Friday, December 28, 2007

Google patent case

A PC World article, yesterday, summarized in some detail the Federal Circuit Court of Appeals decision in Hyperphase/Hyperphase Technologies v. Google on Wednesday.

Hyperphase Industries sued Google in April 2006, according to the article, alleging Google’s “AdSense” and “AutoLink” toolbar functions infringed on Hyperphase patents relating to contextual linking and presentation of information. The District Court for Western Wisconsin rejected those allegations, awarding summary judgment to Google in September 2006. Hyperphase appealed

The Federal Appeals Court, Wednesday, upheld parts of the summary judgment relating to “AdSense,” and some of the “AutoLink” claims, but overturned those parts dealing with AutoLink’s alleged infringement of two of the patent issues in remanding the case.

Company-paid health benefits cuts OK'd for retirees, spouses, over 65

The Equal Employment Opportunity Commission Wednesday said employers could reduce or eliminate health benefits for retirees, their spouses, or any dependents once the retiree hits 65 and becomes eligible for Medicare.
(See Final Rule)

AARP had filed suit in Eastern Pennsylvania District Court earlier this year trying to block the new rules. Losing both that and the subsequent appeal in June, AARP approached the Supreme Court back in September.

New York Times article

Thursday, December 27, 2007

Tennessee death penalty stays of execution

The Middle Tennessee U.S. District Court, , as have a number of others around the country, last Friday granted a stay of execution for Paul Dennis Reid pending the Supreme Court’s decision once hearing Baze v. Rees on Jan 7th.

The District Court earlier this year had declared the state’s execution protocol for lethal injection unconstitutional and enjoined it from executing Edward Jerome Harbison. The state is appealing that, but in the meantime, on October 31st., the Sixth Circuit has ordered that aspect held in abeyance pending the outcome in Baze.

The Court also stayed the execution of Pervis Payne on Dec. 7th., based on Harbison and pending Baze.

Also still pending, another lethal injection challenge in Ohio’s Southern District Court, is Cooey v. Taft., where two more death row inmates have petition for inclusion in that class action.

Tennessee Judicial “capital cases” webpage

Monday, December 24, 2007

Confrontation Rights at Sentencing

SCOTUS had an interesting post last week about the Justice Department urging Supreme Court justices to allow lower courts continue to explore whether to apply the Sixth Amendment right of confrontation to sentencing hearings—including those involving the death penalty.

Being discussed was Fields v. U.S (07-6395) and a reply brief filed Thursday opposing Fields’ case’s acceptance.

Fields’ appeal does not ask for the right of confrontation to be applied to all criminal sentencing instances, SCOTUS says, only those involving death sentences, seeking to test the scope of two previous Supreme Court rulings – the 1949 decision in Williams v. New York (holding that the confrontation clause does not apply at sentencing), and Crawford v. Washington in 2004, barring the use as evidence of testimonial statements that had not been subject to cross-examination.

The Government, in its brief, did not “forcefully dispute that a conflict existed among courts around the country concerning the applicability of confrontation rights at capital sentencing,” but opposed review by the Court because that conflict is not “sufficiently well developed to warrant intervention.” Reasoning here “for leaving the issue percolate in lower courts was that the Supreme Court’s 2002 ruling in Ring v. Arizona was said to be reshaping the issue of applying Sixth Amendment rights to death sentencing… requiring jurors to apply a reasonable doubt standard when it decides on the existence of a fact that would be necessary to make a murder defendant eligible for the death penalty.

Fields’ petition for certiorari (Sept. 4) and the brief in opposition (Dec. 13) are here.

Friday, December 21, 2007

"West Memphis Three" habeas corpus writ

In Spring 1993 three cub scouts were brutally murdered in West Memphis, Arkansas. Jason Baldwin, Damien Echols, and Jessie Misskelley, who were teenagers at the time, were arrested by police and found guilty of the crimes. Baldwin was sentenced to life imprisonment without parole. Misskelley got life in prison plus 40 years. Echols was sentenced to death.

The convictions have withstood numerous appeals, an AP article, yesterday, said – including the Arkansas Supreme Court in 1996 holding that there was “ ‘substantial evidence’ of guilt.” The U.S. Supreme Court turned down an appeal by Echols in 1997.

The case has long evoked skepticism, however, according to a CNN article early last month. Echols’ attorneys said that -- even with the level of DNA testing available in 1993-- there was no forensic evidence tying the three to the murders, and statements made by Misskelley – who’s “borderline retarded -- which played a significant role in their conviction has long been called into question.

Now there may be such evidence which, in fact, might clear the renowned “West Memphis Three.” A writ of habeas corpus filed in the Eastern District Court of Arkansas is being held in abeyance pending Echols’ further exhaustion of his state court remedies.

Taxation of Railroad Property

The Supreme Court, back on December 4th., decided that railroads could challenge state methods for determining the value of railroad property along with the manner in which those methods are applied, resolving a split in federal circuit court holdings as to whether a state’s property tax valuation methodologies could be challenged under the federal Railroad Revitalization & Regulatory Reform Act of 1976 (4-R Act)

An article in CCH’s State Tax Review on Dec. 13th. says “the 4-R Act, which bars states from discriminating against railroads when levying property taxes, provides an exception to the general rule of the Federal Tax Injunction Act that federal courts won’t interfere with matters of state taxation.

“In order to evaluate an assessment ratio under the 4-R Act, however, federal courts have to calculate the true market value of in-state railroad property, and that requires the court to ‘look behind’ a state’s choice of valuation methods, and preventing courts from scrutinizing methodologies would force them to accept the market value estimates of the state, a party to the litigation. States would then be free to use methodology that routinely overestimates market values of railroad property, perpetuating the discriminatory taxation of railroads Congress sought to eliminate.”

Monday, December 17, 2007

Death Penalty Updates

Last week New Jersey continued setting about to abolish the death penalty – now only awaiting the governor’s signature in a couple of days.

According to the Toledo Blade , New Jersey reinstated the death penalty in 1982, six years after Gregg v. Georgia. New Jersey’s supreme court affirmed the constitutionality of the death sentence in 1987, but didn’t uphold it until 1992. That case was subsequently overturned in federal court in 2005, however, and the inmate re-sentenced to life in prison, being eligible for parole in 2014. There hasn’t been an execution in New Jersey since 1963, either.

New Jersey has been one of several states having the death penalty, but some sort of moratorium halting executions. The Appellate Division of New Jersey’s Superior Court ruled in 2004 that the state’s department of corrections had to examine its lethal injection procedure before carrying out further executions

The U.S. Supreme Court’s hearing of Baze v. Rees has executions halted in Kentucky and for all intents everywhere else as well.

In Ohio, Lorain County Common Pleas Court Judge James Burge has two capital cases on hold while he conducts hearings on the manner in which this state administers lethal injections (Here), and Southern Ohio’s District Court is still entertaining intervenor motions in Cooey v. Taft, now with twenty petitioners.

“New Jersey’s abolition vote,” a Reuters article this morning says, “could be a small step in the direction of an eventual nationwide ban. But with capital punishment still on the books in 36 states, a conservative majority on the Supreme Court, and broad political support for putting the worst offenders to death, the road to abolition will be long.”

Wednesday, December 12, 2007

Indiana Local Government Reform

Indiana cities, townships & counties would be undergoing drastic reorganization & reform under 27 proposals from the governor’s Commission on Local Government Reform announced today.

Conceived of back in May, just after the close of this year’s session of the Indiana General Assembly, Governor Mitchell Daniels created the Commission in July to develop recommendations to reform and restructure local government in Indiana.

Its findings, in a nutshell, were that “for its size and population, Indiana has far too much local government.

Full Report

U.S. Sentencing Commission makes cocaine rule amendments retroactive

The United States Sentencing Commission unanimously voted to allow 19,500 federal prison inmates seek reductions in their crack cocaine sentences yesterday, making roughly 3, 800 persons eligible for release within a year after Tuesday’s March 3rd effective date for the decision. (Press Release)

A CNN/AP article commenting on the Supreme Court’s decision in Kimbrough v. U.S., Monday, however, commented that that decision “didn’t present the ultimate fairness question—That Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum of five years in prison form trafficking in 5 grams of crack cocaine or 100 times as much powder cocaine….. With 70% of crack defendants getting the mandatory minimum.”

