2009 Wrap Up

"Everyone" does it this time of year – looking ahead -- From same-sex marriage in New Hampshire to payday loans in Kentucky, and all kinds in between, new state laws taking effect on New Year's Day stand the chance of affecting the way a lot of people live. Here's an overview of some of those recollections we found so far.

A USAToday article this morning relates:

• California becomes the first state to bar restaurants from cooking with trans fat — Restaurants will be prohibited from using oils, margarines and shortening containing more than half a gram of trans fat per serving. Violators are subject to $1,000 fines. Gov. Arnold Schwarzenegger signed the law in 2008, giving restaurants more than a year to make the switch. (L.A.Times article)(Text of Law)


• New Hampshire becomes the fifth state permitting same-sex marriage as a result of legislation signed by Democratic Gov. John Lynch in June. (N.Y.Times article)(Text of Bill)


• "Kentucky seems to be leading the way" in limiting payday loans, said Meagan Dorsch, spokeswoman for the National Conference of State Legislatures. New limits affect the payday loan business, with borrowers now being limited to two loans totaling no more than $500 at any one time. (Bill Text)


• Illinois becomes one of at least 18 states where it is illegal to send or receive text messages or e-mail while driving. Illinois is also making it illegal to talk on a cellphone while driving in a highway construction zone or school zone, DuPage County Sheriff John Zaruba said. "These new laws are important and will make our roads safer for all motorists," he said. (Good overview of state laws )

MSNBC notes:

• Among the most surprising new laws set to take effect in 2010 is a smoking ban for bars and restaurants in North Carolina -- the nation's largest tobacco producer. Not including Virginia and its partial ban, smoking will be banned in restaurants in 29 states and in bars in 25, according to the American Lung Association. Twelve more states — including Florida, Michigan and Arkansas — have passed laws requiring manufacturers to make their cigarettes less likely to start fires, leaving Wyoming as the only state without such laws, according to the Coalition for Fire-Safe Cigarettes. ( Overview of state laws )


• Bans on texting while driving go into effect in New Hampshire, Oregon and Illinois. According to the Governors Highway Safety Association, that will make 19 states that have outlawed the practice, not including six states that prohibit using hand-held cell phones while behind the wheel.

"The new year will bring with it more opportunities for Ohioans to be ticketed and fined, but also some new benefits," another article last week said. Beginning Friday, January 1, Ohioans can be ticketed and fined $100 for failing to turn on their lights when their windshield wipers are on. Law enforcement has only been issuing warnings in the first six months since the law took effect. Ohio is the 17th. state to adopt "lights-on-during-precipitation" laws. (HB 2)

And mention was made in a Cincinnati Enquirer article last weekend about health insurers having new limits on how much they can charge Ohioans with certain pre-existing diseases or chronic conditions, beginning tomorrow. "The new Ohio law will allow about 52,000 more Ohio adults to buy health insurance, according to state Insurance Director Mary Jo Hudson," the article said. "The law change set a rate-cap so more Ohioans can buy basic health coverage through the state-mandated Open Enrollment Health Insurance Program. The change is expected to cut premiums in half." (Further information Here)

Robert Ambrogi highlighted some of the more interesting law-related "top 10" lists on Law.com's Legal Blog Watch just before Christmas, as well. (Here)

Hamilton County Common Pleas/Commissioner Dispute

The Ohio Supreme Court yesterday issued an order staying the enforcement of the October 15, 2009 order by the Hamilton County Court of Common Pleas, In re Appointment of Special Legal Counselagainst Hamilton County Commissioners, "pending further order of the Court," Justice Maureen O'Connor dissenting and having would have denied a stay "until such time as one of the parties to the case requested such a stay."


County Commissioners Todd Portune and David Pepper last month filed a complaint for a writ of prohibition -- an appellate court order preventing a lower court from exceeding its jurisdiction or preventing a non-judicial officer or entity from exercising such powers, according to Black's Law Dictionary . "As a matter of law, the only authority granted the Court of Common Pleas over the relationship between the Board and its chosen counsel exists pursuant to R.C. 305.14(A)," the Commissioners' complaint read. Citing a 1986 case, , 28 OSt3d 179, it continued by saying, "The Board is entitled to a writ of prohibition because: (1) Respondents are exercising judicial or quasi-judicial power; (2) the exercise of that power is unauthorizcd by law; and (3) there is no adequate alternative remedy."


The Common Pleas Court had answered the complaint with a motion to dismiss saying the Commissioners had failed to "state a claim upon which the extraordinary relief of prohibition may be granted," (and) that it was "beyond dispute from the face of the Board's Complaint that the errors complained of are non-jurisdictional and may not form the predicate for a writ of prohibition."

Referring to cases such as State ex rel. Stamps v. Auto. Data Processing Bd., 42 O St.3d 164 in 1989, and R.C. 309.09(A), the Common Pleas motion countered "Significantly, R.C. 309.09(A) prohibits a county officer from employing any attorney other than the county prosecuting attorney, except as provided in R.C. 305.14."

Then, citing a number of additional cases, including Hallock, the Common Pleas motion stated that it had "been held repeatedly that in the absence of a conflict of interest the Prosecuting Attorney is the sole legal adviser to the county and its officers, who cannot be supplanted or replaced by special counsel."

Ohio Post-release Control Corrections

The Ohio Supreme Court once again visited criminal sentencing themes last Tuesday, clarifying requirement procedures for re-sentencing offenders when post-release controls were not properly addressed by the trial court. The case, State v. Singleton, held "in order to correct criminal sentences that do not properly impose a term of post-release control, the state's trial courts: 1) must conduct de novo sentencing hearings for offenders who were sentenced before July 11, 2006; and 2) must follow statutory resentencing procedures set forth in R.C. 2929.191 for offenders whose sentences were imposed on or after July 11, 2006, the effective date of the statute." (Court's Summary)

Last September, the Supreme Court in State v. Bankhead occasioned the release of a Hamilton County man from post-release control "on the authority of State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254.Appellant is discharged from post-release control because he has completed serving his prison sentence and, pursuant to State v. Bezak, 114 Ohio St.3d 94,2007-Ohio-3250, 868 N.E.2d 961, is no longer subject to resentencing."

State v. Bloomer, back in June, was actually three cases consolidated before the Court, in which it reviewed the "consequences of the trial court's failure to either notify an offender about post-release control at the time of sentencing or incorporate post-release control into its sentencing entry. The issues presented also concerned the application of ORC § 2929.191, which provides a mechanism for correcting a judgment entry if a trial court fails to notify the offender of post-release control or to impose it." Seven cases, beginning with State v. Beasley back in 1984, were looked at in this determination. The Court there held that "[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void, (But) because jeopardy does not attach to a void sentence, the court's subsequent correction of the void sentence did not violate double jeopardy" State v. Bezak, in 2007, held that an an offender would be entitled to a new sentencing hearing for the trial court to correct a sentence that omitted notice of post-release control, but, in this case's particulars, because Bezak had already completed his term of imprisonment, the court could not conduct resentencing." That holding was reaffirmed in March 2008 with State v. Simpkins.

The Bloomer court held "In conformity with the development of this jurisprudence, the General Assembly enacted H.B. 137, effective July 11, 2006, which amended R.C. 2967.28, 2929.14, and 2929.19 and enacted R.C.2929.191 to provide a mechanism for correcting sentences in which the trial court failed either to notify the offender of post-release control or to incorporate it into the sentencing entry." ( HB 137 analysis )

The present Court, last Tuesday, said "in order to correct criminal sentences that do not properly impose a term of post-release control, the state's trial courts: 1) must conduct de novo sentencing hearings for offenders who were sentenced before July 11, 2006; and 2) must follow statutory resentencing procedures set forth in R.C. 2929.191 for offenders whose sentences were imposed on or after July 11, 2006, the effective date of the statute."

