Thursday, March 29, 2007

Former partner's sex change doesn't end alimony

Lawrence and Julia Roach were divorced in 2004 in Clearwater, Florida, after being married for some 18 years. Mr. Roach, a 48-year-old utility worker had agreed to pay his ex-wife $1, 250 a month in alimony as part of the settlement. Then his former wife had a sex change. Both have returned to otherwise normal lives. (Article)

Mr. Roach, however, believes that his former wife’s change in gender should end his having to continue paying alimony—but the courts disagree. (Article)

It’s “relatively uncharted legal territory,” as an Associated Press article refers to it, and apparently very few guidelines. One of those is a 2004 Ohio appeals case out of Montgomery County that held that a party’s having a “sex change, without more, provides no basis for the court to revisit the spousal-support provisions of the parties’ decree.”

St. Arnold, yesterday, followed that view, ruling that “Florida courts have ruled sex-change surgery cannot legally change a person’s birth gender, so Roach technically isn’t paying alimony to a man,” but, he added, “gender definitions are a question that raises issues of public policy that should be addressed by the Legislature, not the Florida courts.”

Same-sex marriages are allowed in several foreign countries, including Canada, and in the state of Massachusetts. While same-sex marriage & cohabitations in themselves have led to novel issues, they’re not the principle consideration here. Sex change issues represent yet another aspect of modern society the law is grappling with. (See “Legal Aspects of Transsexuality” on Wikipedia).

As the Wikipedia article states, these are largely state issues and largely untouched as yet. Further, they center on issues exclusive of an individual’s having his or her sex changed, such as having the name and sex on an individual’s birth certificate changed, marriage & divorce, and discrimination.

Note: “Parent’s transsexuality as a factor in award of custody of children, visitation rights, or termination of
parental rights,” 59 ALR4th. 1170

“ Marriage between persons of the same sex,” 81 ALR5th. 1

Thursday, March 22, 2007

Oral Arguments/ Supreme Court capital cases

The U.S. Supreme Court, Tuesday, heard arguments debating whether a trial judge’s decision to exclude witness testimony warrants overturning a defendant’s conviction which resulted in a life-term prison sentence. (Here)

John Francis Fry was convicted in 1995, after two previous trails ended in hung juries, of an execution-style murder of two people in Solano County, California, this, despite the discovery of a witness unknown at the two hearings that ended in mistrials. The trial judge at the third trial had not allowed Fry’s attorney to present that witness, even though she had presumably heard one of the parties accused confess to the actual killings. The California Court of Appeals and Supreme Court both affirmed the lower court’s decision, calling the failure to present the witness “harmless error.” Fry’s petition to the 9th. Circuit District Court was denied, and the Court of Appeals for that circuit in 2005 again affirmed the previous decisions. (See articles from Northwestern University and San Francisco Chronicle).

9th. Circuit Opinion before Court

Yesterday, the Court heard arguments addressing the issue of how far prosecutors can go in urging death penalties in the trial court. The question here is whether remarks to the jury by the prosecutor during the trial to the effect that they “should think beyond the current case and send a message to drug dealers,” swayed jurors to base their decision on “raw emotion rather than the facts of the case.” (Article)

A St. Louis circuit court found William Weaver guilty of first-degree murder with a death penalty recommendation in 1995. He pursued his post-conviction relief options up to the Missouri Supreme Court; each option there affirming the trial court’s conviction & sentence.

In federal court, Weaver filed a petition raising 21 claims for relief. The district court affirmed that Weaver’s rights had been violated by peremptory strikes during jury selection, which the State appealed. The 8th. Circuit Court of Appeals reversed that decision & remanded the case with instructions to address the remaining issues raised by the defendant in 2001. This time, the district court vacated Weaver’s death sentence and ordered that he either be sentenced to life in prison or be granted a new penalty-phase trial; denying relief on the other claims, but granting a certificate of appealability on two claims relating to the prosecutor’s closing arguments.

8th. Circuit Opinion before Court

Tuesday, March 20, 2007

Federal citing rule/"unreported" decisions

Federal Appellate Rule 32.1 is now in effect, allowing attorneys to cite “unreported cases” done in 2007 and beyond. Prior to Jan. 1st., the local rules still control.

All federal courts of appeal permit citation to their unpublished opinions in related cases to show res judicata, law of case, and the like. But before 2007, federal appeal courts differed on the extent to which they would allow unreported opinions in cases that were not related. The Fourth, Eighth, and Federal Circuit courts “discouraged” them; and the Second, Seventh, and Ninth disallowed them altogether.

