Friday, December 29, 2006

New Ohio Public Records Act

Ohio Governor Bob Taft yesterday signed a bill reported to be an effort “designed to better arms citizens in enforcing their right to access public records.” (Article)

Taking effect in late March, the law revises a number of aspects of public record law in Ohio, including requiring the Attorney General’s Office to develop and require “all public offices a model public records policy for responding to public records requests,” and requiring that “all elected officials or their designees attend training programs & seminars about public record laws.”

The law, inspired by an Ohio newspapers project back in 2004 revealing problems encountered by people trying to get records, the new law will also make it possible for an aggrieved person filing a mandamus action against a public office to recover damages & court costs, and under some conditions attorney fees incurred. (More on Report)

HB 9
(Summary )

Ohio unauthorized practice of law

The Ohio Supreme Court, Wednesday, held that while it was “not the unauthorized practice of law for a nonlawyer to represent another in union-election matters or the legislation of a collective-bargaining agreement when the activities of the nonlawyer are confined to providing advice & services not requiring legal analysis, conclusions, or training;” it was unauthorized practice “to draft or write a contract or other legal instrument on behalf of another that is intended to create a legally binding relationship between an employer and a union, even if the contract is copied from a form book or one previously prepared by a lawyer.”

Court’s summary

California appeals court on inmates' right to vote

California’s 1st. District Court of Appeals last Thursday directed its Secretary of State to issue a memorandum informing county clerks & election officials that the only inmates disqualified from being able to vote in that state were those incarcerated in a state prison or those on parole by virtue of a felony conviction, and does not include those confined to county jails or other local facilities.


Thursday, December 28, 2006

Ohio bill updating language

A bill introduced in the Ohio House on December 5th. Would do some semantic “housecleaning”, replacing archaic terms such as “insane” and “lunatic” with more appropriate ones such as “incompetent.” Other terms such as “drunkard,” “idiot,” and “imbecile” would just be struck.

Other instances, such as in ORC § 701.01, include ,“unless the context (of the statute) shows another meaning was intended, ‘person’ includes a private corporation, ‘writing’ includes printing, and ‘oath’ includes affirmation.”

Areas include court administration, health & liquor control; real property, taxation, and public utilities; and veterans’ affairs statutes.

H.B. 698

Wednesday, December 27, 2006

Prisoner Rights-- Internet Access

Prisoner rights are in the picture again down in Georgia where an inmate serving a life sentence for murder filed a pro se suit back in July 2001 challenging that State’s correctional institute’s ban on allowing inmates to have direct access to the Internet.

Cases about inmate rights to the Internet focus, according to a National Law Journal article yesterday, on whether to allow prisoners online correspondences, with advocates professing it’s a free speech right under the First Amendment, and opponents citing arrays of safety & security issues.

“There is no state or federal legislation regarding an inmate’s rights to Internet access,” the Journal article says, “but in recent years there have been successful challenges to prison policies banning the receipt of material from cyberspace,” citing Clement v. Calif. Dept. of Corrections in 2004, and, more recently this past October, Jordan v. Hood, in Colorado.

A second article, posted on USAToday back in November, said in some states crime victims and prison officials have launched legal & informal campaigns to block Internet access by inmates with largely unsuccessful results, again citing the California case above, and noting a 2003 Arizona case in which prisoner rights groups successfully sued and had a statute from that state banning inmates from creating web profiles thru outside sources, overturned, similar to the current situation.

A magistrate from the Middle Georgia District District Court recommended in September that the policy here considered was unconstitutional and the standard in question ceased to be used (Report)

Friday, December 22, 2006

Pension Protection Act regulatory guidance

The Department of Labor, last Wednesday, issued some initial guidance on the “periodic pension benefits statements” which are soon to be required employers & others under the new Pension Protection Act of 2006, generally applicable to plans commencing after the first of the year.

Section 508(a) of the Pension Protection Act amends ERISA section 105, making significant changes to pension benefit statement requirements for both individual account and defined benefit plans, which raised a number of interpretive & compliance issues.

The Department of Labor issued this generalized guidance “in recognition of expressed concerns, including the fact that major changes in what, how, and when pension benefit statement information is furnished to participants & beneficiaries may, in the absence of regulatory guidance from DOL, result in plan sponsors, or participants & beneficiaries incurring excessive or unnecessary compliance costs.”