Justice Terrence O’Donnell, writing for the majority, noted that, "because no statutory mechanism to correct a sentence that failed to properly impose post-release control existed prior to July 2006, the law applicable to sentences imposed prior to that date is case law, including several decisions of the Supreme Court of Ohio.

"R.C. 2929.191 purports to authorize application of the remedial procedure set forth therein to add post-release control to sentences imposed before its effective date,” he wrote. “We recognize the General Assembly’s authority to alter our case law’s characterization of a sentence lacking post-release control as a nullity and to provide a mechanism to correct the procedural defect by adding post-release control at any time before the defendant is released from prison. However, for sentences imposed prior to the effective date of the statute, there is no existing judgment for a sentencing court to correct. H.B. 137 cannot retrospectively alter the character of sentencing entries issued prior to its effective date that were nullities at their inception, in order to render them valid judgments subject to correction. Therefore, for criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose post-release control, the de novo sentencing procedure detailed in decisions of the Supreme Court of Ohio should be followed to properly sentence an offender. “On the other hand, prospective application of the statutory resentencing procedure in R.C. 2929.191 to correct sentences imposed on or after the effective date of that statute is consistent with the legislature’s stated intent “to protect the residents of this state from the consequences that might result if the state is forced to release without supervision offenders who have been convicted of serious offenses and imprisoned, solely because the offenders were not provided notice of the fact that the law always requires their supervision upon release from prison."

In describing the Court’s split its summary revealed Justice O’Donnell’s opinion was joined in its entirety by Justice Robert C. Cupp. Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor concurred in judgment and in the portion of the lead opinion syllabus holding that R.C. 2929.191 cannot be applied retrospectively, but dissented from the lead opinion’s syllabus and discussion addressing the prospective application of R.C. 2929.191. Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger concurred in the syllabus holding that R.C. 2929.191 may be applied prospectively, but dissented from the portion of the syllabus and lead opinion holding that the statute may not be applied retroactively.

Southwest Ohio SORN update

More than three years after Congress, in passing the "Adam Walsh Act," ordered stepped-up monitoring of sex offenders, an MSNBC article the first of the month said, only one state – Ohio -- has succeeded in adopting the government's strict new requirements.

This entry attempts a survey some of those recent developments in our area.

The law was designed to keep closer tabs on sex offenders, including an estimated 100,000 who are not living where they are supposed to be, and create a national sex offender registry and toughen penalties for those who fail to register. "The initial deadline for states to comply was in July," the article says. "Then the deadline was extended to July 2010, although several states have signaled they may still be unable to meet it. States that do not adopt the mandates risk losing millions of dollars in federal grants… But those efforts have been hampered by high costs and legal challenges from the nation's 686,000 registered sex offenders."

Recent court cases have varied returns, too. The article related Nevada U.S. District Judge James Mahan, last year declared pertinent laws there unconstitutional because "application of these laws retroactively is the equivalent a new punishment tacked onto the original sentence – sometimes years after the fact – in violation of the Ex Post Facto and Double Jeopardy Clauses of the U.S. Constitution, as well as the Contracts clauses of the U.S. and Nevada Constitutions."(Nevada Injunction )

Closer to our home here in Cincinnati, the 6th. Circuit Court of Appeals just two months ago reversed a sex offender's conviction for failing to register under SORNA, holding in part that "The circuits are split on whether defendants with pre-SORNA convictions had to comply with SORNA before the Attorney General issued an implementing regulation. But because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, [appellant here] was not subject to SORNA's requirements during the period indicated in his indictment." (6th. Circuit Ruling )

And just last Friday morning, a Law.com article was telling of the 2nd. U.S. Circuit Court of Appeals' rendering that Federal prosecution for failure to register as a sex offender does not violate the right to due process of law. "The 2nd Circuit explained that 'Although neither New York nor Florida had implemented the specific requirements set forth in SORNA during the time period charged in the indictment, both states had sex offender registration programs that complied with the federal Jacob Wetterling Act, 42 U.S.C. §14071, et seq., which was the statutory precursor to SORNA.'"( 2nd. Circuit Opinion )

The Ohio Supreme Court's case announcements last Wednesday noted that of the seven cases the Court agreed to hear this week, five of them were being held pending a decision in the State v. Bodyke sex offender case about heightened registration and public notification requirements of the state's sex offender statute, amended in 2007. Bodyke, a consolidated appeal out of Huron County, Ohio, "challenges to Ohio's statutes based upon separation of powers, retroactivity, ex post facto, double jeopardy, due process, cruel and unusual punishment and breach of contract." Oral arguments in the case were heard Nov. 4( Memorandum in Support)( Answer ). Ohio's SORN law was SB 10, effective Jan. 1, 2008 (Bill Analysis )

Of the seventy Ohio bills introduced in the "crimes & punishment" category this year, nine are SORN-related, including one introduced just before Thanksgiving which would revamp how often & the way Tier III offenders register their addresses – from every 90 to every 30 days-- and the way deputies track them, though not how sheriff's offices would pay for the cost of increased monitoring. ( Cleveland Plain Dealer article) ( Text of Bill )

Ohio Supreme Court cell phone search ruling

The Ohio Supreme Court yesterday ruled that Fourth Amendment prohibitions against unreasonable search and seizures required police to obtain warrants before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest, even when the search is not necessary to protect the safety of law enforcement officers or there are exigent circumstances.


Noting that neither the U.S. Supreme Court nor any other state supreme court appears to have ruled on the Fourth Amendment implications of a cell phone search, Justice Judith Ann Lanzinger said the two leading cases on that issue appear to be the conflicting federal court decisions cited in the 2nd District's majority and dissenting opinions.


Of these, Justice Lanzinger wrote: "In United States v. Finley ...the Fifth Circuit upheld the district court's denial of defendant's motion to suppress call records and text messages retrieved from his cell phone. ... Finley was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant. During the search incident to the arrest police found a cell phone in Finley's pocket. He was taken along with his passenger to the passenger's house, where other officers were conducting a search. While Finley was being questioned there, officers examined the cell phone's call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. ... In upholding the search, the Fifth Circuit analogized Finley's cell phone to a closed container found on an arrestee's person, which may be searched. ... Notably, Finley had conceded that a cell phone was analogous to a closed container. ... But because Smith, here, does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely applicable.


"The United States District Court for the Northern District of California, disagreeing with the Fifth Circuit's decision in Finley, granted a defendant's motion to suppress the warrantless search of his cell phone. United States v. Park (N.D.Cal., May 23, 2007). Police officers observed Park entering and leaving a building that they had under surveillance and for which they had obtained a search warrant. When they executed the warrant and searched the building, they found evidence of an indoor marijuana-cultivation operation. They arrested Park and took him to booking, where they searched him and found a cell phone. Before turning over the cell phone to the booking officer, the arresting officer recorded names and phone numbers found in Park's cell phone. ... Because the search of the cell phone's contents was not conducted out of concern for the officer's safety or to preserve evidence, the court found that it did not fall under the search-incident-to-arrest exception and that the officers should have obtained a warrant to conduct the search.”


In the present case, Justice Lanzinger wrote, "The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, 'container' means 'any object capable of holding another object.' New York v. Belton,/em> (1981)."



Court's Summary
Ruling

Ohio certification program of court interpreters

The Supreme Ohio Court announced last Monday that it will begin certification of court interpreters as of Jan. 1, 2010, with Rules 80 through 87 and Appendix H of the Rules of Superintendence for the Courts of Ohio going into effect on that date.

