Ohio's "Nicole Law"

The Ohio Senate yesterday passed legislation, nicknamed “Nicole’s Law,” increasing penalties for public indecency and any “sexually oriented offense,” requiring trial court judges to consider a suspect’s history of any prior or related offenses, the age of the victim, and the suspect’s mental health & potential for violence before setting bail at initial hearings. The bill now heads to the House of Representatives.

(SB 245 and analysis)

Cincinnati marijuana ordinance, Pt. 2

Cincinnati City Council passed its “possession of marijuana” ordinance yesterday, making a first offense a fourth-degree misdemeanor — good for an immediate arrest and maximum penalty of 30 days in jail & $250 fine — and subsequent offenses first-degree misdemeanors, punishable by up to six months in jail and a $1,000-fine.

(See prior post on March 16, 2006)

Ohio Northern U.S.District Court filing fee increase

The fee for a filing of notice appeal in U.S. District Court Northern District of Ohio will be increased as of April 9, 2006 to $455. (Complete fee schedule)

Immigration

The Federal government’s wrestle with a growing “immigration problem” this month was met with protests across the country over the weekend. Demonstrations in Chicago, Milwaukee, Cleveland, Denver, Phoenix, and, most notably, Los Angles on Saturday, made headlines around the world. (i.e., See BBC.com )

A Wall Street Journal article at the beginning of the month referred to “an illegal-immigrant population the size of Ohio—and perhaps just as important, (but that) none of the four bills before the Senate is likely to require 11 million illegal immigrants to pack up & leave… rather, almost everyone in the immigration debate agrees they want to bring illegals in from the underground economy where they’re prey to unscrupulous employers, can evade taxes, pose security problems by their anonymity, and aren’t available to industries that want to see valid work papers.”

The demonstrations were over federal applications—notably HB 4437, which Senator Hillary Clinton had decried as “creating a police state” in this country. In fact, there are almost 100 “immigration bills” submitted to Congress at this point.

There are any number of state-level considerations as well.

Immigration rights was one of the National Conference of State Legislatures’ “top ten legislative issues” forecast for 2006, with one in nine U.S. residents in the country being an immigrant—the largest proportion ever seen, according to the Census Bureau. Most are here legally, but the Pew Hispanic Center had estimated 29% were “unauthorized immigrants posing policy challenges for all levels of government,” many falling in the laps of the states as the federal government hands off more responsibility. NCSL reported that, as of February 28, 2006, forty-two states had introduced some 368 bills relating to immigration or immigrants, a significant number being employment and identification issues.

Among those are Ohio HB 358, a Medicaid provision act, and SB 9, an antiterrorism measure passed and signed by Gov. Taft on January 11th.;

Kentucky was posting some 59 items including HB 89, which addresses the employment of persons who are not residents of the United States.

Indiana’s HB 1383 restricts public assistance to illegal aliens, withholding benefits for publicly-funded health care, while HB 1414 “establishes a human & sexual trafficking work group to develop written protocols for the delivery of services to human & sexual trafficking victims without regard to the immigration status of the victim.”


It's also going to be noteworthy here that according to a WiredNews article this afternoon, "most people in the U.S. think illegal immigration is a serious problem, with a solid majority opposing making it easier for illegal immigrants to become legal workers or citizens."

Proposed Ohio Standard Probate Forms 17.1 and 17.1(A)

Ohio Supreme Court case announcements on Tuesday, March 21st , included notice of proposed amendments to “Standard Probate Forms 17.1 and 17.1(A) having been published for public comment.

Standard Probate Form 17.1 ( Statements of Expert Evaluation ) have been amended to include information as to medications taken and their effect. It also adds a “guardian’s report” addendum to reflect local practice in some courts.

Standard Probate Form 17.1 (A) ( Supplement for Emergency Guardian of Person ) is being proposed to provide probate courts with information necessary to appoint emergency guardians pursuant to Revised Code § 2111.02 (B)(3).

