Thursday, April 26, 2007

Ohio's smoke-free law update

As really could’ve been expected, Ohio’s smoking ban law is in court—and not just one, but three altogether—for the time-being, though, all at a state trial court level. (Article)

The smoke-free legislation passed a popular vote last November, but was faced with rumblings even before that.

The Buckeye Liquor Permit Holders filed a complaint a month after the law passed, appearing before Hamilton County Common Pleas Court Judge Fred Nelson yesterday. Buckeye’s premise is that “the right to make decisions relevant to your own property is an inherent, fundamental right,” and the new law violates Ohio privacy and property rights.

Counsel for the American Cancer Society and the state told Nelson that “government has the power to impose rules that may limit some individual rights for the welfare of society.” (Article)

Meanwhile, up in Franklin County, the Ohio Licensed Beverage Association filed a similar suit two weeks ago against the Ohio Health Department, the American Cancer Society filing its own suit a week later also against the Health Department.

The law, not withstanding, is set to become effective May 1st., with Judge Nelson saying he’ll make his decision as to whether to grant an injunction blocking its enforcement by then.

Buckeye Liquor v. Ohio Dept. Health (Hamilton Cnty., Case A-0610614)

Ohio Licensed Beverage v. Ohio Dept. Health (Franklin Cnty., Case 07-CV-005103)
American Cancer Society v. Ohio Dept. Health (Franklin Cnty., Case 07-CV-005306)
enter case number here

Wednesday, April 25, 2007

Ohio corrections legislation

In the closing days of March, a bill was introduced in the Ohio House that would modify state sentencing procedures with respect to post-release controls and other related aspects, including those to the Adult Parole Authority, Dept. of Rehabilitation & Corrections, and the Department of Youth Services.

The bill would also repeal Ohio Revised Code §2967.11, provisions under which so-called “bad time” extensions of an inmate’s sentence for infractions while in prison having been found unconstitutional by State ex rel. Bray v. Russell(2000).

Friday, April 20, 2007

Ohio Supreme Court holds untolled time served on multiple counts must be triple-counted toward statutory time limit

When a criminal defendant is held in jail in lieu of bond on multiple charges arising from the same incident and having a common litigation history, the Ohio Supreme Court ruled Wednesday, all days of untolled time served on any of those charges must be triple-counted toward the 270-day statutory time limit for bringing that person to trial, even though some of those charges have to be prosecuted in different courts.

State v. Parker, 2007 Ohio 1534

Prior conviction can't enhance sentence if right to counsel in first case not properly waived

The Ohio Supreme Court held Wednesday that when a defendant makes a prima facie showing that a prior conviction was unconstitutional because it was uncounseled and resulted in confinement, the state bears the burden of proving that the defendant properly waived his right to counsel in the earlier case that conviction can enhance the a penalty for a new offense. The Court also held that waivers of counsel in criminal cases had to be made on the record in open court, in writing, and involve serious offenses the conviction for which could include confinement for more than six months.

State v. Brooke, 2007 Ohio 1533

Ohio sales tax legislation

A bill introduced in the Ohio House of Representatives Wednesday would amend some of its interstate sales tax law, requiring vendors “using origin-based situsing rules to determine the appropriate sales tax jurisdiction in which a sale is taxable to continue to do so… (and) authorize those using destination-based sourcing to convert to origin-based situsing at their convenience.”

It would repeal Ohio’s “multiple points of use provisions for services & computer-related sales,” and authorize the Tax Commissioner to “develop plans for in-state and out-of-state vendors to collect and remit Ohio use taxes at a uniform rate.”

U.S. Supreme Court: Federal law pre-empts state-regulated mortgage-lending activities

The Supreme Court yesterday ruled that federal law governs mortgage lending, pre-empting state regulations of mortgage-lending activities by the non-bank operating subsidiaries of national banks.

Citing Barnett Bank of Marion Cty. v. Nelson (1996) in large part, the Court held that “the National Banking Act vests in nationally chartered banks enumerated powers and all ‘necessary’ incidental powers. 12 USC §24 Seventh. To prevent inconsistent or intrusive state regulation, the NBA provides that ‘[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law…’ § 484(a).”

12 USC §484(a)

Thursday, April 19, 2007

Department of Labor proposed child labor amendments

The Department of Labor, Tuesday, issued notice of proposed changes to child labor regulations respective of “new bans on particularly hazardous activities” for 16 an 17-year olds such as riding on forklifts, fighting forest fires, and working in poultry slaughtering plants.