Neither the Supreme Court’s decision, Monday, nor the Sentencing Commission’s recent actions affect minimum sentences, which only Congress can change.

Tuesday, December 11, 2007

Supreme Court's Kimbrough/Gall Sentencing Guideline Decisions

Two significant cases were decided by the Supreme Court Monday, giving federal judges new authority to set sentences for crack cocaine crimes below federal guidelines in Kimbrough v. U.S., and impose sentences below specific guideline ranges while still having them be regarded as “reasonable.” in Gall v. U.S..

There are bound to be ripples.

The Court in Gall overturned an Eighth Circuit decision holding that below-Guidelines sentences were “reasonable” only if justified by “extraordinary circumstances,” professing the use of deferential abuse-of-discretion standards. “The Guidelines are the starting point,” the Court said, “but not the only consideration.” After both parties have argued their case for a particular sentence, the trial court judge should consider all factors, and make a decision based on the facts presented. If he decides on a sentence outside of Guideline ranges he has to consider the extent of departure from those ranges and explain his chosen sentence “to allow for meaningful appellate review and to promote the perception of fair sentencing.”

Kimbrough held that federal sentencing guidelines for cocaine convictions were advisory, rejecting a Fourth Circuit ruling that they were “effectively mandatory.”

Citing Booker, Rita v. U.S., and Gall, the Court in Kimbrough stated that “Booker rendered the Sentencing Guidelines advisory, but preserved a key role for the Sentencing Commission. In the ordinary case, the Commission’s recommendation of a sentencing range will ‘reflect a rough approximation of sentences that might achieve §3553(a) objectives’ [Rita, slip op. @ 11]… The sentencing judge, on the other hand, is ‘in a superior position to find facts and judge their import under §3553(a) in each particular case’ [Gall @ 13]

“Significant issues remain to be resolved,” a Legal Times article this morning noted, “including how much weight the guidelines must be given, as well as the retroactivity of the decisions to those sentenced under stricter standards.”

That, in part, would be up to the Sentencing Commission—which is meeting this afternoon. “As many as 20,000 convicted drug offenders could be released or have their sentences significantly reduced,” according to ABC News.

New Ohio Medicaid Agency

Ohio Governor Ted Strickland yesterday signed an executive order establishing the Executive Medicaid Management Administration as a central coordinating body to administer the state’s Medicaid program across the several agencies now involved.

“Federal law requires every state to appoint one agency to be responsible for applying for Medicaid grants or waivers, administering and/or amending that state’s plan, and ensuring that activities such as claim processing are conducted properly,” the order says. “Traditionally, the Department of Job & Family Services has fulfilled that responsibility and will continue to serve as the single state Medicaid agency.”

More Here

Thursday, December 06, 2007

2006 Prison/ Probation & Parole Reports

The Justice Department’s latest prison statistics report was released yesterday, indicating that 3.2% of the U.S. adult population – something like seven million men and women, or 1 in every 31 persons in the country – were in prison, jail, on probation, or out on parole by the end of 2006; an increase of 159,500 over the year.

Prison populations grew at a faster rate in 2006 than in five previous years , although the rate in Federal prisons slowed a bit, while it increased proportionately in state institutions. An increase of 5,428 prisoners (2.9%) was seen under federal jurisdiction in 2006, as opposed to 5.8% between 2000 and 2005, according to the report, while the increase of 37,504 inmates (2.8%), represented an increase of 1.5% over the same five year period.

A report on probation & parole in the U.S. was also released, showing 5, 035, 225 men and women in the U.S. on probation or parole in 2006, an increase of 87, 852 or 1.8%

798, 202 persons were on mandatory conditional release. That was an increase of 2.3%.

Reports are part of the Department of Justice’s series, a list of which can be accessed (Here )

“Prisoners in 2005
Probation & Parole in the U.S. (2005)”

Wednesday, December 05, 2007

Right-to-Counsel Supreme Court Case

As far back as 1932 the Supreme Court had been recognizing a defendant’s right to counsel as “essential to the safeguarding of American freedoms,” leaving the extent of that, however, to the individual states. (Here)

In 1963, Gideon v. Wainwright held that “no one, regardless of wealth, education or class, should be charged with a crime and then forced to face his accusers in court without the guidance of counsel.”
We sidebar here, demitting & referring the reader to Wikipedia’s excellent summary as to differences in state and federal viewpoints of the right to counsel and waivers of that right.

On Monday, the Supreme Court announced it would undertake to further clarify when a suspect taken into custody by police has a right to a lawyer. The question is whether that right sets in when an individual has been taken before a magistrate, who finds reason to believe a crime has been committed, or whether it only attaches when a prosecutor prepares or makes a charge. [ Rothgery v. Gillespie County (Texas) 07-440],

The Fifth Circuit Court of Appeals, last June, had approached the subject based on late-’70 and early-‘80 precedents holding that “the right to counsel does not attach in Texas when a defendant appears before a magistrate for statutory warnings if prosecutors are unaware of and uninvolved in the arrest & appearance.” (i.e. Kirby v. Illinois)

The petitioner’s writ of certiorari also refers to late ‘70s law, citing Brewer v. Williams, which had quoted Kirby, but stated that “there can be no doubt... that judicial proceedings have been initiated and the Sixth Amendment right to counsel had attached when a defendant was arrested, made an initial appearance before a court, and was committed by the court to confinement in jail pending trial.”

Rothgery’s petition for writ of certiorari
Fifth Circuit Appeal
District Court’s Opinion

Alleged Accessory Denied Change of Venue in Knoxville Murder Trial

A Knoxville, Tennessee attorney, who had described his client’s case as “one of the most heavily publicized & misreported cases in recent local East Tennessee history,” was denied a change of venue last Saturday. ( Here )

Eric Boyd’s attorney referred to the Internet as “the largest unregulated source of information” – spreading lies and helping create an urban legend surrounding the details of the final state of the victims’ bodies—meant to outrage and taint any jury pool” last month, stating that “literally thousands and thousands of internet blogs & news accounts have been published about the case, both partially factual and fictional.”

Part of his inference, though, is that his client isn’t directly involved in the case drawing all of the attention, but will be colored because of it. (Motion)

An article on, yesterday, said George Washington University Law School professor Stephen Saltzburg, who chairs the ABA’s Criminal Justice Section, called the case the first time he’d heard of blogs being cited in a change of venue motion, and doubted that postings added much volume to the pervasive television & newspaper coverage surrounding sensational criminal cases. “They’re just another form of communication,” he said. “Courts have examined prospective jurors as to what they have read or heard about a case. Now the inquiry will be not only about newspapers, magazines, TV and radio, but Internet communications and e-mail.

The district court in fact found the motion premature, and said it would be preferential to “properly question potential jurors to determine the extent of the ‘veniremen’s exposure to the publicity and the effect it has had on them.”

Friday, November 30, 2007

Gun Control Background Check List

Articles this morning from CBS News, the Chicago Tribune and Washington Post on the Justice Department’s list of mentally impaired individuals barred from purchasing handguns notes that list’s “explosion,” notably from the California where some 200,000 additional names were added since last Spring’s shooting rampage at Virginia Tech.

Federal law has prohibited the sale of guns to people judged to be “mentally defective,” the Washington Post article says, “ but enforcement has been haphazard.” In 1995, the Supreme Court in U.S. v. Lopez ruled that a law making it a federal crime to possess a firearm in a school zone intruded on the rights of a state because it didn’t fall with the government’s power “to regulate commerce between the several states.” Two years later, Printz v. U.S. found that the 1994 Brady Act’s waiting period while background checks were performed for the purchase of handguns was likewise unconstitutional because it required state law enforcement officials to participate in carrying out a federal mandate.

