Thursday, November 30, 2006

U.S. currency discriminatory to blind

D.C.’s district court last Tuesday ruled that the Government’s “failure to differentiate between the different denominations of U.S. currency amounts to illegal discrimination” and has ordered the Treasury Department to determine the best way to resolve the problem. ( Ruling )

An article in this morning’s Washington Times highlighted other immediate problems in finding alternatives to the single sized, basically same colored format now used—the cost to the vending machine industry and others in having to retool equipment to major currency changes. During the trial an amicus brief was filed with the court bringing some of those considerations to light.

( Articles in Forbes and L.A. Times )

Tuesday, November 28, 2006

California "medical marijuana" update

The California Supreme Court yesterday “expanded” that state’s affirmative defense of possession and/or cultivation of marijuana when such is for medical purposes, including the transportation of relatively large amounts if it can be shown that that is consistent with the patient’s prescription and recommendation by a licensed physician. (Articles in L.A. Times and San Francisco Chronicle)

Case Ruling
Calif. Health & Safety Code § 11362.5

Friday, November 24, 2006

Medical Monitoring for Lung Cancer

Lung cancer and heart disease have been noted as major causes of death in this country for a number of years now. Early detection of symptoms offers the best chances of survival for both, but in the case of lung cancer it’s about the only. When diagnosed in its early stages it’s often curable, but when not found until later stages prospects for successful treatment are dim.

A procedure referred to as “Low Dose CT Scanning” of the chest is a safe, proven technique providing an effective means of discovering growths or tumors at a much earlier stage than is afforded by more traditional procedures such as chest x-rays or sputum cytology. The problem is that they are relatively expensive and not covered by most medical insurances.

District of Columbia’s district court now has a case before it in which the plaintiffs – three long-term, pack-a-day smokers -- are seeking just that treatment as their only compensation in a class-action against cigarette manufacturer Philip Morris.

A article, last Tuesday, relates that lawsuits seeking medical monitoring for smokers have not been successful in the past, being rejected by the majority of trial & appellate courts since the first such action was filed in New Orleans in 1994.

“Courts have long struggled with the question of whether a compensable tort has occurred when claimants have no present physical injury, rather, being exposed to substances that might, or might not, cause diseases in the future,” a second article said, and a surprising few state supreme courts have ruled on whether to recognize “medical monitoring.” Five states have expressly adopted the concept, but another five – Kentucky, for one – expressly reject it.

Part of the problem are “individual issues” seemingly common to such class-actions. The Ohio Supreme Court, for example, affirmed, two years ago, a refusal to certify medical monitoring in a workers’ compensation case on exposure to a toxic substance because individual issues predominated, and the class was not “cohesive” when spanned 46 years, multiple contractors, and multiple locations within a plant. (See Wilson v. Brush Wellman, Inc.)

Massachusetts same-sex divorce

A lesbian couple, married in Massachusetts where the supreme court ruled it unconstitutional to ban same-sex marriages, has filed for divorce in Rhode Island where the law hasn’t been extended to same-sex marriages. (Article)

Following a November 2003 supreme court decision, Massachusetts became the first, and only, state in the Union to license same-sex marriages. Belgium, Canada, the Netherlands, and Spain also recognize them.

The case appears another innovation.

Massachusetts Trail Court Law Libraries have information on both about Massachusetts “Marriage” and “Same-sex Marriages” posted on the Internet, including a “Guide for Rhode Island Same-sex Couples.”

Reutgers University has an overview pathfinder on same-sex marriages posted as well.

Kentucky Supreme Court marriage to minor/statutory rape case

The Supreme Court of Kentucky ruled last Wednesday that a man, married to a 14-year-old, should not have been convicted of statutory rape in one instance, but that four other counts would stand because he had had sex with the girl prior to their marriage when she was only 12 years old. ( Decision )

At issue were “trying to harmonize the language of KRS § 510.035, which excludes offenses if the couple are married, and Chapter 402, which are Kentucky’s marriage statutes.

(Article )

Ohio eminent domain ballot issue

Voters in Ohio may get the chance next Fall to limit the State’s “home rule” authority in so far as eminent domain rights are concerned. (Article)

Following the U.S. Supreme Court ruling in Kelo in June 2004, and Norwood v. Horney/ Gamble earlier this year, the Ohio legislature responded with a moratorium on eminent domain takings until the end of this year, and the formation of a state-wide task force on the issue, which filed its final report last August.

Wednesday, November 22, 2006

Ohio DUI/ Federal highway safety regulations

The onset of the holiday season also brings to focus renewed emphasis on the part of media & law enforcement on matters such as driving under the influence, car accidents, and deaths due to car accidents. Mothers Against Drunk Driving (MADD) is taking the opportunity, too, to kick off a more extensive campaign, part of which is trying to persuade the individual states to implement stricter laws including the use of devices such as ignition interlocks on the cars of those who drive impaired.

New Mexico was the first, and is the only, state to pass a law requiring interlocks on first-time offenders’ cars, and though the results have been less than perfect, it has apparently been being viewed as a model for other states. (Article)

But there’s more to DUI than state or local law enforcement per se, too.