The Interpreter Services Program is designed to provide assistance to judges and the courts statewide on issues of foreign language interpretation, and was initiated with the Court's joining the National Center for State Courts' Consortium for State Court Interpreter Certification in June 2003. The Court then created its Advisory Committee to Study Use of Court Interpreters in April 7, 2005

"State and federal law requires complete and accurate interpretations in legal proceedings," the Court's release said. "These rules ensure that constitutional guarantees are afforded to all linguistic minorities, including deaf and hard of hearing populations. The certification will ensure that interpreters working in the courts meet the minimum standards of language fluency. Applicants will take the written examination developed by the Consortium for Language Access in the Courts, an arm of the National Center for State Courts. Candidates will also take an oral examination, to measure their English and foreign language ability."

New Rules

The Supreme Court also has several publications relating to court interpreters:

• “Report on the Use of Interpreters in Ohio Courts” (2006)
• "Working with Interpreters for Deaf or Hard of Hearing Persons in the Courtroom” (2007)
• "Working with Foreign Language Interpreters in the Courtroom” (2007)

Ohio BMV cancelling illegal immigrant vehicle registrations

Franklin County Magistrate Pamela Browning last Monday morning declined to grant a preliminary injunction against the Ohio Bureau of Motor Vehicles to prevent them from cancelling vehicle registrations of nearly 45,000 cars & trucks largely driven by undocumented immigrants. Beginning yesterday, the Columbus Dispatch reported, it will be illegal for thousands of immigrants to drive on Ohio's roads. The BMV is canceling their vehicle registrations for failing to prove they are legal U.S. residents. Police can stop those driving with revoked registrations, issue tickets and seize license plates. Drivers who cannot provide adequate identification risk going to jail, with undocumented immigrants also potentially facing deportation.

“BMV changes to weed out fraudulent registrations began on Aug. 24,” the article said, “the reforms being delayed for more than a year after former Public Safety Director Henry Guzman met with Latino business owners and then asked for improvements to the policy. BMV began a crackdown on Oct. 8, mailing out some 47,457 letters to those with questioned registrations instructing them to appear at BMV offices by yesterday and provide a state driver's license, ID number, or a Social Security number so their identities could be verified.”

While the BMV's letter said that registrations would be cancelled as of Dec. 8th , the BMV decided to wait until yesterday to take the action to provide those affected with a full 60 days notice, spokeswoman Lindsay Komlanc said.


Magistrate Browning's ruling

Ohio's execution of Kenneth Biros

Ohio's new single-drug lethal injection protocol appears to have worked as expected yesterday morning in the execution of Kenneth Biros at the Southern Ohio Correctional Facility in Lucasville, Ohio. An Associated Press article this morning said, "experts had predicted the single drug used, sodium thiopental — used in many parts of the world to put pets down — would take longer to kill than the old method used by Ohio and another 34 states. But the 10 minutes it took Biros to die was about as long as it has taken other inmates in Ohio and elsewhere to succumb to the three-drug combination."


CNN also had an article.

Ohio death penalty news

The Cincinnati and Miami Valley region was almost a virtual hotbed of capital punishment/ death penalty news & issues these past couple of weeks. Here's an overview updating for anyone who may have missed it.

The Wednesday before Thanksgiving, the U.S. 6th. Circuit Court of Appeals ruled that with the new method of lethal injection the state of Ohio has decided to pursue, Kenneth Biros – along with other death row inmates – can no longer argue that Ohio's three-drug cocktail of lethal drugs violates their constitutional rights. That meant Biros could be executed tomorrow ( Article )( 6th. Circuit's decision ) (District Court's motion )

The ruling, however, didn't prevent attorneys from petitioning the Court for future stays of execution challenging the new, single-drug, method, which was expected by state officials. Instead, Biros' attorneys last Friday contested the 6th. Circuit's 3-justice panel decision and petitioned for a rehearing by the full court, claiming that the State's changing the method of execution did not, in fact, answer their challenge. ( Petition ) The state's Attorney General's response is Here.


Another article indicated death-row inmate – Romell Broom, whose attempted execution back on Sept. 15th. led to the current, unofficial, moratorium in Ohio – petitioned the Ohio Southern District Court to bar a second attempt at executing him. That case will be being heard next week.


Kentucky's Supreme Court on November 25th. found that that state "improperly adopted" its 3-drug lethal injection protocol in spite of the both that court and the U.S. Supreme Court's ruling last year that the procedure -- also used by a majority of the other states employing lethal injection in executions – was constitutional and didn't constitute cruel & unusual punishment. The Kentucky high court in the case – raised in part by two of the party inmates to those first two cases – agreed that the lethal injection protocol should be adopted by the prescribed legislative procedure, by that the fact that it hadn’t been didn't affect the inmates' disposition. ( Article) ( Ruling )( Kentucky’s statute)


Then there was the case of Cecil Johnson, who the State of Tennessee executed last Wednesday morning. The Supreme Court denied Johnson's last-minute appeal out of the 6th. Circuit, with Justices John Paul Stevens and Clarence Thomas' strongly worded opposite positions on whether the lengthy delay since Johnson’s conviction in 1981 in fact constituted cruel & unusual punishment under the Constitution, perhaps drawing more attention than the facts. Law.com's Marcia Coyle summarized it as "Justice John Paul Stevens, joined by Justice Stephen Breyer, dissented in denying certiorari, saying Johnson's situation was 'as compelling a case' as he had encountered raising the constitutional concerns that Stevens himself raised in a 1995 dissent from another denial of certiorari: Lackey v. Texas…. (remaining) steadfast in his view that execution after such delay is unacceptably cruel because it subjects death row inmates to decades of severe, dehumanizing conditions of confinement, also adding that delaying an execution does not further the public purposes of retribution and deterrence. Justice Thomas, in a spirited response, said Johnson spent 29 years challenging his conviction and sentence and 'now contends that the very proceedings he used to contest his sentence should prohibit the state from carrying it out.'"

Lackey's petition in 1995 was denied so as to permit "the state and federal courts to 'serve as laboratories in which the issue receives further study before addressed by the Supreme Court.'"


Lastly, the Ohio Supreme Court Wednesday affirmed the death sentence of a Kerry Perez for aggravated murder committed in 2003. ( Decision )( Court's Summary ) Perez had claimed 13 allegations of error by his trial court, including that it “should not have admitted into evidence tape recordings of conversations between Perez and his wife, Debra, that were made with Debra's consent but without her husband’s knowledge during her visits with him at the Clark County jail. Perez contended that admitting secret recordings of what he believed to be confidential communications with his spouse into evidence violated the marital-communications privilege set forth in R.C. 2945.42 and denied him due process of law."

Justice Cupp noted that courts in some states have interpreted their privilege statutes broadly to bar third-parties from introducing evidence of spousal communications that was obtained from or with the help of a defendant’s collaborating spouse. However, he cited with approval a Michigan Supreme Court decision, People v. Fischer, 442 Mich. 560 (1993), that interpreted statutory language barring a spouse from being “examined” with respect to spousal communications to preclude in-court testimony by a spouse as a sworn witness, but not to preclude introduction of marital communications into evidence through other means.

Hamilton County Court of Common Pleas fee increases

Hamilton County Court of Common Pleas also announces it will be changing Local Rule 9 regarding security deposits for costs, effective December 1, 2009, and until further notice. (Here)

Local Rule 9(A) reads:

(1). Deposits for Civil Actions (non-foreclosure) will increase from $225.00 to $325.00 (effective 12/1/09)
(1A). Deposits for Foreclosure Action (a new designation) will be $550.00 (effective 12/1/09)

Hamilton County Court of Domestic Relations rule amendment

Interested parties still have a day or two to comment on Hamilton County Court of Domestic Relations' proposed amendment of Local Rule of Guardians ad Litem, which can be viewed (Here).

