Friday, February 29, 2008

Ohio Adoption Law Questions

The Ohio 9th. District Court of Appeals last Wednesday upheld a juvenile court’s decision that it lacked jurisdiction in an attempt by a teenage woman to reclaim a child she’d given up for adoption seven months earlier.(Holding)

The woman had presumably voluntarily surrendered her 6-month old baby to a private child placement agency in September 2006 – the agency notifying the juvenile court of the surrendering – and placement – of the child pursuant to ORC § 5103. 15(B)(2). A year later, in April 2007, the mother filed a motion for relief of judgment with juvenile court, asking the court to vacate its acceptance of her consent to the adoption and claiming that her signature on the prescribed forms was not voluntary, but the result of duress & misrepresentation.

The court had initially issued an order finding that ORC 5103. 15(B)(2) did not require the approval of a permanent surrender agreement, only that the court enter it in its journal, but, in light of the woman’s duress allegation, construed her motion as a motion to set aside the agreement and ordered a hearing into the matter, enjoining the placement agency from further pursuing the adoption in the interim.

The agency objected, saying that the duress matter was already before the probate court and was not a juvenile matter. The juvenile court subsequently agreed and vacated its previous standing.

In its review the Appeals Court cited Lemley v. Kaiser(1983), which said Ohio’s adoption statutes are in derogation of the common law and therefore have to be strictly construed, and Kozak v. Lutheran Chldren’s Aid Society(1955), which had held that the validity of a permanent surrender contract executed by a minor parent is not affected by the parent’s minority. Its decision was that the probate court had the authority to consider a request to withdraw consent, but not the juvenile court. [See re Adoption of Pushcar (2006)]

The presiding judge, Hon. Donna Carr, however, noted in a concurring opinion that while “RC 5103.15 (D) indicates that a minor parent may enter into an agreement to permanently surrender a child, and that such an agreement is ‘as valid an agreement entered into by a parent age eighteen or older,’” it was a dubious practice “particularly in light of the fact that contracts by minors are voidable in virtually every other circumstance.” [Citing Zivich v. Mentor Soccer Club (1998) and Bramley’s Water Conditioning v. Hagen (1985)].

An Akron Beacon Journal article on the case, yesterday, said that according to the Child Welfare Information Gateway, a service of the U.S. Department of Health & Human Services, “only Louisiana, Michigan, New Hampshire, Rhode Island, Guam, and Puerto Rico require the consent of the minor’s actual parents in an adoption.”

Sidebar to the topic here at hand is the Ohio General Assembly’s “intent to reform Ohio’s adoption laws by ensuring timely, safe, and appropriate adoptive placements, reducing adoption expenses, and generally promoting adoption in Ohio.” House Bill 7 was introduced in February of last year by Rep. Tom Brinkman and is in the House’ Health Committee, where it’s being amended at present. Portions of the legislation, such as Juvenile/Probate Court’s jurisdiction over adoptions, as central in this case is not addressed. (See Legislative Service’s analysis)

Wednesday, February 27, 2008

Ohio's "Shaken Baby Syndrome" Law

Ohio has a new “shaken baby syndrome” law that becomes effective Friday, February 29th --- the first in the country that will attempt to notate and track deaths and injuries associated with that behavior. (Article)

Shaken baby syndrome” is a concept that evolved out of the work & observations of Drs. John Caffey and Norman Guthkelch in the early 1970s which described death or injury incurred by young children from being violently shook. A number of states have passed legislation viewing “shaken baby syndrome” as a form of child abuse, including Indiana, which passed its statutes in 1998. The majority center around educational programs

Ohio’s initial attempt at “shaken baby syndrome” legislation was back in 2003 with a bill that died in the Senate in May of that year. There were major changes in Ohio child care, welfare and adoption laws in 2006, notably the establishment of a “uniform statewide automated child welfare information system as a collection point of information regarding investigations of known, threatened, or suspected cases of child abuse or neglect.” The bill here concerned was introduced in April and passed by November 2007. Its perhaps most notable section is that calling for public children services agencies making a report of investigations in the automated child welfare information system to add notations “in each case of child abuse that indicates whether the abuse arose from an act that caused the child to suffer from, or resulted in the child suffering from, shaken baby syndrome,” and an annual report compiled thereafter.

