Wednesday, March 31, 2010

Supreme Court on "private criminal contempt" proceedings

Victims of domestic violence advocates are sounding the warning about a little-noticed U.S. Supreme Court case they say could make it much harder for battered women and men to enforce restraining orders against their abusers, a article yesterday reported.

"The case Robertson v. U.S. ex rel. Watson, argued this morning, challenges the way restraining orders are enforced in the District of Columbia," the article says. “D.C. law allows victims themselves to bring criminal contempt charges when abusers infringe on a court order, and at least 14 states have similar setups, according to an amicus brief filed by George Washington University Law School's Domestic Violence Legal Empowerment and Appeals Project.”

ScotusBlog has more here.

Petition for certiorari
Brief in opposition

George Washington University’s amicus brief

Tuesday, March 30, 2010

Proposed Ohio Supreme Court recusal rule

The Ohio Supreme Court yesterday posted announcement of a new proposed rule of practice that will allow parties to a case request recusal of a justice, or, one of the justices to self-disclose information he/she may feel could be the basis for disqualification.

Comments on the rule may be made until April 27, 2010, and should be directed in writing to: Richard A. Dove, Assistant Administrative Director, Supreme Court of Ohio, 65 S. Front St., Seventh Floor, Columbus, Ohio 43215 or

Text of Proposed Rule.

Friday, March 19, 2010

New U.S. Supreme Court website

The United States Supreme Court unveiled its new, updated website yesterday.

The new design appears cleaner and maybe more modern than the old version, which had been hosted & maintained by the Government Printing Office since its design & inception in 2000. The new layout in some ways resembles an iGoogle format with its building slide show.

The Court's press release describes it as having "an updated and more user-friendly design. While continuing to provide online access to the Court's slip opinions, orders, oral argument transcripts, schedules, court rules, bar admission forms, and other familiar information, it also has several new features, including enhanced search capabilities, an interactive argument calendar, improved graphics, and additional historic information, with plans to continue to update and expand features over time…."

Thursday, March 18, 2010

Ohio unauthorized practice rule amendments

The Ohio Supreme Court announced last Monday its accepting public commentary on rule changes governing the unauthorized practice of law in the state. ( Announcement )

Technically, two rules apply, the proposed amendment to Rule VI of the Rules Governing the Bar of Ohio revises the definition of unauthorized practice to identify the Board of Commissioners on Grievances & Discipline as the proper venue for UPL complaints against suspended attorneys, while the current rule says a suspended attorney may be referred for investigation to the UPL board.

Rule VII’s amendment makes a number of changes to the Rules, including revising the definition of "unauthorized practice of law," making "non-substantive changes to conform with the Court’s Rule Drafting Manual," and authorizing the Attorney General to investigate and prosecute complex UPL cases.

The Supreme Court will accept public comments on the proposed amendments until April 13, 2010. Comments should be submitted in writing to: Michelle Hall, Attorney Services Counsel, Supreme Court of Ohio, 65 South Front Street, 5th Floor, Columbus, Ohio 43215-3431, or @ not later than that date. Please include your full name and mailing address in any comments submitted by e-mail.

Monday, March 15, 2010

Hamilton County Commissioners joining federal lawsuit vs. hotel-booking companies

Hamilton County, Ohio commissioners last week voted to join a federal lawsuit alleging online hotel-booking companies owe Ohio communities for lost tax revenues, according to the Cincinnati Enquirer. That suit involves well-knowns such as Travelocity, Hotwire, Orbitz,and Priceline.

The case in point is actually about five years old, being first filed by the City of Findlay, Ohio in Hancock County Common Pleas Court in October 2005 and moved to the Ohio Northern District Court in November. ( Here )

The cities of Columbus & Dayton next filed the same action in both Southern & Northern District Courts in Aug. 2006.

Defendants in the Southern District case motioned, and were granted a change of venue solely to the Northern District in 2007, with the two Northern District cases being consolidated in November 2009. At this point, there are now six cities, three townships, Lake Township/Wood County, and the Franklin County Convention Facilities Authority being represented as plaintiffs against ten mostly well-known booking companies.

Ohio isn't the only place hotel booking companies have problems. A Tax Foundation special report last month said local officials in cities in 22 states have commenced legal action against online travel companies like Expedia,, Orbitz, Priceline and Travelocity for what they claim are uncollected taxes. "The legal disputes," the report says, "centers on whether hotel taxes should be assessed on travel booking services, which in turn depends on whether cities' hotel occupancy taxes should be calculated on the amount the hotel receives (which assumes that hotel taxes are paid only on the basis of hotel occupancy), or the amount the consumer pays (which assumes that the online companies are agents or resellers, not facilitators). Online travel companies neither own nor resell hotel rooms."

