Wednesday, May 31, 2006

Veterans' ID theft lawsuit

The Department of Veterans’ Affairs is being sued by former congressional candidate & Indian Hill lawyer Paul Hackett on behalf of the 26.5 million veterans whose personal information was stolen from VA earlier this month. The suit is seeking $1,000 per person in damages and the covering of the cost of having credit monitoring services. (Complaint)

An Enquirer article this morning cites one of the attorneys filing the action as saying “the government can’t afford to wait for thieves to use the data (stolen) for illegal purposes…. (it) could pay credit monitoring services a relatively small amount, possibly less than $10 per veteran, to monitor the credit of the 26.5 million veterans affected by the theft.”

The Department of Veterans Affairs, meanwhile, has a posted announcement on its website which, first of all, says the data stolen didn’t include any of VA’s electronic health records or financial information.

“The Secretary of Veterans’ Affairs has briefed the Attorney General and Chairman of the Federal Trade Commission, co-chairs of the President’s Identity Theft Task Force,” the announcement further says, “and Task Force members have already taken action to protect affected veterans, including working with credit bureaus to help ensure veterans receive the free credit report they are entitled to under the law.”

Additional information is also available on FirstGov and the Federal Trade Commission’s website.

Three energy bills before the Ohio General Assembly

At present, three bills dealing with energy are currently before the Ohio General Assembly.

1. State Senator Kirk Schuring (R-Canton) has introduced Senate Bill 335, which if passed, will create a tax credit against kilowatt-hour tax liability for certain eligible businesses. High energy-consuming manufacturers will get a 100 percent tax credit on their KWH usage if they use the savings to reinvest in their Ohio-based operations through capital investments and new jobs.

2. State Senator Randy Gardner (R-Bowling Green) has introduced Senate Bill 332, which if passed, will require that the amount spent by counties on energy conservation measures be unlikely to exceed the amount saved in energy and operating costs over the average system life of the measures, and to require the financed measures be paid for within their average system life.

3. State Representative Mark Wagoner (R-Toledo) has introduced House Bill 594, which is the House's version of SB 332.

Read the text of the bills:

SB 335:
SB 332:
HB 594:

Minimum-wage drive rolling: Backers want to put initiative on fall ballot

Backers of a proposed Ohio constitutional amendment to increase the state minimum wage have gathered half the 500,000 signatures they figure they’ll need to get on the fall ballot - they still have more than two months to gather the remaining signatures. Tim Burga, of the AFL-CIO and a leader of the minimum-wage coalition, said 322,899 valid signatures are needed to qualify for a Nov. 7 vote. He wants to have a cushion by collecting 500,000 names before the Aug. 9 deadline. The proposed amendment would mandate increasing the state minimum wage, now $5.15 an hour, to $6.85, with annual adjustments thereafter.

Opponents of the measure counter that the proposal is a public policy issue that has no place in the constitution, that pay is associated with the free market system. They also argue that the wage increase would force small business owners to fire employees.

Redistricting issue remains unsettled: GOP gets Democrats to defeat own plan

Last Thursday, House Republicans outmaneuvered their Democratic counterparts, getting them to vote down two proposals designed to create a better system of drawing legislative and congressional districts. After Democrats defeated the initial GOP-sponsored plan, Republicans put them on the spot by resurrecting a 14-month-old proposal sponsored by Cincinnati Democrat Rep. Steve Driehaus.

Democrats are viewed as having the best chance in decades of wresting control of the Ohio Apportionment Board, a panel that redraws legislative district boundaries every 10 years. Its members are the governor, state auditor, secretary of state and two legislators. Ohio will elect a new governor, auditor and secretary of state in November. At a post-session news conference, Democrats accused Republicans of an election year "gimmick" and Driehaus insisted on more time to study the issue and reach a consensus.