(commentary)

The Supreme Court will accept comments until April 19, 2006, and should be directed in writing to Jo Ellen Cline , Legislative Counsel, Supreme Court of Ohio, 65 South Front Street, 7th. Floor, Columbus, Ohio 43215-3431, or e-mailed to clinej@sconet.state.oh.us . Your full name and mailing address should be included with any comments.

Self-defense laws

There’s being some notoriety taken with regard to a suspected trend in state legislatures’ view of self defense pleas and what justifications there might be for the use of “deadly force” in protecting oneself, home & family. (USAToday.com article)

Self defense has its basis in law as far back as the Roman empire, but has categorically included characteristics as the use of justified & proportionate force, an imminent threat of death or injury, and an unavailability of escape. Now some of that’s changing, with states like Florida, South Dakota, and, as of last Tuesday, Indiana, extending the qualifiers to include deadly force and eliminate the necessity of attempted retreat. The article above states that 15 other states are considering like legislation. Ohio and Kentucky are among them. (HB 236 and SB 38 in Kentucky) (Indiana bill)

“Battered woman syndrome” is a special case situation of self-defense.

Current self-defense statutes for Ohio, Kentucky, and the former Indiana Code are linked below:

· ORC § 2305.40 (“immunity as to self-defense or defense of others”)

2901.06 (“battered woman syndrome”)

· KRS § 503.050 (“use of physical force in self-protection”)

503.060 (“improper use of force in self-protection”)

503.070 (“protection of another”)

503.080 (“protection of property)

· I.C § 35-41-3-1 (“legal authority”)

35-41-3-2 (“use of force to protect person or property; when deadly force justified)

Ohio tax incentives/ DaimslerChrysler v. Cuno

Ohio Governor Robert Taft issued a statement March 1st after oral arguments at the U.S. Supreme Court in the cases of DaimlerChrysler v. Cuno and Wilkins v. Cuno, stating that it was “important for companies to know that the outcome will have no impact on any new investments in the state because, through comprehensive tax reforms in 2005, the property tax on new machinery & equipment has been eliminated, and the existing property tax is being phased out over the next four years.”

At issue in these cases is whether the “dormant commerce clause” allows a state to try to attract new business investments by offering breaks in the state’s corporate income tax, where the amount of those breaks is based on the amount of a business’s new investment; and, secondarily, whether Ohio’s “investment tax credit” (ORC § 5733.33), which encourages economic development by providing breaks to taxpayers who install new manufacturing equipment in the State, is a violation of the U.S. Constitution’s commerce clause. (Art. I Sec. 8 Clause 3) District Court found no faults, dismissing the case in August 2001, but the 6th. Circuit Court of Appeals only affirmed in part.

Ohio to be sure is watching this case, but so are others with like concerns. A recent article posted on USAToday.com related that of all 50 states and the District of Columbia, all but five employ property tax abatements, tax increment financing, “enterprise zones,” or tax abatements within an enterprise zone collectively or in part as incentives to business – Ohio, Kentucky, and Indiana included.

Of the five not using all five types of incentive, though, Delaware still offers tax abatements; and Alaska, Idaho, West Virginia, and Wyoming tax increment financing.


Also, an article in this morning’s Enquirer relates amendments in the works with regards to tax breaks in Ohio’s “foreign-trade zones” .

· Ohio “investment credits” (ORC § 122.152)

· Kentucky “existing industry development” (KRS § 154.26)

“new industry development” (KRS § 154.28)

· Indiana “industrial recovery tax credit” (IC 6-3.1-11)

“venture capital investment tax credit” (IC 6-3.1-24)

· District court decision
· 6th Circuit Court of Appeals decision

· U.S. Supreme Court docket sheets and transcript of oral arguments

Federal Sentencing Guidelines update

The House Subcommittee on Crime, Terrorism & Homeland Security was told yesterday that “there was no need for “Booker legislation’ because federal judges’ practices in sending convicted criminals to prison remained much the same as they were before the Supreme Court invalidated mandatory sentencing guidelines last year,” and warned in that “topless guidelines” in which defendants generally could be sentenced above a recommended range of years, but not below, might not survive a constitutional challenge and, if invalidated, might enable every defendant sentenced under them to personally appear before a trial court for re-sentencing.

