Ohio Supreme Court Public Access Rules

The Ohio Supreme Court yesterday announced adoption of its rules regarding public access to court records— its first formal policy guiding what court records the public can and cannot see, according to the Toledo Blade—ending, or at least putting on hold for a time, a debate reaching back some six years or more that initial addressed privacy matters & identity theft concerns as more courts began making records available on the Internet. ( Court’s Announcement )

Cleveland lawyer David Marburger told the Blade that the rules were not as problematic as those proposed a year ago, but that they still set a bad precedent. “It opens the way for broad swaths of closed court records,” he said. “The court assumes it has the authority to adopt these rules and amend them later to identify a record solely based on its content that should automatically be kept out of the public domain even if no litigant in a case asks that the record be closed.” Marburger questions the Court’s authority, in the first place, to issue general rules he says go beyond administrative housekeeping to affect litigants’ substantive rights.

Amendments proposing the new rules were submitted after some two years of work and research by the Commission on the Rules of Superintendence, which makes recommendations to the Supreme Court regarding the rules that govern all Ohio courts.

Language for the rules, the Court said, was based in part on the report and recommendations of the Privacy and Public Access Subcommittee of the Supreme Court’s Advisory Committee on Technology and the Courts, a subcommittee that included members of the public and the media. Rules include:

• Definitions of court record, case document, administrative document, case file and other terms.


• A process for the sealing of court records. The court can consider whether to allow limited public access to a case document or information in a case document upon request by a party to the case or a person who is the subject of information in the case document only after finding by clear and convincing evidence that the presumption of public access is outweighed by a higher interest.


• A process by which any person may request access to a case document or information in a case document that has been granted limited public access. Currently when an entire record is sealed, no part of the record is accessible to the public, nor can it be petitioned to be accessible.


• A provision requiring the partial redaction or omission of personal identifiers, i.e. personal information that might contribute to identity theft, from a case document before the document is submitted to a court or filed with a clerk of court. The rules also state that a court or a clerk of court may provide a form for the recording of personal identifiers omitted from a case document. The court, clerk of court and parties would continue to have full access to this information.

The Court will instruct local court personnel next year in the intricacies familiarizing them with the public access rules.

Rules become effective May 1st. 2009

New Ohio Jury Instructions

Sometimes announcements get overlooked or are not widely spread around, even though of importance to many people. In case you missed it…..


Ohio Jury Instructions (OJI) were reorganized by the Ohio Judicial Conference back in November to simplify their use by judges and practitioners. LexisNexis was required to provide a complete OJI database with updated numbering of all instructions to WestLaw and Casemaker for their online versions. (See Notice)

In the new revision, Volume 1 ''General Instructions'' has been eliminated, and the applicable general instructions included in the civil and criminal volumes. There is one civil volume, now organized by general subject matter areas, and one criminal volume. There are, however, still three binders. The criminal volume will now be comprised of two binders with a separate tab for ''Traffic'' offenses.

The numbering of all instructions has also been revised and simplified. Instructions will now be identified as ''CV''(Civil) and ''CR''(Criminal). For example, current 4 OJI 503.01, dealing with Aggravated Murder, becomes CR 503.01. A ''Correlation Table'' will be included in each volume containing previous and new section numbers. Both volumes have newly designed, slightly larger loose-leaf binders. The format of individual instructions has not changed.

Jury instructions, while perhaps being one of the jurisprudence’s lesser celebrated entities-- behind all of the rules, statutes, and case law—none the less can serve lawyers and judges by providing insight into matters now before them, especially when current conditions or circumstances are more novel or usual.

Black’s Law Dictionary describes model jury instructions as “directions or guidelines a judge gives a jury concerning the legal aspects of a case, usually approved by the state’s bar or similar group.” Put another way, Indiana’s Third District Court of Appeals in 2005 said “the purpose of an instruction is to inform the jury of the law applicable to the facts of a case without misleading it and to enable it to comprehend the case clearly so it can arrive at a just, fair, and correct verdict.” ( Case )

“Standardized” or “model” instructions to a jury were first attempted in Ohio in 1922, but it wasn’t until 1958 that Ohio Jury Instructions were published and privately circulated by the Ohio Common Pleas Judges Association. In 1960, a “Standard Civil Outline—Negligence” was released, followed by a companion criminal outline in 1962. Ohio Jury Instructions have been since been revised four times.


Jury instructions in Ohio are codified in ORC 2945.10 and 2945.11. Civil Rule 51, Criminal Rule 30, and Jury Standard 16 also pertain to jury instructions. [“Ohio Trial Court Jury Use & Management Standards” in “Appendix B” of Ohio Rules of
Superintendence” @ http://www.sconet.state.oh.us/Rules/superintendence/Superintendence.pdf ]

White-collar crime influxes

Top white-collar criminal defense attorneys are beginning to receive steady flows of inquiries from clients embroiled in the ongoing credit crisis, the National Law Journal reported in its November 10th. issue. (Subscription)

“700 billion dollars can’t go out the door without someone going to jail,” Abbe Lowell, head of the white-collar crime defense practice section of McDermott, Will & Emery’s Washington office told the Journal, referring to the massive buyouts the federal government has already spent in the banking and mortgage industries. “There are gouing to be criminal cases made as a result of this crsis,” Lowell said. “Somewhere buried in the complexities of these transactions you’ll find people who took advantage.”

Assurances from the prosecutors’ side was also foretold. Steve Huggard, one of the partners in the white-collar crime practice area at Boston’s Edwards, Angell, Palmer & Dodge, and former chief of the public corruption & special prosecutions unit of the U.S. attorney’s office for 17 years until 2005, was quoted as having commented that “The [DOJ’s] focus will be the harm to the economy and to investors… Prosecutions often follow public sentiment and there’s a lot of anger in the country….”


Similar scenarios are occurring more locally as evidenced over the weekend by Cleveland’s Plain Dealer. A county-wide corruption probe that came to light back in July when nearly 200 federal agents raided homes and offices of several prominent politicians and businesses – depending on how the probe plays out with grand juries, indictments, and trials in the forecast -- could generate more than $10 million in legal fees by the time the case is closed.

Ohio Supreme Court documenting state's Pro Se work

The prodigy of Henry Campbell Black describe pro bono activities as “being or involving uncompensated legal services performed, especially for the public good,” and former American Bar Association President Jerome Shestack, ten years ago back in August 1998, included them among his six determinant components of legal professionalism along with “ethics and integrity, competence combined with independence of judgment, and meaningful continuing learning, civility, and obligations to the justice system.”

Our principle interests here are with Ohio and that story starts in August 1989 with Ohio Supreme Court’s formation of a committee to examine creeds of professionalism adopted by other states and charging it with the task of assembling information “that would raise the consciousness of attorneys regarding their individual & collective responsibilities to maintain a high level of professionalism.” The work of that committee led, in 1992, to the formation of the Supreme Court of Ohio Commission on Professionalism, which – in 1997—adopted a Statement of Professionalism, Lawyer’s Creed, and A Lawyer’s Aspirational Ideals, also amending continuing education requirements to include at least an hour of instruction biennially relating to professionalism and including the topics just mentioned. Pro bono activities were part of that package.

In September 2007, underscoring “the important obligation attorneys have in facilitating public access to justice, the Ohio Supreme Court issued a statement encouraging attorneys to regularly provide pro bono legal services and report those activities. That statement was published in booklet form along with the Statement of Professionalism.

This morning the Supreme Court announced a new program designed to gather “meaningful information about the extent & nature of pro bono work in Ohio and encourage activity to aid those in need of free legal services. (Here)

Under a joint project of the Supreme Court and Ohio Legal Assistance Foundation (OLAF), which the Court has regularly allocated funds to to aid in the development & coordination of pro bono activities in Ohio since 2003, Ohio attorneys will be being asked in January to voluntarily and anonymously report pro bono activities and financial support for legal aid programs this past year. The information will be used to identify gaps in the delivery of legal services in order to strengthen the network of services available to Ohioans in need.


