Monday, October 27, 2008

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 )

Friday, October 10, 2008

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.”

Thursday, October 09, 2008

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.

Tuesday, October 07, 2008

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

Friday, October 03, 2008

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 )

Thursday, October 02, 2008

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 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.