DOL guidance bulletin @

Thursday, December 21, 2006

Ohio smoking ban rules

The Ohio Health Department posted a set of proposed rules yesterday, which will be used to implement the State’s new public smoking ban. Public comment is being invited until January 10, 2007, after which a public hearing is going be held.

More Information

ORC § 3794.01 et seq
Proposed Rules

Thursday, December 14, 2006

Ohio Supreme Court death penalty case appealed per juror "smoke breaks" denied

The Ohio Supreme Court upheld the convictions & death sentence, yesterday, of a man who robbed and murdered an ex-girlfriend back in June 2002, rejecting more than a dozen allegations of legal & procedural error by the trial court including one that the trial court had violated his fair trial rights by denying a request from a juror to take smoke breaks during the case’s deliberation. (Article)

Opinion Summary

Ohio health care initiatives

Senate Bill 5, which would permit small businesses in Ohio new ways to save money on health insurance by allowing them to band together into “purchasing alliances,” was passed by the General Assembly yesterday an article in this morning’s Enquirer said.

The bill also contains a provision requiring health care insurers to provide good-faith estimates to those with health savings accounts asking about medical treatment.

(Bill Analysis)

Wednesday, December 13, 2006

2007 U.S. Court of Appeals/Bankruptcy fee schedule revisions

The U.S. Judiciary has announced that beginning January 1, 2007, revised fee schedules for the federal Courts of Appeals and U.S. Bankruptcy Courts will go into effect. Additional information below.

Court of Appeals fees
Bankruptcy fees

Final HIPPA nondicriminatory/wellness program rules

Final rules implementing Health Insurance Portability & Accountability (HIPPA) nondiscrimination provisions, and applying them to employee wellness programs, were announced Dec. 12 by the Departments of Labor, Health and Human Services and Treasury, replacing the interim nondiscrimination rules and finalizing proposed wellness program rules, both of which came out in 2001.

The effective date on the final regulations is February 12, 2007. They will be applicable to plan years beginning on or after July 1, 2007.

Today’s Federal Register states, “In general, these final regulations do not change the 2001 interim rules or the proposed rules on wellness programs.” But they don’t republish expired transitional rules regarding individuals denied coverage based on health factors prior to the applicability date of the 2001 interim rules. They do republish, and slightly modify, the special transitional rule for self-funded non-federal government plans denied individual coverage due to the plan’s election to opt out of the nondiscriminatory requirements. ( See 71 FR 75014 )

Tuesday, December 12, 2006

Ohio Biz Tax Forms Online Only

Tax forms would not be distributed this year by the Business Tax Division, according to an e-mail alert sent out by the Ohio State Department of Taxation. No instructions for the FT 1120, FT 1120FI, FT 1120S, IT 4708, IT 1140, or IT1041 will be sent. The alert says that "[t]axpayers will receive abbreviated instructions along with their taxpayer identifying information (FEIN, NAIC CODE, address)."

FMLA request for regulatory comments

The Department of Labor began taking the first steps to possible overhauls of Family & Medical Leave Act regulations Dec. 1st., requesting public input on those regulations. Due in by Feb. 2, 2007.

DOL identifies 12 specific areas in which it’s requesting input & guidance, according to BNA’s U.S. Law Week’s Legal News update on Dec. 5, but emphases that those wishing to comment are not limited to those 12 areas.

The request for information was published in the Federal Register Dec. 1st., with additional information both in general and on the request available on the DOL website.

Press Release

Ohio domestic violence inclusionary case

The Ohio Supreme Court, this morning, will be considering a challenge against enhancements made to the State’s domestic violence statutue in 2004. Warren County Prosecutor Rachel Hutzel argues it applies only to unmarried couples, and Thomas Eagle that the law, a constitutional amendment, repealed the state’s right to treat unmarried people in the same manner as those married.

An article in yesterday’s Enquirer reported that the Supreme Court cannot overturn the amendment, but will rule on how broadly it can be applied.

Ohio domestic violence statute (ORC § 2919.25)
12th. District’s opinion

Friday, December 08, 2006

Council of State Governments' Justice Center Portal

The Council of State Governments last Tuesday announced the creation of its new “Justice Center” project – a national resource program on criminal justice policy. (Press release)

CSG is a multibranched organization, founded in 1933 by Colorado Senator Henry Toll as a plan for a national association serving state leaders & their institutions; forecasting social, economic, and political trends, offering policy response information to individual states, and advocating multi-state problem-solving.