Comments will be received until Wednesday, November 25th. and should be directed to Court Administrator Lisa Dwenger via e-mail @ ldwenger@cms.hamilton-co.org

More information is available at the Court’s website (Here)

Southern District of Ohio Bankruptcy Rule Amendements

The Southern District U.S. Bankruptcy Court here in Cincinnati has posted amendment proposals to their Local Bankruptcy Rules (“LBR”) and has been entertaining submissions for public comment. The proposed amendments are available by clicking the links below.

The comment deadline is Friday, November 27, 2009.

Comments and suggestions may be submitted electronically to Ronald_Ammon@ohsb.uscourts.gov.

Proposed Amendments to the Local Bankruptcy Rules
Unofficial Summary of Changes to the Local Bankruptcy Rules

"Special counsel" issue in Hamilton County, Ohio

Two of Hamilton County, Ohio's three county commissioners last week filed a petition with the Ohio Supreme Court asking that the high court block an order issued by the same county's court of common pleas, directing the Board to terminate using an outside law firm to represent the County in matters relating to various riverfront developments, including its "Banks Project." (Article)

The order, signed by 12 of the County's 16 common pleas court judges – all named in the Commissioners' complaint – was drawn last October 15th.; the Commissioners are saying that the Court doesn't have jurisdiction to issue such an order.

That termination, the Commissioners' complaint says, would deprive the Board of "long-standing, court-approved counsel in the redevelopment of the Cincinnati riverfront, which by its very nature involves complex legal issues," and that, further, "Sections 305.14(A) and 305.17 of the Ohio Revised Code, which govern the Board's attorney-client relationship with special counsel, preclude the Court of Common Pleas from terminating thc Board's counsel or purporting to prohibit its compensation."

Portions of §309.09 and 309.10 are in pertinence and mentioned.

Ohio execution method changed

For those who haven't heard, the State of Ohio announced last Friday that it was adopting a single-drug method to execute capital crime inmates instead of the 3-drug "cocktail" employed by 35 other states in the nation using lethal injection – "wading," as the Associated Press referred to it, "into largely uncharted territory." ( Article )(Ohio Dept. of Corrections’ announcement )

The drug – thiopental sodium – is commonly used to euthanize animals, in some parts of Europe for assisted suicide, and, in much lower doses, obviously, to sedate patients for surgery; but it has apparently never been used to execute prisoners.

The AP article said, death penalty opponents were hailing the decision as making executions more humane, while also expressing reservations about using an untested method. Ty Alper, associate director of the Death Penalty Clinic at the University of California, Berkeley, law school, was quoted as saying, "This is a significant step forward. Paralyzing inmates before executing them — so we can't tell whether they are suffering — is a barbaric practice, and Ohio should be commended for stopping it." Richard Dieter, director of the nonprofit Death Penalty Information Center, noted reservations about the new practice and said it would essentially be an experiment performed on inmates. "They're human subjects and they're not a willingly part of this… It's experimenting with the unknown, and that always raises concerns."

The motion the filed last Friday in U.S. District Court is expected to lead to a dismissal of the primary constitutional challenge to the state’s lethal injection methodology.

The U.S. Supreme Court, last year in Baze v. Rees, upheld the constitutionality of lethal injection in Kentucky, but, the article points out, "Ohio's new system is substantially different than the three-drug process the Court examined in that case. In that opinion, Chief Justice John Roberts addressed, briefly, the single sedative dose large enough to cause death, saying it had problems of its own, having never been tried by any state."

Juvenile Life Sentencing Update

Aside from death penalty cases, a USA Today article this morning says, justices of the Supreme Court have never before found a penalty crossed the cruel-and-unusual punishment line. That may have changed this morning.

"Life sentences with no chance of parole are rare and harsh for juveniles tried as adults and convicted of crimes less serious than murder, and there are just over 100 prison inmates in the United States serving those terms, according to data compiled by opponents of the sentences," the article says. Florida reportedly has more than 70% of that total, including Terrence Graham and Joe Sullivan, whose cases were before the Supreme Court just before noon.

The case is saying to flow directly from the Supreme Court's decision in Roper v. Simmons in 2005 to rule out the death penalty for anyone younger than 18. There the Court said, "When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. While drawing the line at 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest."

Lyle Denniston at ScotusBlog, however, points out that "The Supreme Court has said repeatedly, as it decided death-penalty cases (often putting limits on such sentences, or ruling them out altogether in some situations), that ‘death is different,’ and that perception has led to a complex jurisprudence of capital punishment, including a flat ban on that penalty for some specific crimes (rape, for example) and some individuals in a specific group (minors and mentally impaired individuals). The Court, however, has not yet constructed a full constitutional guidebook for long prison sentences, although it has settled on one principle: a sentence for a term of years in prison will be struck down if it is 'grossly disproportionate' to the crime, judged on a case-by-case, rather than across-the-board, basis."

While similar, the cases are not identical, and the Court has decided to hear them separately.

See our previous posts (Here) and (Here), with much more on ScotusBlog (Here)

Graham’s Petition for certiorari
Sullivan’s Petition for certiorari

Ohio Supreme Court upholds "intensive program prison" release

In a case echoing State v. Bloomer back in June, in which the Ohio Supreme Court held that trial courts "had a statutory duty to provide notice to offenders of post-release control at the sentencing hearing, and any sentence imposed without such notification is contrary to law and void," possibly allowing the release of as many as 15, 000 former prisoners now under post-release supervision, it yesterday found that once the Department of Corrections determines an offender a good candidate for placement in an intensive program prison ("IPP") in lieu of serving the sentence ordered by the court, and notifies the court of that determination, if the court doesn't take any action after ten days, the Department may proceed with placement in IPP and once that inmate completes the IPP can be released.

State v. Roberts [pursuant to ORC §5120.032(B)(1)(b) ]
Roberts' appeal case

Previous post re Bloomer, Oct. 29th.

PACER redaction policies

For those who don't know what PACER (Public Access to Court Electronic Records) is, first of all, it is "an electronic public access service that allows users to obtain case and docket information from Federal appellate, district and bankruptcy courts, and the U.S. Party/Case Index via the Internet." It's a service of the United States Judiciary; the PACER Service Center being run by the Administrative Office of the United States Courts.

CM/ECF is the federal courts' case management and electronic case files system, an intricate part of PACER, providing courts with enhanced and updated docket management, and allowing them to maintain case documents in electronic form. It also gives each court the option of permitting case documents - pleadings, motions, petitions – to be filed electronically with the court over the Internet.

CM/ECF in bankruptcy courts began in early 2001. For the district courts the "roll out" began nationally in May 2002, and in 2005 for the federal appellate courts . Over 35 million cases are now on CM/ECF systems, with more than 450,000 attorneys and others have filed documents over the Internet.

Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure implementing the E-Government Act of 2002 became effective on December 1, 2007, amending Appellate Rule 25, Bankruptcy Rule 9037, Civil Rule 5.2, and Criminal Rule 49.1 to require that personal identification information, such as social security numbers & taxpayer identification numbers, the names of minor children, financial account numbers, dates of birth, and, in criminal cases, home addresses of parties and other particulars, be redacted from documents being filed with the courts.

The Judicial Conference's policy on privacy and public access to electronic case files has developed incrementally over the years, evolving to the point where it now provides for remote access to all electronic civil, bankruptcy, criminal, and appellate case files along with the appropriate privacy safeguards. The Conference continues to review that policy periodically and, in March 2008, the approved streamlining it to eliminate provisions that are duplicative of the Rules of Practice and Procedure. (Here)

The Federal Courts are now taking a number of new steps to ensure that privacy protections afforded under federal rules are followed and are reminding those filing electronically of the their obligation under the law to redact personal identifier information with a message that includes links to relevant rules. An example of the revised login screen was included in PACER's October newsletter. At login to CM/ECF, a message reminds attorneys of their responsibility to redact this private information from the documents they file; the most recent version of this reminder also requires attorneys acknowledge that they have read the notice and complied with the redaction rules. Filers cannot complete the login process without checking the acknowledgement in this recent version.