Ohio Supreme Court’s Pro Bono statement

John McCain on matters of law

The National Law Journal, as it has in the past, invited the major presidential and vice presidential candidates to write about the legal issues facing the next administration and to offer their views on such topics as the rule of law, the federal court system, judicial appointees and priorities for the U.S. Department of Justice.

Sen. John McCain accepted the invitation. ( Here )

He himself summarizes “what would be three important priorities in a McCain administration: keeping the Department of Justice politically neutral, focusing law enforcement programs on addressing issues of the day, and appointing judges who will strictly interpret our Constitution and hold criminals accountable.


Following the last presidential debate on Oct. 15th., the Associated Press ( Here and Here ) and MSNBC ( Here ) surveyed the two men’s responses on a number of the issues and found “deep differences,” but “a lagging indicator of reality” as well. The L.A. Times also printed excerpts comparing the two.

Last updated on the 23rd., CNN/Money magazine has posted a comparison of McCain and Obama’s views on “major economic issues, ” as well. ( Here )

New Federal Rule Pre-empting State Tort Claims Relating to Seatbelts

The National Highway Traffic Safety Administration has issued a new final regulatory rule “amending the definition of ‘‘designated seating positions,’’ as used in the Federal motor vehicle safety standards (FMVSS), to indicate more clearly which areas within the interior of a vehicle meet that definition”

The amendments establish “a calculation procedure for determining the number of designated seating positions at a seat location for trucks and multipurpose passenger vehicles with a gross vehicle weight rating less than 10,000 lbs, passenger cars, and buses; and eliminates the existing exclusion of auxiliary seats (i.e., temporary or folding jump seats) from the definition.”

But Marcia Coyle, also notes in the National Law Journal, this morning, that “the rule also contains language that would specifically pre-empt state tort claims related to seat belt injuries.”

Failure to advise that state has to prove case 'beyond reasonable doubt' voids guilty plea -- Ohio Supreme Court

The Supreme Court of Ohio today ruled that, “before accepting a guilty plea to a felony offense, Ohio trial courts must strictly comply with Ohio Criminal Rule 11(C)(2)(c) by orally advising the defendant of five specific constitutional rights the defendant will waive (give up) by pleading guilty. The Court held further that a trial court’s failure to strictly comply with the rule invalidates the defendant’s guilty plea.”
( Supreme Court’s summary )( Decision )

In the case in point, the trial court judge had questioned a defendant and determined that he knew and understood the rights he was waiving by accepting a plea bargain in which he agreed to plead guilty to felonious assault with a firearm specification, as required by Ohio Crim.R. 11. The judge, however, failed to advise defendant that one of those rights included in Rule 11was the right to a trial at which the state would have to prove his guilt “beyond a reasonable doubt.”

The Court noted Chief Justice Moyer’s having observed that “Ohio adopted CrimR 11 back in 1972 in response to Boykin v. Alabama, in which the U.S. Supreme Court had held that a court’s failure to explicitly advise a defendant of specific constitutional rights he was giving up by pleading guilty, rendered the defendant’s waiver of those rights invalid.” The Chief Justice also acknowledged “a line of cases decided by the Ohio Supreme Court since 1977 that established a standard of ‘substantial compliance’ under which a guilty plea is not necessarily invalidated,” emphasizing and explaining the distinction.

Public Comments to Ohio Supreme Court Proposed Rule on Retired Judges

The Ohio Supreme Court has made public an amendment proposal to its rules of court relating to retired judges handling civil actions or proceedings in the state. ( Press Release )

The proposed amendment to Judiciary Government Rule VI (C)(2) would conform the existing rule to the Supreme Court’s holding in Barnes v. University Hospitals of Cleveland earlier this year, in which the Court held that “a retired judge who was never elected but served as a judge by appointment of the governor, was eligible to serve as a private judge under R.C. 2701.10, according to the Court’s announcement.

Comments on the proposed rule may be made until Nov. 4th., and should be submitted in writing to: Richard A. Dove, Assistant Administrative Director, Supreme Court of Ohio, 65 S. Front St., Seventh Floor, Columbus, Ohio 43215 or via e-mail to dover@sconet.state.oh.us.

Ohio Supreme Court upholds expanded "Megan's Law" guidelines

The Ohio Supreme Court has again upheld retroactive applications of the state’s amended sex offender reporting & notification rules this past Wednesday. ( Article )

Originally passed in 1996, Ohio’s sex offender registration & notification law was amended in 2003 and again twice last year in pertinent parts. ( See SB 10 and 97 )

SORN has been challenged several times as to its retroactivism. In 1998 the Court in State v. Cook, held that “the registration & community notification requirements enacted in 1996 were not constitutionally barred as ex post facto provisions because their primary intent and effect was not to impose additional ‘punishment’ on prior offenders, but rather to protect the community from possible future sex crimes.” Earlier this year, though, respective of its residency restrictions, the Court in Hyle v. Porter held that because the statute barring sex offenders from living within 1,000 feet of a school does not expressly state that its provisions are retroactive, it doesn’t apply to an individual who had owned his home and committed his crime before the law took effect.” Hyle, by the way, was a certified conflict case between the First and Second District courts of appeal. Appellant in Wednesday’s case had initially made the same challenge, which were conceded to during oral arguments.

In Wednesday’s case the Court recognized that the statutes had been amended, and notably said its review didn’t address changes made by SB 10. However, it “found it significant” that while it “recognized that SB 5 had altered some sections of Revised Code Chapter 2950, none of those amendments suggested that the legislature didn’t agree with its ruling in Cook. In amending the statute, the General Assembly did not insert language that limited retrospective application of the provisions there upheld.” ( Holding )( Court’s summary )

Kentucky AG fights state's early releases

Kentucky Attorney General Jack Conway filed suit yesterday to block the early release of prisoners that’s part of that state’s department of corrections cost-cutting plan passed by legislation last year.( Article )

Conway’s suit moves to enjoin early releases being made on several points, including that they are not being made limited to non-violent offenders, but without differentiating between crimes that had been committed. Conway also says Kentucky’s department of corrections has illegally undertaken the early releases by improperly applying legislation passed last year, and is asking the Court to “enter an order mandating that the prisoners wrongfully and illegally released by the Department of Corrections be immediately re-incarcerated and parolees wrongfully released from parole supervision be readmitted to parole.” ( Complaint )( TRO Motion )

Kennedy v. Louisiana

The U.S. Supreme Court denied the State of Louisiana’s petition for rehearing after considering that state’s argument that “the military penalty for rape, a congressional amendment of the Uniform Code of Military Justice
in 2006, and a related executive order in 2007 – not considered in its initial June 25th.—in fact warranted consideration & should alter the Court’s analysis whether the death penalty was excessive punishment for the crime of raping a minor under the age of 12. ( Court’s order )

The Court in its initial holding back in June found that “after reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other non-homicide crimes, current state statutes and new enactments, and the number of executions since 1964 , we conclude there is a national consensus against capital punishment for the crime of child rape.” ( Kennedy v. Louisiana )

Simply put, the Court yesterday just said “authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context.”

As noted by Tony Mauro on Law.com this morning, Justices Clarence Thomas and Alito dissented and would’ve granted a rehrearing; Antonin Scalia, joined by Chief Justice Roberts, agreed in not granting the petition, but issued their own statement.

Proposed Federal Trade Commission Rules for Adjudicative Proceedings

Marcia Coyle at the National Law Journal has an article posted this morning about the Federal Trade Commission’s proposing “new rules to improve and streamline enforcement actions tried before administrative law judges” last Thursday.

