, a whole lot of attention have been brought to DNA evidence and reviving “cold cases” across the country. Persons wrongfully convicted can be cleared & returned to society, and sometimes new evidence connects persons already in prison with additional offenses. Police departments everywhere contact the FBI’s crime lab for support in troubling cases, and many, such as the Kentucky and Indiana State Police have full-time units.

Funding for cold case investigations is also sometimes available through federal grants.

But what if the reverse happens? What if I really did kill “Joe,” but was found me not guilty… and then three, five – ten years later, new evidence comes up proving I did, in fact, do it? Used to be it didn’t make much difference.

“Double jeopardy,” right? I’m saved….. Not necessarily. There are exceptions to the 5th. Amendment haven many think is all-inclusive. Wikipedia, for example, explains that “second trials held after a mistrial does not violate the double jeopardy clause, because a mistrial ends a trial prematurely without a judgment of guilty or not guilty; and cases which have been dismissed because of insufficient evidence may constitute a final judgment for these purposes, although many state & federal laws allow for limited prosecutorial appeals from these orders.”

Then there’s Great Britain.

In 1989 William Dunlop was arrested and tried twice for the murder of an ex-girlfriend; both times having a jury unable to reach a verdict. He was acquitted in 1991. In prison on an unrelated assault charge, he confessed to his former girlfriend’s murder to prison officials, but at the time could only be prosecuted for perjury and was given an additional six years. That was in 2000.

In April 2005 England and Wales abolished the whole 800-year-old concept. Dunlop’s case was reopened, and, in light of his confession to prison officials, this time he was found guilty of the murder. It was the first case brought up under the new reform which affects only England and Wales, not neighboring Scotland. Sentencing is scheduled for Oct.1st..

Municipal Code Publisher Sold

The Cincinnati Business Courier reports that American Legal Publishing, based in Cincinnati, and the online publisher of many Ohio municipal codes, has been sold by Bancinsurance to employees led by ALP's president, Steven Wolf. Bancinsurance's subsidiaries include Ohio Indemnity Company.

Other Ohio municipal code publishers include Conway Greene and Municode.

State Welfare Reform Deadlines

A FindLaw article last Friday relates another approaching deadline for states: compliance with new federal rules regarding their having to “place into job training, community service, or other work activity, 50 percent of welfare-recipient households getting aid, and 90 percent of two-parent households receiving assistance.”

Some 35 states are lagging behind in the effort that was part of a set of broad rules more strictly defining what constitutes “work” and requiring states to verify that adult recipients were doing those activities the states said they were doing. Ohio and Kentucky do not appear on a list provided by the Dept. of Health & Human Services. States face reductions in their welfare block grants of up to 5% the first years if they fail to meet the new requirements, and 2 percentage points for each year after that.



Child & Family Services Administration
“Deficit Reduction Act of 2005” fact sheet

Internet Use For Legal Advice Tripled In Past Six Years

A Lexis press release Wednesday says, “almost three time as many adult Americans turn to the Internet today for legal information and advice as six years ago,” according to a Harris Interactive survey commissioned by Lawyers.com

Lawyers.com is a free online attorney database from LexisNexis Martindale-Hubbell.

“People have unprecedented access to legal information that had once been only the purview of legal professionals,” Alan Kopit, legal editor of Lawyers.com, said.

“Besides lawyers, traditional sources of legal advice, such as friends & family, are on the decline today as consumers increasingly turn to widely-available online resources to become better informed about their legal rights & responsibilities. The challenge is knowing what information is trustworthy, and consumers need to look to reputable web sites and investigate the source of the legal information they find online before relying on it.”

Firm Sued For Using Wayback Machine (archive.org)

Law.com reports that a law suit will continue against a accused of "hacking" by accessing information in the online resource called the "Wayback Machine", at http://www.archive.org. The site indexes and stores Web site content going back many years, enabling visitors to see iterative changes to Web sites. The plaintiff had sued the Internet Archive as well, who has settled. The suit claims that law firm staff "hacked" the site to see content. Here is a post from July 2005 about the lawsuit, by William Patry @ Thelen Reid & Priest.

The Wayback Machine is less a hacking tool than an archive of crawled/indexed Web sites that one can access by typing in a URL. No skill or additional knowledge is related to finding the information once you get there. I missed this case when it first popped up last year but I'll be watching to see how it turns out!

Ohio class-action election lawsuit

A class-action suit was filed in Southern Ohio District Court Thursday alleging wrongdoings in the state in “having deprived and continuing to deprive Ohioans of their right to vote by, in a selective & discriminatory manner, unfairly allocating election resources (such as voting machines), instituting a system of provisional ballots, purging voter registrations, and breaking the bi-partisan chain of custody of ballots.”

