Friday, April 28, 2006

Ohio self-defense/deadly force bill

A bill introduced in the House of Representatives back on March 21st. would repeal and redefine Ohio’s present self-defense statutes, “providing statutory criteria for when a person may use force or deadly force to defend the person or to prevent or terminate a trespass on, or illegal interference with, property; establish a presumption related to the use of defensive force intended or likely to cause death or serious physical harm when the user holds a reasonable fear of imminent peril of death or serious physical harm; and to provide that a person authorized to use deadly force generally does not have a duty to retreat.” (See our prior post)
Indiana passed a similar bill last month. (Indiana Code)

New York, etal v. EPA suit

Ten states—New York, California, Connecticut, Maine, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, and Wisconsin— filed suit yesterday against the Environmental Protection Agency in the District of Columbia’s Court of Appeals over global warming & power plant pollution issues. At issue primarily is EPA’s final rule on standards for electric utility steam generating facilities built after Sept. 1978. (See 71 FR 9866)

States filed a similar action on automobile emissions last year to which the Court sided with the EPA. (State of New York v. EPA, D.C.Cir., No. 021387A, June 24, 2005).

Thursday, April 27, 2006

Kansas death penalty case

The Supreme Court re-heard a Kansas murder case last Tuesday, addressing the constitutionality of that state’s death penalty in provision that mandates death in capital cases when a jury is undecided by the weight of evidence. The statute was declared unconstitutional by the Kansas Supreme Court. (article)

Petitioner’s brief
Respondent’s brief

Wednesday, April 26, 2006

Supreme Court immigrant worker/RICO case

In another turn of events in the evolving immigration picture here in the United States, the U.S. Supreme Court today will be hearing a case alleging “conspiracy with outside employment agencies to hire undocumented workers in order to keep the wages legal workers low.”

Mohawk Industries v. Williams, case 05-465

Petitioner's brief
Respondents' brief
Petitioner's reply brief

U.S. Chamber of Commerce amicus brief

Hamilton County Municipal Court records

The Hamilton County Clerk of Courts Office will be beginning disposition of all “closed” Municipal Court records for cases that were filed before January 1, 2002, and all case records up to and including 2003 that have had an entry of satisfaction, or an entry of dismissal with prejudice, placed on the record.

Parties concerned with such cases who want material kept must contact the Clerk’s Office in writing and request that material be kept on “active file status.” Requests have to contain the case number and plaintiff’s name for each action that is wanted to be removed from the disposal list, and be received by May 31, 2006. Records will start being disposed of starting June 1, 2006.

Requests should be directed to Charles Deters, Chief Deputy, Hamilton County Municipal Court, 1000 Main Street, Room 115, Cincinnati, Ohio 45202, or faxed to Mr. Deters’ attention at (513) 946- 5710.

Inquiries about procedure can be made by telephone to either Deters ( 946- 5701) or Janet Rae Drapp (946-5702), but requests for cases to be kept active cannot.


Hamilton County Juvenile Court rule amendment

Hamilton County Juvenile Court is proposing an amendment of Local Rule 18, regarding service by publication, making the Cincinnati Court Index “the official daily law journal of Juvenile Court in which all notices, advertisements, and other matters referred to in the Ohio Revised Code shall be published.” (Striking the exception of Rule 18 notices)

The rule will be effective May 15th., but comments can still be made until April 28th (Friday)
(Contact Lead Dugan )

Friday, April 21, 2006

Cooperation--based federal sentencing

In the latest deliberation of “reasonableness,” the U.S. 2nd. Circuit Court of Appeals on April 3rd. found that in considering sentences below the prescribed federal guideline standards, a defendant’s cooperation & assistance with authorities didn’t have to be “substantial,” and a motion for that alternative from prosecutors wasn’t necessary in light of Booker/Fanfan.