The latest CM/ECF versions also include a number of other notable changes, including being able to choose whether the client code field should be mandatory when logging into CM/ECF. (See Here)

A new "Court Information" utility is also now available, providing general court information such as hours of operation, court location and phone number, as well as filing information such as the maximum size of PDF files, the court's version of CM/ECF, case flag definitions and more.

Kentucky Supreme Court sex offender residency case appealled

On October 1, the Kentucky Supreme Court joined those of both Ohio and Indiana in holding that sex offender residency laws could not be applied retroactively. But, by the end of the month, articles were appearing that probation & parole officers were being told to essentially ignore that decision and view an offender's living within 1,000 feet of a school, day-care center or playground as a violation of their probation or parole-- even if their crime was committed before the statute was strengthened in 2006-- because the Kentucky Attorney General’s Office was considering appealing the decision. (Here)

An article on Oct. 29th. indicated that the Kentucky Dept. of Corrections' position was that the Court's decision on Oct. 1 was not a final ruling since Attorney General Jack Conway had filed a motion to stay with the Court. That motion, though, was denied yesterday.

An article this morning related that Conway will be asking the U.S. Supreme Court for a stay to review the Kentucky high court's ruling and that that office has until Dec. 30 to file its request with the nation's high court. A spokeswoman for the Attorney General's office commented that they were "hopeful that the Supreme Court would take the case and grant the stay because the issue had implications for many other states, and courts in some other states have ruled differently than Kentucky’s Supreme Court." (Here)

In its analysis the Kentucky Supreme Court did note that while the Indiana and Ohio Supreme Courts held retroactive residency requirements were unconstitutional, and Mikaloff v. Walsh, in Ohio's Northern District Court, had held that retroactive application of Ohio's residency restriction statute violated the federal ex post facto clause, it, on the other hand, also noted that Doe v. Miller, 405F.3d 700 (8th Cir.2005) ; State v. Seering, 701 N.W2d 655 (Iowa 2005); Thompson v. State, 603 S.E.2d 233(Ga.2O04) ; People v. Leroy, 828 N.E.2d 769 (Ill. App. Ct. 2005), and Lee v. State, 895 So.2d 1038 (Ala. Crim. App. 2004) uphold residency restriction statutes against ex post facto challenges.

The Kentucky Department of Corrections, meanwhile, has now also released a statement saying that because Monday's ruling by the Kentucky Supreme Court is a final order, probation and parole officers are being notified that sex offenders who committed their crimes prior to July 12, 2006, are no longer subject to the residency restrictions of the 2006 law.

Ohio Supreme Court's "special dockets" advisory committee

Ohio Supreme Court Chief Justice Thomas J. Moyer announced the creation of a 15-member advisory board charged with advancing the goals of Ohio's "specialized dockets program" last month. That board, chaired by Butler County Common Pleas Court Judge Michael Sage, who for the past 10 years has administered a substance abuse and mental illness docket that addresses felony-level offenders with a primary diagnosis of both a severe mental health disorder and drug dependency, met for the first time last Friday. ( Court Announcement )

"From the inception of Ohio's first drug court in Hamilton County in 1995, the use of specialized dockets in Ohio has been broadened to address such issues as mental illness, domestic violence and re-entry courts," the Chief Justice told Ohio Judicial Conference at its annual meeting, Sept. 17th.. "Today, 129 specialized dockets are used by courts ranging from Common Pleas, Juvenile, Municipal and County Courts." (Chief Justice Moyer's speech)

The model for specialized docket was developed in 1989 with the establishment of the nation's first drug court in Miami-Dade County, Florida. Broward County, Florida, experimented with the application of the specialized docket concept to seriously mentally ill offenders, creating the nation's first mental health court in 1997.

Since then, Ohio has become a national leader in the special dockets "movement," today having more mental health courts than any state in the country, and 79 drug and OVI courts. ( Map )

Additional information on Ohio’s programs available ( Here ), and from the National Institute of Justice ( Here ) and National Center for State Courts ( Here ).

Ohio reviewing mandatory supervision cases

Last June 9th., the Ohio Supreme Court again addressed the consequences of a trial court's failure to either notify an offender about post-release control at the time of sentencing or incorporating post-release controls into its sentencing entry. Also at issue was the application of ORC §2929.191, which provides a mechanism for correcting a judgment entry if the trial court does fail to notify an offender of those controls or impose it. The Court there held that "in the absence of a proper sentencing entry imposing post-release control, a parole board's imposition of post-release control cannot be enforced." [See State v. Bloomer, 2009 Ohio 2462 ]

HB 137, amended ORC §2967.28, §2929.14, and §2929.19 and enacted §2929.191 to provide a "mechanism for correcting sentences in which a trial court failed either to notify the offender of post-release control or to incorporate it into the sentencing entry", became effective July 11, 2006. The Court also noted "the legislature had amended ORC § 2929.14(F)(1) to provide: 'If a court imposes a sentence including a prison term of a type described in this division on or after July 11, 2006, the failure of a court to include a post-release control requirement in the sentence pursuant to this division does not negate, limit, or otherwise affect the mandatory period of post-release control that is required for the offender under division (B) of section 2967.28 of the Revised Code.'"

The Court reviewed a number of its previous considerations of sentencing courts failing to follow the requirements of sentencing statutes dating back to 1984 and, most recently, last year in State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, where it said, "[I]n cases in which a defendant is convicted of, or pleads guilty to, an offense for which post-release control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have post-release control imposed on the defendant unless the defendant has completed his sentence." Consistent with all, however, was the requirement that "the sentencing courts must impose post-release control before an offender completes the stated term of imprisonment."

As a consequence of this decision, the Department of Rehabilitation and Correction must now re-examine other cases, including those of nearly 15,000 former prisoners under state supervision and more than 200 inmates returned to prison for violating post-release control.

Ohio death penalty stays

The United States 6th. Circuit and Southern Ohio District Courts, this week, joined to effectively postpone any executions in the state of Ohio at least until next Spring.

On October 5th., the Sixth Circuit stayed the execution of Lawrence Reynolds scheduled for Oct. 8th., remanding to the District Court saying:

“As a general proposition, an Eighth Amendment challenge to Ohio’s lethal interjection protocol is currently barred by the two year statute of limitations put in place in Cooey v. Strickland (Cooey II), 479 F.3d 412 (6th Cir. 2007) reh’g denied en banc, 489 F.3d 775 (6th Cir. 2007). After Cooey II, Ohio revised its execution protocol in May 2009 and experienced serious and troubling difficulties in executing at least three inmates, most recently Romell Broom.

“These disturbing issues give rise to at least two questions: first, whether Ohio is fully and competently adhering to the Ohio lethal injection protocol given (a) their failure to have a contingency plan in place should peripheral vein access be impossible, (b) issues related to the competence of the lethal injection team, and (c) other potential deficiencies; and second, whether these instances present sufficient new, additional factors to revive Reynolds’ Eighth Amendment claims otherwise extinguished by Cooey II.

“Broom’s arguments about these very issues will be heard before the Honorable Gregory Frost of the United States District Court of the Southern District of Ohio; to permit this, his execution has been stayed until at least November 30, 2009. Given the important constitutional and humanitarian issues at stake in all death penalty cases, these problems in the Ohio lethal injection protocol are certainly worthy of meaningful consideration. Judge Frost is best positioned to conduct a comprehensive review of these issues for both Reynolds and Broom.”