The suit seeks to have the Court order all paper ballots from the Nov. 2, 2004 election kept, and that a “special master” be appointed to evaluate Ohio election practices and procedures, and ensure that elections are administered fairly, and in a uniform, effective, and neutral manner.

[ Article ]
[ Plaintiff’s complaint ]

Drug Offenders Pay For Testing

Ohio’s House Bill 163, passed May 16th. and effective Oct. 12, 2006, authorizes courts sentencing drug offenders, or imposing disposition on juvenile defendants, to reimburse law enforcement agencies for the cost of tests determining whether substances were, in fact, of a controlled nature.

(LSC analysis)

You're Super! No, Really, the Greatest!

The ongoing turmoil about lawyer advertising and who is a Super Lawyer or BestLawyer in America (Law.com's report on the New Jersey ethics activity) and who isn't is interesting to watch. As this piece in Friday's Columbus Business First (online Bizjournal) notes, there are a wide variety of lists, directories and other ranking guides. Cincinnati's own Bizjournal, the online version of the Cincinnnati Business Courier, is soliciting entries for its own 2006 Who's Who in Greater Cincinnati Law. Nominations are due Sept. 12, 2006.

Superlawyers has kicked into gear on their opposition to the New Jersey Supreme Court ethics panel decision, hosting their own blog at Superlawyerfacts.com. The Supreme Court has stayed the ethics opinion. So far, other states haven't joined in. Georgia's State Bar has indicated it hasn't had any complaints about Superlawyers, although they do monitor changes in advertising, according to law.com.

Want the latest on lawyer advertising? The American Bar Association's Center for Professional Responsibility keeps its fingers on that particular pulse.

Watch Your Metadata

Donna Payne, of Payne Group, does a nice wrap up of the issues relating to metadata (or "data about data", which can include author and version information as well as changes to contractual terms in the document you just created in Microsoft Word). Of particular interest are examples of how courts and others have failed to properly eliminate metadata before "publishing" a document. The American Bar Association's Legal Technology Resource Center (Catherine Reach, director) has some additional tips and suggestions (PDF) surrounding ethical use by lawyers of technology.

Power Plant Emission cases

The 7th. U.S. Court of Appeals sided with the Environmental Protection Agency last Thursday in a case centering around whether to permit power plants to emit increased levels of pollutants into the air after they’d been modernized to operate for longer hours. The EPA said “no,” since the company should have gone thru a prescribed federal permit process; the Court agreed. (U.S. v. Cinergy)

The 4th. Circuit, last year, decided a like case against EPA over disputed language in EPA power plant emission regulations. That case is now before the Supreme Court, with oral arguments scheduled for Nov. 1st.. (U.S. v. Duke Energy)

In June of last year, and again in March of this year, the District of Columbia Court of Appeals considered essentially the same matters, although maybe on a much broader scale, necessitating its being considered in two parts, in New York v. EPA. That case has been cited as clarifying and, in fact, was referenced in Cinergy above. (June decision; March follow-up)


Docket Sheet, Duke Energy Supreme Court case

Additional Information on EPA’s website (i.e., “Clean Air Act,” and “Air Pollution & Control”)

"Crawford" death penalty holding in Aryan Brotherhood trial

In what may be yet another landmark sentencing case, the U.S. District Court in Central California decided yesterday that the U.S. Supreme Court’s 2004 decision in Crawford v. Washington, in fact extended to sentencing hearings in federal death penalty cases, giving accused persons the “right of confrontation” at sentencing hearings as well as the actual trial level. (Article)

The trial in particular involves the two Aryan Brotherhood gangleaders in San Quentin convicted last month for some 32 murders & attempted murders over the course of 30 years in a prosecution said to be one of the largest death penalty cases in U.S. history.


U.S. v. Mills;Bingham, Case CR 02-938, U.S. District Court, Central California, decided Aug. 17, 2006

New Ohio DUI provisions

Ohio has new DUI provisions that went into effect yesterday. (SB 8)

Of significance is that the new provisions include modifications regarding the use of chemical test results as evidence in now providing that “in any criminal prosecution or juvenile proceeding… the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of controlled substances, or combinations of any of them in the person’s whole blood, serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation (increased from two hours)..”