“In formulating a reasonable sentence,” it was held, “a sentencing judge must consider ‘the history & characteristics of the defendant’ within the meaning of 18 USC § 3553(a)(1), as well as the other factors enumerated in § 3553(a) … including the contention that a defendant made efforts to cooperate, even if those efforts didn’t yield a government motion for a downward departure pursuant to U.S.S.G § 5K1.1 (U.S. v. Fernandez, 2d Cir., Case 05-1596 )

Sec. 5K1.1 is that portion of the federal sentencing guidelines entitled “substantial assistance to authorites.” (See here @ Pp. 429).

18 USC § 3553(a) deals with the “factors to be considered in the imposition of sentences”

Thursday, April 20, 2006

U.S. District Court/ Northern Ohio announcement

Beginning Monday, May 1st., U.S. District Court for Northern Ohio will begin accepting credit card payments over the Internet for Notices of Appeal and Pro Hac Vice Motions. (Notice)

Payments for filing fees in person or by phone with credit cards has been being done for several years now, and it’s expected that by June 1st. filing fees for civil cases will be able to be made online.

Attorneys are being strongly urged to pay fees by credit card online.

Step-by-step instructions for online credit card payments are posted @

Wednesday, April 19, 2006

Insanity Pleas as constitutional rights

The Supreme Court will hear oral arguments today in Clark v. Arizona, a case in which “no one disputes that the defendant shot and killed a Flagstaff police officer, or that he was insane at the time,” according to an article in the April ABA Journal – and no one thinks the defendant should be released, at least not back into the public.

The case will be landmark in that it is the first time whether a claim of insanity is a constitutional right will be considered..

Two considerations are needed from the Supreme Court for a favorable outcome for the appellee, according the ABA article. The first would be having the M’Naghten rule be established as the constitutional minimum test for insanity. M’Naghten rules date back to the occurrence, in 1843, of an attempted assignation of the British prime minister, basically requiring that, at the time of the incident, an individual didn’t know “the nature & quality” of his/her actions, or, if he did, whether it was right or wrong. Arizona’s statutes, along with those of five other states, including Ohio & Indiana, don’t recognize the necessity of both of those characteristics. (Kentucky’s statutes KRS §504.020 and §504.130)

The second – and the one being perhaps more closely watched – would to be allowed to use mental illness to prove a “lack of criminal intent,” which is necessary for a first-degree murder conviction. That would give other mentally ill defendants a significant new strategy in lowering their criminal responsibility.

A lot has been written about the “insanity defense” and its evolution, especially since John Hinckley’s trial in 1982 for his attempted assassination of then-President Ronald Reagan. At that time only 16 states were still using the M’Naghten standard, but the public outcry resulting from the verdict in Hinckley’s case had lasting and far-reaching impact. Half of the states in the country enacted reforms in their insanity statutes, and Congress, in 1984, passed the “Insanity Defense Reform Act,” now codified at 18 USC §17, which stresses the inability “to appreciate the nature & quality or wrongfulness” of the defendant’s actions. (i.e., see “Modern Status of Test of Criminal Responsibility—State Cases” 9 ALR4th. 526)

Tuesday, April 18, 2006

State immigration laws

With most of the attention on immigration centered on Washington and federal reform & border protection issues, its sometimes easy to forget most of the states and some localities are also confronting the topic on their levels.

The National Conference of State Legislatures has an overview of immigration-related legislation posted on their site covering some 368 bills from 42 states as of February 28, 2006. Notably, that report indicates employment considerations receiving the most consideration with 26 states having generated 71 bills. Law enforcement and identification issues, respectively, were next most active.

Not included in the NCSL project is Georgia’s immigration bill, which was passed yesterday, and is being referred to as having the “toughest measures against illegal immigration in the country.” (Article)

Ohio, Kentucky, and Indiana are not without pending bills, either.