Part 3 and sections of Part 4 of the Commission’s Rules of Practice concern the process of administrative adjudication at the agency. It is these that are being revised. ( Proposed Rules )

“The Part 3 process, ‘has long been criticized’ as being too protracted and leading to three undesirable consequences,” Coyle writes. “First, in merger cases, drawn-out proceedings may result in parties abandoning transactions before their merits can be adjudicated. Second, protracted Part 3 proceedings may lead to substantially increased litigation costs, both for the commission and for private parties. Third, protracted proceedings do not necessarily lead to decisions that are more just or fair.”

Interested parties may submit written comments electronically or in paper form, but should refer to “Parts 3 and 4 Rules of Practice Rulemaking- P072104” to facilitate the organization of comments.

The Federal Trade Commission, however, also notes that, “Because paper mail in the Washington area, and specifically to the FTC, is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following weblink: https://secure.commentworks.com/ftc-part3rules (and following the instructions on the web-based form). To ensure that the Commission considers an electronic comment, you must file it on the web-based form at the weblink:
https://secure.commentworks.com/ftc-part3rules . If this document appears at http://www.regulations.gov/search/index.jsp , you may also file an electronic comment through that website. The Commission will consider all comments that regulations.gov forwards to it. You may also visit the FTC website at www.ftc.gov to read this document and the news release describing it.”


Press Release

Current Rules of Practice for Adjudicative Proceedings (16 CFR Pt. 3)
Current Miscellaneous Rules ( 16 CFR Pt. 4 )

New Federal Evidence Rule 502

Senate Bill 2450 – signed by President Bush last Friday-- establishes a new federal rule of evidence that states “the inadvertent disclosure of privileged material would not result in a waiver of attorney client and work product privilege as long as the party responsible for the disclosure took reasonable steps to prevent that release of material.”

The new rule, BNA’s U.S. Law Week (subscription) recently reported, is an attempt to “resolve long-standing disputes and conflicting decisions in federal court about the consequences of inadvertent disclosures,” and has several subsections:

• Rule 502(a) establishes scope of waiver from inadvertent disclosure, stating any waiver is limited to actual material disclosed and not all material on the same subject; if inadvertent disclosure is made in federal court, protection against privilege waiver applies in state court. If disclosure is done intentionally to gain tactical advantage, waiver would be extended to all material.


• Rule 502(b) states inadvertent disclosure of protected communications or information does not result in privilege waiver if disclosing party took reasonable steps to prevent the disclosure & correct the error after it occurred.


• Rule 502(c) states that an inadvertent disclosure first made in a state court proceeding does not waive privilege in subsequent federal proceedings.


• Rule 502(d) establishes “controlling effect” of a court order issued during litigation, stating that a privilege is not waived by disclosure.


• Rule 502(e) states that an agreement between parties that protects against privilege waivers in the event of inadvertent disclosures is binding only on those parties, and doesn’t apply to nonparties unless incorporated in a court order.


• Rule 502(f) and (g) state that new rule also applies to court-ordered arbitration and is limited to attorney-client privilege & work product protection.

U.S. Law Week also reported that Sen. Arlen Specter, who sponsored Senate Bill 2450, is also sponsoring a second bill (S 3217 ), which would “bar the Justice Department from forcing corporations to waive attorney-client privilege in return for leniency in criminal prosecutions.

Ohio Supreme Court's gun control holding

Last Thursday, reminiscent of the U.S. Supreme Court’s District of Columbia v. Heller decision back in June of this year, the Ohio Supreme Court struck down the City of Clyde’s ordinance banning the possession of firearms in public parks because it conflicted with a general state law permitting licensed individuals to generally carry concealed weapons. ( Summary )( Holding )

Clyde is a town of about 6,000 , about 49 miles southeast of Toledo. ( Locator )

In Jan. 2004, the Ohio General Assembly enacted ORC § 2923.126, allowing persons meeting certain qualifications and obtaining a license, carry a concealed firearm except in locations specified in that statute. That statute was amended in 2007 and again, two weeks ago, by SB 184. In June 2004, Clyde enacted its municipal ordinance prohibiting anyone within the confines of any city park from possessing a deadly weapon, expressly including “persons licensed to carry a concealed firearm pursuant to RC 2923.125.”

Suit was filed in Sandusky common pleas in August 2004, but while it was still pending, the 6th. District Court of Appeals upheld a strikingly similar ordinance in Toledo v. Beatty . Relying on the 6th. District’s ruling, the trial court in Sandusky found in favor of Clyde, reaffirming enforceability of its ordinance.

That too was appealed, but while that appeal was pending, the state enacted the new legislation , reaffirming its intent to enact a statute that would “provide uniform laws throughout the state” regulating the concealed carry of firearms and explicitly stating that Ohioans have a fundamental constitutional right to possess a firearm where such possession is not expressly prohibited by the U.S. or Ohio constitutions or by a state or federal law. Thus the appeal to the Supreme Court.

Ohio Southern District Fair Housing/Sex Disrimination settlement....?

Victims of a former Forest Park, Ohio landlord achieved a potentially major victory last week in the largest sex discrimination case in the history of the Fair Housing Act, but they may never see a dime of their victory, according to an article in last Friday’s Enquirer, because the defendant in that case has “no asstes.”

U.S. Southern Ohio District Judge Susan Dlott, who oversaw the almost $1 million settlement, rebuked Justice Department lawyers, according to the article, for putting out misleading information earlier this month. “Doesn’t the government know, in fact, that this man has no assets and that this money will not be paid? Isn’t it already known that he is arrears on a criminal fine?” she asked
( Judgment )

Commentary Period for New Ohio Protection Order Notification Forms

The Ohio Supreme Court this morning announced that it will be seeking public comment on proposed judicial firearm notification forms for those charged with domestic violence or subject to protective orders.

Portions of House Bill 562, which was passed by the General Assembly June 10th., and, in its pertinent part here became effective June 24th., requires judges to provide oral or written notices about firearm disqualifications for misdemeanor domestic violence offenders.

Rules 10.01 through 10.03 of the Rules of Superintendence for the Courts of Ohio cover domestic violence civil protection orders, domestic violence temporary protection orders, criminal protection orders and civil stalking or sexually oriented offense protection orders. Protection order warning pages have been revised to include new language that clarifies federal law [ 18 U.S.C. §922 (g)(9) ]and recommends offenders contact their attorneys to determine if they are “weapons disqualified.” Proposed changes can be viewed here.


Comments on the proposed amendments should be submitted in writing to: Diana Ramos-Reardon, Domestic Violence Program Manager, Supreme Court of Ohio, 65 S. Front St., 6th Floor, Columbus, OH 43215, or ramosd@sconet.state.oh.us.

Ohio Supreme Court certified post-judgment interest rate question

The Ohio Supreme Court resolved a certified question last Tuesday as to whether a bill adjusting post-judgment interest rates applied to final judgments entered prior to the bill’s effective date, but not paid in full pending appeals.
The Court answered in the affirmative. ( Court’s summary )( Decision )

A Marion, Ohio court awarded compensatory and punitive damages to a man in a workplace injury case against his employer in April 2003. The employer withheld payment while appealing the trial court’s decisions. In the interim, the statute was amended from a rate of 10% to “a variable rate to be recalculated annually by applying a new statutory formula.” The employer used this new rate as the basis of his calculations for post-judgment interest, which the man challenged.

The 3rd. District Court of Appeals sided with the man’s position and said he was entitled to the 10% rate from the date of the trial court’s judgment to the date of the employer’s final satisfaction because that was the rate in force at the time of the judgment entry. But the 3rd. District also certified the case, recognizing that it was in conflict with a 2005 10th. District appropriations case, and a 2006 arbitration case from the 8th. District.

Wall Street's meltdown

The Jurist reported yesterday morning that several members of Congress were speaking out about “regulatory changes & investigations following the stock market drop propelled by Lehman Brothers’ Chapter 11 bankruptcy filing and the sale of Merrill Lynch Monday.”