Here related is that “if an arresting officer requests a person under arrest … to submit to chemical tests, that person must (comply) within two hours of the time of the alleged violation, and if that person does not (comply) within that two-hour time limit, the failure to do so constitutes a refusal to submit and specifies that the three-hour time limit (described above) regarding the admission of evidence does not extend or affect this two-hour limit specified as the maximum period of time during which a person may consent to such chemical test or tests.”

Ohio Legislative Service analysis

NSA wiretapping verdict

The U.S. Eastern District Court in Michigan Thursday ruled that the federal government’s clandestine warrantless surveillance program initiated just days after the Sept. 11th. terrorist attacks violated the 1978 Foreign Intelligence Surveillance Act, and was therefore unconstitutional. (More)

The decision is being appealed.

ACLU v. NSA, Case 06-CV-10204, U.S. District Court, Eastern Michigan

New Ohio Rules of Professional Conduct

The Ohio Supreme Court on Aug. 1st. adopted new rules of professional conduct for lawyers, based on the American Bar Association’s model rules. They will be effective Feb. 1, 2007.

Among the changes are rules for enhanced client communication, requiring attorneys to inform clients, preferably in writing, of essential elements of their representation, including its nature, scope, and any limitations which may be present; more detailed record-keeping, including new requirements that specify the nature & content of financial records that have to be kept, a 7-year retention period on these records, and monthly reconciliations of the attorney’s records and bank account records.

There are also new rules regarding client confidentiality, new rules imposing specific obligations on lawyers with respects to prospective, former, and organizational clients, and those with diminished capacity.

(Supreme Court’s announcement)
(Full text version of new Rules of Professional Conduct)

2nd U.S. Circuit Court upholds "gut feeling" sentence

In March 2005, U.S. District Court judge for the western district of New York, David Larimer found Eric Jones guilty of possession of marijuana, and the possession of a firearm by a felon, and sentenced him to 15 months, concurrently, on the two charges based on his “gut feeling” about the defendant.

Larimer at the time “candidly acknowledged part of his thinking was not explainable..”

The Government didn’t feel the sentence or Larimer’s explanation were adequate, and appealed the case the first part of this year.

Chief Judge John Walker dissented from the 2nd. Circuit Court of Appeals’ decision last Wednesday, but it was held that Larimer’s oral statement of reasons for the sentence was adequate and the sentence reasonable, but that “the failure to include those reasons for sentencing in the judgment violated 18 USC § 3553 (c)(2) and requires correction..”

(Article)

North Carolina passes "innocence commission" law

North Carolina has passed a law creating a “state innocence commission,”-- modeled after that in Great Britain, but being the first of its kind in the United States – through which inmates claiming to have been wrongly convicted & being able to produce new evidence a new venue of appeal. (Article)

An eight-member commission -- comprised of a superior court judge, prosecuting attorney, a victim advocate, a criminal defense lawyer, a sheriff, a member of the public, not an attorney or officer of the judicial department, and two other individuals “the vocations of whom shall be at the discretion of the Chief Justice”-- will begin accepting claims in November, and if five or more of those commission members agree that there is enough evidence to suggest an inmate’s innocence, the case will be sent to a panel of three Superior Court judges. All three of them would have to agree in overturning a conviction.

Additional information about “innocence commissions,” including the British counterpart and efforts by the Innocence Commission of Virgina project here in the U.S., is available on a site posting by the National Association of Criminal Defense Lawyers

Woman on Ohio death row's sentence vacated

The Ohio Supreme Court yesterday vacated an initial sentence of death for 62-year old Donna Roberts, remanding the case back to its trial court for proper sentencing, finding no justification to reverse her conviction, but holding “that the trial court’s sentencing opinion supporting the death penalty was so grievously flawed that it cannot properly support the sentence imposed.” (State v. Roberts)

Roberts and Nathaniel Jackson were both found guilty of aggravated murder, robbery, and burglary in 2001. Jackson’s sentence was upheld earlier this year. (State v. Jackson)

Roberts is one of two women currently on death row in Ohio. Nicole Diar, found guilty of complicity to corrupt with drugs, murdering her four-year old son, tampering with evidence, arson, and felonious assault last year, is the other. She filed a notice of direct appeal on Dec. 2nd., which is now pending

Norwood v. Horney: A Reversal of Kelo?

On June 26, 2006, the Ohio Supreme Court published a decision striking down the city of Norwood's use of eminent domain for a developer. This decision is viewed as a victory for property owners in Norwood, in Ohio and across the nation.