Currently, these articles relate, 32 of the states submit names to the database, but the federal government cannot require the participation of the remaining 18 (Here)

Thursday, November 29, 2007

Indiana Supreme Court death sentence case of mentally ill

Indiana’s Supreme Court Tuesday upheld that state’s death penalty for a mentally ill man convicted in 1997 of abduction, rape, and murder. (Article)(Opinion)

Citing Matheney v. State and Baird v. State, both 2005 cases, a majority of the justices disagreed that “a person who is mentally ill suffers from the same ‘diminished capacities’ as a person who is mentally retarded,” referencing Indiana Code § 35-36-2-5 and § 35-50-2-9(a), both just recently amended.

Friday, November 23, 2007

Thanksgiving-- the day after & five months before

Today we’re thinking the day after Thanksgiving should be a little more than a shopping day—and have even found something to maybe think about.

We’re taught in grade school that Thanksgiving was a celebration between Virginia settlers and American Indians after a particularly difficult winter and all. Actually, the first Thanksgiving wasn’t until 1619, and it was part of the charter of what eventually would become known as “Berkley Plantation.” (See Here)

To further be picky, while George Washington in 1789 proclaimed October 3rd the first day of thanksgiving in the country, Lincoln and successive presidents up until 1939 were proclaiming it to be the “last Thursday in November.”
This is interesting, too, because Wikipedia says that “… in 1939, President Franklin Roosevelt declared Thanksgiving would be the second-to-last Thursday of November rather than the last. With the country still in the midst of The Great Depression, Roosevelt thought this would give merchants a longer period to sell goods before Christmas.” In any event, the first time making the date of Thanksgiving a mater of federal law didn’t come about until November 26, 1941.

What brought our attention to this whole thing was this article on MSNBC this morning. We thought we’d follow up on it. So ….

A Washington Post article back on May 9th began, “Nearly 400 years to the day that English settlers first landed in Virginia, the U.S. House of Representatives passed a bill that would grant federal recognition & status as sovereign nations to six Indian tribes from the state.”

Enter House Bill 1294, introduced in the House on March 1, 2007, passed May 8, 2007, being sent and read twice in the Senate, then referred to the Committee on Indian Affairs.

A resolution “commemorating the 400th. Anniversary of the settlement of Jamestown” was introduced by Rep. JoAnn Davis, of Virginia, on April 18th. It was referred to the Senate and Committee on the Judiciary on May 9th. as well.

Anyway... Have a good weekend & shop well

Wednesday, November 21, 2007

Supreme Court on Gun Control

The big story so far this week, and, for some, longer than that, is the Supreme Court’s decision yesterday to hear the District of Columbia’s handgun case, presumably to define the limits of the constitutional “right to keep & bear arms. It would mark the time the Court’s directly interpreted the Second Amendment. (Docket)

Up to now, lower courts have been following the premise set almost seventy years ago in U.S.v. Miller, rejecting arguments that the Second Amendment protects an individual right to possess firearms.

Georgetown University law professor Randy Barnett told USAToday that “It’s going to be the biggest case of the year. It’s going to be one of the rare instances that the court tells us what the meaning of the Constitution is, not the meaning of its prior cases. If the Court holds that the Second Amendment protects an individual right, it would be significant.”

But while the Court’s decision could change gun laws across the nation, “the consequences for gun owners will depend on how broadly the Court decides the case,” the article points out. “The justices could keep it focused on the federal enclave of Washington, D.C., and rule in such a way so as to not involve any state law, and, even if it does strike down the ban on handguns, it might not affect other, less restrictive laws across the country.”

District of Columbia Appeals Court case

Articles from CNN, and blog postings from Lyle Denniston (here) & (here), and Ohio State Univeresity’s Douglas Berman (here) have more input and commentary.

Arbitration "Case of the Century"

The Supreme Court heard oral arguments in Hall Street Assoc. v. Mattel,Inc., the first part of this month, a case revolving around whether the Federal Arbitration Act precludes federal courts from reviewing arbitration awards for factual or legal error if parties have specified in an agreement more expansive judicial review than that provided for in the statutes. (Article)

According to the article, Mattel had leased property from Hall Street Associates in 1996, but after a well on the property tested with levels of thrichloroethylene higher than federal limits, sought to terminate that lease. Hall Street sued for indemnification of the clean-up costs.

The District Court of Oregon resolved part of dispute in May 2001, both parties presumably agreeing to arbitration on the balance of the issues. Hall Street, however, then sought a district court of review of the arbitrator’s finding that Mattel was protected by a contractual exception in the lease’s indemnity requirements. The District Court vacated the award to Mattel.

On appeal to the 9th. Circuit it was held that the FAA precluded the district courts from reviewing arbitration awards for legal error, which Hall Street has subsequently brought to this point.

During oral arguments Justice Breyer commented that it looked like there were a lot of open questions which made it a quite difficult case having to be argued on remand, which made it “the case of the century.”

Further on he clarified, saying he “was actually thinking the case of the century because it’s going to take a hundred years to finish…”

Hall Street’s merit brief
Mattel’s merit brief

Tuesday, November 20, 2007

Ohio Next-of-Kin Database Legislation

Ohio Senate Bill 249 and associate House Bill 392 are seeking to create a database at the Bureau of Motor Vehicles whereby persons could have the names and phone numbers of friends or relatives, or next of kin, on file in the event of serious or fatal accidents.

Participation in the program would be voluntary and free, registration being made at the time a person applies for his/her license plates, a driver’s license, or personal identification card; and the information accessible only to Bureau employees and law enforcement agencies.

In the construction of the database rules would be adopted so that the person could change information in his/her entry, and how it will be accessed (i.e., information included on driver’s license or via a second ID card). Provision is also included in the bill where in the event of an accident or other emergency in which a participant is killed, seriously injured, or rendered unconscious, law enforcement officials “shall make a good faith effort to notify the victim’s contact person, but neither the officer nor his agency shall incur any liability if that contact person cannot be reached.”

Louisiana, Michigan, Pennsylvania, Florida, and Illinois currently all have some sort of format whereby drivers may provide emergency contact information to law or public safety officials, Senator Keith Faber’s office, who sponsored the bill, reported. These aren’t singularly state-run projects, however. Florida & Pennsylvania, for example, provide links off of their state’s main page to the Next of Kin Registry, a non-profit, international, organization established in 2004. NOKR claims to be listed on more than 90% of all state websites as a resource for public & emergency agencies. ( More on Next-of-Kin Registry here)

Ohio Northern District Foreclosure Dismissals

The U.S.District Court for Northeast Ohio back on October 31st. held that mortgage lenders could not foreclose on properties it does not have proof of ownership on., a ruling that some say could complicate things for the already troubled mortgage industry.

The case, originally separately filed foreclosure actions addressed collectively by Judge Christopher Boyko, looked at some supposed practices of lending institutes, including their rush to foreclose on a property, obtain a default judgment, and then sit on the deed avoiding the responsibility of maintaining that property. (Decision)

Boyko wrote “The Court is obligated to carefully scrutinize all filings & pleading in foreclosure actions since the unique nature of real property requires contracts & transactions concerning real property to be in writing. Ohio law holds that when a mortgage is assigned, moreover, the assignment is subject to the recording requirements of RC §5301.25 . Thus, with regards to real property, before an entity assigned an interest in that property would be entitled to receive a distribution from the sale of that property, their interest therein must have been recorded in accordance with Ohio law …… In each of the (cases herein), the named Plaintiff alleges it is the holder and owner of the Note and Mortgage. However, the attached Note and Mortgage identify the mortgagee and promise as the original lending institution—one other than the named Plaintiff”

Monday, November 19, 2007

Proposed Ohio Supreme Court Rules of Superintendence

The Ohio Supreme Court is seeking comments on a set of proposals that would amend Rules of Superintendence 44 thru 47 until December 19, 2007. (See Announcement)

The proposed rules all apply to court records, “although in many respects they’re similar to the Ohio Public Records Act, presuming them to be open unless otherwise specifically exempted..”

The Court states that the proposal represents the first time the rules have addressed public access to court records, and that the “language of the new proposed rules is based, in part, on the report & recommendations of the Privacy & Public Access Subcommittee of the Supreme Court’s Advisory Committee on Technology & the Courts.

