Thursday, July 24, 2008

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

Wednesday, July 23, 2008

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 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]

Tuesday, July 22, 2008

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)

Thursday, July 17, 2008

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

Tuesday, July 15, 2008

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.”

Friday, July 11, 2008

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.

Monday, July 07, 2008

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.

Tuesday, July 01, 2008

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.