Court indictment not defective when it tracks language of statute

In answering a certified question presented it last Friday, the Supreme Court of Ohio overruled its 2008 decision in State v. Colon holding:

• 1) An indictment that charges an offense by tracking the language of the criminal statute is not defective for failure to identify a culpable mental state when the statute itself fails to specify a mental state.


• 2) When the General Assembly includes a culpable mental state in one discrete clause, subsection, or division of a statute, but not in another discrete clause, subsection, or division of the same statute, courts must apply the analysis prescribed in the Supreme Court’s decisions in State v. Wac (1981) and State v. Maxwell (2002) to determine the necessary mental state where none is specified.
• 3) By failing to enter a timely objection to a defect in an indictment, a defendant waives all but plain error on appeal.

"In order to convict a defendant of a criminal offense," the Court said, "the state must prove: 1) that the accused committed an act that is prohibited by law (in Latin, the actus reus), and 2) that in committing the prohibited conduct, the accused acted with a specified guilty or 'culpable' mental state (in Latin, the mens rea) which is set forth in the section of law defining that offense. The culpable mental states set forth in Ohio criminal statutes, in increasing order of severity, are 'negligently,' 'recklessly,' 'knowingly', and 'intentionally'.

"R.C. 2901.21(B) provides that when a state law that defines a criminal offense does not specify a required mens rea for that offense, courts hearing charges under that statute must determine whether or not the language of the statute 'plainly indicates a purpose to impose strict criminal liability for the conduct described in that section.' If it is determined that the legislature intended to impose strict liability, then the state is required to prove at trial only that the accused engaged in the prohibited conduct, and is not required to establish any culpable mental state. If it is determined that the statutory language does not impose strict liability, R.C. 2901.21(B) requires the state to prove at trial that the defendant acted with at least the guilty mental state of 'recklessly.'"

State v. Horner

2009 Ohio Mayors Courts Summary

While traffic cases in Ohio municipal and county courts -- constituting 42 percent of new filings -- was at its lowest mark since 2000 with 1,259,095 filings, a 7 percent decrease from 2008, more than 300,000 new cases were filed in Ohio's 330 mayors courts in 2009 following a four-year decline in that venue. Just the opposite.

The Supreme Court's 2009 Mayors Courts Summary, released last Friday, reported "The total new filings for all case types increased by 6 percent over 2008, mainly due to a 7 percent year-over-year increase in 'Other Traffic' cases, which includes any traffic cases other than OVI (operating a vehicle while under the influence) cases."

In 2003, the General Assembly made mayors court registration and reporting with the Supreme Court mandatory, and, beginning in 2004, the courts began filing quarterly reports under the new law. Statewide, mayors' courts averaged 22 cases per 100 residents in 2009.

Around this area, Hamilton County's 33 mayors courts reported a total of 71,554 cases last year. Butler County with its three courts had 3,917; Clermont's nine courts had 6,126; and Warren County's seven mayors courts had a total of 6,416

6th. Circuit's Coroner/Family Rights Decision

In a legal battle that's dragged on for almost two decades now, the 6th. Circuit Court of Appeals here in Cincinnati last Tuesday ruled that "coroners don't have to tell families when they keep body parts of a relative after an autopsy, as long as they have an investigative reason for withholding the organs balancing the rights of families and the responsibilities of coroners," the Cincinnati Enquirer reported. ( Holding )

"Christopher Albrecht, a 30-year-old cable installer, drowned in December 2001 in southern Ohio after suffering a seizure and losing control of his van. The vehicle ran off the road and landed upside down in a retention pond," an ABA Journal article discussing the early parts of the case recounted. "Under Ohio law, the bodies of those who die in motor vehicle accidents must undergo an autopsy—the same as those who die violently or suspiciously or unattended, or who simply happen to be younger than age 2… But it wasn’t until five years later, when the Albrechts saw for the first time a copy of the autopsy report, that they realized not all of what had been Christopher had been laid to rest. His brain had been removed for examination, and at the time he was buried—a few days after the accident—it was still in at the Hamilton County coroner’s office."