Comments should be sent in writing to: JoEllen Cline, Legislative Counsel, Supreme Court of Ohio, 65 Front Street, 7th. Floor, Columbus, Ohio 43215, or

Proposed amendments
Privacy & Public Access Subcommittee’s Report

Tuesday, November 13, 2007

Ohio Parole Board/Victims' Notification Legislation

The Ohio Senate is going to be hearing discussion probably sometime this week on a bill that would strengthen the State’s parole system. (See Article, but pertinent bill is SB 228, not 248)

Senate Bill 248, introduced earlier this month and not having been assigned to committee, concerns public record statutes and military considerations. It appears, however, to keep medical records, and records pertaining to probation, parole, & adoption proceedings beyond the definition of “public record” in Ohio.

(Analysis of SB 228)

Thursday, November 08, 2007

Ohio mayors' courts

The Cleveland Plain Dealer yesterday reported on an update on legislation to eliminate Ohio mayors’ courts and replacing them with “community courts.”

“Mayor’s courts have been viewed as problematic,” the article says, “because mayors act as judges, jury, and fine collector all at once – and the money goes into the village’s coffers.”

They’ve also been declared unconstitutional in federal court, most recently the 6th. Circuit in 1999.

Ohio Supreme Court Chief Justice Moyer called for their elimination in his annual address to the state bar association two years ago when he commented that Ohio and Louisiana “shared the dubious distinction” of being the only two states in the nation that still have them.

This morning, an Ohio Capital Connection report (subscriber) alerted that “if the size of a bill is any measure of its importance, the substitute version of HB 154 portends major changes in the delivery of justice in smaller cities around the state, many of which now face the dissolution of their busy mayors’ courts.”

One in the making is that “urban townships of 15,000 or more residents that have adopted home rule” are now included in the parameters of the new law, “allowing them to also form community courts and pass rules for criminal & traffic offenses.”

The substitute version is 705 pages, but, according to the sponsors, “the vast majority of it’s comprised of changes to make sure other criminal code sections are harmonized with the townships being authorized to pass criminal resolutions in certain areas.”

Ohio constitutional amendment for veterans' benefits

A survey just issued by the National Alliance to End Homelessness, is showing that one in every four homeless person on the street today is a veteran. (Article)

The Alliance reported that about 195,827 veterans are now homeless, a 0.8 percent increase over last year’s estimate of 194,254. Figures from the survey indicate that of that total somewhere in the neighborhood of 1,700 homeless veterans live in Ohio, the region being among states having the lowest number in the country. Indiana is estimated as having 1,200, with Pennsylvania having 2,784. West Virginia and Kentucky were among the ten states having 425.

While only part of an answer, we found out yesterday that Treasurer Richard Cordray on Monday had asked the Ohio General Assembly to place on the ballot a constitutional amendment providing compensation to Ohio veterans of major conflicts in Afghanistan, Iraq, and the Persian Gulf. (Article)

The amendment, once passed by voters, would give veterans $100 for each month served, up to $1,000, and monthly compensation of $50 to those serving elsewhere during those conflicts up to $500. Family members of those killed in action would receive $5,000 in addition to other compensation. ( Official Link )

Pennsylvania and West Virginia have similar programs available..

Monday, November 05, 2007

Danforth arguments

“In a lively hour of argument last Wednesday,” relayed last week, “the U.S. Supreme Court justices debated the distinction between rights and remedies, its authority to promulgate new constitutional rules thru its decisions, and an issue that Justice Stephen Breyer termed ‘metaphysical’.”

The case before the Supreme Court was Danforth v. Minnesota, but that now comes down to pitting the Court’s decision in Crawford v. Washington against standards set fifteen years earlier in the Court’s precedent Teague v. Lane.

Danforth is asking two questions. First, whether state supreme courts are required to use the standard set in Teague to determine whether Supreme Court decisions apply retroactively to state-court criminal cases or their own tests?

Secondly, it asks whether Crawford sought to establish a “new rule of constitutional criminal procedure ,” according to the Teague definition of that phrase, and, if so, whether it was a watershed rule of procedure subject to full retroactive application?”

Chief Justice Roberts commented that “the Court’s decision in Teague is at the ‘very least’ federal common law regarding retroactivity: I think it’s more than that. I think it’s… substantive federal constitutional law. But it’s at least federal common law, and doesn’t federal common law pre-empt state common law?”

Crawford overruled the near-quarter century old Ohio v. Robert. Perhaps prophetically and in echoing Teague, Chief Justice Rehnquist in his concurring opinion wrote of the decision as presenting a “new rule,” but he added that “though there were no vested interests involved (in Crawford ), unresolved questions for the future of everyday criminal trials throughout the country surely counsel the same sort of caution (with) the Court grandly declaring that ‘we leave for another day any effort to spell out a comprehensive definition of testimonial.’ …But the thousands of federal prosecutors, and tens of thousands of state prosecutors, need answers as to what beyond the specific kinds of ‘testimony’ the Court lists is covered by this new rule. They need them now, not months or years from now. Rules of criminal evidence are applied every day in courts throughout the country, and parties should not be left in the dark in this manner.”

Asst. Minnesota State Public Defender Benjamin Butler noted that different state appellate processes last different periods of time, which could compromise the goals of uniformity and finality in retroactivity contexts -- which is where the “metaphysics” came in with Justice Breyer pressing the hypothetical question of three defendants in three separate states with appeals that take different lengths of time.


Hawaiian sentencing law

… and speaking of Hawaii, guess what they have besides sunny beaches, volcanoes, the ocean and clean air? They’ve got new sentencing law statutes!

Hawaii’s been a bit slow catching up to the rest of us with sentencing enhancements, according to an editorial in the October 27th. Honolulu Star-Bulletin. But that was then, and, thanks to a special session of their legislature, all that changed Wednesday.

In February, the U.S. Supreme Court vacated the judgment of the Hawaiian Supreme Court in a case involving a defendant who had been convicted of 22 felonies alleged in five separate indictments, including one count of attempted second degree murder. The case was remanded back down to the state high court for reconsideration “in light of Cunningham v. California,” a case dealing with the upward enhancement of a defendant tried & convicted of sexual child abuse in 2006, in which the Supreme Court found that “placing sentence-elevating factfinding in the judge’s province violates a defendant’s right to trial by jury safeguards.”

Earlier this month, the Hawaiian Supreme Court on that remand returned a holding that the state’s statutes governing extended term sentencing were unconstitutional because they required a judge, rather than a jury, find facts other than prior or concurrent convictions needed for proper enhancements in light of federal standards. The Court declined to exercise its authority, however, to order that a jury be empanelled to find those facts necessary to impose an extended term of imprisonment, because, it said, when the legislature had previously tried to conform to extended term sentencing schemes to requirements being set by the U.S. Supreme Court, it had not vested in juries the power to find the requisite facts, directing that the court retain that responsibility.

(The case, by the way, Hawaii v. Maugaotega, was remanded to the original circuit court for non-extended term sentencing.)

What’s any of this got to do with Ohio courts?

In its remand of Maugaotega, the Hawaiian Supreme Court noted that State ex. rel. Mason v. Griffin, in Ohio in 2004, “concluded that, in light of constitutional reasons unique to Ohio, and statutory language similar to Hawaii’s requiring a court, not a jury, find aggravating factors for an extended sentence, the trial court ‘patently and unambiguously lacks jurisdiction to hold a jury sentencing hearing’ and granting a writ of prohibition.”

Mason was overruled in part by State v. Hines last June, but the pertinent parts here were not of that overruling. In fact, the Ohio Supreme Court in Hine summarizes Ohio’s enhancement remake by saying “When (State v. Foster) was decided, the Supreme Court went to great lengths to fashion an appropriate remedy, ultimately holding that severance was the only applicable remedy. Any question left unresolved in Griffen was answered in Foster, which did not limit courts to the lowest sentence or concurrent sentences.”

Friday, October 19, 2007

State Level e-Discovery Rules

Sedona Conference director of education & content, Ken Withers, commented in last week’s National Law Journal that “attorneys will have to get up to speed with electronic discovery,” and that if they thought they were going to be able to avoid it simply by staying out of the federal courts, “they’re going to have to think again quickly.”