Norwood v. Horney (2006-Ohio-3799) was the first major eminent-domain case argued and decided by a state supreme court since Kelo v. City of New London (125 S. Ct. 2655). In the Norwood case, seven Ohio Supreme Court Justices agreed that Ohio cities cannot take property by eminent domain solely for economic development, in effect halting a developer's plans to build a $125 million retail center and office complex on the site. The ruling gave ammunition to property rights groups across the country, who tried to make Ohio the first on what could be a long list of state challenges to eminent-domain laws.

The Ohio Supreme Court found constitutional problems with the state's eminent-domain law, primarily: 1) it allowed private property to be taken solely for the economic benefit of the community; 2) the standard for using eminent domain to eliminate "deteriorating areas" had become so vague that it was "a standardless standard;" and 3) it did not allow property owners the right to appeal until the property was already taken.

Legal scholars, who said the decision reversed 50 years of Ohio law, stated that the decision wasn't surprising, given the atmosphere following the U.S. Supreme Court decision in Kelo.

Other Ohio newspapers on the eminent domain ruling:

Cleveland Plain-Dealer: http://www.cleveland.com/ohio/plaindealer/index.ssf?/base/news/115398907436920.xml&coll=2

Columbus Dispatch: http://www.dispatch.com/news-story.php?story=dispatch/2006/07/27/20060727-A1-00.html

Toledo Blade: http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20060727/NEWS02/607270426

Dayton Daily News: http://www.daytondailynews.com/localnews/content/localnews/daily/072706eminent.html

Ohio Supreme Court eminent domain position

In the state’s first challenge to the U.S. Supreme Court’s Kelo decision last June, the Ohio Supreme Court ruled yesterday that “cities may consider economic benefits, but that courts deciding such cases in the future must ‘apply heightened scrutiny’ to assure private citizens’ property rights.”

Relative to Kelo, the Ohio Court noted that “although it determined that the federal constitution does not prohibit (eminent domain takings for economic developments), [the U.S. Supreme Court] acknowledged that property owners might find redress in state courts and legislatures, which remain free to restrict such takings pursuant to state law and constitutions.” Ohio’s response to that invitation was unanimously passing SB 167 (2005), imposing a state moratorium on eminent domain takings until the end of this year, and the creation of a 25-member task force to study the issue.

Noteworthy in this case is the Court’s recognition that although there have been similar cases before it, it has “never been asked whether a city may appropriate property that it has determined is in an area that may deteriorate in the future.”

The Court acknowledged that eminent domain was “a balancing of two competing interests of great import in American democracy: the individual’s right in the possession & security of property, and the sovereign’s power to take it for the benefit of the community” – further, recognizing that “appropriation cases often represent more than a battle over a plot of cold sod in a farmland pasture or the plat of municipal land on which a building sits. For the individual property owner, the appropriation is not simply the seizure of a house. It’s the taking of a home—the place where ancestors toiled, where families were raised, where memories were made…”

[Ohio Supreme Court’s summary]
[Enquirer articles]

Federal sex offender database & registry legislation

Congress yesterday passed legislation establishing a national Internet database designed to let law enforcement officials and the public know where sex offenders live & work. (Article)

The bill, once signed by President Bush, increases criminal penalties for child predators, including a mandatory minimum 25-year sentence for kidnapping or maiming a child, and 30 years for having sex with a minor under the age of 12, or sexually assaulting a child between the ages of 13-17. A new racketeering-type provision is also included, carrying a mandatory 20-year sentence for offenders committing two or more crimes against children. And, sex offenders could face an additional 10-year felony charge for not registering or failing to update the information in their files.

While a majority of the states already have sex offender registries, this new law will require all states, the District of Columbia, Puerto Rico, Guam, Samoa, the Mariana and Virgin Islands, and each of the 561 federally-recognized Indian tribes to erect and maintain sex offender registries within two years of the bill’s enactment; imposes a funding penalty on those jurisdictions that do not, but directs the Attorney General to establish a “Sex Offender Management Assistance” program under which jurisdictions can receive grants to offset the cost of implementing the provisions, along with a “bonus payment if compliance with registration requirements occurs within two years of enactment,” and “bonus payments to states implementing electronic monitoring of sex offenders.”

The bill “authorizes the Attorney General to make grants for assisting in the prosecution of cases cleared through use of funds for DNA backlog elimination,” and “eliminates the statute of limitations for the prosecution of child abduction and felonious sex offenses against children.”

Also included is the abrogation of the “confidential marital communication privilege and the adverse spousal privilege in federal proceedings involving a spouse charged with a crime against a child of either spouse or child under custody or control of either spouse.”

Other portions of the bill include measures relating to missing children/persons and deaths, foster care and adoptions, child welfare, child pornography, gang violence, witness & victim protection, and homeland security & immigration.