Included in that posting was mention of the Senate Banking, Housing & Urban Affairs Committee’s rescheduling of a hearing slated for yesterday, originally dealing with “recent regulatory actions regarding Fannie Mae and Freddie Mac,” now to include this past week’s developments.

FBI Investigative Guidelines

The Justice Department and FBI, last week, re-announced plans to implement new guidelines extending agency investigatory powers relating to terrorism. The University of Pittsburgh’s Jurist relates that “the plan calls for a merging of the Guidelines on General Crimes, National Security Investigative Guidelines, and the confidential Supplemental Foreign Intelligence Guidelines.

Senate Judiciary Committee leaders Arlene Specter and Patrick Leahy wrote Attorney General Michael Mukasey last month, asking the implementation be postponed until after Congress had had a chance to review changes. That letter was accompanied in proximity with one from four other members of that committee. Mukasey had defended the proposed guidelines before the Senate Judiciary Committee the first part of last month, but agreed. ( See Previous Post )

“Review of the guidelines generated intense interest and occasional criticism from lawmakers & others over the summer,” the New York Times said Monday, “and the Justice Department took the unusual step last Friday of holding briefings for reporters & civil rights advocates, showing them the draft plan.” The article said the guidelines were likely to be made final soon after FBI Director Robert Mueller’s testimonies before the House and Senate Judiciary Committees yesterday and today.

Also, a letter from House Judiciary Chairman John Conyers, Crime Subcommittee Chairman Robert Scott, and Constitution Subcommittee Chairman Jerrold Nadler back on Sept. 5th. had asked Director Mueller to consider questions including the FBI’s anthrax investigation, its approach to the mortgage fraud crisis, and the expanded investigative & intelligence gathering powers prior to its hearing. (Press Release)

Ohio "castle doctrine" law

“Castle Law” is a doctrine of protection & self-defense having roots as far back as feudal common law. In its simplest form it’s the idea that you can protect your home and family from all invaders with whatever means necessary.

Wikipedia has an excellent overview of the subject, noting that “each state differs with respect to the specific instances in which castle doctrine can be invoked, and what degree of retreat or non-deadly resistance (if any) is required before deadly force can be used.” Wikipedia also points out that “any state imposing a duty to retreat while in the home does not have a ‘castle law’: the duty-to-retreat clause expressly imposes an obligation on the home’s occupants to retreat as far as possible and verbally announce their intent to use deadly force before they can be legally justified in doing so to defend themselves…. Other states expressly relieve occupants of any duty to retreat or announce their intent to use deadly force.” Kentucky and Indiana have this second – no duty to retreat anywhere – law.

Ohio’s SB 184, passed in June and becoming effective this past Monday, is slightly a slightly weaker rendition, with no duty to retreat if in one’s home or car.



“Castle law” nuances aren’t without testing or sometimes in the news, though. The Kentucky Supreme Court on Wednesday heard oral argument in two Jefferson County cases; one a murder conviction, the other manslaughter.

Ohio’s Supreme Court has a case pending with a different twist – a case arising out of an individual’s unprovoked attack against two store employees who died when those employees, with the help of two customers, tried capturing him while they were defending themselves.

New Ohio laws

There are some 14 bills passed by the Ohio General Assembly which have gone into effect this week or will be next week, including Ohio’s “Castle Doctrine” law (SB 184) which became effective Tuesday.

Others include:

SB183 IMPORTUNING requires the imposition of a mandatory prison term for the offense
of "importuning" if an offender previously has been convicted of a sexually
oriented offense or a child-victim oriented offense; adds the following prohibitions that constitute the offense of "compelling prostitution" (R.C. 2907.21(A)(2)(b), (3)(b), (4)(b), and (5)(b)): Eff. 9/11/2008

HB138 JUDICIAL SALE-PROPERTY - To require purchasers of real property at a judicial sale to provide certain identifying information and to make other changes in judicial sales of real property.
Eff. 9/11/2008

SB229 RADIOLOGIST ASSISTANTS -Requires the State Medical Board to regulate the practice of radiologist assistants and establishes criminal penalties for unauthorized practice
Eff. 9/11/2008; sec. 4774.02 9 months later

HB404 VIATICAL SETTLEMENTS Making numerous changes to the law governing viatical settlements, including requiring a business that is licensed as a viatical settlement broker to
maintain at least one individual who individually is licensed as a viatical settlement broker, and individuals who are licensed as viatical settlement brokers to complete continuing education requirements.
Eff. 9/11/08; sec. 3916.02(A) 90 days later

SB302 WILL SIGNING - To require a will to be attested and subscribed by the witnesses in the conscious presence, instead of in the presence, of the testator and to provide that a decedent who signs a document that is a purported will sign in the conscious presence of the witnesses. Eff. 9/11/2008

SB334 WORKERS' COMPENSATION - To prohibit an employee from receiving workers' compensation benefits in this state if the employee has received a decision on the merits of a claim filed in another state for the same injury or occupational disease, to allow an Ohio employer to obtain, through the Administrator of Workers' Compensation or an insurance company, worker's compensation insurance for claims arising in other states, and to make other changes to the Workers' Compensation Law regarding interstate workers' compensation claims. Eff. 9/11/2008


HB499 OHIO TRUST CODE –Modifications to the Ohio Trust Code, including provision that the administration of a trust is governed by the law designated in the terms of the trust to govern trust administration and, in the absence of such designation, the law of the trust's principal place of
administration.; Adds powers of trustees; and Outright repeals former fiduciary law that limits the liability of any excluded fiduciary when certain powers, including the authority to direct the acquisition, disposition, or retention of any investment, are granted to other persons and retains a similar provision in the OTC.
Eff. 9/12/2008

SB175 GRIEVING PARENTS ACT - To enact the Grieving Parents Act, regarding fetal death certificates for, and burials of, the product of human conception that suffers a fetal death.
Eff. 9/12/2008

HB346 HOSPITAL STAFFING GUIDELINES - Requires each hospital to create a nursing care committee to create & recommend written nursing services staffing plans and specifies the committee's duties and membership
Eff. 9/12/2008

HB181 SCHOOL RECORDS-MISSING CHILDREN - To require public and nonpublic schools to mark the records of students identified as missing children and to notify law enforcement of requests for those records. Eff. 9/12/2008

HB428 SCHOOL EMPLOYEES MISCONDUCT - Regarding the reporting of and the discipline for school employee misconduct. Eff. 9/12/2008

HB283 PHARMACY SCHOOLS - To permit pharmacy schools to accept for instructional purposes donations of certain dangerous drugs, including expired drugs. Eff. 9/12/2008

SB268 COUNTY CONTRACTS - To allow a county contracting authority to use competitive sealed proposals instead of competitive sealed bidding when doing so would be advantageous to the county. Eff. 9/12/2008


HB285 SMALL BUSINESSES - To waive fines or penalties for paperwork violations that are first-time offenses committed by small businesses. Eff. 9/16/2008

Ohio "non-recourse" funding legislation

Anthony Sebok devoted one of his FindLaw commentaries earlier this week to what he terms “Ohio’s wisely correcting a mistake that was made by its Supreme Court five years ago.” ( Here )

“In 2003,” he writes, “in Ransman v. Interim Settlement Funding Corp. the Ohio high court held that the ‘non-recourse’ funding of litigation violated the common law of the state. This decision shut down an entire industry that had fulfilled an important social function. I argued five years ago that that decision was wrong. Now, Ohio has overruled the decision by legislation.” He devotes the rest of the article to a review of the new legislation, and “asks a few questions about its limited scope.”

Ohio "Next-of-Kin" Database

The State of Ohio, last Monday, became one of a relatively small number of states having a “next-of-kin” database built around its drivers license and state ID records. Florida has a like program, started two years ago.