Read more about redistricting in the following Ohio House Joint Resolutions:

HJR 6:
HJR 13:

Friday, May 26, 2006

Domain name lawsuit

ICM Registry, the Florida-based start-up promoting the xxx-domain website for adult-oriented material Filed suit against the U.S. State Department and Department of Commerce for alleged Freedom of Information violations stemming from the ICM’s endeavor to promote the .xxx domain.

ICM claims it has documentation showing that the Government “exerted undue political influence on ICANN”s considerations of the .xxx domain application,” and undertook redactions in violation of FOIA.

ICANN reversed a preliminary June 2005 approval of the domain name on May 10th..

ICM’s complaint

ICANN statement
“Summary of ICM’s application”

Cheyenne County, Neb. sex offender case

A 5-foot-1 Cheyenne County, Nebraska, man received 10 years probation last Tuesday instead of a like number of years in prison for sexually abusing a 12-year old girl because the trial judge said he was “too small to survive in prison.” (Article)

The Nebraska attorney general’s office is appealing the case within the next two weeks. (Article)

Thursday, May 25, 2006

Ohio Supreme Court "sentencing packages"

The Ohio Supreme Court in deciding State v. Saxon back in March, held that courts of appeal don’t have the authority under sentencing statutes to vacate a defendant’s entire multiple-offense sentence.

“An appellate court may modify, remand, or vacate only a sentence for an offense that is appealed,” the Court said (but) may not modify, remand, or vacate the entire multiple-offense sentence based on an appeal error in the sentence for a single offense.

The Court went on to explain that, “Over the years some appellate court have adopted the ‘sentencing package’ doctrine, a federal doctrine that requires a court to consider the sanctions imposed on multiple offenses as the component of a single, comprehensive sentencing plan….. According to this view, an error within the sentencing package as a whole, even if only on one of multiple offenses, may require modification or vacation of the entire sentencing package due to the interdependence of the sentences for each offense. [U.S. v. Clements, 86 F.3d 599 (1996)]

“… but the rationale for ‘sentencing packaging’ fails in Ohio where there is no potential for an error in the sentence for one offense to permeate the entire multi-count group of sentences. Ohio’s felony-sentencing scheme is clearly designed to focus a judge’s attention on one offense at a time. Under R.C. 2929.14(A), the range of available penalties depends on the degree of each offense….”

Supreme Court cases

The Supreme Court, last Monday, denied the petition of Abu-Ali Abdur’Rahman, which would’ve been another death penalty appeal, but uniquely different in directly challenging the constitutionality of lethal injection. (Docket)

On April 26th., the Court heard arguments in Clarence Hill’s appeal, in which the issue is whether death row inmates can bring last-minute challenges to the use of lethal injection under federal civil rights law. According to a article then, the Court may have already started down that second road, delving into that larger question with Justice Stevens commenting at one point to Florida attorneys that their “procedure would be prohibited if applied to cats & dogs.” (Docket & oral arguments )

The decision in Hill is expected next month.

In another case, the Supreme Court unanimously reaffirmed that police officers can enter private property without having to knock or announce their presence in emergencies, this overturning a Utah Supreme Court decision that agreed with the trial court decision that such was a Fourth Amendment violation.

“Because the Fourth Amendment’s ultimate touchstone is ‘reasonableness,’ the warrant requirement is subject to exceptions,” the Court said, citing instances such as the rendering of “emergency assistance to occupants of private property who are seriously injured or threatened with such injury” [Mincey v. Arizona, 437 U.S. 385 (1978)], and repeatedly rejecting applications of a police officer’s “subjective motivation” as irrelevant. [Bond v. U.S., 529 U.S. 334 (2000)]

Wednesday, May 24, 2006

Lawmakers Move to Extend Consumer Law to Mortgages

Ohio legislators, many of whom have been divided over a bill aimed at shutting down unscrupulous mortgage lenders, have now agreed to update the state's consumer protection law to ban some housing transactions, including "flipping." The agreement is a major step toward dislodging Senate Bill 185, a proposal that could be approved this week by a committee representing both Statehouse chambers.