There is some dispute over the legal implications of “shaken baby” characteristics which has resulted in not all of the states taking as proactive an approach as others. Kentucky is a good example of this other position. In April 2006 there was a “Daubert hearing” in Greenup County Circuit Court to determine the admissibility of proposed medical and scientific evidence, with the Commonwealth’s case based upon the testimony of shaken baby syndrome experts. The testimony was barred, with that court concluding that “SBS has not gained wide or general acceptance in the scientific community for the purposes of allowing an expert to testify that a baby has been subjected to abuse …the medical signs & symptoms, clinical medical and scientific research communities are in disagreement… Therefore the Court finds that because the Daubert test has not been met, neither party can call a witness to give an expert opinion….” That decision is currently being appealed but has progressed no further. ( Also See Here for more information)

Similar legislation to that on the state level was introduced in the House of Representatives in 2006 and again in April of last year .

Analysis of Ohio Bill
Ohio Revised Code

Tuesday, February 26, 2008

New Ohio Rules of Court Superintendence

Amendments to Rules 19 and 19.1 of the Ohio Rules of Superintendence become effective this Saturday, March 1st.

Rule 19 now requires that “magistrates be engaged in the practice of law and in good standing with the Supreme Court for at least four years at the time of their appointment. Rule 19.1 makes it mandatory for all municipal court having more than two judges “to appoint one or more magistrates to hear specific proceedings.”

Press Release
Rule Amendments

Friday, February 22, 2008

Ohio Supreme Court holds Civil Rule available when no applicable Criminal Rule

The Ohio Supreme Court also held Wednesday that “the plain language of Criminal Rule 57(B) states that a trial judge may look to the state’s Rules of Civil Procedure for guidance when no rule of criminal procedure is applicable to a motion made by a party in a criminal case.” ( Decision)( Court’s summary)

The case centers around a conviction of aggravated murder in 1993, and sentenced of life in prison with parole eligibility after 20 years. The conviction was affirmed that next year, with the Supreme Court dening it.

Two postconviction petitions were then filed, but denied by the trial court, and, eventually, by the appeals court. The Supreme Court also refused to hear these.

The defendant then filed a motion for a new trial in 2002, which was granted but resulted in his again being found guilty of aggravated murder, and sentenced to life in prison with parole eligibility in 15 years. The 11th. District Court of Appeals upheld this conviction. as well ( See here)

Then, on March 16, 2005, a motion for relief from judgment under Civil Rule 60(B), was filed pro se, alleging prosecutorial misconduct in both of his trials and his having been subjected to double jeopardy; requesting a reversal of conviction and dismissal of the indictment with prejudice

The trial court there interpreted the motion as a petition for postconviction relief and dismissed it as not having been filed in a timing manner. Now on appeal, the 11th. District affirmed the trial court’s dismissal of the motion, but certified the case to the Supreme Court as being in conflict with a 2004 ruling by the 1st District Court of Appeals here in Hamilton County which had held that a criminal defendant was eleigible to seek relief from a trial court judgment under Civ.R. 60(B) and that the trial court had, in fact, exceeded its authority by re-casting and dealing with the motion as a petition for postconviction relief. This was the Court’s resolution of that conflict.

Thursday, February 21, 2008

Ohio Sex Offender Residency Restrictions Not Retroactive

The Ohio Supreme Court yesterday ruled that Ohio’s residency-restriction statute prohibiting certain sexually oriented offenders from living within 1,000 feet of a school could not be applied to an offender who had brought his home and committed his offense before July 31, 2003, the effective date of the statute.( Ruling )

The case had been submitted to the Supreme Court by the First District Court of Appeals as a certified conflict between that court and the Second Appellate District Court, which had held the opposite review on the exact same day as the First District’s decision.

In making its decision the Supreme Court looked first of all at Van Fossen v. Babcock & Wilcox (36 O.St.3d 100), which had held in 1988 that “a statute is presumed to be prospective in its operation unless expressly made retrospective.” The Court next looked at its 2006-decision in State v. Consilio that held, first of all, that “in order to overcome the presumption that a statute applies prospectively it must ‘clearly proclaim’ its retroactive application.” It then went on to say that “a retroactive statute is unconstitutional if it retroactively impairs vested substantive rights, but not if its merely remedial in nature.”

Ohio Revised Code §2950.031 was renumbered by Senate Bill 10 last year and is now §2950.034. References to the wording used by the Court can be viewed in 2003 Am.Sub.H.B. No. 5.