Ohio’s program was given birth to back in Nov. 2007, and was signed into law in last May..( Bill )

Given 180 days from its July 31st. effective date, Ohio’s Bureau of Motor Vehicles was directed to “adopt rules establishing the next of kin database and having it operational.” Registration began at noon, Monday, Sept. 8th.; the next day BMV’s website was sporting cautions to viewers that “due to the popularity and extraordinarily large number of individuals attempting to access the new ‘Next of Kin’ online application, you may experience slow-downs or, in some instances, not be able to login and complete the form.” ( BMV website )

BMV has “frequently asked questions” posted here.

Ohio Supreme Court oral argument streaming

The Ohio Supreme Court has announced that, beginning Tuesday, Sept. 16th., it will begin a transition from streaming live oral arguments and other programs using the Real Media (.rm) format to Flash Video (.flv).

The Court’s announcement says that “Beginning with the Sept. 16 and 17 oral argument sessions, users will have the option of accessing either the Real Media stream, which requires the free RealPlayer, or the Flash Video stream, which requires the free Adobe Flash Player; but, beginning Sept. 30, the Court will stream live events exclusively in Flash.”

Oral arguments and other events are currently archived only in RealMedia format, but these will eventually be transposed to the new Flash Video as well.

Ohio Supreme Court public record rules

Ohio Supreme Court Justice Ann Lanzinger last week announced that the commission appointed by the Supreme Court on rules governing public access to court records approached its task balancing two important concepts: protecting the public’s right to know while at the same time protecting the individual’s right of privacy.

“Some have argued that the rules limit the public’s right to access,” she said, “but that is a misunderstanding, for we do not intend to shield court records from the public eye. In making our recommendation, the commission tried to strike a balance between the presumption that court records are open with the need to protect the personal identifying information within them.”

“The Commission on the Rules of Superintendence received more than 50 separate responses to our initial draft from court officials, media, private investigators, state licensing boards, police, attorneys and others. After fully considering all submissions, we made substantial revisions and offer them for another public review.

For a second time, the proposed rules governing public access to court records are being published for 30 days of public comment until Sept. 17th. (See Court’s previous announcement )

Comments may be made before that time to: Jo Ellen Cline, Legislative Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215, or clinej@sconet.state.oh.us.


Additional information can be obtained from prior postings on Nov. 19th. 2007; March 24 and July 11, 2008.

Ohio CAT unconstitutional when applied to grocers

The 10th. District Ohio Court of Appeals last Tuesday ruled that the state’s commercial activities tax (CAT ), “when applied to gross receipts from the wholesale sale of food and the retail sale of food for consumption off of the premises where sold, operates as, and is, an excise tax levied or collected on the sale or purchase of food, which is prohibited by Sections 3 and 13 of Article XII of the Ohio Constitution.” ( Ruling )

Ohio’s CAT, enacted in 2005 and codified in ORC Chapter 5751, is levied “on each person with gross receipts for the privilege of doing business in this state.” Appellants had contended that since the Ohio Supreme Court has “repeatedly held that a tax levied on a business’ gross receipts was an ‘excise tax’ [i.e. East Ohio Gas Co. v. Limbach (1986)], and both Sections 3(C) and 13 of Art. XII prohibit ‘excise taxes’ from being imposed on certain food sales...it was clearly unconstitutional.” The state’s view had been that CAT was “a franchise tax as it is imposed for the privilege of doing business in Ohio, and what the Ohio Constitution prohibits are excise taxes levied on the sale of food in certain situations..” (highlights mine) The Tenth District agreed with the earlier contention, noting several cases [i.e. Wesnovtek Corp. v. Wilkins (2005) and Keycorp v. Tracy (1999)] in holding that “a franchise tax was an excise tax.”

The decision is apparently going to be appealed to the Ohio Supreme Court, according to an article in the Dayton Daily News on that day.

Is Ohio's personal income tax in danger of extinction?

Is Ohio’s personal income tax in danger of extinction? We don’t really think so, but an article in the Cleveland Plain Dealer, Tuesday morning, cites a Buckeye Institute study “asserting that cutting the state’s $9.1 billion-a-year in income tax revenue would cause a doubling of all other state tax revenues in five years or less.”

“Liberal-leaning think tank” Policy Matters Ohio’s 2006 “State Economic Growth & The Public Sector” study opted an alternative view.

HB 534, introduced in April, would phase out Ohio’s personal income tax over the next ten years, and repeal the withholding tax on trusts and pass-through entity withholding tax for taxable years after 2018.

There are seven states in the country that don’t have incomes taxes, and another seven that have “flat rate” income tax; two more income taxes limited to dividend & interest income alone.

Ohio paid sick leave initiative

Advocates have been pushing for paid sick days since the Family & Medical Leave Act was passed eleven years ago, requiring employers to give employees up to 12 weeks unpaid leave a year, an MSNBC article last Wednesday morning said. Proposed federal legislation would provide seven days of paid sick time for everyone working 30 hours a week or more. That would be prorated for part-time work. ( HR 1542 S910 )

But the federal measure has progressed slowly and the initiative has in many cases sifted down to local levels.

No state currently has paid employee sick days on their books, but more than a dozen have had legislation proposing such in the past year. Ohio’s H.B. 536, introduced this past April, is one, although that initiative appears to be going to be decided by popular vote in November. Ohio governor Ted Strickland opposes the measure here, and similar bills in both Maine and California have met with defeat.

Paid sick days are already the law in San Francisco and Washington, D.C.; it will be a ballot consideration in Milwaukee.

Proposed FBI guidelines

The University of Pittsburgh’s Jurist, last week, brought our attention to a letter from Senate Judiciary Committee leaders Patrick Leahy and Arlen Specter to Attorney General Michael Mukasey, asking he delay implementation of new FBI guidelines until Congress had a chance to review changes that had been made regarding racial profiling and investigative procedures. That letter was accompanied in proximity with one from four other members of that committee. ( Second letter )

Mukasey had defended the proposed guidelines before the Senate Judiciary Committee the first part of last month, but agreed.

In that letter the Department of Justice says it “welcomes the opportunity to explain in detail to the American people and members of this committee the importance of our efforts to revise & harmonize the Attorney General guidelines,” but also says, since 9-1, the FBI has “evolved from its traditional law enforcement role with some intelligence community activities into a flexible and efficient member of the intelligence community capable of fulfilling its mandate to be an intelligence driven agency…. The effort to bring together different sets of Attorney General guidelines, including those that govern criminal investigations, national security investigations, and the collection of foreign intelligence, is critical for the Department of Justice… all interests would be best served by the FBI having one consolidated & harmonized set of guidelines providing clear and consistent guidance to agents.”

The proposed rules & guidelines have received a lot of local media attention over the past two months with articles in the Washington Post, New York Times, and Los Angeles Times.

FBI Director Robert Muller is scheduled to testify at an oversight hearing on September 17th.

Ohio DNA preservation bill

Following up on one of Wednesday’s posts, we see that a bill has now been introduced in the Ohio Senate Wednesday that is designed to expand the use of DNA testing and to better protect biological evidence collected from crime scenes. ( Bill )

According to this yesterday’s Enquirer, the bill would also make police lineups and photo arrays “blind,” better preventing misleading cues being given witnesses about suspects; videotaping all questioning & confessions, and the setting of specific guidelines for that process; and for DNA testing to cover parolees on a voluntary basis.

North Carolina passed preservation statutes last year, and, like now Ohio, Arizona and Colorado have legislation pending.

Retention of DNA samples/evidence

A Columbus Dispatch article this past weekend projects state lawmakers being scheduled to introduce a bill in the Ohio General Assembly soon, “fundamentally changing how crime is investigated & prosecuted in the State, and making post-conviction DNA testing available to more convicts.”

House Bill 218, which had been introduced in May 2007, would’ve “provided that an inmate who pleaded guilty or no contest to a felony, was sentenced to a prison term or death, and was eligible to apply for post-conviction DNA testing could have applied for such DNA testing under the same procedures as the application of an inmate convicted of a felony…”

But “Ohio doesn’t have statewide standards for cataloguing & preserving evidence, and it routinely ends up going missing,” the article says, and a USAToday article earlier this month related that “half of the states in the country lack requirements preserving DNA evidence, despite a series of dramatic exonerations based on the critical biological material.”