Also proposed are extending employment opportunities to 14- and 15-year olds in banking, advertising, and information technology fields.

Public comments on the proposed changes will be received up to July 16, 2007

DOL Press Release
Federal Register

Wednesday, April 18, 2007

Tennessee health care model

Tennessee’s innovative new health care program took center stage on the front page of today’s Wall Street Journal (subscription required), having won national attention as states grapple with trying to develop plans for universal health care.

Tennessee’s plan, officially launched March 8th., differs from California and Massachusetts’ in that theirs, according to the article, “envisions people paying more of their own medical expense at first in exchange for protection against catastrophic costs.” Tennessee’s plan follows the concept of limited-benefit, or “mini-medical,” plans, and caps coverage at $25,000 annually, only $15,000 of which can go to hospital bills. Several other states, including Kentucky, have parallel programs on their books. A basic explanation of these type of plans is here.

Tennessee Program @

Press releases @

Tuesday, April 17, 2007

Ohio mayor's courts

Many small towns & villages around the country have “mayor’s courts.” In Ohio, the jurisdiction is conferred to mayors of municipal corporations to hear cases involving violations of local ordinances and certain types of traffic violations. But, even though they’ve been around, statewide, since 1838, with the enactment of the first municipal code, they are not well-received in all quarters, including that of Supreme Court Justice Thomas Moyer, who in 2005 called for their abolition.

Louisiana and Ohio share a dubious distinction,” he told the assembled Ohio State Bar Association’s annual meeting then, in that “they are the only two states that continue to permit one person to serve as executive and as judge in the same city.” (Press Release)

State Representative Larry Wolpert, who was instrumental in a 2003 amendment abolishing them in towns with fewer than 100 residents, likewise would like to see “mayors taken out of power in local justice systems,” and today introduced legislation further barring them from communities with less than 1,600 people. (Article)

There were 336 mayor’s courts in the state, according to the 2005 Supreme Court summary, at least 104 serving populations of less than 1,000. Also according to that report, while 19 Ohio counties don’t have any mayor’s courts, three—Cuyahoga (Cleveland), Franklin (Columbus), and Hamilton (Cincinnati) -- have more than 20.

Friday, April 13, 2007

Ohio child welfare 'Alternative Response' project

Ohio made major changes to its child welfare and protection laws last year, including the establishing of a uniform statewide automated child welfare information system, criminal records checks on applicants for jobs at child care centers, and the directing of the Ohio Department of Jobs & Family Services “to develop, implement, oversee, and evaluate a pilot program on an ‘alternative response’ approach to reports of child abuse, neglect, and dependency.”

In response to the bill’s passage the Ohio Supreme Court and Department of Family Services announced yesterday that the American Humane Association, a national non-profit organization focused on protecting both children and animals from abuse, neglected, and exploitation—working in tandem with the Institute of Applied Research, and consultants from Minnesota who have developed their own nationally-regarded alternative response protocol—will manage the design, implementation, and evaluation of the program to assist child protection agencies.

Bill’s summary

Sixth Circuit Pattern Criminal Jury Instruction amendments

The Sixth Circuit Court of Appeals, for those who may have missed this, updated their 2005 Pattern Criminal Jury Instructions on March 30th.. Included were changes in matters relating to the credibility of witnesses, aiding & abetting, coercion/duress, expert testimony and testimonies of witnesses granted immunity; mail, wire & bank fraud; and several firearms commentaries.

2005 Pattern Criminal Jury Instructions (with updates)
Summary of Changes

Kentucky district court rule amendment

The U.S. District Courts for Eastern and Western Kentucky are considering an amendment to their local rules which would allow “cases to be reassigned to another judge within the district upon the Court’s own motion, in the interests of justice, for reasons stated in an order of reassignment;

“… A party may file a motion to reassign a case if it is related to another case pending in the district.”

Amendment Draft

Monday, April 09, 2007

Physical Presence Standard in Interstate Taxations

CCH’s State Tax Review has mention of the Supreme Court’s being asked to resolve the “physical presence” controversy encountered by many states in determining whether the Constitution’s commerce clause permits imposing corporate income and franchise taxes on companies which have no physical presence in the state.

At issue are two 2006 cases on separate petitions, Lanco v New Jersey Dept. Taxation (docket) and MBNA v. West Virginia Tax Commissioner. (docket)

In the National Bellas Hess v. Illinois Dept. Revenue (1967) and Quill v.Heitkamp(1992), the Supreme Court had held that states could not impose sales and use taxes on corporations unless there was a physical presence in that state. Bellas, in fact, states that a company may in fact “have the ‘minimum contacts’ with a taxing state as required by the due process clause and yet lack the ‘substantial nexus’ with the state required by the commerce clause.”