Wednesday, February 20, 2008

State Level Electronic Discovery

With all of the excitement, or maybe trauma, over electronic discovery this past year, one might assume that EDD’s something reserved for massive litigation or federal cases alone. That’s not the case, as Brett Burney in a article yesterday morning conveys.

“Prior to Dec. 1, 2006, when the amended Federal Rules of Civil Procedure went into effect, parties in federal courts worked under the general assumption that e-mails and electronic documents were covered under an expanded definition of ‘documents.’ The word ‘documents’ in the pre-amended FRCP was liberally applied to both tangible paper and intangible digital files, he says.

“Similarly, state courts have allowed e-mail and electronic files to pass as ‘documents’ so they are equally as discoverable as pieces of paper.” Then Texas upset the cart in 1999 adopting perhaps the first state-level bit of EDD.

“Not many of the states have followed Texas’ lead,” the article continues, “but within the last few years the states have realized they need to make adjustments to their civil procedure rules to ensure they are applicable in the real world today..”

Mr. Burney relates that Arizona, Indiana, Louisiana, Minnesota, Montana, New Jersey, and Utah have all amended their respective rules to include FRCP-like provisions; 14 other states, including Ohio, are in the process of considering like amendments.

Burney introduces us to K&L Gates’ Electronic Discovery Law blog, which, indeed, has a wealth of information, including links to all of the states & district courts having rules or guidelines to electronic discovery, and the Sedona Conference, which has been at the forefront of this evolution since 2003. ( i.e, “Principles of Addressing Electronic Document Production” )( Full list of commentaries )

The Federal Judicial Center, National Conference of Commissioners on Uniform State Laws, and National Center for State Courts all have resources on electronic discovery at the state level.

Wednesday, February 13, 2008

Proposed Rule Changes for Temporary/ Agricultural Workers

The United States Department of Labor, for one, has been pretty busy the past few months it seems, with new rule proposals and an extension of the time period for comments for another.

On December 13, 2007, rules were proposed “to align the national apprenticeship system with the tools & flexibility needed for the 21st. century global economy.”

29 CFR Part 29 was created in 1977 to establish, for Federal purposes, “labor standards, policies and procedures for the registration, cancellation and deregistration of apprenticeship programs and agreements.” It also provides for the recognition of state apprenticeship agencies to register local apprenticeship programs for Federal purposes. The new rules would update those regulations by both making the procedures for apprenticeship program registration more flexible and by strengthening oversight of program performance.. They also take into consideration technological advances in the delivery of related instruction. (See here)

The original 60-day comment period for these rules now been extended until March 12, 2008. Comments should be identified by Regulatory Information Number (RIN) 1205-AB50, and can be made either electronically via the Federal e-Rulemaking portal at or mailed to Thomas Dowd at the address in the Federal Register.

Our second mention is the Wage & Hour Division’s proposed changes to Family and Medical Leave Act regulations.

The proposed changes are the result of a comprehensive review of two Department of Labor studies done in 1996 and 2001, several U.S. Supreme Court and lower court rulings, some 15,000 comments received in response to a “request for information about experiences with FMLA and comments about on the effectiveness of the existing regulations,” appearing in the Federal Register on December 1, 2006, and summarized in the Department’s June 2007 Report on the RFI. (First Press Release)

In addition to current FMLA regulations, the proposed rules include a description of new military family leave provisions, a discussion of issues identified under those provisions, and a series of questions seeking public comment on subjects & issues that may be addresses in the final regulations. (Second Press Release)

Recent amendments to the FMLA were also enacted on January 28, 2006. ( Text and Explanation).

Comments to this set of proposed rules again can be made electronically or via regular mail addressed to Richard Brennan, and identified by (RIN) 1215-AB35. Comments need to be received on or before April 11, 2008.

Rule proposals were also announced February 11th. that are directed at modernizing the Department of Labor’s “H-2A program” for employing foreign workers in temporary or seasonal agricultural jobs. (See Here)

DOL’s release states that the package follows the administration’s announcement that the Labor Department would review current regulations, most of which haven’t been updated for more than 20 years, and “propose changes to provide the nation’s farmers with an orderly & timely flow of legal workers while protecting the rights of both the United States and H2-A workers.” In part, that involves building on the successful re-engineering of the permanent labor certificate program, modernized in March 2005.

More information is available in today’s Federal Register. Comments for these proposals may be submitted, again to Thomas Dowd, using the Regulatory Information Number (RIN) 1205- AB55 on or before March 31, 2008.

