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.”