§ 2953.81 of the Ohio Revised Code provides that, in the case of inmates, that DNA “samples shall be preserved during the entire period of time for which the inmate is imprisoned relative to the prison term or sentence of death, and, if that prison term expires or the inmate is executed, for a reasonable period of time of not less than twenty-four months after the term expires or the inmate is executed.” Kentucky law includes not only statutes relating to the disposal of DNA evidence, but for a centralized database and the maintenance of samples collected before July 2008. Indiana’s statutes relating to post-conviction DNA tests are contained in IC §35-38-7-14.

An Ohio Attorney General’s opinion in March 2005 examined the Ohio statutes on DNA sample retention.

The article indicated, as well, that the Ohio Supreme Court is considering changes that would require judges to regularly report the statuses of all post-conviction cases—such as DNA testing requests—so as to prevent them from “falling through the cracks.”


Additional information on DNA Database & Post-conviction Testing statutes

Ten Commandments vs. "moral relativist views"

The U.S. District Court for Northern Ohio last week ruled that Richland County Court of Common Pleas Judge James DeWeese did not violate a federal court order by displaying a poster depicted as “an editorial display contrasting the Ten Commandments with moral relativist views” in his courtroom. ( Decision )

The American Civil Liberties Union, had won a suit in District Court against the Judge back in 2002 for having a copy of the Ten Commandments hanging in his courtroom. That decision was affirmed by the Sixth Circuit Court of Appeals two years later. The ACLU filed a motion last May asking DeWeese be held in contempt now because of his current display, which has replaced his copy of the Ten Commandments. That motion was denied by District Judge Kathleen O’Malley .

Ohio EPA's clean interstate air proposal

Chris Korleski, head of Ohio’s Environmental Protection Agency, testifying before the Senate subcommittee on Clean Air and Energy, last Tuesday, urged passage of a law which would allow the federal government to devise regional plans leading to reductions in air pollutants that cause a wide range of health problems. (See article )

The Senate committee’s hearing centered the Federal EPA’s Clean Air Interstate Rule (CAIR), and two recent decisions from the U.S. Court of Appeals in the District of Columbia which effectively stopped President Bush’s pollution initiatives.
A New York Times article summarizes.

There were two such cases, the first being back in February, when the District of Columbia Court of Appeals invalidated final rules promulgated by the federal environmental protection agency “regarding the emission of hazardous air pollutants from electric utility steam generating units.” (“CAMR”). A first rule removed coal & oil-fired electric generating plants from a list of sources whose emissions are regulated under Section 112 of the Clean Air Act, while a second set performance standards for new coal-fired plants, and established “total mercury emission limits for states & certain tribal areas, along with a voluntary cap-and-trade program for new & existing coal-fired generating units,” under Section 111.

In December 2000, the EPA concluded it was “appropriate & necessary” to regulate mercury emissions from coal- and oil-fired power plants and listed them as sources of hazardous air pollutants, regulated by the EPA under Section 112 of the Clean Air Act ( 42 U.S.C. § 7412 ). In 2005, after reconsidering its previous determination, it attempted to remove those sources from the Section 112 list, and thereafter drafted its Clean Air Mercury Rule under Section 111. “EPA’s removal of the electric generating units from the Section 112 list violates the Clean Air Act because that section requires the EPA to make specific findings before removing a source,” the Court said; the EPA conceded that it never made those findings. The Court went on to say that, “Because coal-fired EGUs are listed under section 112, regulation of existing coal-fired EGUs’ mercury emissions under section 111 is prohibited…”

On July 11th. that same Court invalidated “CAIR,” holding EPA’s approach—regionwide caps with no state-specific quantitative contribution determinations or emissions requirements—is fundamentally flawed… “No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule” the Court said.

“EPA must redo its analysis from the ground up. It must consider anew which states are included in CAIR after giving some significance to the phrase ‘interfere with maintenance’ in 42 U.S.C §7410 (a)(2)(D) …It must decide what date, whether 2015 or earlier, is as expeditious as practical for states to eliminate their significant contributions to downwind nonattainment…The trading program is unlawful because it does not connect states’ emissions reductions to any measure of their own significant contributions…”

The Ohio EPA had an alternative idea….

“The heart of the Court’s decision,” Chris Korleski told the Senate committee, “lies in its interpretation of a single section of the Clean Air Act: Section 110(a)(2)(D)(i)(I). Boiled down to its essence , the decision concluded that the cost-effective ‘regionwide’ trading approach on which CAIR was based did not accord with the requirement in Section 110(a)(2)(D)(i)(I) that SIPs must prohibit sources “within a state” from contributing significantly to non-attainment in another state.

“We would respectfully suggest that Congress address the loss of the significant emission reductions guaranteed by CAIR by a surgical, laser-like, amendment to section 110. Such an amendment would essentially allow US EPA to successfully re-promulgate CAIR such that the certain and significant emission reductions would be re-established. Indeed, Ohio puts forward the following language as a starting point for consideration and discussion:

“We propose a new Section 110(a)(2)(E):

Nothing in section 110(a)(2)(D) shall be construed to prohibit the Administrator from requiring the development and implementation of a regional emission reduction approach (including but not limited to an emission reduction trading approach), which, in the Administrator’s judgment, will eliminate or minimize any significant contribution to nonattainment caused by the impacts of pollution from upwind states on downwind states. Inclusion in an implementation plan of the regional emission reduction approach may, in the judgment of the Administrator, satisfy a state’s obligations under 110(a)(2)(D).

New York law applied in pollution indemnity

Speaking of pollution, a New York Law Journal article this morning relates that the Manhattan Supreme Court has ruled that “the interpretation of insurance policies indemnifying the General Electric Company against liabilities for hundreds of millions of dollars in claims from polluted sites around the country, including the Hudson River, should be decided under New York law. ( Ruling )

Justice Bernard Fried held that even though GE’s operations & pollution risks were spread nationwide, its New York domicile should be regarded as “a proxy for the principal location of the insured risk, and thus, the source of applicable law.” citing the 2006 asbestos case, Lloyd’s of London v. Foster Wheeler Corp., which had held that “because no single state was the principal location of the insured risks, the insureds’ domicile is used as a proxy for choice of law purposes.”

Fried had also said that the coverage dispute wouldn’t affect GE’s liability for the cleanups or whether victims of pollution should be compensated, but rather the extent to which GE or the insurers must bear the cost of the cleanup.

He also stressed “the need to adopt an approach that would promote uniformity of results, writing that ‘it would not only be an enormous burden to consider the laws of numerous states on every issue in this case, but such an approach would make uniform interpretation of the contract impossible,’” the article related.

3rd. Circuit affirms Child Online Protection Act unconstitutional

The 3rd. Circuit Court of Appeals yesterday ruled the Child Online Protection Act is unconstitutionally broad & vague, upholding last year’s ruling from the District Court in Eastern Pennsylvania. (Ruling)

An Associated Press/New York Times article, yesterday, said the decision was “another twist” in the decade-long battle over the Child Online Protection Act, (Title 14 Pp. 736) which was passed in 1998, but has never taken effect. It was the successor to the Communications Decency Act (Title 5 Pp. 78) which the Supreme Court also found unconstitutional in Reno v. American Civil Liberties Union in June 1997.


Pennsylvania District Court’s opinion
Further background on Wikipedia for COPA and Communications Decency Act

Kentucky Illegal Immigration Test

A lawsuit filed, pro se, in Eastern Kentucky U.S. District Court, Monday, has observers on both sides of the issue saying it’s unique, if controversial, new spin on the volatile national debate over immigration policies by attempting to use the court system to deny services to certain peoples rather than allowing them, a Cincinnati.com article this morning said.