Following the Federal rules, which kicked in Dec. 1, 2006, the article equates electronic discovery rules being adopted in Idaho, Indiana, Minnesota, Montana, New Hampshire and New Jersey. Arizona has rules which will become effective in January, and Maryland, Nebraska and Ohio have rules proposed.

The Ohio Supreme Court has amendment proposals to several sets of court rules including:

Both Criminal and Civil Procedures, including Civ.R. 16, 26, 33, 34, 36, 37, and 45 based on
amendments made to the Federal Rules of Civil Procedure, and CrimR. 10, accommodating electronic information. (Comments on those proposals are being accepted until November 14, 2007)

Lawyers, however are still predicting litigation backlashes due to state quirks and loopholes, the article says, and practitioners are going to have to deal with price tags on things like producing electronically stored documents and finding experts on “long-obsolete programming languages.”

A recent article, too, posted e-discovery storm warnings, in a look at the order issued by Central California District Magistrate Jacqueline Chooljian requiring TorrentSpy to turn over data “only ephemerally kept on its computers’ RAM.”

Finally, The National Center for State Courts has a set of “Guidelines for State Trial Courts Regarding Discovery of Electronically-stored Information” on their website., which might provide some help in understand all of this.

Thursday, September 27, 2007

U.S. Judiciary restricted access to criminal case material

The U.S. Judicial Conference, for those who missed it, issued a proposal back on Sept. 10th. to restrict public internet access on criminal case plea agreements identifying people who cooperate with law enforcement officials.

A number of things, such as unexecuted summonses & warrants, juvenile records, and sealed documents are already not included in public criminal case file information available to the public, either on the Internet or at the courthouse, but of particular concern to the Judicial Conference is the practice of compiling & posting lists on the Internet of names, locations, and descriptions of alleged cooperating witnesses. (See Policy Guidelines Here)

Comments to the proposed rules can be made until October 26th.

Comments concerning the draft Rules Governing Judicial Conduct & Disability Proceedings can also still be made until October 15th.

Monday, September 24, 2007

Federal Crack/Powder Cocaine Policy

Momentum is building, a recent National Law Journal article says, to change the “100-to-1” sentencing disparity for seen between crack and powder cocaine offenses.(Subscription)

Three examples are cited by the article: the Supreme Court’s hearing Kimbrough v.U.S. next week, the Sentencing Commission’s proposed guideline amendments seeking to lower offense levels for crack cocaine; and the fact that there are already five bills in Congress, with the Senate holding hearings next month on the different penalty structure between the two offenses.

Kimbrough is asking whether in imposing a sentence that is “sufficient but not greater than necessary” district courts may consider either the impact of the “100:1 powder/crack weight ratio” implemented in the Sentencing Guidelines, or reports & recommendations of the Sentencing Commission regarding that ratio?

The bills referred to are 1383, 1685, and 1711 in the Senate; and 79 and 460 in the House of Representatives.

The Sentencing Commissions proposals were published last May 1st.and are still open to public comment until next Wednesday. Unless rejected by Congress, they’ll go into effect on November 1, 2007.

Kimbrough petitioner’s brief
Kimbrough respondent’s brief
[Also see U.S. Sentencing Commission, Report to Congress: Cocaine & Federal Sentencing Policy (1995)]
U.S. Sentencing Commission, Report to Congress: Cocaine & Federal Sentencing Policy (2007)]

Friday, September 21, 2007

Tennessee District Court's lethal injection hold

The U.S. District Court for Middle Tennessee , Wednesday, postponed the execution of Edward Harbison next week in finding that that state’s new protocol for administering lethal injections “does not ensure that inmates are properly anesthetized before the lethal injection is administered, which could result in a terrifying, excruciating death.” (Decision)

Tennessee, like Ohio, now joins Florida, Missouri, Maryland, California, Delaware, Texas, Arkansas, South Dakota, and North Carolina as states employing lethal injection, but having further executions either blocked or postponed. (See Here)

The decision’s reached national and some international attention.

Monday, September 17, 2007

20 inmates now part of Southern Ohio District Court lethal injection suit

Southern Ohio District Court, last Wednesday, added another five names to the suit pending in that court which challenges Ohio’s lethal injection procedure as being cruel and unusual punishment. The case, now having 20 death row inmates named as plaintiffs, was originally filed back in 2004 by Richard Cooey. (See Previous Posts)


Federal Sex Offender Commitment Statute Unconstitutional

East North Carolina’s district court earlier this month issued an order that strikes down that portion of the Adam Walsh Child Protection Act that allows federal prosecutors to have sex offenders about to be released from prison committed to mental hospitals when “clear & convincing evidence” is present that the inmate is a “sexually dangerous person.”

Some 17 states, including New York, Kansas, Illinois, and Texas, have laws authorizing the civil commitment of sexually violent predators at the end of their criminal sentences, the Supreme Court having upheld the constitutionality each. [See Kansas v. Hendricks (1997) and Kansas v. Crane (2002)] The District Court agreed with respondents in the case who had argued that “the broadly applicable commitment scheme outlined in 18 U.S.C. § 4248 differs substantially from the carefully drawn, narrowly applicable scheme addressed in Hendricks and Crane.”

“Commitment pursuant to § 4248, as it is written,” the Court said, “would constitute a due process violation because such commitment, contingent upon a factual finding that an individual engaged in specific criminal conduct, is permitted on a proof of such conduct by clear & convincing evidence, where the reasonable doubt standard is necessary to ensure such due process.”

The North Carolina case, above, coincides with the release of a two-year study – according to a FindLaw article last week, the first comprehensive study of sex-offender policies in the United States – which concluded many of those laws are of questionable or limited value. (Human Rights Watch report)

Wednesday, September 12, 2007

6th. Circuit Court of Appeals death sentence writ of habeas corpus

The 6th. Circuit Court of Appeals reversed the judgment of its district court, granting a defendant a conditional writ of habeas corpus yesterday in concluding that the defendant didn’t “knowingly & intelligently waive his Miranda rights” when he was arrested back in 1992., citing Fare v. Michael C. and a need to “inquire into the totality of the circumstances surrounding the interrogation” of a suspect in its decision.

7th. Circuit Court of Appeals/ below sentencing guidelines case

The 7th. Circuit Court of Appeals Tuesday remanded for resentencing a case that dealt with the possession & distribution of drugs over a five-year period -- the defendant here in particular having taken advantage of the federal “safe guard” provisions in 18 U.S.C §3553 (f) prior to sentencing – holding that the district court “was wrong to conclude that the ‘lowest sentence possible’ was the bottom of the guidelines range, and that if it legitimately concluded the defendant’s personal characteristics warranted something lower, it was free to sentence him below the guideline range.”

Friday, September 07, 2007

Ohio sex offender residency restrictions

Ohio’s Northern District Court, last Tuesday, held that Ohio law prohibiting sex offenders from residing within 1,000 feet of a school, playground, or daycare center was “unconstitutional as an ex post facto law if applied to (to the particular defendant in this case). At least that’s the position the Ohio Attorney General is taking while advising prosecutors that the statute is constitutional and the case most likely to be appealed. (Decision)

According to the Attorney General’s press release, the Northern District Court ruling exempting a convicted sex offender from the state’s offender residency requirements, is “based on a unique set of facts & circumstances presented that Court, and applies only to that defendant’s case.” The defendant’s attorney thinks it’s more extensive, and so the stage once again is set for debate.

The subject of the “fairness and effectiveness of Ohio’s residency law has heated up in the past year as county prosecutors began telling offenders who live near schools & day care centers that they have to move,” an Enquirer article said yesterday, and it’s resulted in a number of like cases, including one pending in the Ohio Supreme Court that’s certified the conflict between lower state courts. Now we have the same situation federally.

The Southern Ohio District Court, last year, took an almost exactly opposition position as Tuesday’s Northern District’s in denying registered sex offenders’ motion for injunctive relief in challenging the constitutionality of the statute.