The Southern Ohio District Court then, last Monday, stayed Kenneth Biros’ Dec. 8th. execution indefinitely and rescheduled its case in pertinence until July 12th. Of that case the District Court “discussed at length with the parties the issues of outstanding discovery ,including additional discovery issues concerning the attempted execution of Romell Broom on Sept.15, 2009, issues concerning expert witnesses, and the issue that Defendants are both considering adopting a new execution protocol that would be materially different than the existing protocol and considering making changes to the existing protocol … a continuance of the trial date is necessary.

“...the Sixth Circuit focused on the need to develop the facts, which targets a need to engage in discovery leading to an evidentiary hearing. The same rationale that resulted in the court of appeals’ staying Reynolds’ execution applies to Biros. This Court cannot say whether Biros is entitled to an ongoing stay of execution based on facts arising from the Broom execution attempt until this Court knows what those facts are. The uncompleted discovery involves these and related facts. Given the issues involved and the instruction of the appellate court, Biros is as entitled to a stay affording him time for discovery and to be heard at trial on the merits of his claims.”

Ohio Governor Ted Strickland stopped Broom's execution on Sept. 15 after two hours when the execution team failed to find a usable vein with which to administer the injections used in carrying out the death penalty. Broom’s execution was later stayed by the District Court on Oct. 20th.

Governor Strickland had issued reprieves for Reynolds and Darryl Durr on the same day as the Sixth Circuit’s stay.


Sixth Circuit Court of Appeals decision
Southern Ohio District Court’s decision

MySpace evidence allowed by Indiana Supreme Court

The Indiana Supreme Court addressed a "novel question" last Thursday in ruling that prosecutors properly introduced electronic evidence from an accused murderer's MySpace page. ( Case )

The defendant had contended that the trial court abused its discretary authority when it admitted evidence of his MySpace postings, claiming it was inadmissible character evidence, citing Indiana Rule of Evidence 404(b). The Court, however, concluded the admission was proper, because "evidence is excluded under Rule 404(b) when it is introduced to prove the 'forbidden inference' of demonstrating the defendant's propensity to commit the charged crime," [ Camm v. State, 908 N.E.2d 215 (Ind. 2009)]. Further, the Court said, "Otherwise inadmissible evidence may be admitted where the defendant opens the door to questioning on that evidence. [ Jackson v. State, 728 N.E.2d 147 (Ind. 2000)]. The door may be opened when the trier of fact has been left with a false or misleading impression of the facts."

Law enforcement authorities in recent years have increasingly used social networking sites and Internet service providers to introduce evidence in more common cases, such as assault, battery and murder, Marc Zwillinger, head of the Internet, Communications and Data Protection Group at Sonnenschein Nath & Rosenthal, said in a Law.com article this morning.

Two years ago, the Indiana Law Blog had commented that “Discovery of electronic evidence has been in the news in recent months, but little has been written about the admissibility of electronic evidence. This may be changing. Encouraging the change is the May 4, 2007 opinion issued by U.S. Magistrate Judge Paul W. Grimm in the case of Lorraine v. Markel American Insurance Co. … (which is) not only a review of the requirements for admitting electronic evidence under the Federal Rules of Evidence, but a practical discussion of some of the technology and document management issues raised by those requirements, such as hash values and other indicia of authenticity, metadata and collection techniques."

The American Bar Association's Litigation News Online last year posted that "As more and more people post personal information on social networking sites such as Facebook.com, Myspace.com, and even Match.com, attorneys are increasingly seeking discovery of such evidence, which is becoming commonplace in civil and criminal trials." That article mentions two cases that dealt directly with social website evidence: Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc., in which the defendant in a sexual harassment case sought to compel production of emails from two MySpace.com accounts, arguing that the plaintiff sent private messages on MySpace "to facilitate the same types of electronic and physical relationships she characterized as sexual harassment in her Complaint"; and Ohio v. Gaskins, where the defendant, charged with statutory rape, sought to introduce evidence that the victim held herself out on MySpace.com as an eighteen-year old. The trial court admitted photographs of the victim that had been posted on her site, and allowed a witness to testify as to the authenticity of the photos."

Both of those sites have links which are still active containing more information for those interested.

Additionally, Electronic Discovery Navigator : An eDiscovery Blog: Negotiating the Treacherous Sea of Electronically Stored Information (ESI) has had material relating to the admissibility of electronic evidence.

U.S. Supreme Court SORNA retroactivity case

The U.S. Supreme Court, on Sept. 30th., granted certiorari to a case from the Northern District of Indiana which raises several constitutional challenges to the federal Sex Offender Registration and Notification Act (SORNA) with respect to retroactivity. [Carr v. Unites States, case 08-1301 Questions Docket ]

At issue in this case is "whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant's underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act's enactment; and whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment."

The 7th. Circuit Court of Appeals in South Bend Indiana in a consolidated case last December, held that "Congress instructed the Attorney General to 'specify the applicability of the requirements of [the Act] to sex offenders convicted before [its enactment] or its implementation in a particular jurisdiction' and to 'prescribe rules for the registration of any such sex offenders . . . who are unable to comply with’ the requirement, also imposed by
the Act…"

"As the reference to 'implementation in a particular jurisdiction' indicates," the 7th. Circuit continued, "the sex offender is required only to register with the state in which he is a resident, employee, or student, as well as the jurisdiction of his conviction if different from his residence. 42 U.S.C. § 16913(a).Other provisions of the Act establish a system for pooling the information in the state registries to create in effect a national registry. See 42 U.S.C. §§ 16912, 16918-20, 16923-25."

Appellant's petition for certiorari professed the 7th. Circuit's decision created an "acknowledged conflict in the circuits, departing from the contrary rulings of three other courts of appeals and at least 17 district courts," At least 20 district court decisions have held that the Act does apply to "gap" travel -- the period between the statute's enactment and the Attorney General's promulgation of the interim rule—the petition stated. Courts of appeal also disagree about SORNA's applicability to "gap" travel with the Sixth, Eighth, Tenth, and Eleventh Circuits having held that SORNA applies to travel in the "gap" period, while the Fourth Circuit has reached the opposite conclusion.

Now, the 6th. Circuit Court of Appeals here in Cincinnati , last Tuesday, has reversed an Akron. Ohio man's 2007 conviction for failing to register with authorities after moving from Ohio to Georgia during a period that ended in March 2007. "The circuits are split on whether defendants with pre-SORNA convictions has to comply with SORNA before the Attorney General issued an implementing regulation," the Court echoed. "Because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, [appellant] was not subject to SORNA's requirements during the period indicated in his indictment."

Kentucky sex offender residency statute unconstitutional when applied retroactively

The Kentucky Supreme Court on October 1st. held that that state's sex offender residency restrictions prohibiting where offenders could live – specifically near schools or daycare centers-- were unconstitutional when applied retroactively. (Court's Holding) ( Article)

In its analysis the Kentucky high court referenced the Indiana Supreme Court's holding in State v. Pollard that, "as applied to those who committed their crimes before the statute was enacted, Indiana's sex offender residency restriction statute constituted retroactive punishment forbidden by the ex post facto clause of the state's constitution."

"Mikaloff v. Walsh, in Ohio's Northern District Court, held that retroactive application of Ohio's residency restriction statute violated the federal ex post facto clause. An appeal in that case was dismissed at the State's request, however, presumably because the Ohio Supreme Court subsequently prohibited retroactive application of the residency restriction statute on grounds that the Ohio legislature had not expressly made the law retroactive in Hyle v. Porter."

On the other hand, the Court also noted Doe v. Miller, 405F.3d 700 (8th Cir.2005) ; State v. Seering, 701 N.W2d 655 (Iowa 2005); Thompson v. State, 603 S.E.2d 233(Ga.2O04) ; People v. Leroy, 828 N.E.2d 769 (Ill. App. Ct. 2005), and Lee v. State, 895 So.2d 1038 (Ala. Crim. App. 2004) uphold residency restriction statutes against ex post facto challenges.