The Albrechts filed a class-action lawsuit in Dec. 2006 for "damages & class injunctive relief to challenge the practices, standards, customs and policies & procedures employed by (all Ohio coroners) in removing body parts & organs of deceased individuals and retaining said body parts & organs without due process of law in violation of equal protection provided by law and other Constitutional rights, including, but not limited to, liberty and freedom of religion."

Being a question of first impression in Ohio, the district court certified the question to the Ohio Supreme Court, which answered the question in the negative, stating that there is no constitutionally protected property interest in human remains retained by the state of Ohio for criminal investigation purposes. The district court consequently held that the Albrechts had no property interest in the brain.

In appealing, the Albrechts argued that the Sixth Circuit's rulings in Brotherton v. Cleveland and Whaley v. County of Tuscola, holding that a spouse had a protected property interest in her husband’s corneas, which were removed for donation purposes, should rule this case, as opposed to the Ohio Supreme Court's answer to the certified question.

Citing their 1995 precedent, the Court said, "Federal law is clear that the states define property rights in their respective jurisdictions. See Craft v. U.S. Through C.I.R., (6 th. Cir. 1998) (Ryan, J., concurring) ("state property law determines which rights, in the bundle of rights we call ‘property,’ a person may exercise."). The Ohio Supreme Court explicitly delineated
the lack of property rights in this case in Albrecht II. That Court held that next of kin have no right to autopsy specimens removed and retained by the coroner, in furtherance of a criminal investigation. Although there is no dispute as to the facts as the Albrechts present them, they had no property interest in their son’s brain, thus, they cannot support the first element of a due process clause claim. Their claim fails as a matter of law. "[I]f state actors . . . do not infringe on the life, liberty, or property of the plaintiffs, there can be no due process violation.'" Whaley v. County of Tuscola, (6th. Cir. 1995).

9th. Circuit GPS tracking/privacy case

The 9th. Circuit Court of Appeals, last January, ruled that law enforcement officers could secretly place GPS devices on a person's car without seeking a warrant from a judge. A request for a full-court, en banc, rehearing was denied last Thursday.

"Drug Enforcement Administration agents in Oregon in 2007 surreptitiously attached a GPS unit to the silver Jeep owned by Juan Pineda-Moreno, whom they suspected of growing marijuana, according to court papers,” a CNN article this morning said. "When Pineda-Moreno was arrested and charged, one piece of evidence was the GPS data, including the longitude and latitude of where the Jeep was driven, and how long it stayed. Prosecutors asserted the Jeep had been driven several times to remote rural locations where agents discovered marijuana being grown, court documents show."

Pineda-Moreno pleaded guilty to conspiracy to grow marijuana, and is serving a 51-month sentence, but appealed on the grounds that sneaking onto a person's driveway and secretly tracking their car violates a person's reasonable expectation of privacy.

The Court, in January, said, "Insofar as [Pineda-Moreno's] complaint appears to be simply that scientific devices such as the [tracking devices] enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality and decline to do so now." ( Holding )

The request for an en banc rehearing was denied without comment, but there were five dissenting judges opposed to that denial.

"The ruling likely won't be the end of the matter," CNN’s article predicts. "A federal appeals court in Washington, D.C., arrived at a different conclusion in similar case, saying officers who attached a GPS to the car of a suspected drug dealer should have sought a warrant." ( See U.S.v. Maynard, D.C. Cir., Aug. 6, 2010)

International Reach of RICO Laws

The U.S. Supreme Court's logic & reasoning used in its June decision in Morrison v. National Australia Bank Ltd. -- where the Supreme Court rejected the application of U.S. securities laws abroad and reaffirmed the presumption that, when "a statute gives no clear indication of an extraterritorial application, it has none" -- was applied by New York Southern District Judge Jed S. Rakoff last Wednesday to an international civil racketeering case.

A Law.com article this morning says "Rakoff made the ruling in Cedeño v. Intech Group Inc., 09 Civ. 9716, where plaintiff Eligio Cedeño sought damages for a 'wide-ranging money laundering scheme' by Venezuelan officials and their allies 'that utilized New York-based U.S. banks to hold, move and conceal the fruits of fraud, extortion and private abuse of public authority.'"

