Tuesday, September 22, 2009

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

Wednesday, September 16, 2009

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.

Friday, September 11, 2009

Internal Revenue Service Health Savings Account Rules

In final regulations issued, and effective, Tuesday, Sept. 8th., the Internal Revenue Service hopes to make it easier for employers to follow the rules for making comparable contributions to employees' health savings accounts (HSAs) -- as well as meet the consequences of breaking them.

Similar to rules proposed in July 2008, the final regulations provide that employer contributions to the HSAs of non highly compensated employees (NHCEs) may be larger than employer contributions to the HSAs of highly-compensated employees (HCEs) with comparable coverage during a period.

However, employer contributions to the HSAs of highly-compensated employees may not exceed employer contributions to the HSAs of non highly-compensated employees with comparable coverage during a period, under the final rule.

The rule (T.D. 9457) also spells out how an employer should pay the excise taxes it owes if it fails to correctly follow the comparable contribution rules.

The rules were published in the Sept. 8, 2009 Federal Register (74 Fed. Reg. 45994)

Thursday, September 10, 2009

Ohio estate tax legislation

The Columbus Dispatch this morning reported that another effort is under way to kill what critics call Ohio's "death tax."

The Ohio chapter of Americans for Prosperity, a national advocacy group, is leading a push for an initiated statute to repeal the estate tax, having started the process last week by filing an initial petition with more than 1,000 signatures of registered voters and the text of the proposed law for Attorney General Richard Cordray's office to certify this week.

Initially enacted in 1968 to replace a state inheritance tax, Ohio's estate tax provisions have been amended several times. Perhaps a bit oversimplified, the estates of Ohio residents and nonresidents who own real estate or tangible personal property located in Ohio or intangible personal property used in business within Ohio are subject to the tax.

Previous efforts to limit or squash Ohio's estate tax have failed, in large part because 80 percent of the tax collected goes to local communities, the Dispatch article said. The most-recent attempt to kill the tax was 2007, when then-Rep. Larry Wolpert's House Bill 4 was a priority for the Republican leadership of the House. That bill would have barred the state from collecting its share of the tax, increased the assets threshold and allowed local governments to stop imposing the tax. It received several committee hearings but stalled without a vote after Gov. Ted Strickland threatened a veto and local-government groups voiced strong opposition, Wolpert said.

Background & more information on Ohio's estate tax can be found on Wikipedia, About.com, and from the Ohio Department of Taxation.

Ohio's estate tax is Chapter 5731 of the Ohio Revised Code

Ohio criminal trial/DNA testing legislation

A Cincinnati Enquirer article this past weekend reported that a justice reform bill designed to prevent wrongful convictions and endorsed by Ohio Governor Ted Strickland also includes a controversial measure to expand the collection of DNA samples to those arrested on felony charges. Current Ohio law holds DNA sampling is only taken from "any person who is convicted of or pleads guilty to a felony offense and who is sentenced to a prison term or to a community residential sanction in a jail or community-based correctional facility, or who is convicted of or pleads guilty to any of the misdemeanor offenses listed in the section and who is sentenced to a term of imprisonment must submit to a DNA specimen collection procedure."

Law enforcement groups support the expansion, saying it gets violent offenders off the street quicker and prevents future crimes, according to the article, but others say DNA collection before conviction crosses the line, especially because the bill does not address what happens if a person isn't convicted. The bill, however, amended in June, does "provide for the automatic sealing of records when a convicted offender has been exonerated, as requested by Senators Bill Seitz and Eric Kearney."

Senate Bill 77, passed by the Senate last June and now in the House Committee on Criminal Justice, would also "empower the attorney general to establish rules for uploading DNA profiles of arrestees to the national DNA database," and "add a temporary provision for the Ohio Supreme Court to review and establish rules for jury instructions around eyewitness identification."

Ohio's Capital Connection (subscription) also reported that "testimony presented on behalf of HB99 in the House's Criminal Justice Committee in May, was the same as testimony offered in the Senate Civil Justice Committee on SB77."

E-Verify Rules

A Wall Street Journal article, last Tuesday, reported that "agencies across the federal government were to start ordering contractors to use an electronic immigration system to verify the legal status of their roughly 3.8 million workers, barring an emergency stay from a federal appeals court in Virginia." That motion has been denied.

"U.S. District Court Judge Alexander Williams, Jr., of Maryland, had previously rejected an 11th-hour-effort late Friday by the U.S. Chamber of Commerce and other business groups to delay the mandate while a federal appeal is pending."

"Under the mandate," the Journal's article says, "a clause requiring contractors and subcontractors to use the government's E-Verify system will be written into every new or renewed government contract starting Tuesday. It will also be written into every new work order issued under existing contracts, officials say. It will be up to government agencies that issue the contracts to enforce the mandate."

E-Verify @ U.S. Citizenship & Immigration Services
E-Verify @ U.S. Dept. Homeland Security

Wednesday, September 02, 2009

Ohio Supreme Court on post-release controls

The Ohio Supreme Court yesterday released a Hamilton County appellant from post-release controls because he had completed serving his sentence in prison, and, pursuant to a 2007 precedent, declared he was no longer subject to resentencing. (See State v. Bankhead, 2007-0818)

The rationale used by the Court, here, was based on its decision in State v. Bloomer, three months ago. In that case, the Court "again confronted the consequences of a 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 here also concern the application of R.C. 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."

