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)

Death Penalty lawsuit

The mother of Joseph Lewis Clark, the Ohio inmate it took 90 minutes to execute on May 2, 2006—the second longest in American history—is suing the Southern Ohio Correctional Institute at Lucasville and the entire execution team for $150, 000 and other further relief, both in law & equity, as the court deems just.

The complaint, filed in Southern Ohio District Court yesterday, contends a portion of Ohio’s execution protocol which requires that “prior to the execution & upon arrival at the institution, a medical review of the inmate shall be conducted to establish any unique factors which may impact the manner in which the execution team carries out the execution,” was not followed, which resulted in the bizarre execution that received international attention – and cruel and unusual punishment.

A separate case by 15 inmates challenging Ohio’s lethal injection protocol is also in Southern Ohio District Court, pending the outcome of an appeal to the Supreme Court.

Articles here and here