But a major difference in the Senate and House versions of the bill still threatens to kill the legislation. Lawmakers are trying to agree on just how far mortgage brokers and nonbank lenders must go to assure a customer a good deal. Senate Bill 185 would for the first time bring the mortgage lending industry under the state's Consumer Sales Practices Act.

Read the text of SB 185:

Saturday, May 20, 2006

Noe seeks to have state trial shifted

Embattled coin dealer Thomas W. Noe wants to have his trial on state charges moved out of Lucas County, claiming that "overwhelmingly negative pretrial publicity" has made it impossible to receive a fair trial in Toledo. Naturally, prosecutors will oppose the request, noting other high-profile cases – including the recent trial of a priest convicted of killing a nun in Toledo— were handled without having to move the trials. According Noe, the Toledo Blade published more than 755 articles, stories, editorials or letters to the editor between April 1, 2005, and Tuesday that mention Noe.

Thursday, May 18, 2006

Gay rights group trying new ways to get message heard

A gay rights group is employing a new tactic in the effort to lobby lawmakers and advocate for candidates, stating that the easy passage of a same-sex marriage ban in 2004 showed gay people had to improve how they promote their opinions. The group, called Equality Ohio, has spent time lobbying individual state lawmakers in their offices, a practice common to organizations trying to influence legislation but until now, an option gay rights groups had used scarcely. Members of Equality Ohio believe the organization is necessary to fight discrimination. In November, Equality Ohio will endorse candidates for all statewide offices and in some legislative races.

Equality Ohio:

Wednesday, May 17, 2006

Permanent injunctions not "automatic" in patent infringements

The Supreme Court, Monday, “handed a victory to patent-reform advocates in ruling that a small company whose patent had been infringed upon by eBay, Inc. was not automatically entitled to a court order blocking an offending service,” judges in such cases having the flexibility of deciding whether or not an issuance of an injunction was appropriate, according to an article. (Opinion)

In the initial District Court trial, a jury had found that there had been a patent infringement and that damages were appropriate, but the Court had denied the motion for a permanent injunction against eBay. On review, the U.S. Court of Appeals for the Federal Circuit reversed, applying its “general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.” The Supreme Court Monday vacated & remanded that decision, holding that “the traditional four-factor test applied by courts of equity when considering whether to award permanent injunctive relief applies to disputes arising under the Patent Act,” citing Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) in that “major departure from the long tradition of equity practice should not be lightly applied.”

"Crawford" retroactive?

The Supreme Court last Monday agreed to address a furtherance of its 2003 Crawford v. Washington decision which reiterated the Constitutional guarantee of being allowed to confront one’s accusers. The question before the Court now is whether the Crawford decision can be made retroactive.(Docket)

The defendant, in trial court, was accused of, found guilty, and sentenced to life in prison for sexually abusing his 6-year old step-daughter, even though the daughter didn’t testify at the trial and her responses to questioning by police differed from her testimony at the preliminary hearing. “Although this case has been before the Nevada Supreme Court twice,” the 9th. Circuit Court of Appeals said on February 2005, “and the United States Supreme Court on one (other) occasion, resolution now rests on interpretation of… Crawford v. Washington, in which the Court definitely held that ‘testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable and only where the defendant has had prior opportunity to cross-examine.’” (Opinion)

The question of whether there is “retroactivity” depends, in the opinion of the 9th. Circuit, on whether or not Crawford represents a “new rule,” stating that if it does, it has to be examined in the light of Schriro v. Summerlin, 542 U.S. 348 (2004)

“New rules apply retroactively only where they place,” the 9th. Circuit concluded, “‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,’ or where the new rule is ‘implicit in the concept of ordered liberty.’ Teague v. Lane, 489 U.S. 288 (1998)”

Tuesday, May 16, 2006

Supreme Court decision in DaimlerChrysler v. Cuno

The Supreme Court yesterday dismissed the case which might have determined whether Ohio tax incentive program didn’t violate the U.S. Constitution’s so-called “commerce clause,” but did so because of plaintiff’s inability to establish standing.

