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.