According to that article, the suit’s quoting a paragraph in the federal immigration code which says “the government has a duty to assure that taxpayer-supported public assistance programs are not abused, and that doing so relies on a credible system of verification,” calling on Lexington, Kentucky’s government and health department, as well as the state’s vocational rehabilitation office, require proof of citizenship before delivering any city services other than in emergencies.

8 USC § 1621 (a), in fact, says that, with certain exceptions such as treatment for emergency medical conditions, short-term emergency disaster relief, and public health immunizations, “aliens who are not qualified aliens or nonimmigrants are ineligible for state or local public benefits.”

8 USC § 1621 (d), however, provides another exception – “A state may provide that an alien who is not lawfully present in the United States is eligible for any state or local benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a state law after Aug. 22, 1996, which affirmatively provides for such eligibility.” This, in fact, is the base of the plaintiffs’ complaint here.

The article also relates an attorney with the American Immigration Law Foundation as saying that the entire premise doesn’t “make sense,” referring to a 1982 Supreme Court case in which the Court held that illegal immigrants couldn’t be denied public education, and that that precedent also applied to other basic services.

Chief Justice Burger, however, joined by Justices White, Rehnquist, and O’Conner, dissented in that ruling, saying “Without laboring what will undoubtedly seem obvious to many, it simply is not ‘irrational’ for a state to conclude that it does not have the same responsibility to provide benefits for persons whose very presence in the state and this country is illegal as it does to provide for persons lawfully present. By definition, illegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with government services at the expense of those who are lawfully in the state.” [See Plyer v. Doe, 457 US 202, 250]

Proposed IRA Disclosure Rules

New regulations being proposed by the Labor Department would require employers to disclose more information—and in a clearer format—about fees & investments in company 401(k) plans, now the single most-popular retire-savings device for millions of Americans, a USAToday article this morning says.

The Department of Labor is going to be accepting written comments in response to the proposed rules until September 8, 2008.

To an extent, some disclosure is already required by plans, but compliance with §404 (c)’s disclosure requirements is voluntary and doesn’t extend to participants & beneficiaries in all IRAs.

“These proposals would establish uniform, basic disclosures for such participants and beneficiaries, without regard to whether the plan in which they participate is a § 404 (c) plan. In addition, the proposal would require participants & beneficiaries to be provided investment-related information in a form that encourages & facilitates a comparative review among investment options.” (See Proposed Rules)

Ohio Supreme Court hearing public highway easement question

Last Wednesday, July 11th., the Ohio Supreme Court accepted a case that, by some, is being dubbed as “far-reaching” in disputes over Ohio Department of Transportation highway easements. ( Docket )

The plaintiff in a Franklin County servient real estate matter claimed it had granted the Department of Transportation a perpetual highway easement in 1959. That became the main portion of U.S. 52 ingressing/egressing Chesapeake, Ohio.

The plaintiff alleged that beginning around 1984- 1985, the U.S. 52 was rerouted and the previous route became an exit ramp, no longer crossing the easement considered. Plaintiff’s complaint contended that “from and after that time, the easement held by the defendant, or a major portion thereof, ceased to be used as an exit or for any other highway purpose for a period exceeding the statutory period of 21 years, and by the terms of the original conveyance, or by law, should be held to be extinguished with plaintiffs again seized of the entire, unencumbered freehold.”

The Franklin County Court of Common Pleas dismissed the case, reasoning that even if the subject easement hadn’t been used since 1984-54, because it was for highway purposes, the easement remains a ‘highway for the purposes of ORC § 5511.01.’ Bigler v. York, a 1993 case in which the Ohio Supreme Court had held that “a statute that prescribes procedures for abandonment of a township road provides the exclusive manner by which a township road may be abandoned.”

Ohio’s Tenth District Court of Appeals in reviewing the case sought to determine “whether the landowner’s common law right survived the enactment of ORC 5511.01, or whether that statute limited, or eliminated, the common law right.” Citing Danziger v. Luse, a 2004 case, the court held that “not every statute is to be read as an abrogation of the common law. Statutes are to be read & construed in the light and with reference to the rules & principles of the common law in force at the time of their enactment, and in giving that construction to a statute, the legislature will not be presumed, or held, to have intended a repeal of the settled rules of the common law unless the language employed clearly expresses or imports such intent.”

In appealing its appeal to the Ohio Supreme Court, the Department of Transportation says the case threatens the ability of ODOT to maintain the perpetual easements that underlie the state’s highway system. “Much of the rural highway system is based on right-of-ways acquired by easement; consistent with the traditional doctrine described in Ziegler v. Ohio Water Service Co…. Until now, it did not have to worry about inadvertently losing its easement rights…The Tenth District has wrongly determined that a highway easement could also be lost by mere inaction.

Appellant Memorandum in Support of Jurisdiction
Appellee’s Memorandum in Response

Ohio Supreme Court clarifies requirements for trial court "final orders"

In a case involving conflicting interpretations of an Ohio criminal rule of procedure, the Ohio Supreme Court last Wednesday held that:
“A trial court’s judgment of conviction in a criminal case is a ‘final’ order subject to review by a court of appeals under ORC § 2505.02 when the judgment sets forth (1) the guilty plea, jury verdict, or finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge who heard the case; and (4) the time stamp showing the journalization by the clerk of courts.” (Court’s summary)(Decision).

In a case originating in Summit County, the Ninth District Ohio Court of Appeals granted the state’s motion to dismiss on the basis that the trial court’s judgment entry didn’t meet the requirements of Criminal Rule 32(C), holding that “the order was not a ‘final, appealable order eligible for appellate review under ORC §2505.02 because it lacked a statement regarding the defendant’s plea. The Court subsequently also certified its ruling to be in conflict with a 2002 ruling the 12th. District Ohio Court of Appeals had made.

The Supreme Court in its holding, Wednesday, “rejected both the 9th. District’s holding that CrimR 32© requires every judgment of conviction to indicate the defendant’s plea at arraignment, and the 12th. District’s holding back in 2002, that the requirements of the rule need not be met in a single document as long as the required information is available elsewhere in the trial record.”

Ohio "commercial docket" Rules of Superintendence/ Criminal & Civil Procedure, including EDD

Not to be confused with our earlier entry, the Ohio Supreme Court also last Monday adopted a number of amendments to its Rules of Appellate, Criminal & Civil Procedures, as part of its annual updating based on recommendations from the Commission on Rules of Practice & Procedure. Included are several key amendments with respect to electronic discovery: (Amendments)

clarifying that discovery of electronically-stored information is permitted
that issues related to electronically stored information are appropriate topics for pretrial conference resolution
the time for responding to interrogatories does not begin to run until the party for whom discovery is sought receives both an electronic & paper copy of the interrogatories

Also approved were “temporary rules 1.01 thru 1.11” of the Rules of Superintendence of the Courts, governing the Ohio’s commercial courts pilot program, announced back on April 25, 2007 in Chief Justice Thomas Moyer’s annual state of the judiciary address. (Rules)

The rules state that up to five courts of common pleas around the state will be asked to participate in the pilot program, although that participation is voluntary. The commercial docket would include matters such as the formation, governance, dissolution, or liquidation of a business entity; trade secret cases, non-disclosure matters, and non-compete & employment agreements; and disputes between business entities or individuals as to their business or investment activities relating to contracts, transactions, or other relationship matters.

Not included in this sphere are cases such as those involving personal injury, survivor, or wrongful death matters, product liability, eminent domain cases, or matters in which a labor organization or governmental entity is a party


Ohio had a statutory “commercial court” between 1848 and 1852 with Thomas M. Key being its sole judge. It had concurrent jurisdiction with the Court of Common Pleas in civil matters, or ,with consent of both parties to a suit, cases docketed in either Common Pleas or Cincinnati’s Superior Court, could be transferred to the Commercial Court.