· Statement by Judge Richardo Hinojosa, chair of U.S. Sentencing Commission
· Testimony by Judge Paul Cassell, chairman of Committee on Criminal Law

· “Sentencing Debate” material, U.S. Judiciary Council

· “Booker/Fanfan” material, U.S. Sentencing Commission

Cincinnati marijuana ordinance

Having “a little pot” – say under 200 grams -- could become more expensive if you’re caught with it in Cincinnati under a new city ordinance currently being considered.

Possession is currently charged under the Ohio Revised Code, where having small amounts of marijuana is a fourth degree misdemeanor. {See ORC § 2925.11 (C)(3) }. The Cincinnati ordinance retains the fourth degree misdemeanor rating for first-time offenders, but makes it a first-degree misdemeanor for those having prior convictions, elevating the penalty to up to $1000 and six months in jail.

Vox Bibliothecae

Sarah Glassmeyer at the University of Dayton’s Zimmerman Law Library would like to announce the launching of Vox Bibliothecae @ http://voxbibliothecae.blogspot.com/ . It’s going to be a legal research blog centering on social justice issues.

Judicial Conduct/ Death Sentence

The California Supreme Court, Monday, upheld an Orange County conviction of Gregory Allen Sturm on three counts of murder with special circumstance, but reversed the death sentence imposed.

Sturm, an addict charged with three counts of murder committed during a robbery, and attempted escape, was defended back in 1992 by a Sacramento public defender. Sturm did not contest the convictions, but asserted multiple incidents of reversible error at sentencing, including the trial court’s judge’s “repeatedly disparaging the defense lawyer, berating defense witnesses, and making objections in the case on behalf of the prosecution,” according to a Law.com article this morning.

· People v. Sturm, Case S031423, Supreme Court of California, March 6, 2006

Internet scams, phishing & AOL suits

The Securities & Exchange Commission Monday has issued a warning to the public about “paid autosurf’ web sites. There are numerous such sites on the Internet. Some of them are legitimate, but others—especially those promising to pay “members” huge profits— can be scams, an article in the Wall Street Journal (subscription) said yesterday.

Paid “auto-surf” programs are an enormous industry on the Internet, but can also sometimes be used to set up scams. A “member” goes to the site, clicks on an automatic surfer which leads to a set or series of ads, and then receives some sort of monetary credit… maybe.

These types of scams, the article commented, “wouldn’t be possible without the help of legitimate, mainstream Internet businesses, raising the question of whether these companies are—wittingly or unwittingly—playing a role in the growing scourge of Internet-based frauds.”

The Security & Exchange Commission has an “auto-surfing” informational bulletin posted as well as one on “Avoiding Internet Investment Scams


Related, an article on Silicon.com recently reported research done by the Office of Fair Trading in England that said “nearly half of the UK population—or 20 million consumers over the age of 15—have been targeted by a scam,” and, contrary to expectations, the main focus of scammers is not necessarily the obviously more vulnerable groups of older people or those more isolated from social networks such as workplace environments.

Time Warner/America Online, Monday, filed lawsuits against “phishers” charging them with attempting to trick AOL subscribers with fake websites of legitimate companies in order to obtain personal information. The cases ( 1:06-cv-00206-CMH-BRP, 1:06-cv-00207-CMH-BRP, and 1:06-cv-00208-CMH-BRP), filed in U.S. District Court for the Eastern District of Virginia are seeking a combined judgment of $18 million. (Pacer)

Ohio Judges Now Allowed to Get Tough, Not Say Why

In a unanimous decision from the Ohio Supreme Court, judges no longer have to justify handing out punishment that is tougher than the minimum sentence required by law. This ruling potentially affects thousands of felons, who will have to be resentenced. Furthermore, it raises questions about the consistency of future criminal sentences throughout Ohio. There are fears that sentencing among the courts will not be consistent with one another. Will one court impose a harsher sentence for a crime than another would for the same crime? This question remains to be answered.

Read the opinion: State v. Mathis (2006-Ohio-855):
http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-855.pdf