Ohio statute (ORC 2950.031)
Kentucky (KRS 17.545)
Indiana (IC 35-42-4-11)

Who can intervene in cases of "original jurisdiction"?

Courts of "original jurisdiction" are those having priority over other tribunals to decide a case; Black's Law Dictionary defines an "intervenor" as "one voluntarily entering a pending lawsuit because of a personal stake in the outcome." That clear cut it's presumably not always...

A Law.com article this morning reviewed one such matter in one of last Tuesday's Supreme Court's hearings, but "during oral arguments in a water dispute between two states that came to the Court under its "original jurisdiction" over conflicts between states, discussion of the issues led the justices into some broader questions about the nature of original jurisdiction cases and the role of special masters appointed by the Court to assist in their adjudication."

The case, South Carolina v. North Carolina, involves a dispute over the apportionment of water from the Catawba River, which flows between the two states, the article says, but the issue now before the justices is whether three non-state parties – the City of Charlotte, an interstate water supply organization, and a hydroelectric power company-- may join as interveners in the case. A special master appointed by the Court to oversee fact-finding in the case recommended that the parties be allowed to intervene. South Carolina, supported by the U.S. Solicitor General's office, is appealling that recommendation, citing the Supreme Court’s standard set forth in New Jersey v. New York in 1953 that "intervention by a non-state entity is proper only when the putative intervenor demonstrates (1) a 'compelling interest in [its] own right,' (2) 'apart from [its] interest in a class with all other citizens and creatures of the state,' (3) 'which interest is not properly represented by the state.'"

ScotusBlog has more.

Special Master Kristin Linsley Myles’ report
Transcript of oral arguments

Municipality Ten Commandments suit

Suit has been filed against the City of Lockland, Ohio in federal district court for its display of the Ten Commandments outside of its town hall by a resident who "wants the sign removed and a court order to prevent any future displays of 'religious fables and myths'," a Cincinnati Enquirer article said this morning.

The sign has been there for as long as many can remember but wasn't noticed by the plaintiff until recently. Christopher Knecht, filing the suit Monday, told the Enquirer, that "when he saw the Ten Commandments there, it dawned on him this is one of those towns that used a theological basis in their decisions... This is a Mayberry type of town and they're still stuck in the 20th century."

Knecht’s suit, filed in late September, initially claims he was bitten and attacked several times by a neighbor's Rottweiler and police officers not only failed to cite the neighbor but instead began retaliating against him for his frequent complaints. The display of the Ten Commandments is a small but crucial part of Knecht's suit, in which he argues that the village is corrupt and forgoes basic state laws for "theological principles."

Along with wanting the Ten Commandments removed – and $500, 000 in punitive damages-- Knecht is also asking the Court to "issue injunctive relief requiring the defendants to provide intelligent principles to guide the Village of Lockland, Ohio's Police Department in its enforcement & application of local, state, and federal laws."

The Enquirer's article recollects several other such recent arguments in the area, including a display of the Ten Commandments being removed from an eastern Kentucky courthouse in lieu of a federal lawsuit claiming improper government endorsement of religion back in July. (Articles Here & Here; Court’s Holding Here )



Coincidentially, SCOTUSBLOG reported that "the U.S. Supreme Court was returning to its elusive pursuit of clarity about the constitutionality of placing religious symbols on public property in a case that is complicated by questions over who has a right to challenge such displays and over Congress's power to protect such a symbol by transferring it to private hands," this morning. ( Questions Asked )( Petition for Certiorari )( Brief in Opposition )

Ohio Supreme Court increasing filing fees

The Supreme Court of Ohio has also announced increases in filing fees to $100 from the currently charged $40, effective October 16, 2009 (Court’s Announcement)

Rule XV of the Rules of Practice will require a $100 filing fee for filing a notice of appeal or cross-appeal, for filing an order certifying a conflict in a court of appeals, and for instituting an original action. Original actions also require a $100 security deposit, which is unchanged by the new amendment, and, in extraordinary circumstances, additional security deposits may be required at any time during an action.Filing fees and security deposits are waived for those who file an affidavit of indigency with the Supreme Court.

Text of Amendment

Ohio Supreme Court Traffic Rule Amendments

The Supreme Court of Ohio announced Friday the adoption of amendments to the Ohio Traffic Rules and a revised traffic ticket format. The amendments become effective Jan. 1, 2010, while actual use of the new ticket doesn't become mandatory until July 1, 2010, giving local law enforcement jurisdictions time to use current tickets until supplies run out before ordering and using the revised ticket. (Court's Announcement)

Revisions to the Multi-Court Uniform Traffic Ticket remove all but four digits of a defendant's Social Security number to address identity theft concerns, conform to new rules regarding public access to court records and recognize that Ohio's new operator's licenses do not contain Social Security numbers.

Text of Amendments.

Mandatory enhancements for repeat DUI offenders in Ohio

The Ohio Supreme Court, last Wednesday, upheld a state law that imposes 10 additional days of mandatory jail time on a driver with a prior DUI conviction if that person refuses to take a chemical test after being arrested for a subsequent DUI violation. ( Court's Holding and Summary )

Ohio's DUI statute, R.C. 4511.19, sets a mandatory minimum jail term of 10 days for a repeat DUI offender who is convicted under R.C. 4511.19(A)(1). The same statute increases the mandatory minimum jail sentence to 20 days for a repeat DUI offender convicted under R.C. 4511.19(A)(2) – which includes the additional element that when arrested for the current DUI offense, the defendant refused to submit to a chemical test.

The Court's summary relates Justice Judith Ann Lanzinger's noting noted that "Ohio’s 'implied consent' law,R.C. 4511.191, which has been upheld as constitutional by both state and federal courts, provides that 'Any person who operates a vehicle ... within this state ... shall be deemed to have given consent to a chemical test or tests of the person's whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine if arrested for a violation of (the DUI statute).'

R.C. 4511.191(B), furthermore, holds that every driver, regardless of previous offenses, also faces an administrative license suspension ("ALS") for failing to submit to a chemical test upon an arresting officer's reasonable belief of a DUI violation.

Defendant in the case contended, "that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure." The Court disagreed, saying has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. ... Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution."

Justice Lanzinger emphasized, however, that R.C. 4511.19(A)(2) does not make refusal to take a chemical test a criminal offense. "The activity prohibited under R.C. 4511.19(A)(2) is operating a motor vehicle while under the influence of drugs or alcohol. A person's refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person's previous DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a). Hoover's conviction under R.C. 4511.19(A)(2) meant that the mandatory minimum jail term increased from ten days, the mandatory minimum for R.C. 4511.19(A)(1)(a), to 20 days.”

Kentucky sex offender residency statute unconstitutional when applied retroactively

The Kentucky Supreme Court last Thursday held that that state's sex offender residency restrictions prohibiting where offenders could live – specifically near schools or daycare centers-- were unconstitutional when applied retroactively. (Court's Holding) ( Article)

In its analysis of the case the Kentucky Court also referenced the Indiana Supreme Court's holding in State v. Pollard earlier this year that, "as applied to those who committed their crimes before the statute was enacted, Indiana's sex offender residency restriction statute constituted retroactive punishment forbidden by the ex post facto clause of the state's constitution.

"Mikaloff v. Walsh, in Ohio's Northern District Court, held that retroactive application of Ohio's residency restriction statute violated the federal ex post facto clause. An appeal in that case was dismissed at the State's request, however, presumably because the Ohio Supreme Court subsequently prohibited retroactive application of the residency restriction statute on grounds that the Ohio legislature had not expressly made the law retroactive in Hyle v. Porter.”