Ohio Child Support Laws

A bill introduced in the Ohio General Assembly last week would mark Ohio's first substantial child support overhaul in nearly 20 years, said, Sen. Shirley Smith, the bill's sponsor.

"Ohio's child support laws are outdated and no longer effectively serve the children meant to benefit from them," Sen. Smith said in a recent Toledo News article.

"(Payments) have not been adjusted for inflation, there is no adequate schedule for shared parenting agreements and support for medical expenses is poorly contrived," Sen. Smith said. "Ohio currently uses a payment schedule with figures from 1992. The 18-year-old numbers are outdated and need to be adjusted for rises in inflation. This bill also houses provisions that will set up a council to examine and adjust the payment schedule every four years, so Ohio will not (have) this problem again."

The bill was rooted in the official recommendations made by the 2009 Ohio Child Support Guidelines Advisory Council. (See Report & Recommendations )

Credit Card Accountability Responsibility & Disclosure

"New rules designed to protect credit card users from 'unreasonable late payment and other penalty fees' came into force Sunday as a result of the Wall Street reform bill -- the final provisions of federal legislation that placed new restrictions on credit card interest rates and fees, completing the most comprehensive overhaul of the credit card industry in history," CNN reported this morning.

"The rules block credit card companies from charging more than $25 for late payments except in extreme circumstances, prevent them from charging customers for not using their cards, and requires them to reconsider rate increases imposed since January 1, 2009, according to the Federal Reserve, which approved the regulations."

But the Wall Street Journal, also reported this morning that "the new credit-card rules that took effect Sunday limit banks' ability to charge penalty fees, coming on top of rule changes earlier this year restricting issuers' ability to adjust rates on the fly. Issuers responded by pushing card rates to their highest level in nine years."

"The moves are driven by a combination of forces," the Journal's article says. "The Credit Card Accountability Responsibility and Disclosure Act of 2009 has given card issuers less flexibility to raise interest rates as they wish. At the same time, issuers are still dealing with credit-card delinquencies that remain above historical levels."

2009 Ohio Courts Summary

The Ohio Supreme Court publishes two reports annually: the Ohio Courts Statistical Summary, which, this year, examines data from Ohio courts for the years 2000 to 2009, and the Ohio Courts Statistical Report . Raw data is published in the Statistical Reports, while the Summaries analyze the data from the reports and identifies trends.

"Marked by a decrease in new traffic filings, last year saw the lowest total number of new cases filed in Ohio courts in 10 years," the newly-released 2009 release reported yesterday.

Other notable trends from the report include:

• Breach of contract cases and similar non-tort related civil cases show marked growth over the past 10 years. In 2009, 224,180 new breach of contract cases were filed in municipal and county courts, representing a 68 percent increase over 2000. Also, in common pleas courts, 68,965 new “other civil” cases were filed, representing an 88 percent increase over 2000. This figure is slightly down (4 percent) from the 10-year high of 72,121 cases filed in 2008.


• The highest number of new domestic violence (civil protection order) cases filings in the past 10 years: 20,551.


• The lowest number of new abuse, neglect, and dependency cases filed in the past 10 years: 12,727

"Ten years of data from Ohio courts was included for the first time in the 2008 report.," the Court's announcement yesterday said. "Previously, the annual Ohio Courts Summary contained the raw statistical tables of activity in Ohio's courts – from trial courts to appellate courts to the Supreme Court – including statistics about caseloads, case terminations and clearance rates from the previous year, that're now published as the Statistical Reports. (Mayor's courts' statistics, also published in a separate reports, are released later this year.)."

This year's Summary also includes a special section on foreclosures that examines 20 years caseload statistics.

Ohio Court Summaries from previous years are available on the Court's website.