Since then, CCH said, many states and businesses have been litigating over whether this physical presence standard applies to other than sales or use taxes, with clear consensus lacking. New Jersey, Ohio, and others limit the physical presence standard to sales and use taxes, while courts in Michigan, Tennessee, and Texas have extended the standard to other taxes. Here, the New Jersey Supreme Court (Lanco) held that “the Quill decision was not intended to create a universal physical presence requirement for state taxation under the commerce clause and should be limited to sales and use taxes.” West Virginia (MBNA), agreeing with the sales and use tax limit, further held, however, that “A significant economic presence test was a better indicator of whether a substantial nexus existed for commerce clause purposes than a physical presence standard.”

Lanco opinion
MBNA opinion

Friday, April 06, 2007

Ohio juvenile justice federal class-action suit

Cincinnati attorney Alphonse Gerhardstein yesterday re-opened a federal class-action suit against the Ohio Department of Youth Services in contention that minors are subject to “abusive, inhumane, and illegal conditions, policies, and practices” while being incarcerated, and that the ODYS is “deliberately indifferent to their constitutional & legal rights; conditions, policies, and practices at (its) facilities constitute punishment and a substantial departure from accepted professional judgment , practices & standards.” (Article and Complaint)

This is one of several cases currently in District Court against the Department of Youth Services, being an outgrowth from an earlier class-action suit filed in 2004, and settled last month, in which ODYS at least agreed to “use its best efforts to meet minimum standards on issues related to conditions of confinement, and provide a mechanism for challenging the legality of the assistance given on detention credit issues, if appropriate.” Of particular concern in this case was an “adequate, effective and meaningful system for committed juveniles… to gain access to the courts.” (Settlement)

A third case filed March 1st. alleges ODYS of “‘arbitrarily and unilaterally’ extending minimum sentences for incarcerated juveniles and requiring them to complete rehabilitation programs often not available to them before the end of their minimum sentences.” (Complaint)

Wednesday, April 04, 2007

Global Warming

Since the Supreme Court’s rulings, Monday, there’s been an almost virtual flood again of information and interpretation about those rulings and the subject of global warming & climate change in general.

For the most-part, global warming at this point is more discussion material pending further legislation than an actual courtroom topic—at least in national headlines. An international, U.N.—sanctioned, committee stirred some of those headlines back in February with the announcement that not only was global warming real, but it was already being manifested—with humans being to blame. A “report to policymakers” unanimously linked—“with 90% certainty”—the increase of average global temperatures since the mid 20th. Century to increases of man-made greenhouse gases in the atmosphere. With the approach of the next IPCC meeting in Belgium, Friday, more articles are out. (See CNN and USAToday)

The two cases, for those who haven’t seen, are Environmental Defense v. Duke Energy (05-848) and Massachusetts v. EPA (05-1120)

Some of the articles discussing the two opinions are:

· “U.S. Supreme Court gives boost to environmental groups on plant cleanup” (Duke Energy)
· “U.S Supreme Court rebukes Bush administration on greenhouse gas emissions” (Massachusetts v. EPA)
· “Industries show uncertainty over ruling’s impact” (Massachusetts)
· “High Court orders EPA to review greenhouse-gas emissions” (concentrates on Massachusetts decision)

Monday, April 02, 2007

Revisions to Ohio teenage driver laws

Ohio’s licensing laws for teenage drivers have been amended for the third time since their initial creation back in 1998, effective this coming Friday, April 6th.

An Enquirer article over the weekend related that Ohio “has had its problems with teenage drivers, ranking fifth in the nation—tied with Illinois—for fatal accidents involving 15-, 16-, and 17-years old drivers from 1995 thru 2004. That resulted in 1,173 deaths, according top the AAA Foundation for Traffic Safety.”

Most states have some form of “graduated driver licensing” designed to allow new drivers learn how to drive incrementally by controlling their progress toward full, unrestricted privilege. An overview of state laws and outline summary of the new Ohio law is available on the Ohio Teen Driver Coalition’s website.

The amendments in essence restrict drivers with “temporary” and “probationary” from being on the road between midnight and 6 a.m., and from having more than one person in the car with them who isn’t a family member, unless the driver’s parent or guardian is also in the car. Local authorities are apparently not going to pull teenage drivers over for infractions, but they will be secondary violations for other incidents involved in. (Ohio law)

See also “Nationwide Review of Graduate Driver Licensing