Also last year – on the same day – while the 1st. District Court of Appeals here in Hamilton County was deciding that the 1,000-foot rule wasn’t ex post facto in nature even though it was “intended to be applied retroactively,” the 2nd. District Court of Appeals in Miami County held “it affected a substantive right—specifically the defendant’s right to maintain the residence he owned & had resided in for years prior to the enactment of the law.” Those are the cases which have certified to the Supreme Court and scheduled to be heard next month. (See Here)

Meanwhile…. While Canal Winchester, a suburb of Columbus, unanimously approved an ordinance restricting residency of sex offenders, Grandview Heights, 15 miles northwest, rejected a similar measure, making it the first central Ohio suburb to vote down such undertakings, according to a Columbus Dispatch article yesterday. Canal Winchester, the article states, is among a growing number of cities, towns & villages going further than state law provisions by enacting their own.

Friday, August 31, 2007

Ohio criminal records bill

Ohio has a bill proposal that would modify the list of offenses which can’t be sealed, require the sealing of those found not guilty, and allowing certain persons, not first offenders, to apply for orders sealing their records.

Proponents of the bill say it would apply only to low-level, nonviolent offenders, but an article in this morning’s Cleveland Plain Dealer quotes Portage County prosecutor Victor Vigluicci as one opposing it, saying that as the bill’s currently written it includes felonies such as manslaughter, reckless homicide, domestic violence, stalking, and abduction; which he feels are too violent to qualify for any type of explungment.

Senate Bill 197

Thursday, August 30, 2007

Ohio FALCON sweeps

Police officials from 34 local, state, and federal agencies, led by U.S. Marshals, rounded up 218 felons they had warrants on last week. An article in this morning’s Columbus Dispatch said it was one of the largest ever undertaken in that city .

Similar roundups have also been being done throughout the summer under a program the Marshal’s Service calls “Federal & Local Cops Organized Nationally,” including Washington state, Arizona, and Texas.

“FALCON” was launched in 2005 to apprehend fugitives at the same time Congress was refocusing the FBI’s mission to stopping terrorism. (Website)

Indiana Credit Report Freeze

Starting tomorrow, Indiana residents will find what supporters & lawmakers say is better protection and a greater safeguard against consumer fraud when their new law goes into effect.

The bill, introduced in January, was signed by the Governor on May 2nd..

According to a Courier Journal article, taking advantage of the new law will be a bit inconvenient for consumers until after Jan. 2009, because they can invoke or release credit freezes only in writing until then. After Jan. 1, 2009, the new law requires credit bureaus have systems in place that will allow use by either telephone or the Internet.

Tuesday, August 28, 2007

Kentucky Workers' Compensation case

A unanimous Kentucky Supreme Court ruling last week open the door—or at least clarified – portions of workers’ compensation law dealing with which cases fall under exemption and which can be considered in courts.

An article in this morning’s Kentucky Courier Journal says “the law – intended to discourage companies from subcontracting regular work in an effort to avoid paying workers’ comp premiums—provides that a company is still responsible for subcontracted employees even when it farms out ‘regular or recurrent work’ to other businesses. It exempts companies from lawsuits filed by employees covered by their workers’ compensation insurance.”

“With the standard open to many interpretations,” the article relates, “the court has offered clarification: ‘Stated simply, (the law) refers to work that is customary, usual, normal or performed repeatedly, and that the company, or a similar business, would perform or be expected to perform with employees.’”

Tuesday, August 21, 2007

Illinois predatory lending law

An article in this morning’s Wall Street Journal (subscription) looked at a two-year battle that finally culimanated earlier this month in Illinois’ finally passing legislation in an attempt to curb the effects of the subprime lending fallout that been so widespread in recent months.

The legislation, will require people in the Chicago area considering a “nontraditional” home loan, such as one having prepayment penalties or interest-only payment options, to spend an hour or two with a credit counselor so they’ll be less likely to be deceived by unscrupulous lenders or simply confused by technical language or procedure.

Press release
Proposed rule

Monday, August 20, 2007

Sixth Circuit Court of Appeals holdings

It was an interesting & productive week in the Sixth Circuit last week…

In U.S. v. Presto, last Tuesday, a sentence including lifetime supervised release imposed for the receipt & possession of child pornography transported in interstate commerce by the Eastern District Court of Tennessee was upheld, covering a lot of Booker groundwork in substantiation of the “Prosecutorial Remedies & Other Tools to end the Exploitation of Children Today Act.”

Two days later, the Court vacated an appellant’s sentence, reversing the district court in Tennessee and remanding the case in Nichols v. U.S .for resentencing. In an appeal contenting ineffective counsel, the Court concluded that “because Apprendi cast the constitutionality of the Federal Sentencing Guidelines into considerable doubt,
and the enhancements to appellant’s Guidelines range directly represented circumstances called into question by Apprendi, counsel was constitutionally ineffective in failing to preserve the Sixth Amendment challenge to the appellant’s sentence.”

Friday, August 10, 2007

No constitutional right to experimental drugs

The U.S. Court of Appeals in the District of Columbia last Tuesday held that terminally ill patients do not have a constitutional right to be treated by experimental drugs not approved by the Food & Drug Administration, even if they in all likelihood would be dead before such medication might ever be approved. (Article) (Decision )

Writing for the majority, Judge Thomas B. Griffith said, “Terminally ill patients desperately need curative treatments , but their deaths can certainly be hastened by the use of a potentially toxic drug with no proven therapeutic benefit.”

The Abigail Alliance, an organization for terminally ill patients and their families, sought to expand access to “experimental drugs,” approaching the Food & Drug Administration with an administrative petition back in the summer of 2003, and on several occasions after that, each of which was rejected.

Abigail then filed suit in D.C. District Court in July 2003, challenging as unconstitutional the FDA policy of barring their sale of investigative drugs to terminally ill patients. The District Court found against them, holding that they had “not invoked a recognized constitutional right,” and that the FDA’s policy was “rationally related to a legitimate state purpose.” (Opinion)

The district court opinion was first appealed to a three-judge tribunal in May 2006, which reversed & remanded the case, saying that the Supreme Court’s 1990 decision in Cruzan v. Missouri Dept. Health -- that an individual had a due process right to refuse life-saving medical treatment, was similar – “the right to access potentially life-sustaining medication where there are no alternative government-approved treatment options.” (Opnion)

After filing a simple petition for rehearing – which was denied -- the FDA filed a second petition for an en banc rehearing , challenging the merits of the court’s decision and raising, for the first time, a Article III constitutional issue. The Court, on November 21st., agreed to rehear the case, vacating the May 2nd. decision.

Disagreeing with its early decision, the Court last Tuesday affirmed the District Court’s decision and citing Washington v. Glucksberg said that “there is no fundamental right ‘deeply rooted in this Nation’s history & tradition’ of access to experimental drugs for the terminally ill.”

Wednesday, August 08, 2007

Ohio Supreme Court DUI public record suit

An article in this morning’s Cincinnati Enquirer reports that the newspaper filed a writ of mandamus with the Ohio Supreme Court yesterday, seeking the names of all Ohio residents convicted of DUI offenses. ( Here )

The Enquirer request stems from a May 2nd. article in which the paper revealed that “almost 36,000 Ohio drivers had five or more DUI convictions. The Department of Public Safety refused, citing privacy issues and technical issues, including the federal Driver’s Privacy Protection Act.

Ohio Revised Code § 4501.27, the state’s equivalent, is also cited in the paper’s initial filings., the Enquirer’s position being that both the state and federal statutary doesn’t include court cases or driving violations under their umbrella.

Tuesday, August 07, 2007

Ohio courts on motions to suppress

We thought this a good idea after one of our patrons brought up the general topic last week and want to share it with our readers.

The decision on a motion to suppress can be critical to the outcome of a criminal case. They must set forth allegations of relevant factual issues with definiteness, clarity, and specificity; and those based on general and conclusory allegations or conjecture are insufficient. But Ohio has gone further, and this is where our patron wanted to double-check everything.

In 1994, the Ohio Supreme Court in State v. Shindler (70 O St3d 54 ) undertook the determination of the extent to which a motion to suppress evidence had to set forth its legal and factual basis in order to require a hearing, stressing the phrase “sufficient particularity to place the prosecutor and court on notice of the issues to be decided.”