The Tax Foundation report also mentions,"Circulating on Capitol Hill is proposed language for a federal bill or amendment that would pre-empt occupancy taxes based on travel booking or travel agency services. Supported by the Coalition for Internet Travel Tax Fairness, the bill is designed to narrowly bar discriminatory taxation of online travel company services."

Friday, March 12, 2010

Georgia court bars release of crime scene photographs

CNN had this story yesterday telling about DeKalb County, Georgia, Superior Court Judge Daniel Coursey's, having issued a temporary order restraining the Georgia Bureau of Investigation from releasing "any and all photographs, visual images or depictions of Meredith Emerson which show Emerson in an unclothed or dismembered state." Ms. Emerson was murdered in January 2008, her admitted killer given a life sentence in exchange for leading investigators to her body in the north Georgia mountains.

The judge's order, the article continued, came on the same day the Georgia House Governmental Affairs Committee unanimously passed "The Meredith Emerson Memorial Privacy Act," which would prevent gruesome crime scene photos from being publicly released or disseminated, according to Rep. Jill Chambers, the bill's principal sponsor.

Virginia bans mandated health care

MSNBC reported Wednesday that the state of Virginia the became first in the nation to approve legislation "that bucks federal health care reforms by banning mandatory health insurance coverage." ( See HB 10 here )

The article also indicated that thirty-four other legislatures have filed or proposed similar measures. Kentucky HB 254, for example, would create, in part, "a new section of Subtitle 17A of KRS Chapter 304 to provide that no individual nor any business entity domiciled in Kentucky shall be required to purchase health insurance coverage, notwithstanding any federal mandate, fines, taxes or penalties;" HB 307 would "…prohibit the General Assembly from requiring any individual to participate in any health care system or plan, or to impose a penalty or fine regarding participation;" and HB 585 "declare that a law or rule shall not compel any person, employer, or health care provider to participate in any health care system."

Other states, however, apparently have legislation on both sides of the issue. Here in Ohio, for example, HB 159, which was introduced in April 2009, intended to "establish and operate the Ohio Health Care Plan to provide universal health care coverage to all Ohio residents." Senate Resolution 7 and House Resolution 3 from last Sept., echoed each other, however, in "Proposing to enact Section 43 of Article II of the Constitution of the State of Ohio to prohibit a law or rule from compelling a person, employer, or health care provider to participate in a health care system,”

Wednesday, March 10, 2010

U.S. Supreme Court cases

The Unites States Supreme Court in its decision in Bloate v. United States Monday , reaffirmed that "The Speedy Trial Act of 1974 (Act) requires a criminal defendant's trial to commence within 70 days of his indictment or initial appearance,18 U. S. C. §3161(c)(1), and entitles him to dismissal of the charges if that deadline is not met, §3162(a)(2)…

The Act also "automatically excludes from the 70-day period 'delay resulting from . . . proceedings concerning the defendant,' 18 U. S. C. A. §3161(h)(1), and separately permits a district court to exclude 'delay resulting from a continuance' it grants, provided the court makes findings required by §3161(h)(7)."

Citing Gozlon-Peretz v. U.S., 498 U.S.395 (1991), the Court said that "analysis resolves the automatic excludability inquiry because '[a] specific provision' (here, subparagraph (D)) 'controls one[s] of more general application' (here, subsections (h)(1) and (h)(7)).

Further, citing Zedner v. U.S., 547 U.S. 489 (2006), which similarly dealt with the Speedy Trial Act, the Court held that its determination that the delay at issue is not automatically excludable "gives full effect to subsection (h)(7), and respects its provisions for excluding certain types of delay only where a district court makes findings justifying the exclusion. The Court’s precedents also support this reading of subsection (h)(1)."

In deciding Milavetz, Gallop & Milavetz v. United States, the Court found "attorneys who provide bankruptcy assistance to assisted persons are 'debt relief agencies' under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) By definition, 'bankruptcy assistance' includes several services commonly performed by attorneys, e.g., providing 'advice, counsel, [or] document preparation,'" [ 11 U. S. C. §101(12A) ]

Plaintiffs in the initial litigation were a law firm and others who had filed a pre-enforcement suit seeking declaratory relief, arguing that they were not bound by the BAPCPA's debt-relief-agency provisions and therefore could freely advise clients to incur additional debt or have to make the requisite disclosures in their advertisements.

In its syllabus the Court recounted that the District Court of Minnesota found that "debt relief agency" does not include attorneys and that §§526 and 528 are unconstitutional as applied to that class of professionals. The Eighth Circuit affirmed inpart and reversed in part, rejecting the District Court's conclusion that attorneys are not "debt relief agenc[ies]"; upholding application of §528's disclosure requirements to attorneys; and finding §526(a)(4)unconstitutional because it broadly prohibits debt relief agencies from advising assisted persons to incur any additional debt in contemplation of bankruptcy even when the advice constitutes prudent pre-bankruptcy planning. [ 11 U.S.C. §526 11 U.S.C. §528 ] has more.

