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 ).
Friday, October 30, 2009
Thursday, October 29, 2009
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.
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.
Friday, October 23, 2009
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
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
Monday, October 19, 2009
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.
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.
Thursday, October 15, 2009
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."
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)
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
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
Wednesday, October 07, 2009
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 )
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 )
Monday, October 05, 2009
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
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.
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.”
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)
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)
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