The situation here, on the larger scale, was foreseen by Robert Timothy Reagan of the Federal Judicial Center, who compiled an overview report on each jurisdiction’s position on unreported cases prior to 2007. It’s available here.

Friday, March 16, 2007

Sex Offender Employment Restrictions

The Columbus, Ohio-suburban city of Upper Arlington became the first city in Ohio, at least, not only to restrict where convicted sex offenders can live, but also work.

Provisions of Ordinance

Monday, March 12, 2007

Proposed U.S. Sentencing Commission Amendments

The United States Sentencing Commission, on Jan. 30th., published notice of its consideration of making a number of amendments to the sentencing guidelines, policy statements, and commentaries. (72 FR 4372)

Subject areas include sex offenses, terrorism, intellectual property matters, drug-related offenses, immigration, criminal histories, and “compassionate releases.”

The public hearing on these new proposals is March 20th. at the Thurgood Marshall Federal Judiciary Building in Washington. The deadline for testifying there has already passed, but written comments are still being accepted until March 30, 2007. Comments can also be e-mailed to the Commission ( )

Federal Register
Commission’s “Reader Friendly” version

Friday, March 09, 2007

Ohio sex offender residency update

A news article last week told about an Ohio sex offender case, now is the Supreme Court, that’s once again challenging the constitutionality of the sex offender statute restricting convicted offenders from living within 1,000 feet of a school in this state—even if that person’s lived there and had committed his/her offense before the residency rule took effect back in 2003.

Actually, there’re been two. With the issue of retroactivity in the Supreme Court, a homeless man, convicted sex offender, likewise filed suit in U.S. District Court seeking a permanent injunction against that statute’s enforcement so as to allow him to live in the city’s drop in center, which happens to be within 1000 feet of a school, at least through the winter. (Article and Complaint)

The case before the Supreme Court is a certified conflict case.

On Oct. 20, 2006, the First District Court of Appeals found that Revised Code §2950.0321 – our residency-restriction statute – could be applied to an offender who had bought his house & committed his offense before the statute’s effective date (Hyle v. Porter). That same day, in the Second District, the appeals court there said the law was unconstitutional because it had a “retroactive application and affects a substantive right” of the individual.
(Nasal v. Dover)

Both courts followed the same lines of reasoning and cited most of the same cases, panamount here being Smith v. Doe, [538 U.S. 84 (2003)], State v. Cook, [83 O.St.3d. 404 (1998)], and Norwood v. Horney, [110 O.St.3d 353 (2006)]. Both courts in fact found that the statute was retroactive, but the Second District held it to “impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, and liabilities as to past transactions,” and therefore unconstitutional. The First District’s standing was that the statute was constitutional because it is “reasonably related to the dangers posed by recidivists in a way that is consistent with the regulatory scheme of protecting the safety & general welfare of Ohio’s citizenry.”

As a note to these case, too, the Ohio Attorney General’s Office in Jan. 2005 opined that “based on the plain language of RC 2950.031, a person who has been convicted of, or has pleaded guilty to, either a sexually oriented offense that is not a registration-exempt sexually oriented offense or a child-victim oriented offense is prohibited from establishing a residence or occupying residential premises in a nursing home, adult care center, residential group home, homeless shelter, hotel, motel, boarding house, or facility operated by an independent housing agency that is located within 1000 feet of any school premise.” The opinion also examines what is meant by “school” property and “residence” as opposed to “domicile.” (OAG 2005-001)

Wednesday, March 07, 2007

Ohio Supreme Court: Entire sentence can't be vacated when error found only in sentence for one specification

The Ohio Supreme Court today held that “when a court of appeals reviews sentences imposed for multiple crimes and specifications, it may not vacate & remand the defendant’s entire sentence when it finds error in only the sanction imposed for one of the specifications.” Further, the appeals court has to decide each assignment of error raised and give reasons for its decisions unless an assignment has been made moot by a ruling on another assignment.

The case was one in which a man was found guilty of multiple offenses & specifications, and sentenced to an aggregate term of 14 years to life. On review, the 8th. District Court of Appeals affirmed convictions on rape, kidnapping, and a repeat violent offender specification, but decided that the trial court erroneously convicted the man of a firearm specification, and failed to make findings required by ORC §2929.14(D)(2)(b) when it imposed an additional three-year term for the repeat violent offender specification. The appeals court then vacated the entire sentence, remanding the case for resentencing without addressing a claim brought for retaliatory sentencing, stating that its decision to vacate the entire sentence because of the error with respect to the repeat violent offender specification “rendered moot the remaining alleged sentence errors.”