In 1997, Ohio’s Fifth District Court of Appeals emphasized discovery, saying “ in order to support a motion to suppress, with particular facts that would place the state on notice of the areas to be challenged, a defendant must first complete due and diligent discovery on all issues which he or she intends to challenge.” [ See State v. Neuhoff, 119 O App3d. 501, 695 NE2d 825]. In 2004, the Twelfth Appellate District held that in order to require the state to respond specifically & particularly to issues in a motion, an accused has to raise issues that can be supported by facts, either known or discovered.” [ State v. Embry,2004 Ohio 6324 ].

Citing all three of the above cases, the our own First District Court of Appeals last June 8th., in City of Norwood v. Kahn, held that although a defendant met his burden of putting the state and trial court on notice of the issues for the purpose of a suppression hearing, he conducted no discovery on the issues challenged such that he likely had no factual support for the allegations beyond his own observations; the state showing general evidence of its compliance with the regulations supports the trial court’s denying of a motion to suppress.

Ohio mechanics' liens

Minor changes in Ohio’s statutory provisions on mechanics’ liens, contained in ORC § 1311.01 – 1311.24, become effective last March. They none-the-less deserve some notice [ See HB 487 (LSC analysis)].

The lien process essentially involves two key documents—“notices of commencement” and “notices of furnishing” – with a third being “affidavits of mechanic’s liens,” which have to be filed in county recorders’ offices if a contractor or material supplier wants the lien actualized on a real property. (ORC 1311.06)

“Notices of commencement” are affidavits providing specific information on a property, including the owner, contractor, and any lending institution involved in financing an improvement. Provisions remain essentially unchanged except for their now expiring six years after their filing dates. [ ORC 1311.04(S)]

The new provisions create an exception to requirements for “notices of furnishings.” Now, subcontractors or material suppliers need not serve notices in order to preserve their lien rights, if a lending institution has required the filing of a notice of commencement and the owner, part owner, or lessee has filed that notice. [ORC 1311.04(O) and 1311.05(I)]

It is also noteworthy to be aware that if a mortgage and notice of commencement are filed on the same day, the mortgage is to be considered to have been recorded first in considerations for priority of payment [ORC 1311.13 (G)].

Finally, those provisions that hold lien holders liable to a property owner for damages for not filing releases once the lien has been satisfied, have been expanded to include court costs and reasonable attorney fees [ORC 1311.011(B)(3)].

ORC § 1311.01 et seq

Thursday, August 02, 2007

U.S. Supreme Court Second Amendment Challenge

In a case in which—by now-- everyone involved in -- probably everyone who’s heard about it-- certainly every village and city mayor & their councils-- has “a growing sense” – or maybe wonderment – of whether District of Columbia v. Heller is the case which finally forces the Supreme Court to decide “the full meaning of the right to keep & bear arms declared by the Second Amendment,” District of Columbia v. Heller cautiously approached Supreme Court status July 18th., although it probably won’t be heard until early next year. (Article and Docket)

The saga began back in 2003 when six Washington, D.C. residents filed a complaint in district court alleging that “by maintaining & enforcing a set of laws banning the private ownership & possession of handguns and functional firearms within the home, forbidding otherwise lawful self-defense usage of arms, and forbidding the movement of a handgun on an individual’s property, (that city) was propagating customs, policies, and practices that violate individual rights under the Second Amendment.” (See Chap. 25 in D.C. Code, Title 7 Subtitle J ) That Court sided with the District of Columbia, rejecting “the notion that there is an individual right to bear arms separate and apart from service in the militia.” ( Opinion )

The District of Columbia Court of Appeals, though, last March reversed that decision.

In their approaches to this case, both the district and court of appeals referred to many of the same cases, both recognizing that the Supreme Court has not considered a direct Second Amendment challenge since its decision in U.S. v. Miller in 1939.

Federal appellate courts have largely taken a “collective rights” approach to interpretations of the phrase “right to bear arms,” the Fifth Circuit being the only one to have taken the position that it refers to an “individual right” under the Constitution [See U.S. v. Emerson (2001)] and the lower federal courts are divided, according to the District of Columbia Court of Appeals.

State courts of appeal offer a more balanced picture, that court observed, with seven of the courts examining the question holding that the Second Amendment protects an individual right. [i.e., See Brewer v. Commonwealth, 206 SW3d 343 (Ky. 2006)]. At least ten state appeal courts have endorsed the “collective right” position. [i.e. Mosher v. City of Dayton, 358 NE2d 540 (Ohio 1976)].

The Court of Appeals also noted that a 2004 memorandum opinion by the United States Department of Justice to the Attorney General adopted an individual rights model in its conclusion.

The Legal Community Against Violence, a public interest law center founded by Bay Area lawyers in response to a 1993 assault weapon rampage in downtown San Francisco, has a list of state-specific Second Amendment cases posted for further study.

Friday, July 27, 2007

Domestic Violence Law

Assaults against an unmarried person living with an offender “as a spouse” identifies a class of persons protected by Ohio domestic violence statutes and doesn’t create or recognize any legal relationship approximating marriage, the Ohio Supreme Court held Wednesday. ( Opinion and Court’s summary )

At issue was the question of whether a portion of Ohio’s domestic violence law which identifies persons living together as husband & wife, conflicted with a 2004 amendment to the state’s constitution which prohibits the “creation or recognition of a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.” The majority opinion said it doesn’t.

Justice Judith Ann Lanzinger disagreed. “The constitutional problem does not arise because cohabitating unmarried persons are included as one of the several groups to whom the domestic violence statutes apply,” she said. “Instead, the problem is definitional: by using the term ‘living as a spouse’ to identify persons whom the statutes protect and against whom prosecution may be instituted, the General Assembly inherently equates cohabitating unmarried persons with those who are married and extends the domestic violence statutes to those persons because their relationship approximates the significance or effect of marriage.”

Meanwhile, a pilot program in New Jersey is being implemented under which domestic violence complaints are going to be able to be filed electronically, and temporary restraining orders obtained, at night and on weekends when some 40% of domestic violence cases occur according to court officials. (Press Release)

Funded by a grant from the federal STOP Violence Against Women Act, the pilot was first introduced in two townships in 2002; being expanded in 2003 and 2005. The New Jersey Supreme Court has now approved it statewide, though implementation could take about six months, according to a article yesterday morning. (See Court’s order and Notice to Bar)

Wednesday, July 25, 2007

ABA Lawyer Specialization Guide

The American Bar Association Tuesday posted its 27-page Concise Guide to Lawyer Specialty Certification online.

Formal “board certifications” for lawyers is a relative new phenomena, arising out of the perceived need in decades past for a regulation of publicly-made claims by some attorneys of special competences and a “wake of liberalized advertising rules.”

“There has long been widespread de facto specialization in the legal profession,” the ABA’s Guide comments; “still, most state disciplinary rules prohibited lawyers from holding themselves out as specialists.”

The Guide continues to say that there were two landmarks leading to today’s environment. The first of these was Bates & O’Steen v. State Bar of Arizona in 1977, when the Supreme Court ruled that states could only regulate advertising by attorneys only to the extent necessary to prevent “false, deceptive, or misleading communication.” Second was the decision, 17 years ago, in Peel v. Attorney Registration & Disciplinary Comm’n. of Illinois, where the Supreme Court held that states could not constitutionally impose blanket prohibitions on truthful communication by lawyers to the effect that he/she was certified by a bona fide organization as a specialist in one or another field. That decision forced many states to reevaluate their positions.

Today, there are some 15 states – including Ohio, Indiana, and Tennessee – that have state-sponsored board certification. Since 1993, ABA has accredited 14 certification programs conducted by seven different private organizations. (See Here)

Thursday, July 19, 2007

Donna Moonda/ Death penalty cases for women

A woman who conspired with her 26-year old lover in the murder of her affluent doctor husband was sentenced to life in prison by an Ohio Northern District Court jury yesterday, in part because the same court had earlier sentenced her accomplice—and the trigger man—to just 17 ½ years in prison. (Article)

The case has drawn quite a bit of attention primarily because federal prosecutors had gone after the death penalty for Moonda, which would’ve made her only the third woman in American history to be executed for a federal crime.
(See Pittsburgh Post-Gazette article)

Nine of the 38 states having the death penalty have never executed a woman.

