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The bill also re-enacts Ohio Revised Code § 319.56, which had been repealed in 1974, now designating county auditors to be inspectors of commercially sold motor fuels in their respective areas.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