The current decision cites State v. Foster, State v. Mathis, and State v. Saxon, all subsequent to this case’s 2005 appeal, and remands back to the appeals court with a directive to “decide and give written reasons for its decision on the claim of retaliatory sentencing, and adjust its resentencing order in conformity with Foster, Mathis, and Saxon.

(Court’s summary)

Appeals court decision

Monday, March 05, 2007

Top Legal Issues for 2006

Three instances stand out as the top legal issues for 2006, according to a recent article in Thomson-West’s Employment Alert newsletter.

Hamdan v. Rumsfeld is absolutely the decision of the year,” Laurie Levenson, professor of criminal law and procedure ethics & evidence at Loyola University, said. “From a criminal law perspective, Hamden not only asks how much power the executive branch has in setting rules for criminal proceedings, but launches the whole discussion of what the minimum due process we accept is? What rules will make a fair trial and get us an accurate result?”

Lee Petillion, a corporate securities attorney and author, told Thomson West, “The Securities & Exchange Commission’s decision [amended final SEC Release 33-8732 (8-29-2006)] to overhaul disclosure rules on executive pay shedded new light on the transparency of executive compensation packages that include line-item reporting of all salary, bonus, perks, stock options, and retirement benefits, and is the most significant legal event because of its potentially profound implications for executive compensation, which has become a highly controversial issue.”

The Pension Protection Act (PL 109-280) is the most significant overhaul of ERISA since the statute was enacted in 1974, setting a multitude of new standards for pensions and 401(k) plans, “ said Frederick Brodie, a law partner and author. “It increases required disclosure to plan participants, imposes stricter rules & penalties on companies with under-funded plans, and adopts a variety of measures affecting plan investments, structures, funding, and administration.”

Friday, March 02, 2007

National day care survey

A new nationwide survey of the fifty states shows many are “distressingly lax” in their regulation & oversight of child care centers.

We Can Do Better,” published earlier this week by the National Association of Child Care Resource & Referral Agencies, a network of more than 850 child care resource & referral centers located in every state and a most larger communities across the country, is the first of its kind ranking to be done. “The association,” an Associated Press article yesterday said, “reviewed policies & regulations in the 50 states, the District of Columbia, and Defense Department – which decisively came out on top overall – both as to standards in place, and how vigorously those standards were enforced.”

Following the Department of Defense, were Illinois, New York, and Maryland. Ohio placed 34th. in the rankings, its two major shortcomings being that teachers are only required to have a high school diploma or GED, and center directors not even being required to have an Associate’s degree or CDA. Kentucky placed 49th. in the survey, having the same two shortcomings as its neighbor to the north, along with not requiring centers to give access to parents at all times or allowing unannounced visits. Indiana’s only shortcoming, according to the survey, was not requiring teachers to have more than a high school diploma or GED. State profiles from the study can be linked here.

Links to corresponding regulations & child care resources in the area:
Ohio Administrative Code
Kentucky Administrative Regulations
Kentucky CCRR
Indiana Administrative Code
Indiana CCRR

Thursday, March 01, 2007

HPV vaccine legislation update

A government survey conducted in 2003-2004—the first to look at HPV infections in the population at large—was published in the current issue of the American Medical Association Journal yesterday, adding fuel to the growing national debate about requiring school-age girls to be vaccinated against the sexually-transmitted virus that sometimes leads to cervical cancer. The study’s most striking finding was that women between the ages of 20-24 had the highest infection rate—44.8 percent.

33 states and the District of Columbia have had bills introduced requiring, funding, or educating the public about such a vaccine—Michigan having been the first, but Ohio, Indiana, & Kentucky all having variations thereafter. None have passed as yet, though, according to the National Conference of State Legislatures. (Addition information & linked list of state legislation here )

Texas Governor Rick Perry, on Feb.2nd., created something of a national stir when he mandated the vaccination in that state by executive order. That order is now being countered with a house bill which is expected to pass as early as next month—one of seven having been in front of the Texas legislature on the issue.

While referring to the new vaccine as a “medical breakthrough,” Ohio Governor Ted Strickland told the Toledo Blade, Tuesday, that he’s not in favor of making it something mandatory. The ‘Blade’s article (here) also has some other interesting points for those interested.