Originally filed in Lucas County’s Court of Common Pleas, the case was removed to the district courts on the presumption that plaintiffs’ constitutional challenges to respective statutes made it a federal question. Plaintiffs then moved to remand to the state courts, but that was denied and the District found on the merits of the case that neither of Ohio’s tax benefit programs violated the Constitution’s “commerce clause.” That decision was appealed to the 6th. Circuit Court of Appeals, being argued in Feb. 2003. That court, “without addressing the matter of standing,” according to the Supreme Court’s syllabus, “agreed as to the municipal tax exemption’s being valid, but held that the state’s franchise tax credit did violate the commerce clause,” The issue was then advanced to the Supreme Court, with defendants seeking a review of the invalidation of the franchise tax credit, and plaintiffs a review of the upholding of the property tax exemption.

The Supreme Court in granting the writ for certiorari on Sept. 27, 2005, specified that in addition to the questions presented by petition, parties were also directed to brief and argue whether they in fact had standing to challenge the investment tax credit. As it turned out, the Court decided the plaintiffs weren’t able to establish that standing.

Ohio Governor Robert Taft issued the following statement.

We’ve had several postings on this case over the past three years as well which might prove interesting. (See Sept. 17, 2004; Aug. 2, 2005; March 20, 2006).

Monday, May 15, 2006

In re Ohio Criminal Sentencing Statute Cases

The Ohio Supreme Court on May 3rd. published a fairly lengthy opinion “disposing of currently pending appeals and certified conflicts” based on its decision in State v. Foster back in July 2005. The document posted on the Court’s website was done so summarizing in manuscript form in the interest of disseminating information to the public expeditiously, and is subject to revision when the final version is released.

The judgments of appeals courts in 146 cases were reversed and remanded back to their trial courts for resentencing, including:

From Hamilton County:

  • State v. Ferguson, 2005 Ohio 0339 (App. No. C-040114 on proposition 2)
  • State v. Walker, 2005 Ohio 0374 (App. No. C-040202)
  • State v. Carson, 2005 Ohio 0613 (App. No.C-040042 on proposition 2)
  • State v. Bell, 2005 Ohio 0614 (App. No.C-040488 on proposition 2)
  • State v. Krois, 2005 Ohio 1207 (App. No. C-040543)
  • State v. Harris, 2005 Ohio 1583 (App. No. C-040598 on propositions 2 & 3)
  • State v. Terry, 2005 Ohio 1651 (App. No. C-040261 on propositions 1 & 2)
  • State v. Deters, 2005 Ohio 1752 (App. No. C-010645 on proposition 2)
  • State v. Covington,2005 Ohio 1840 (App. No.C-040429 on proposition 2)
  • State v. Stonestreet, 2005 Ohio 1913 (App. No. C-040264 on proposition 3)

From Butler County:

  • State v. Todd, 2005 Ohio 1117 (App. No. CA-2004-06-123)
  • State v. Farley, 2005 Ohio 1164 (App. No. CA-2004-04-085)
  • State v. Sebring, 2005 Ohio 1200 (App. No. CA-2004-08-195)
  • State v. Calhoun, 2005 Ohio 1242 (App. No. CA-2004-08-192)

  • State v. Mason, 2005 Ohio 1303 (App. No. CA-2004-06-154 and App. No. CA-2004-06-164 on proposition 7)

  • State v. Coffeen, 2005 Ohio 1321 (App. No. CA-2004-08-211)

From Clermont County:

  • State v. Chewning, 2005 Ohio 0185 (App. No. CA2004-01-002 on proposition 3)
  • State v. Montgomery 05 Ohio 1175 (App. No. CA2004-06-047 )
  • State v. Wright, 2005 Ohio 1722 (App. No. CA2004-08-061)

Three cases from Hamilton County were affirmed in part and reversed in part, being remanded for resentencing:

  • State v. Bruce, 2005 Ohio 0391 (App No. C-040421)
  • State v. Montgomery, 2005 Ohio 0498 (App. No. C-040190)
  • State v. Roberts, 2005 Ohio 1766 (App .No. C-040575 and C-050005)