· Criminal activity (SB 9) and Medicare documentation (HB 358) in Ohio
· Employment (HB 150, 558, & 89), enforcement of federal immigration laws (HB 115), and tuition rates for nonresidents (HB 39) in Kentucky
· Restrictions on illegal aliens (HB 1383), language requirements on legal documents (HB 1348) and drivers’ license identification (HB1310) in Indiana

Monday, April 17, 2006

Tax Deadline... Sales & Use Taxes

Today’s the last day to file your income tax returns in most cases, but there’s a new little nuance that many aren’t aware of or are choosing to overlook. Purchases made over the Internet—on Amazon or eBay—are taxable sources and more & more states are looking for that tax revenue they’re losing to catalog and online purchases. (Article)

Most states have provisions for “use taxes,” requiring taxes be paid on items bought in another state but used in one’s home state, but compliance—moreso with individuals as opposed to companies, which are generally required to register with tax authorities in those states where they do business and keep records of out-of-state purchases—with individuals it’s generally been on a voluntary basis. That could well be changing.

A big problem the states encounter in trying to collect taxes on out-of-state, catalog, and online purchases, is a legal concept referred to as “nexus,” meaning a company can only be taxed by a state if it has an certain degree of business presence in that state. [See Quill v. North Dakota, 504 U.S. 298 (1992)]. Enter the “Streamlined Sales Tax” initiative, spawned in March 1999 by the Executive Committee of the National Conference of State Legislatures to address implications of changing technology & an evolving electronic market. The result has been the Streamlined Sales Tax Project, in which some 40 states, including Ohio, Indiana, & Kentucky are now participating
The basic idea is to provide states with guidelines and a working model to simplify their sales and use tax collections by removing the burden from companies doing interstate, online, and catalog business, and is exemplified by the “Sales Tax Fairness & Simplification Act” (SB 2152), and the “Streamlined Sales Tax Simplification Act” (SB 2153), both introduced in December of last year.

Individual states have also passed relevant legislation, including Ohio, Kentucky, and Indiana. (NCSL has a full list posted)

Thursday, April 13, 2006

U.S. Supreme Court/ citation to unpublished decisions

The Supreme Court has decided to allow the citation of unpublished cases in federal courts starting next year, according to a article this morning.

Federal Appeals Courts in the 2nd., 7th., 9th., and federal circuits do not permit the citation of unpublished opinions, and six other circuit courts, including the 6th. Circuit [6 Cir.R 28(g)], discourage it. Under the new rule, the courts will still be able to give varying degrees of weight to unpublished opinions, but they can’t stop attorneys from citing to them anymore.

A number of state level courts, including the Ohio Supreme Court, already allow citation to unpublished case law.

Wednesday, April 12, 2006

Man exonerated by DNA evidence can sue city/police department

A Louisville, Ky. man released from prison six years ago, after serving seven for a rape which later DNA testing exonerated him of, can sue that city and police officers on his case, the U.S. 6th. Circuit Court of Appeals held yesterday. (article)

Kentucky eminent domain case

A Newport couple has another eminent domain case in the Kentucky Supreme Court reminiscent of Kelo v. New London.

The City of Newport has a 56-acre tract they want to acquire for the future development of a shopping center; they also have a developer lined up for the project. The question in this case is a bit different than some of the others in that Newport is wanting the Sames to post a $2.4 million bond, typically something more common to cases in which there has been a monetary judgment rendered by a trial court, and the bond is used to ensure that judgment through the appeal process. That isn’t the case here. (article)(Appeals Court case)

Kentucky "child safety" law

The State of Kentucky, yesterday, passed a new “child safety” law which allows police to now pull over motorists who they suspect aren’t wearing seatbelts. Roadblocks solely for seatbelt violations are not allowed, but there is no longer the need to have a primary violation, such as speeding or a broken taillight, to which the seatbelt violation then follows.

The bill also now requires those under the age of 16 to wear helmets when riding all-terrain, or other 4-wheeled, vehicles—even if for farm work.

Monday, April 10, 2006

Ohio Workers' Compensation Law

A petition seeking to overturn recent changes made to Ohio’s workers’ compensation law was submitted to both Attorney General and Secretary of States’ Offices last Thursday, according to an article on this morning’s Cincinnati Court Index (Also in Columbus Dispatch). The bill as of today has been signed, but the date not confirmed. If accepted, the referendum will be a ballot issue in November. (LSC bill analysis of SB 7)

Stewart Jaffy & Associates in Columbus has additional information on their website.