The new program evolved over a 10-year period out of group’s eastern regional conference, now intended to serve all states in “promoting effective data-driven practices—particularly in areas in which the criminal justice system intersects other disciplines such as public health, criminal justice professionals’ responses to mental illness & crime victims, racial disparities, “justice reinvestment,” prisoner re-entry, and other complex justice-related issues.

Justice Center’s website

Thursday, December 07, 2006

Ohio smoking ban challenged

Ohio’s “Smoke-free Workplace Act” has met with first opposition here in Cincinnati with the filing of a lawsuit on behalf of businesses such as locally-owned bars & restaurants which currently allow smoking at least in parts of their establishments.

The suit, filed in Hamilton County Common Pleas Court yesterday, challenges the constitutionality of the new law from a business point of view and not necessarily individual smokers. (Motion for restraining order)

The law, passed by a little more than half of Ohio voters last Nov. 7th., became effective at midnight last night. A combined 67.3% voted for the law in Hamilton, Butler, Warren, and Clermont Counties, according to an article in this morning’s Enquirer.

Ohio Health Dept. “smoking ban guidance”

Tuesday, December 05, 2006

"Commercial Speech" Rights 6th. Circuit Appeal

In a case surmised as having “national influence over freedom-of-speech issues & redefining ‘commercial speech rights” – at least in a small portion of the Midwest – the 6th. Circuit Court of Appeals tomorrow will be in what’s described as an “unusual hearing before all 14 appeals court judges.” (Article)

The case revolves around a village ordinance prohibiting the sale of automobiles or advertising on public or private streets or unimproved property. Filed initially in July 2003 as a constitutional rights action, the District Court found that the ordinance was not a violation of the plaintiff’s First Amendment rights and denied his motion for summary judgment.

Monday, December 04, 2006

ABA draft of Model Rules of Judicial Conduct

The American Bar Association, last Oct. 31st., released its final draft revision of its “Model Rules of Judicial Conduct,” addressing a host of issues relating to propriety in judicial conduct, among them increasing pressure on judges and judicial candidates on political issues & limits on their accepting gifts, including free attendance at seminars.

BNA’s Lawyers’ Manual on Professional Conduct noted last week that the new judicial rules are modeled after a format comparable to the Rules of Professional Conduct, being “black-letter rules followed by explanatory comments,” and that they’ve been streamlined down to four canons from the current five.

The BNA article says “one of the commission’s most controversial decisions was retaining the current code’s prohibition against judicial conduct that has the ‘appearance of impropriety,’ with critics saying the language is too vague to be useful and, in fact, may prove to be unconstitutional.” “Impropriety” is defined in the proposed model code as conduct “that violates the law, court rules, or provisions of this Code, and conduct that undermines a judge’s independence, integrity, or impartiality.”

Another new imperative, Rule 2.14, would require judges to take “appropriate actions” if they have “reasonable belief” that the performance of a lawyer or another judge is “impaired by drugs, alcohol, or other mental, emotional, or physical condition.”

The model rules will be presented to and voted on at the ABA House of Delegates meeting in Miami, Florida in February.

Press Release

Friday, December 01, 2006

Rules of Electronic Discovery

The much advertised, talked about, and consternated Federal Rules of Civil Procedure and electronic discovery go into effect today.

A recent article made the observation back in April that the “rule changes reflect that litigation discovery has been revolutionized by electronic storage of vast amounts of information and were preceded & informed by judicial application of the existing procedural rules to electronic discovery issues.”

“The federal procedural changes concerning electronic discovery,” the article also notes, “reflect that discovery of e-mail and other electronic information is now a routine yet critical aspect of virtually every litigated case. States will undoubtedly adopt similar rules and procedures, even when state court rules don’t mirror the federal rules…”

The new civil rules are not alone in their activation. Appellate Rule 25, Bankruptcy Rule 9037, and Criminal Rule 49.1 all “address privacy and security concerns arising from electronic case filings.”

A ComputerWorld article as recent as last week said that few corporations were prepared for the new federal rules, and that according to a survey it ran about 32% of IT managers said their companies weren’t prepared at all, with another 42% saying they didn’t know whether they were or not.

For those who have not seen it before, specific changes to the federal rules aimed at electronically-stored information can be read here, with more digested information here.

In advance of state rules and related activity, the National Center for State Courts has a set of “Guidelines for State Trial Courts Regarding Discovery of Electronically-stored Information,” compiled in August, posted online, as well.