Thursday, August 28, 2008

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.

Tuesday, August 26, 2008

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.

Monday, August 25, 2008

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.

Friday, August 22, 2008

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.

Wednesday, August 20, 2008

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 .

Friday, August 01, 2008

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.