Ohio, back in June 1954, executed Betty Butler for killing another woman in front of several witnesses but justifying it the other woman had presumably made sexual advances to her. Nicole Ann Diar is on Ohio’s death row now having been sentenced to death for the murder of her 4-year old son in 2003 on November 2, 2005.

Indiana is one of the above-mentioned states to have never executed a woman, although a Debra Denise Brown, who is currently serving a life sentence in Ohio, was sentenced to death in 1986 for the murder of a 7-year old black girl in Gary, Indiana.

Kentucky last executed a woman in 1868. That state now has one woman on death row; Virginia Susan Caudill, who was sentenced in March 2000 for the robbery and murder of a 73-year old woman in Lexington.

Additional information about women who’ve received the death penalty and/or executed:

· “Death Penalty for Female Offenders, Jan. 1973 thru June 2007,” by Victor L. Streib, Ohio Northern University (Last updated July 13, 2007)

· “Women & the Death Penalty,” Death Penalty Information Center

Wednesday, July 18, 2007

U.S. Supreme Court Rules of the Court

The U.S. Supreme Court yesterday adopted a revision to the Rules of Court that will become effective October 1, 2007. (Press Release)

A 20-page summary of the revisions is available here.
Complete Revision

Thursday, July 12, 2007

Larry Griffin execution

Updating one of our previous posts and passing along some news from Ohio Death Penalty Information this morning, the St. Louis Prosecutor’s Office completed its two-year investigation into the possibility of Larry Griffin’s being wrongfully executed back in 1995, and has concluded that he was not.

Full report @
Executive summary @

Press release @

Notification of post-release controls in Ohio

When postrelease controls, such as time to be spent at a half-way facility or paying restitution after an inmate’s served his/her imposed sentence, aren’t properly included in a defendant’s sentence for a particular crime, the sentence for that offense is void and the defendant is entitled to an entirely new sentencing hearing , the Ohio Supreme Court held yesterday. ( State v. Bezak )

The Court based its decision on the similar 2004 case of State v. Jordon in which it was held that “when a trial court fails to notify an offender about postrelease control at the sentencing hearing but incorporates that notice into its journal entry imposing sentence, it fails to comply with the mandatory provisions of Revised Code § 2929.19(B)(3)(c) and (d); sentence must be vacated and the matter remanded for resentencing.”

Dissenting opinions centered around State v. Saxon, which differed from the current situation in that there were multiple convictions in Saxon.

Justice Lanzinger in her separate dissenting opinion, also made note of recently enacted legislation which provides a statutory process through which trial courts that have failed to include proper notification of postrelease control when originally sentencing an offender may now employ by means of an entry in the case record, but that that provision must be undertaken before the offender completes his term of imprisonment. (See ORC § 2929.191).

Wednesday, July 11, 2007

Ohio air pollution measures

Ohio may soon be among the growing list on the quest for “Green Planet Earth” and renewable energy, according to articles from the Plain Dealer and Columbus Dispatch over the past weekend, but there are otherwise problems along the way.

According to those articles, the first problem is perhaps Ohio’s deregulated electric utility law, which went into effect in Jan. 2001, but even Governor Ted Strickland thinks maybe the state would’ve been better off not having done.
He doesn’t want to go down the road of re-regulating utilities, but rather looks for a “hybrid approach while promoting renewable energy sources such as wind & solar power, upgrading energy efficiency, and modernizing the state’s electricity system.” Current regulations expire next year.

Ohio’s 2008 budget amends provisions to ORC §5733.39, ostensibly extending the state’s tax credit an additional two years for electric companies burning Ohio coal in qualified coal-fired electric generating unit before Jan. 2010, or Jan. 2008 for corporate franchise taxes since the corporate taxable year ends in 2009; and §5733.48, allowing a nonrefundable credit against corporate franchise taxes to retail dealers which sell alternative fuels. ( See Here )

There are also three bills currently pending in the Ohio legislature: HB 40 would establish a council on “sustainable energy” which would monitor activity in areas of biofuel & renewable energy for any developments that may assist in the growth in of companies in the state whose business relates to biofuel & renewable energy; HB 76 would create annual renewable energy requirements for electric utilities & service companies providing electric generation service in Ohio; SB 198 would be for a nonrefundable credit for the cost of constructing, buying, or leasing and placing into service renewable energy property on qualifying real estate.

There’s supply & demand -- and timing. A Wall Street Journal article yesterday said that in recent years improved technology has made it possible to build bigger, more efficient windmills, for instance, in wind-powered electrical generators. But, “combined with surging political support for renewable energy, that’s driven up demand, and now numerous wind-powered projects from Virginia to California have been stalled due to shortages, mostly because manufacturers can’t get parts fast enough.”

And then there’s the federal government….. In 2003 Ohio power plants, cars & trucks, homes & factories dumped an estimated 287.3 million tons of carbon dioxide into the atmosphere, according to an April Columbus Dispatch article, ranking it fourth in the nation behind Texas, California & Pennsylvania as top polluters. And that makes the state a battleground in the growing political fight as limits on carbon dioxide limits begin to be set. On June 20th., the Environmental Protection Agency issued proposed rules setting a tougher air quality standard for ozone, though not as stringent as had been advised by the agency’s Clean Air Scientific Advisory Committee. The public comment period for those rules is still open, and can be made via EPA’s site here.

Ohio eminent domain law

Ohio will have new eminent domain parameters starting in October, thanks to Governor Strickland’s signing the state’s new legislation yesterday. ( Bill )( Analysis )

Thirty-four states had enacted legislation or passed some sort of ballot measure in 2005/2006 in response to the Supreme Court decision in Kelo v. New London (2005), according to the National Conference of State Legislatures; and another six so far this year. ( more)

Tuesday, July 03, 2007

Ohio certification of court reporters

The Ohio Supreme Court’s task force on court reporter certification released its 54-page report along with 17 recommendations for state certification on June 22.

Thirty states already have mandatory certification for court reporters, and another eight – Indiana & Kentucky included -- have voluntary registration systems in effect, according to the National Court Reporters’ Association. Ohio, however, at this point does not have any statewide requirements.

Among the recommendations sent the Supreme Court are: the creation of a commission to oversee certification of court reporters; classifying court reporters according to a 5-tiered structure & certifying them as same, requiring applicants be able to receive passing grades on official exam to be adopted by that commission; and the adoption of a Code of Ethics & Professionalism, along with other regulations and a grievance system to investigate alleged & prosecute wrongdoings.

Subprime mortgage foreclosure regulation & legislation

In the wake of the recent – and ongoing – “subprime lending meltdown,” federal regulators have announced “beefed-up” guidelines according to an article in this past weekend’s Wall Street Journal, aimed at curbing weak underwriting standards for subprime mortgage loans. The guidelines “require more than 8,000 federally regulated lenders to underwrite loans based on a borrower’s ability to make payments on a loan’s adjusted rate and not just its low introductory rate.”

The Federal Deposit Insurance Corporation’s Advisory Committee on Economic Inclusion will be hosting a second meeting in Washington on July 16th. focusing on the subprime mortgage issue.

There’s quite a bit of related federal legislation in the works, too:

· Senate Bill 1222, introduced April 25th. directly addresses the issue of “mortgage transactions which operate to promote fraud, risk, abuse, and underdevelopment.
· House Bill 2061, introduced April 26th., seeks to “amend the Real Estate Settlement Procedures Act of 1974 to prohibit any person, in connection with a subprime federally related mortgage loan, from providing mortgage lending or brokerage services unless such person is certified by the Secretary of Housing & Urban Development.”
· House Bill 1427 deals with “fannie mae” and “Freddie mac” issues
· House Bill 1852, in part, would “modify requirements governing the maximum principal loan obligation and cash downpayments by mortgagors in eligibility criteria for mortgage insurance.”

Perhaps the most innovative or ambitious in it’s undertaking is Senate Bill 1299, which would “amend the Truth in Lending Act to deem a mortgage broker, in the case of a home mortgage loan, to have a fiduciary relationship with the consumer, and subject such broker to all federal and state requirements for fiduciaries.” (See article)