Over the years Ohio has made a number of changes to its DUI law, but remains one of 11 states lagging behind federal standards calling for mandatory license suspension, jail time, treatment programs, and ignition interlock or vehicle immobilization devices, according to a number of news articles last week.

Part of the Federal Transportation Equity Act for 21st. Century Restoration in 1998 created a compliance program to encourage states to adopt laws providing for enhanced sanctions for repeat DUI offenders ( 23 CFR § 1275). To comply with those standards states have to have certain repeat offender provisions in place, and those without those criteria are subject to transfers of Federal aid highway construction funds. As of January, 39 states were in compliance with those requirements, according to a National Highway Traffic Safety Administration report, including Indiana & Kentucky -- Ohio was not. (More..)

Several publications and aids are available from the NHTSA, including a “Guide to Sentencing DWI Drivers” and sentencing checklist.

Ohio DUI statutes (ORC §4511.19)
Kentucky ( KRS §189A )
Indiana ( IC § 9-30-5 )

Ohio wireless/ broadband task force legislation

A bill introduced in the Ohio House of Representatives last month would be creating a “broadband & wireless telecommunications task force” consisting of business and government representatives to “examine & make recommendations on the availability of broadband & wireless telecommunications in rural southeast Ohio and any economic impact that would create, the future availability, and any other issues deemed appropriate,” reporting to the Governor and General Assembly by the summer of 2008. ( H.B. 676 )

Friday, November 17, 2006

SEC online search engine

The Securities & Exchange Commission last Tuesday announced the availability of registration statements, annual & quarterly reports, and other filings by publicly-owned companies and mutual funds over the past four years on its new online search tool.

“Each year 15 to 18 million pages of filings are submitted SEC by more than 15,000 companies and other filers via the EDGAR system,” SEC chairman Christopher Cox reported. “Edgar full-text searches allow the user to enter keywords or conceptual search queries and retrieve lists of related filings, along with Boolean operators and wildcard capacities.”

EDGAR’s (Electronic Data Gathering, Analysis, and Retrieval system) primary purpose is to increase the efficiency & fairness of the security market for the benefit of investors, corporations, and the economy,” according to SEC’s statement. But not all documents filed with the Commission are available on EDGAR. Some are not yet permitted to be filed electronically; some may be voluntarily filed or not. (More information here)

A article yesterday relates that SEC last month awarded contracts for its “extensible business reporting language” program (XBRL), intended to make data in periodic financial reports easier for the public to find and understand. That new system will eventually be replacing EDGAR.

SEC’s new online tool is still being developed and refined, and the Commission invites user comments & suggestions. (E-mail link on search tool)

SEC webpage
search tool

Tuesday, November 14, 2006

Ohio abortion law in part too restrictive

The U.S. Sixth Circuit Court of Appeals yesterday ruled that Ohio’s abortion law was too restrictive in giving minors only one chance in court to avoid getting their parents’ consent to having an abortion, while also upholding a provision requiring women to meet face-to-face with a doctor at least 24 hours before having an abortion and remanding the case back to the district trial court. (Decision)

Until 1998, Ohio law had no restrictions on the number of times a minor could petition the court for a judicial bypass of a prior parental-notification rule. In 1998, the General Assembly passed HB 421, which became ORC § 2991.121, making “substantial changes in Ohio’s laws regulating abortion,” two of which – on parental notification -- were at issue here. The current case appeals the Sept. 2005 Southern Ohio District Court decision.

Monday, November 13, 2006

Tax Notes-- Kentucky administrative regulation for criteria establishing probable cause for waiver of penalties

The Kentucky Department of Revenue has adopted a tax administration regulation that establishes a 13-point criteria to be used to determine whether a taxpayer has demonstrated reasonable cause for waivers of penalty, finalizing & replacing in modified form an emergency regulation previously in effect. The final form went into effect September 1, 2006. ( See 103 KAR 1:040 )

Tax Notes-- Indiana Liquidating Limited Liability Corporations

The Indiana Department of Revenue ruled on July 24th. that a liquidating limited liability corporation formed to liquidate corporate assets in compliance with a court ordered bankruptcy plan, was required to file an Indiana partnership return, but not required to withhold personal income tax withholding from its partners because it had no Indiana sourced income. The LLLC was treated as a partnership for federal income tax purposes with its “partners” being the creditors of the bankrupted corporation. (See Indiana Revenue Ruling IT-06-03)

Wednesday, November 08, 2006

When Are Ballot Initiatives Effective?

Want to know when an initiative becomes law? Voters in Ohio had a number of ballot initiatives to consider yesterday. For those that were successful, the state Constitution outlines the process by which they become law. The short answer is in Article II, §1b of the Ohio State Constitution:

"Any proposed law or amendment to the constitution submitted to the electors as provided in section 1a and section 1b, if approved by a majority of the electors voting thereon, shall take effect thirty days after the election at which it was approved and shall be published by the secretary of state."

You might also want to look at Chapter 3519 of the Ohio Revised Code for additional laws relating to initiatives and elections.