Portions of the judgments in State v. Hobbs, 2005 Ohio 2220 (Ham. Co. App. No. C-030915), related to propositions of law, were reversed and their appeals dismissed in part as having been “improvidently accepted pursuant to the rule relating to ineffective assistance of counsel set forth in Strickland
v. Washington
(1984), 466 U.S. 668

Discretionary appeals were accepted in 46 cases and the judgments of the courts of appeals reversed and remanded for resentencing, including:

From Hamilton County:

· State v. Ostenkamp, 2005 Ohio 2031 (App. No. C-040371 on proposition 1)

· State v. Sullivan, 2005 Ohio 2285 (App. No. C-040186 on proposition 1)

· State v. Dickens, 2005 Ohio 2297 (App. No. C-040768 and C-040774 on proposition 1 and 2 )

State v. Royals, 2005 Ohio 0215 (App. No. C-050309)

From Butler County

· State v. Perkins, 2005 Ohio 0226 (App. No. CA2005-02-036)

From Clermont County

· State v. Arthur, 2005 Ohio 2221 (App. No. CA2005-04-028)

Certified conflicts recognized by the Court in a total of 14 cases were answered by the opinion, including:

From Hamilton County:

· State v. Bruce, 2005 Ohio 0499 , (App. No. C-040421)

· State v. Montgomery, 2005 Ohio 0586 (App. No. C-040190)

From Butler County:

· State v. Farley, 2005 Ohio 1267 (App. No. CA2004-04-085)

· State v. Todd, 2005 Ohio 1268 (App. No. CA2004-06-123)

· State v. Combs, 2005 Ohio 1301 (App. No. CA2000-03-047)

· State v. Piesciuk, 2005 Ohio 0065 (App. No. CA2004-03-055)

Beginning with the passage of Senate Bill 2 in 1996, and continuing through Booker, Foster, & Mathis, Ohio sentencing guidelines have been, periodically, in a perhaps timely state of reform. Additional background and the Sentencing Commission's positions throughout this evolution is posted on its website, including two helpful reports: “Judicial Decision Making After Blakely & Booker,” and Felony Sentencing in Ohio After Foster

Friday, May 12, 2006

Internet hotel reservation agency lawsuit

The City of San Antonio, “on behalf of itself and other similarly situated Texas municipalities,” filed a class action lawsuit in Western Texas District Court last Monday morning against Expedia, Orbitz, Travelocity and other online hotel booking agencies in an effort to collect unpaid hotel “occupancy taxes” from those companies. The suit seeks a jury trial and is asking for $50 million in damages. (Complaint)

“Numerous Texas Comptroller Opinions have clearly stated,” the complaint reads, “that Texas Tax Code §156.053 applies to web-based hotel booking companies and those companies are required to compute & collect hotel occupancy taxes based on the retail price paid by the occupants of the room … The analysis of the Comptroller being based on the fact that web-based hotel reservation companies have ‘a contractual right to control occupancy’ of the hotel rooms in Texas.”

Thursday, May 11, 2006

U.S. Supreme Court/ delinquent tax sales

The U.S. Supreme Court on April 26th. held that due process considerations in an instances when a property is auctioned for payment of delinquent real estate taxes, additional measures to attempt to locate the owner beyond that of unclaimed certified mail has to be taken prior to that selling.

The trial and Arkansas Supreme Court both held that that state’s sale statutes complied with constitutional due process requirements, but the U.S. Supreme Court disagreed, citing the 1950 Mullane v. Central Hanover Bank & Trust Co. decision which held “due process requires ‘notice reasonably calculated, under all circumstances, to apprise interested parties.’”

Related Ohio, Kentucky, and Indiana statutes are here.