Proposed Amendments to Ohio Rules of Superintendence of the Courts/ Access to Court Records

A number of articles appeared in local papers last weekend about the Ohio Supreme Court’s Commission on the Rules of Superintendence endorsing a measure on June 27th. that would allow parties in a court case to redact “personal identifiers” such as social security & bank account numbers, and the names of children. (See Columbus Dispatch article here; Cleveland Plain Dealer, Toledo Blade )

The proposed amendments still have to be approved by the Court itself, which probably won’t address them until next month. It was also indicated that the Commission had recommended time for additional public comment on them. Media organizations, employment-screening firms and private investigators had criticized an earlier version of the rule amendments published for public comment last November; some of those provisions had been scaled back.
The Cleveland Dispatch article revealed that Mahoning County Juvenile Court Judge Theresa Dellick, the only member of the Commission to vote against the rules, still feels the proposals are too restrictive.

David Marburger, a Cleveland attorney who represented the Toledo Blade and other media organizations in comments on the earlier draft, questions the Court’s authority to issue general rules he says “go beyond administrative

In support of the proposed rules, Chief Justice Moyer last year wrote, “For more than 200 years Ohio courts have balanced the fundamental principle of openness articulated so gracefully by Judge Rufus B. Smith of the Superior Court of Cincinnati (when it had existed), with the equally important privacy rights of individuals and other societal concerns. The proposed rules are an attempt to continue to strike this critical balance in the new information age.”

The Chief Justice said, “The Supreme Court of Ohio quoted Judge Smith verbatim when it first adopted this universal principle of openness as statewide law in 1960. The idea was codified in statute with the passage of the Public Records Act in 1963,” He went on to say. It was reaffirmed in 1976 in the foundational public records case of Dayton Newspapers v. City of Dayton, decided by the Supreme Court of Ohio, and remains the bedrock of Ohio public records law to this day….. But, while the courts in Ohio have always acted in accordance with the Public Records Act, the act does not govern the courts, which is why the important constitutional principle of separation of powers requires that the Supreme Court regulate court records through its Rules of Superintendence…”

Justice Paul Pfiefer addressed public records in 2000 and again in 2005 in two of the weekly columns he’s been writing at least since 1999.

The Court’s decision in State ex rel. Montgomery County Public Defender v. Siroki in March 2006, we have found, summarizes the issue in good detail, saying in pertinent parts that “ORC § 149.43(A) envisions an opportunity on the part of the public office to examine records prior to inspection in order to make appropriate redactions of exempt materials (State ex rel. Warren Newspapers v. Hutson, )… One of the recognized exemptions is the constitutional right of privacy, which precludes disclosure of Social Security numbers (State ex rel. Beacon Journal Publ. Co.v. Akron).

In the Montgomery case the Court also says it specifically held in State ex rel. Highlander v. Rudduck, that “public-records custodians should redact Social Security numbers from otherwise public records before disclosing them under ORC § 149.43”

The Commission chair, Justice Judith Ann Lanzinger, said there are probably going to be problems with the implementation of the rules, but that they’re “trying to create a balance as best we can.” She also is encouraging the proposal for additional public comments before the Court makes its final decisions.

International "Rule of Law"

The World Justice Forum, convened in Vienna this past weekend, was envisioned as “the founders project” for the World Justice Project, bringing together world leaders from 112 countries and a diversity of disciplines including former and present heads of state, CEOs of multinational corporations & labor leaders, and directors of key nongovernmental organizations. Their purpose? Attempting to launch a new multi-disciplinary, multi-national movement to strength the rule of law worldwide. (Article)

The “rule of law” concept extends back in history, the earliest mentions being in Plato’s Statesman and Laws, and then Aristotle’s Politics, according to Wikipedia. In its simplest form, “Rule of Law” is the principle that “no one is above the law.” In American law, the most basic exposition of this principle is the justification of the separation of powers, the phrase used by John Adams in the framing of the Constitution – “to the end that it may be a government of laws and not of men” – being stalwart to the U.S. and every state supreme court in the nation.

For the World Justice Forum & Justice Project, the working definition of “rule of law” comprised four principles: 1). that governments, their officials & agents, are all accountable under the law; 2). that laws are clear, publicized, fair and stable, protecting fundamental rights; 3). the manner in which laws are enacted, administrated & enforced is fair, accessible and efficient; and 4). the laws are upheld, and access to justice is provided by competent, independent, and ethical law enforcement officials, attorneys, and judges, sufficient in number, and with adequate resources, reflecting the makeup of the communities which they serve.

One big problem, though. A report accompanying the “Rule of Law Index” was delivered to those attending the forum, but even that didn’t contain actual findings of initial test runs in the U.S., Argentina, and elsewhere, focusing on the process developed for measuring how effectively those countries adhere to the rule of law in a variety of key areas , according the American Bar Association.

Sixth Circuit Court of Appeals upholds FCC rules case

The 6th. Circuit Court of Appeals last Friday upheld the Federal Communications Commission’s authority to set rules making it easier for new cable companies in a community obtain local franchises needed to compete. The ruling was a consolidation of a number of suits against the FCC, claiming it had overstepped its authority.

The FCC had issued this order, “adopting rules interpreting & implementing Section 621(a)(1) of the Federal Communications Act, prohibiting local franchising authorities from ‘unreasonably refusing to award’ competitive cable franchises,” back in March 2007 which plaintiffs took exception to.

6th. Circuit Court of Appeals certifies abortion question to Ohio Supreme Court

The 6th. Circuit Court of Appeals, last Monday, certified an almost 4-year old Planned Parenthood case centering around RU-486, a drug used to induced abortions, and the Ohio statute passed in June 2004 specifically prohibiting its use, to the Supreme Court. (Article)

HB 126 was passed by the General Assembly four years ago to the day yesterday, becoming ORC § 2919.123. Planned Parenthood, however, filed a complaint in Southern Ohio District Court, winning a preliminary injunction against its going into effect Sept. 23, 2004, on grounds that it was void for vagueness, and unconstitutional on two other points. That was appealed in 2006.

The Appeals Court held that the district court’s primary holding was in error but affirmed its reasoning and remanded the case “for the appropriate scope of injunctive relief in light of the United States Supreme Court’s decision in Ayotte v. Planned Parenthood of Northern New England.” The district court now found for Planned Parenthood, granting a permanent injunction against the State’s enforcing the statute.

Now, as the Sixth Circuit put it, “both the State and Planned Parenthood have presented contrary, yet plausible, interpretations of ORC §2919.123 that they respectively believe would save the statute from unconstitutionality…. Both Planned Parenthood and the State encouraged this court to speculate on how the Supreme Court of Ohio would interpret the statute as opposed to seeking an authoritative interpretation from the high court via certification. In our opinion, however, the interests of judicial federalism and comity strongly counsel in favor of providing the Supreme Court with the opportunity to interpret that statute..”

Illinois Circuit Court Rules addition in "Measure of Damages per Shortened Life Expectancies"

Illinois circuit courts in May added “shortened life expectancies” to its measures of damage pattern jury instructions:


30.04.05 Measure of Damages—Shortened Life Expectancy

This instruction is appropriate if there is evidence that plaintiff’s life expectancy has been shortened by the tort. It should appear as a separate element of damages on the verdict form.


The element “shortened life expectancy” can arise when the tort causes a plaintiff to be likely to die prematurely. Dillon v. Evanston Hospital, 199 Ill.2d 483, 500 (2002) supports this element of damages. See DePass v. United States, 721 F.2d 203, 208 (7th Cir. 1983)(Posner, J. dissent) citing out of state cases to support the conclusion that Illinois law does not permit a tortfeasor to get off scot-free because, instead of killing the victim, he inflicts an injury that is likely to shorten the victim’s life. Shortened life expectancy is recognized as a separate element of
compensable damages in Bauer ex rel. Bauer v. Memorial Hospital, 377 Ill.App.3d 895, 920-921 (5th Dist. 2007).