Thursday, July 27, 2006

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:

Columbus Dispatch:

Toledo Blade:

Dayton Daily News:

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]

Wednesday, July 26, 2006

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.

Tuesday, July 25, 2006

6th. Circuit Court of Appeals "effective ineffective counsel" decision

The 6th. Circuit Court of Appeals, yesterday, overturned the death sentence of a man whose execution has been pending in the State of Ohio for the past 21 years, citing ineffective counsel in its ruling and remanding the case back to the Ohio Southern District Court, giving the State 180 days to conduct new penalty proceedings.

Notable, however, and indeed troubling, are some of Chief Justice Danny Boggs’ comments that lawyers might be tempted to employ ineffective counsel measures as a defense ploy for their clients. “If counsel provides fully-effective assistance,” the Chief Justice wrote in a concurring opinion to the case, “and the jury simply does not buy the defense, the defendant is likely to be executed. (But) if counsel provides ineffective assistance the prisoner is likely to be spared, certainly for many years, and frequently forever.”

“To put it bluntly,” the Chief Justice wrote, “it might well appear to a disinterested observer that the most incompetent & ineffective counsel that can be provided a convicted and death-eligible defendant is a fully-investigated and competent penalty-phase defense under the precedents of the Supreme Court and this court.”

Monday, July 17, 2006

Kentucky gun permits

Administrative changes in the application/renewal procedure for carrying handguns and other “concealed” weapons in Kentucky go into effect today.

Initially, a certified birth certificate or naturalization papers were required in applying for permits. That provision is now being supplemented by applicants being able to use a notarized affidavit.

Also, the manner of payment’s changed, with $20 going to the resident’s local county sheriff’s office as before, but now necessitating a separate $40 check or money order with the respective completed form (application for new permit or renewal) for the balance amount to the Kentucky State Police’s office.

Kentucky permits are recognized by both Ohio & Indiana law enforcement agencies.

The application/renewal request procedures are summarized here, with more information posted on the Kentucky State Police’s website. Additional questions and personal concerns are requested to be directed to the applicant’s respective state patrol post.

Kenton County (859) 392-1400 [ ]
Campbell County (859) 292-3833 [ no URL ]
Boone County ( 859) 334-2175 [ ]

Friday, July 14, 2006

Ohio "private judges"

The Ohio Supreme Court ruled Wednesday that “private judges” can only preside over bench trials, and that there are no provisions for their hearing jury trials. They are afforded facilities, staff, and equipment at the discretion of the individual courts if the parties involved assume such costs.

“In matters referred to private judges pursuant to ORC § 2701.10 and Gov.Jud.R. VI, the court in which the action or proceeding is pending,” the Court’s syllabus said, “is not required to provide the retired judge with court or other facilities, equipment, or personnel, but may in its discretion do so if the parties assume the responsibility and pay for all costs arising out of the provision of the facilities, equipment, and personnel.”

ORC § 2701.10(D) specifies, the Court continued, “’[a] retired judge to whom a referral is made under this section shall try all of the issues on the action or proceeding, shall prepare relevant findings of fact & conclusions of law, and shall enter a judgment in the action or proceeding in the same manner as if he were an active judge of court.’”

(Court’s opinion summary)

(See Ohio Supreme Court’s “Guidelines for assignment of judges”)

Thursday, July 13, 2006

First Lethal Injection with New Procedures: Man Executed Less than 4 years after Killing Wife

On July 13, 2006, the State of Ohio executed Rocky Barton for the 2003 murder of his wife. Barton became the first person executed under Ohio's new procedures. Prisons Director Terry Collins ordered a revision of procedures after problems developed at the May 2 execution of Joseph Clark. Clark’s lethal injection was delayed more than 60 minutes when a vein collapsed and medical technicians struggled to restore an intravenous line. Barton was examined the day before the execution, and it was found that his veins were not at risk for collapse. The execution team also was told to take its time in connecting the lethal injection lines so there was no "artificial time barrier," Collins said.

For more information, see the Cincinnati Law Library's blog post from July 3, 2006.

Monday, July 10, 2006

Kentucky's "castle doctrine" law

New laws kicking in this week in Kentucky, dubbed “castle doctrine statutes” by proponents, allow Kentuckians the right to use deadly force in the protection of their home or vehicles, if they’re in them, adding Kentucky to a growing list of states having passed such laws. (Article)

Indiana passed its version February 23rd , it having gone into effect July 1st.

Ohio’s version, introduced March 21, 2006, is in the House’s Criminal Justice Committee.

“Castle doctrine” is not a new concept, according to Wikipedia dating back before colonial times and being mentioned in Blackstone’s Commentaries.

(See also our previous posting from March and April of this year.. )

Wednesday, July 05, 2006

Clermont County, Ohio, DUI Court

The morning’s online Enquirer has an article in praise of Clermont County’s DUI Court, the first of its kind in Ohio.

Evolving from the highly successful concept of drug courts, the Governor’s Highway Safety Office, together with the Ohio Supreme Court, Department of Alcohol & Drug Addiction Services, and Office of Criminal Justice Services began studying the feasibility of DUI courts in Ohio in 2004. Clermont County is the first of that ensuing three-year program. Athens and Summit Counties have also now started DUI courts.

According to the National Drug Court Institute, there are 86 DWI courts and 90 DWI/drug courts in the country. A national database of these and background on the concept is available on their site.

Additionally, for those interested, the National Center for State Courts published two articles on this developing DUI court trend, in 2002 and 2004, for more background information.

Monday, July 03, 2006

Ohio lethal injection procedures changed

Last Wednesday, as everyone’s heard by now, the State of Ohio announced it was modifying the manner in which lethal injections are administered in this state. No major changes, however, are seen as forthcoming. (Article)

Under the direction of the Governor, following unexpected problems with the execution of Joseph Clark on May 2, 2006, a meeting was convened on May 15, 2006 with representatives from the Ohio Attorney General’s Office, Department of Rehabilitation & Corrections legal staff and Southern Ohio Correctional Facility personnel, to examine and determine what changes or refinements could be made in carrying out future executions. A second meeting was held on June 12th after which a list of five recommendations were returned to Governor Taft.

Among those recommendations, as has been widely reported, is having execution teams now employing a low-pressure saline drip to test whether a vein being used for the lethal injection is open & continues to be viable, as opposed to a high-pressure syringe injection which had been used. Also advised is that it be iterated that there was no requirement to complete an execution within a certain time frame.

“A lot of people want to debate the death penalty,” said Ohio Department of Rehabilitation & Corrections Director Terry Collins. “This wasn’t an issue of the death penalty or the lethal injection process in Ohio. It was about an isolated problem with the application of the death penalty, the statute, and the responsibilities of this department in enforcing the law.”

Relatives of Joseph Clark had an autopsy performed, and an article posted by the Toledo Blade yesterday reported their attorney’s feeling that “important questions were sidestepped by the internal review” and further litigation might be expected.

Also, pending in District Court is a suit by The American Civil Liberties Union of Ohio over how much of an execution should be permitted to be viewed by witnesses. ( Complaint)