Along with the Department of Labor proposals just reviewed, the Department of Homeland Security is also proposing amendments to its regulations affecting temporary & seasonal agricultural workers in the H-2A program.

These changes include revising current limitations on workers’ length of stay including the amount of time a worker may remain in the U.S. after his/her employment has ended, and the establishment of a pilot program under which aliens admitted on certain temporary worker visas at a port of entry participating in the program would also depart through a port of entry participating in the program and give designated biographical information, possibly including biometric identifiers, on their leaving the country.

Comments to this set should be identified by DHS Docket No. USCIS-2007-0055 and be received on or before April 14, 2008. They may be made electronically to , or via regular mail to Chief, Regulatory Management Division, U.S. Citizenship & Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW, Suite 3008, Washington, D.C., 20529.

Monday, February 11, 2008

Ninth Circuit private corporation's sovereign immunity case

The Ninth Circuit Court of Appeals last Wednesday, as part of a larger class-action suit, ruled that state sovereign immunity didn’t extend to private contractors hired by state agencies, and that the Court “shouldn’t even undertake the test it uses when various government bodies seek immunity,” according to an article from this morning.

Defendant American Corrective Counseling Services, a private contractor employed by the Santa Clara County District Attorney’s Office to pursue individuals who had passed bad checks, had argued for immunity on the grounds that the district attorney had “acted in his state capacity in administering the program and that it, therefore, was an arm of the state entitled to immunity.”

In denying the claim, the Ninth Circuit relied on its own 2004 precedent in U.S. ex rel. Amir Ali v. Daniel, Mann, Johnson & Mendenhall, and its analysis of why private entries’ claims of state sovereign immunity had to fail, and “to the extent that DMJM appeared to leave any analytic distance… to close the gap.” (See highlight)

“State sovereign immunity,” the Court stated, citing Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, “does not extend to counties and similar municipal corporations even though they share some portion of state power.”

“The Seventh Circuit well explained the difficulties inherent in extending the doctrine to private parties in Takle v. University of Wisconsin Hospital & Clinics Authority, a case concerning a recently privatized state hospital originally created by statute …parties closer to the private end of the spectrum have fared as poorly in their efforts to acquire state sovereign immunity (as in the Sixth Circuit’s 1999 case, Brotherton v. Cleveland), where ‘a nonprofit, private corporation’ authorized by Ohio statute to collect corneas was not accorded immunity as its only connection to the state was the authorizing statute.”

Friday, February 08, 2008

U.S. Supreme Court False Claims Act case

Congress passed the False Claims Act in 1863 in response to rampant fraud and other misdoings principally to do with the sale of war material & supplies during the Civil War. Codified ten years later in 1873, and then amended in 1943, 1982, significantly in 1986, and then again finally in 1994; the original provisions have come to be known more today in connection with so-called “whistleblower” cases than guns & bullets.

An article, though, in the Cincinnati Enquirer, Tuesday, told of a local case that’s making it to the U.S. Supreme Court later this month --- and, according to the article, it’s only the sixth time in 145 years that that’s happened.

The case is Allison Engine Company v. U.S. (07-214), and the question to be before the Court is one of whether a false claim allegation has to be shown as having been submitted to the federal government, or whether it is sufficient to establish that the claim was paid for using federal funds.? The issue has produced a conflict among the federal appeal courts.

There have been any number of cases in the past few years to perhaps illustrate the case, but the Enquirer article mentions Allison’s Sixth Circuit opinion in 2006, and U.S .ex rel. Totten v. Bombardier Corp. in 2004. Totten held that claims had to be presented to an officer or employee of the Government before any liability attaches.

The Sixth Circuit held that the district court had erred in requiring a showing that a false claim had actually been presented the Government, stating that a number of courts had followed the Supreme Court’s lead in avoiding “an overly narrow construction of the FCA, citing its own U.S. ex rel A+Homecare, Inc. v. Medshares from 2005.

While the Supreme Court’s deliberating the Allison case, the Senate will possibly be giving further consideration to amendments to the False Claims Act introduced last September 12th. and referred to the Judiciary Committee.