Tuesday, May 09, 2006

Final Stretch, Medicare Part D

With May 15th. still being the deadline for the initial sign-up period for the new Medicare Part D prescription drug program, we’re indeed heading down the stretch in something of a “dead heat.” The program’s start-up has been almost anything but uneventful, and recent articles still say many potentially-qualifying individuals remained unaware that there was a deadline, and that penalties ensued thereafter. Others report that some many find themselves in positions were they’re going to, at least temporarily, lose drug coverage.

As we’re heading down that stretch, U.S. Health & Human Services Secretary Michael Leavitt’s headed out to some 24 cities across the nation promoting the effort to get people signed up. A last-minute crunch is perhaps rightly expected and being prepared for.

The next enrollment period would be November 15- Dec. 31 – with an added 6% charge per month for coverage.

Confusion and unresolved issues remain, though.

A Government Accounting Office report released May 3rd. found that “information provided by the Center for Medicare & Medicaid Services about the complicated new drug benefit was rife with problems, and failed to provide material that was consistently clear, complete, accurate, and usable,” emphasizing a need to extend the May 15th. deadline for enrollment and waiving the late enrollment penalty. (See “highlights” and full-test )

The White House response, the next day, was saying the findings in the GAO report were “inaccurate, incomplete, and outdated.”

There’ve been close to 100 bills proposed in Congress both extending the deadline, and doing away with the penalties, but that eventuality seems remote. HB 1382, submitted back in March 2005, would provide for a one-year extension to the program; HB 4410 would extend the initial enrollment period thru May 15, 2008 and waive penalties for late enrollment before June 1, 2008. Some of the proposals go even further. HB 5263, introduced last week, would “extend the 2006 & 2007 initial enrollment periods, suspend the late enrollment penalty thru Dec. 2007 to permit beneficiaries change enrollment in prescription plans during the first 12 months of enrollment, and prevent changes in formularies other than at the time of open enrollment periods & only with advance notice.”

There are also court cases pending, including a class action suit filed in northern California District Court two weeks ago accusing the Health Department of failing to ensure the poor were properly being enrolled in the new drug program. Proceedings in the case aren’t expected until late July or August (ABC news article)(Complaint )

Financing the program’s an issue as well. For the first time since Medicare & Medicaid’s enactment back in 1965, specific benefits are now being charged to the individual states in phased-down, or “clawback,” as it’s being more popularly known as, contributions. Five states, with another ten backing, filed suit in a case of original jurisdiction in the U.S. Supreme Court on March 3rd., challenging those provisions. Texas, Kentucky, Maine, Missouri, and New Jersey are shown as plaintiff in the case, with Ohio being one of those filing an amicus brief in support. A motion for preliminary injunction was filed March 17th. and is awaiting response.
(Complaint)( Amicus Brief )

Friday, May 05, 2006

Eminent domain debated

In November, Ohio voters may get to vote on what limits should be put on the power of local governments to take property by eminent domain. Some lawmakers believe that constitutional amendments, which require a statewide vote, will curb perceived abuses of eminent domain by cities. Ohio's 1912 constitution gave municipalities the power of home rule, which allows them to set their own standards for the taking of private property.

House Joint Resolution 10 and Senate Joint Resolution 6 contain the text of the proposed constitutional amendments introduced in the Ohio General Assembly.

Read the text of House Joint Resolution 10:

Read the text of Senate Joint Resolution 6:

Thursday, May 04, 2006

Electronic search warrants

Transmitting a search via e-mail to a police cruiser or officer’s handheld may be a thing not all that far off. An article on this morning overviews new Federal Rule of Criminal Procedure 41(d)(3)(A), which reads simply “a magistrate judge may issue a warrant based on information communicated by telephone or other reliable electronic means” – the catch phrase being “other reliable electronic means,” which the Advisory Committee on Rules of Criminal Procedure decided not to enumerate, but “leave to evolving standards as judges hear enough about a particular system,” Sara Sun Beale, reporter to that committee, said. (article)

The rule also provides the judge’s “placing under oath the applicant and any person on whose testimony the application is based,” and that “a verbatim record of the conversation with a suitable recording device, court reporter, or in writing” be made.