Monday, March 08, 2010

Ohio Supreme Court's proposed rule amendment on timing of notices of appeal

The Ohio Supreme Court this morning announced its holding public commentary on amendments to the state's Rules of Practice that address the tolling of time for filing an appeal in the Supreme Court after a party seeks a full review by all members of an appeals court.

The Court's announcement reported that "Division (A)(5) of S.Ct. Prac. R. 2.2 was proposed in response to an amendment to the Rules of Appellate Procedure that permits a party to file a motion for en banc review with a court of appeals, which will toll the time for filing an appeal to the Supreme Court until the appeals court rules on the en banc motion.

"The revised appellate rules provide a procedure for en banc consideration in courts of appeals when separate three-judge panels, within the same court of appeals, reach conflicting decisions on the same matter of law.

"The en banc provisions of the appellate procedure rules are a product of the Supreme Court's decision in McFadden v. Cleveland State Univ. The Court held there that 'if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.'"

Public comments will be entertained until April 6 and should be submitted in writing to: Justin Kudela, Case Management Counsel, Supreme Court of Ohio, 65 S. Front St., Eighth Floor, Columbus, Ohio 43215 or at

Proposed Amendment

[Note: Public comments on Rules of Appellate Procedure 14, 15, 25, 26 and 43 are also still open until tomorrow, March 9 ]

Monday, March 01, 2010

2009 Ohio "Concealed Carry Report"

The Ohio Attorney General's Office this morning reported that the state had issued a record 56, 691 concealed handgun licenses last year, topping the previous high of 45,497 set in 2004 when the concealed handgun law first went into effect and representing a 67 percent increase from the 33,864 licenses issued in 2008. (Report)

Explanations for the increase vary. A USAToday article said "Jeff Garvas, president of Ohioans for Concealed Carry, an advocacy group for the law, said he believes the record-setting numbers are primarily about the economic downturn…

"Jim Irvine, chairman of the Buckeye Firearms Association, said he thinks licenses are up because more people are concerned that President Barack Obama is going to do something to limit gun ownership. In the first six months of 2009, around the time and soon after Obama took office, Ohio issued 34,244 permits. That was 380 more licenses than the state issued for all of 2008… Toby Hoover, executive director of the Ohio Coalition Against Gun Violence, blames firearms supporters for creating a fear of Obama in order to drive up membership in their groups. 'It's the gun lobby saying, 'Just wait, (Obama's) waiting to pounce and will take your guns away,'' Hoover said. 'That's what they are telling people. You see it in their literature and newsletters and it has made people very fearful.'"

Ohio Attorney General Richard Cordray in his statement said, "If there's something to take away from these numbers, it is that more and more Ohioans are comfortable exercising the right to carry concealed handguns. We are pleased that we have a strong partnership with the county sheriffs who issue concealed handgun licenses, and we will continue to work together to help eligible Ohioans take advantage of this law."

Of that 56,691 number of concealed licenses issued last year, Franklin County and Columbus had the highest number of permits issued with 3, 464. Paulding County, with its population of 20,000 in the northwestern Ohio, the least with 37.

The number of licenses actually issued, though, is only part of the picture. 636 applications for permits were denied last year to individuals failing to meet the eligibility requirements set forth in Revised Code §2923.125, compared to 436 in 2004, just after passage of the bill. 378 licenses were also permanently revoked to individuals moving out of the state, dying, or having been convicted of a disqualifying crime under ORC § 2923.128, as opposed to 42 in 2004. Revised Code § 2923.13 bars convicted felons, fugitives, addicts, and persons adjudicated as mentally incompetent among others from possessing or carrying concealed weapons.

Of those 56, 691 instances, Cleveland (Cuyahoga County) had 1,100 licenses issued last year, with 63 being denied and 19 revoked; Toledo (Lucas County) reported issuing 1, 507 licenses, with 58 being denied and 127 revoked; and Dayton’s Montgomery County issued 1, 748 licenses while denying 47 and revoking only 7. In our own neighborhood here in Cincinnati (Hamilton County) 2, 297 licenses were issued, with 64 being denied and 13 revoked; 2, 227 licenses were issued in Butler County (Hamilton, Ohio), with 24 being denied and 77 being revoked. Clermont County issued 2, 495 licenses while denying 20 and revoking 11; and Warren County issued 1, 437, denied 4, and only revoked one.

Also noteworthy to the Attorney General's report is that 18 other states have "reciprocity agreements" with Ohio on concealed carry laws, including Michigan, Kentucky, West Virginia, and Tennessee.

Ohio Revised Code (“concealed carry”) 2923.12
Application/licensing (2923.125)
Suspension/Revocation (2923.128)
Possession Under Disability (2923.13)

2008 Report
2005 Report