Beginning with a 1984 case, the Court in Bloomer proceeded to chronicle seven cases since, noting that "in conformity with the development of this jurisprudence, the General Assembly enacted Sub.H.B. No. 137 ('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."

ORC §2967.28 [ Post-release Controls ]
ORC § 2929.14 [ Definite Prison Terms ]
ORC § 2929.19 [ Sentencing Hearings ]
ORC § 2929.191 [ Correction of judgment of conviction to include supervision information ]

Ohio school inspection rules rescinded

Ohio's 2009 budget, as has recently been reported, contained provisions recinding "Jarod's Law" rules, which had been in effect since 2007, returning the conduct of school inspections to two inspections a year with the rules in effect before 2007 to be once again used as the guideline/standards.

In December 2003, six-year-old Jarod Bennett was instantly killed when a school cafeteria table fell on him. Two years later, in 2006, the Ohio General Assembly passed Substitute House Bill 203, or "Jarod's Law," which then-Govenor. Bob Taft signed it into law. That bill required local health departments to conduct annual inspections of school buildings and grounds to identify health and safety hazards. ( Legislative Service’s analysis )

Portions of HB 1, signed by now-Gov. Ted Strickland on July 17th., “repeals the laws establishing School Health and Safety Network and corresponding provisions of law… It requires school districts, community schools, STEM schools, and chartered nonpublic schools to periodically review their policies and procedures to ensure the safety of students, employees, and other persons using a school building from any known hazards in the building or on building grounds that, in the judgment of the board or governing authority pose an immediate risk to health or safety. Those boards or governing authorities must also further ensure that its policies and procedures comply with all federal laws and regulations regarding health and safety applicable to school buildings. ( Complete Legislative analysis here )

"The act requires boards of health to inspect the sanitary condition of schools semi-annually rather than annually, as in prior law. However, the act repeals the authorization for boards of health to close a school for an imminent public health threat other than an epidemic or a high prevalence of communicable disease. The act also repeals the requirement that the Director of Health adopt rules establishing minimum standards for school sanitary inspections."

Early last month, the Ohio Department of Health issued a memo indicating that it would begin the process of rescinding Ohio Administrative Code rules 3701-54-01 through 3701-54-09 by October 16, 2009. "Although, schools are required to be inspected twice per year ," the memo says, "there are no rules or standards to which those inspections must adhere. Historically, ODH Bureau of Environmental Health provided guidance for the conduct of these inspections. ODH will continue to recommend the use of the school inspection manual (what was Jarod's Law) for conducting sanitary school inspections."

Ohio Department of Health website
Current (rescinded) OAC rules

Tuesday, September 01, 2009

Ohio breastfeeding case

In a case originally accepted to seek a review of whether Ohio law prohibits an employer from discriminating against a female employee because, or on the basis of , a new mother's lactation, the Ohio Supreme Court last Thursday none-the-less upheld its appeals court decision that the woman "was simply and plainly terminated as an employee at will for taking an unauthorized, extra break."

"The record as it was developed in the trial court," the per curiam decision said, "fails to provide a basis from which a jury could conclude that the woman’s employer's articulated legitimate, nondiscriminatory reason for her termination—failure to follow directions—was a pretext for discrimination based on her pregnancy or a condition related to her pregnancy. This determination defeats a sex-discrimination claim under R.C. 4112.02 as a matter of law… Consequently, this court does not reach the issue of whether alleged discrimination due to lactation is included within the scope of Ohio's employment-discrimination statute, R.C. 4112.02, as sex discrimination under R.C. 4112.01(B)," Judge Terrence O’Donnell adding in concurrence that "it is the long-standing practice of courts to decide only issues presented by the facts and to refrain from deciding issues that the facts do not place directly in issue."

The decision wasn't that "cut-and-dry," however, with two of the panel's judges concurring "in judgment only," and a third dissenting.

Judge Maureen O'Connor wrote, "I agree that appellee failed to develop a record from which a jury could find in her favor. But because the trial and appellate courts erroneously applied inapposite federal precedent in their analysis of her claims, I believe that this court should reach the merits to clarify the law… (and) write separately to set forth why I would hold that lactation falls within the scope of R.C. 4112.01(B) and that the statute prohibits employment discrimination against lactating women. R.C. 4112.02… The lead opinion's failure to address the legal framework in which this case arises is disappointing, and it is even more troubling that we fail to address the scope of Ohio law under the guise that reaching the merits would result in an advisory opinion."

Similarly, Judge Paul Pfeifer, dissenting, wrote "This is the Supreme Court, and when the opportunity arises, we should answer the questions that Ohioans need answered. In this case, we are asked whether breastfeeding mothers can be fired from their jobs for pumping their breasts in the workplace. That is, in its protection of pregnant workers in R.C. 4112.01(B), did the General Assembly include protection of women who are dealing with the aftereffects of their pregnancy? The lead opinion dodges the opportunity to provide an answer."