The initiatives on Ohio's ballot passed through the Ohio Attorney General's office as well as the Ohio Secretary of State. The Secretary of State's Web site has advisories, directives, and other information relating to elections, including procedures for getting an initiative or referendum on the ballot. The Attorney General reviews the submissions, and you can see both approved and rejected ballot initiatives.

AFL-CIO files "supervisory" complaint

In a follow-up to yesterday’s NLRB posting, the AFL-CIO, it has been learned, filed a complaint with the International Labor Organization on Oct. 23, claiming the Oakwood Healthcare ruling and those of two other related cases violate international labor law standards.

An article in BNA’s U. S. Law Week on Oct. 31st. said that according to the AFL-CIO the international committee had previously stated that “the expression ‘supervisors’ should be limited to cover only persons genuinely presenting the interests of the employer.”

The AFL-CIO is also seeking to form a legislative movement “to restore the traditional, more balanced test for supervisory status, limiting it to genuine supervisors and managers,” according to that article, asking the ILO to send a delegation to the United States to investigate the effects of the recent Oakwood decisions.

Tuesday, November 07, 2006

NLRB defines "supervisor"

Guidelines for determining whether an individual is a “supervisor” under the National Labor Relations Act were set forth September 29th. by the NLRB in what’s being described as a major decision from that body. (Oakwood Healthcare, Inc., 348 NLRB 37 )

An Oct. 3rd. press release stated, “in NRLB v. Kentucky River Community Care, the Supreme Court criticized the Board’s extant interpretation of Section 2(ll) [of the National Labor Relations Act] of the term ‘independent judgment.’ As a result, the Board endeavored today’s Oakwood Healthcare decision to re-examine & clarify its interpretations of that term as well as the terms ‘assign’ and ‘responsible to direct,’ as those terms are set forth in said Section 2(11).”

NLRB v. Kentucky River Community Care

§ 2(11) National Labor Relations Act

Friday, November 03, 2006

Ohio Commercial Activity Tax Proposed/Final Rules

The Ohio Department of Taxation has revised its proposed rule relating to the situsing of services under commercial activity tax for the sixth time. “In general, except as otherwise provided in the rule, gross receipts from services are sitused to the State of Ohio in the proportion that the purchaser’s benefit in Ohio with respect to whay was purchased bears to the purchaser’s benefit everywhere with respect to what was purchased.” (CAT 2005-06, revised October 2006)

Other new updates in Ohio’s CAT rules include those concerning changes in ownership, record retention requirements, situsing receipts from periodic payments for mobile property, qualified distribution centers (finalized rule), “bright-line presence” & situsing (finalized rule), cash discount defined ( finalized), and “agent” defined (finalized rule).

List of all proposed & recently finalized rules

Thursday, November 02, 2006

Federal Trade Commission/ Internet Privacy & Advertising

A complaint filed with the Federal Trade Commission yesterday is calling for an immediate formal investigation of online advertising practices, alleging that “the data collection & interactive marketing system shaping the entire U.S. electronic marketplace is being built to aggressively track Internet users wherever they go, creating data profiles used in ever-more sophisticated and personalized ‘one-on-one’ targeting schemes.”

Press release

Federal Trade Commission's Rambus Opinion

“The Federal Trade Commission with a single stroke last month, may have restored the value of the handshake & good-faith promises among high-tech competitors, yet opening the door to potential new litigation,” a recent National Law Journal article begins.

A great many of life’s everyday, ordinary objects—lightbulbs, electric plugs, screws—bear standardization thru the work of voluntary, nongovernmental groups collectively referred to as “standard-setting organizations,” and, historically, the law has had a very limited role in them, resulting in vaguity of any future patent interests or obligations. That changed in the 1990s when Rambus, Inc., a developer &licensor of computer memory technology, tried to corner the memory chip market by secretly securing patents on what it knew would become an industry standard.

The FTC, on August 2, found those actions violations of federal antitrust law and, while questions remain on how to best determine an appropriate remedy, the “Commission believes it would exercise its remedial powers most responsibly after additional briefings and, if necessary, oral arguments devoted specifically to remedial issues were held.”

FTC press release
Rambus opinion

Domain Name Suit in Ohio District Court

A 17-strong company which manufactures tube & pipe mill and rollform machinery, last Monday filed suit in U.S. District Court against California Internet giant YouTube, Inc., seeking preliminary and permanent injunctions, damages, and costs & attorneys’ fees.

Universal Tube & Rollform Equipment Corporation in suburban Perrysburg, Ohio, has used it’s domain name—“”—in the pursuit of its business since 1996, and has spent more than $1.5 million in advertising & promotion of its trade name, products, and services. It alleges that YouTube, Inc., not launching its services until December 2005—using the domain name “YouTube”—has caused sufficient “confusion in the minds of its consumers that the spillover of nuisance traffic to its website has destroyed the value of its trademark, repeatedly caused the shutdown of its site, increased its internet costs by thousands of dollars a month, and damaged its reputation” as one of the leading manufacturers of its product in the world.