[ Current FCA wording ]

Tuesday, February 05, 2008

Ohio Foreclosure Issues

Ohio Attorney General Marc Dann’s efforts in the mortgage foreclosure arena hit some snags yesterday, with Hamilton County Magistrate Judge Michael Bachman not only rejecting Dann’s arguments, but commenting that the Court had “significant concerns regarding the ethical implications of the Attorney General’s actions.” (Article)

The Attorney General’s position is that lenders can’t foreclose unless they can show that they own the mortgage in default. Under Ohio law any transaction of an interest in real property must be in writing and recorded in the county where the property is situated [ ORC § 5301.25(A) ] Citing Civ.R. 10(D)(1) and Beneficial Mortgage of Ohio v. Jacobs, Dann ‘s motion to dismiss back in December put forth that “Ohio law requires a plaintiff in a foreclosure action attach to the complaint the mortgage deed and note forming the base of the suit.,” and that in the case here, those exhibits didn’t establish that ownership.

Aside from questioning the Attorney General’s motives, the Court dismissed the motion saying, in pertinent parts, that the controlling statute was that “under the Uniform Commercial Code as codified in Ohio, parties to a Note, subsequent holders of the Note, nonholders in possession of the Note who have rights of holders, and persons not in possession of the Note who are entitled to enforce the Note pursuant to other statutory requirements, may enforce the terms of the Note as to each other.” [ ORC § 1303.31(A) ];

“controlling case law states that the current holder of a note, despite having no part in the original transaction, is the real party in interest,” citing Conrad v. Rainey, 125 OSt. 326, 331-332 (1932); and, citing Stewart v. Hopkins, 30 Ohio St. 502, para. 6 of syllabus (1876), that, “as to the parties of a mortgage, longstanding Ohio case law holds that ‘under the laws of this state, an unrecorded mortgage, as between the parties thereto, is valid; and, as to all others, takes effect from the time it is left for record.” (Magistrate’s Decision)

Monday, February 04, 2008

District Court Certified Class Action Suit re Title Insurance "reissue/refinance" Rates

The Eastern Pennsylvania U.S. District Court last Friday certified a class action suit against Commonwealth Land Title Insurance Company brought by homeowners who clam they were overcharged for title insurance on refinances because they were never informed of statutorily discounted premium. ( Decision)

An article on this morning says that under Pennsylvania law, title insurance rates are governed by a statute that calls for a 10-percent “reissue rate” discount whenever a property owner purchases title insurance within ten years of obtaining a policy issued on the same property, and a 20-percent “refinance rate discount if the property owner applies within three years of obtaining a previous policy.

Plaintiffs in the action allege that Commonwealth agents should have known that prior insurance had been issued, and the discounts applied automatically.

Commonwealth argues that the law requires the purchaser of the policy to provide evidence of prior policies rather than relying on the insurer to uncover the policy in its title search.. Respective of the class action certification, and, contrary to plantiffs’ allegations, Commonwealth says “it is possible to obtain a mortgage or refinancing without title insurance in a variety of circumstances and that it is therefore impossible to conclude that every member of the proposed class who purchased insurance from them in the past three or ten years of obtaining a mortgage was eligible for a reduced premium.”

Judge Eduardo Robreno, who certified the action, found that the conflict didn’t defeat typicality and that the proper cure was to establish two subclasses, conditioned on the plaintiffs adding a representative for the reissue discount class.”

[Note: Rates that may be charged for title insurance are set out in the Title Insurance Rating of Pennsylvania Manual (TIRBOP Manual) governed by Pennsylvania Title Act, 40 P.S. 910-1 et seq. ]

Ohio, Kentucky & Indiana parallel statutes

Friday, February 01, 2008

Supreme Court differentiates stare decisis particulars

The court of claims statute of limitations requires an automatic consideration of a lawsuit’s timeliness irregardless of Government waiver, the Supreme Court held last January 8.

The case, John R. Sand & Gravel v. U.S., 06-1164, involved allegations of the holder of a mining lease that the EPA had taken land without just compensation thru activities on that land such as erecting fences. EPA initially invoked the § 2501 statute of limitations in its defense, but later withdrew that, conceded that some of the claims were, indeed, timely.

The long-standing stasis, the Court said, citing Kendall v. U.S. from 1883, was that interpretations of the statute set out a “more absolute, ‘jurisdictional,’ limitation period,” and the fact that “the language of the statute has changed slightly since 1883 made no difference because there had been no expression of congressional intent to change the underlying substantive law.”

Petitioner’s stance has been based on the Court’s decision in 1990 of Irwin v. Dept .of Veteran’s Affairs, which had held that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the U.S..

The Court’s holding, though, was that the subject statutes in the two cases were similar, but different, resulting in their not producing “unworkable” law.