The Court also noted, on the other hand, that Doe v. Miller, 405F.3d 700 (8th Cir.2005) ; State v. Seering, 701 N.W2d 655 (Iowa 2005); Thompson v. State, 603 S.E.2d 233(Ga.2O04) ; People v. Leroy, 828 N.E.2d 769 (Ill. App. Ct. 2005), and Lee v. State, 895 So.2d 1038 (Ala. Crim. App. 2004) all upheld residency restriction statutes against ex post facto challenges.

Ohio statute (ORC 2950.031)
Kentucky (KRS 17.545)
Indiana (IC 35-42-4-11)

Ohio-Kentucky-Indiana cell phone legislation update

Three or four weeks ago we quoted a Columbus Dispatch article that commented that "the issue du jour for Ohio legislators appears to be making sure drivers keep their eyes on the road, not on a cell phone." At that time, Ohio had five bills related to cell phone texting & driving in its House, and a sixth in its Senate. A seventh was introduced a week after.

Text messaging – or cell phone use in general— indeed seems an up & coming traffic topic. The National Conference of State Legislatures, this time last year, reported that 29 states and the District of Columbia had laws limiting hand-held cell phone use while driving. Four states -- Louisiana, Minnesota, New Jersey, and Washington – were already banning texting. According to the Governors’ Highway Safety Association this month ,18 states and the District of Columbia now have those kind of laws – and, "with the exception of the state of Washington, these laws are all primary enforcement— meaning an officer may ticket a driver for using a handheld cell phone while driving without any other traffic offense taking place."

Ohio is currently not among those numbers, and Kentucky and Indiana restrictions apply only to minors and new drivers at this point. But that's not "all she wrote," so to speak…All three states have pending legislation, too.

Ohio HB 130 is exclusively related to cell phone use by minors, while HB 261, HB 262, SB 160, and SB 164 deal with texting and cell phone use more generally but specifying that violations are "secondary offenses." HB 266, the most stringent of the Ohio bills, carries a penalty of $25 for the first offense, $50 for a second or third, and $100 for a fourth and subsequent offenses. HB 270 is the remaining bill.

Last week the Associate Press reported that the Commonwealth of Kentucky had two new bills pending in its legislature.

HB 267, introduced in February, would "prohibit any person under 18 with a instruction permit from using a personal telecommunication device while operating a motor vehicle, motorcycle, or moped except to summon medical or other emergency help." HB 41, introduced earlier, in January, is more extensive, "Creating a new section of KRS 189 to define terms; prohibit the use of a personal communication device without the use of a hands-free device by the operator of a motor vehicle, (but) providing limited exceptions; amending KRS 189.990 to provide for period ending January 1, 2010 during which courtesy warnings will be issued for a violation of Section 1 and set a fine of between $20 and $100 for a violation of Section 1 on or after January 1, 2010."

One interesting point about Kentucky is that, according to the GHSA, it is one of eight states, including Florida, Louisiana, Mississippi, Nevada, Oklahoma, Oregon, and Utah , which also have preemption laws prohibiting local jurisdictions from enacting restrictions.

Indiana's ban on teenage drivers' use of cell phones and texting devices just went into effect July 1, 2009, but that state, too, has another four bills pending in its legislature. (HB 1242, HB 1699, SB 80, and SB196)

Federal sentencing guideline hearings

7th. Circuit Court of Appeals Chief Judge Frank Easterbrook last week joined a growing number of judges and prosecutors having the position that the federal sentencing guidelines are in need of revamping, especially in light of decisions made by the Supreme Court making them largely advisory several years ago beginning with U.S. v. Booker in 2005.


Judge Easterbrook, in testimony before the Commission in Chicago, had two specific proposals, according to a National Law Journal article last Monday. "First," the article cites Easterbrook as saying, "the ranges should be made longer -- currently, a 25 percent spread is allowed between the number of months at the bottom and the number of months at the top of the range. And second, the ranges should overlap with each other more so that the possible prison times in one range overlap more with the possible prison times in the next most lenient and the next harshest ranges."


"These two changes," Easterbrook said, "will reduce the need to make precise findings that do not affect the outcome, and thus save time for both district and appellate judges without sacrificing any of the statutory goals."



The hearings in Chicago follow earlier sessions in New York, Atlanta, and Stanford, Calif., with more to come in Denver next month; Austin, Texas, in November; and Phoenix in January.

Notice of EEOC Proposed Rules

A Notice of Proposed Rulemaking by the Equal Employment Opportunity Commission was approved last Wednesday by a 2-1 vote. The 60-day public comment period on those proposed regulations will begin from the date when the notice appears in the Federal Register within the next couple of days.

The regulations, which will implement changes made by the ADA Amendments Act of 2008, emphasize:

• that the definition of disability must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA, and should not require extensive analysis;


• that major life activities include "major bodily functions";


• that mitigating measures are not to be considered when determining whether someone has a disability; and


• that impairments that are episodic or in remission are disabilities if they would substantially limit major life activities when active.

EEOC Press Release

New Ohio Juvenile Court "Youth Assessment System"

Ohio juvenile courts have a significant new tool at their disposal that has been developed by the Ohio Department of Youth Services and University of Cincinnati’s Center for Criminal Justice Research.

The Ohio Youth Assessment System is a "streamlined, web-based system for assessing young offenders in determining appropriate dispositions, treatment, and levels of supervision, designed, in part, to help judges decide whether they should send juveniles to more-costly state programs or less-expensive community projects," according to a Columbus Dispatch article last Friday morning.

The roots of the Assessment lie in Ohio's RECLAIM program. In evaluating those programs back in 2005 with U.C., ODYS found that the effectiveness of those programs was mitigated by the risk level of the youth being served in the program. Risk principles propose that the intensity of service be matched to the risk level of the offender, in practice calling for the focusing of resources on the most serious cases, with high risk offenders benefiting most from intensive services and low risk youth left to minimal services. In fact, some research suggests that providing intensive treatment to low risk cases can have a detrimental impact on low risk youth because it exposes them to higher risk offenders and disrupts their pro-social community networks. [Ohio's RECLAIM program was created by provisions in the 2003 biennial budget appropriations bill (HB 152), now codified at ORC §5139.41, 5139.43, and 5139.44. The complete text of the 2005 study can be viewed here, or the "Executive Summary" here]

Those results in hand, ODYS and U.C. surveyed the courts to better understand the "state" of risk assessment across Ohio's 88 counties, where it was found that 77 different instruments were then being then beingused. They seized upon the opportunity and developed this single, uniform, and statewide risk assessment platform available across-the-board to all of the counties. That study led to the formalization of the Ohio Youth Assessment System this year. [That study's "Final Report” can be viewed here along with its questionnaires & assessment forms in appendix]

In order to have a major impact on the Ohio juvenile justice system, though, the report concedes that it is important to encourage as many counties as possible to adopt it. Since Ohio is a home-rule state, local courts have the autonomy to choose their own local procedures including whether or not to use a validated risk/need instrument. As noted, the OYDS Assessment model was developed from input specific to the State of Ohio and its individual counties, and is an on-going project which will be refined and updated the same way. While the system has a state-wide overview, it is also accessible only on an individual court/county basis unique to its own attributes & characteristics.

Dr. Edward Latessa, principal investigator and head of the Criminal Justice Program at U.C., spent last Friday in Columbus with juvenile judges, magistrates, and court administrative officials in the program's official launching. He reported that about 300 people from the state's 12 pilot counties have already been trained in the System's use. Fifty-four of the state's counties, including all of the larger ones, are already onboard, having either already been, or scheduled to be, trained.

Additionally, there are no funding issues as the base-work is already in place. Court personnel have to complete two, full-day training programs and pass a written & proficiency test to be certified to use the System, after which that certification is good for three years.

Further information regarding training and registration is available on the Ohio Department of Youth Service's website.