Ohio election laws case

The lawsuit filed last month challenging Ohio election laws which "banned judicial candidates from direct fundraising and disclosing of their political affiliation" met with a major setback yesterday when U.S. District Judge Susan Diott denied those plaintiffs' motion for a temporary restraining order to permit judicial candidates to be listed by political party on the general election ballot in 2010. ( Ruling )

"A significant impetus for this lawsuit was the Sixth Circuit Court of Appeals' recent decision in Carey v. Wolnitzek, in which the court held that Kentucky's Code of Judicial Conduct canon regarding party affiliation and solicitation violated the First Amendment," the Court wrote. "Plaintiffs here ask this Court to expand Carey's holding by enjoining enforcement of Ohio's Rule restricting a judicial candidate's solicitation and receipt of campaign contributions and by requiring the Secretary of State to put judicial candidates on a partisan ballot."

In one particular answer the Court's response was that "The Sixth Circuit's decision in Carey directly impacts the Ohio Judicial Code solicitation clause challenged by Plaintiffs. At the time Plaintiffs filed this lawsuit, Ohio's solicitation clause provided that '[a] judicial candidate shall not personally solicit or receive campaign contributions.' Former Ohio Code of Judicial Conduct Rule 4.4(A). Carey, decided and filed July 13, 2010, held that Kentucky's solicitation clause, which read: '[a] judge or candidate for judicial office shall not solicit campaign funds,' was unconstitutionally overbroad.This lawsuit quickly followed. However, the members of the Supreme Court of Ohio, who are responsible for enacting and enforcing the Ohio Judicial Code of Conduct, also responded quickly, and, on August 11, 2010, this Court received notice that the Supreme Court of Ohio had revised Rule 4.4(A).The revised Rule no longer prohibits judicial candidates from all forms of personal solicitation. Now, a judicial candidate may (1) make a general request for campaign contributions when speaking to an audience of twenty or more individuals and (2) sign letters soliciting campaign contributions if the letters are for distribution by the judicial candidate’s campaign committee and the letters direct contributions to be sent to the campaign committee and not to the judicial candidate…. To wit, the revised Rule maintains its ban on one-on-one solicitation but permits precisely the types of solicitation the Carey Court said presented little risk of undue pressure or the appearance of a quid pro quo: speeches to large groups and signed mass mailings."

Ohio Prison Reform/Criminal History legislation

The Columbus Dispatch, Wednesday morning, had two mentions of bills that have been introduced in the Ohio Senate we found of interest.

Senate Bill 22 (article) (bill analysis)

"'We are at a crisis in the state of Ohio,' Ohio ACLU legal director James Hardiman was quoted as saying, in releasing 'Reform Cannot Wait,' a report examining the cost and impact of prison incarceration and spending from 1991 to the present… It summarized the findings of other reports over nearly two decades and reached the same conclusions: Ohio sends far too many people to prison, spends an inordinate amount of money on adult and youth prisons, and has done little to reduce crime and recidivism."

"Senate Bill 22," the Dispatch said, "would funnel some low-level, nonviolent offenders to community treatment programs and give offenders time off their sentences for successfully participating in education and treatment programs behind bars. It would initially save about $13.7 million in operating costs, but it would help avoid billions in spending if it prevents the state from having to build new prisons because of severe overcrowding. Seitz also said his bill, which has been voted out of a Senate committee, 'will not undercut the holy grail of determinant sentencing,' as prosecutors claim."

Senate Bill 291 (Dispatch's article)

Introduced by Sen. Shirley Smith, Senate Bill 291 would "preclude civil actions against an employer for failures to do a criminal background checks, prohibit an employer from inquiring into the criminal history of a job applicant until the applicant has been selected for an interview, or refuse to hire a job applicant because the applicant committed an offense unrelated to the job.

"modify the list of offenses in the official records of which may not be sealed; require the sealing of the official records of a person who is found not guilty of an offense, who is the defendant named in a dismissed complaint, indictment, or information, or against whom a no bill is entered by a grand jury; and permit certain offenders who are not first offenders to apply for an order sealing their official records."

"Under threat of a $250,000 fine," the Dispatch’s article said, "the bill would require individuals, newspapers and other news media to delete stories from the Internet and their archives about the arrests and convictions of those who win expungement orders, and face a $500,000 fine for knowingly releasing information about a sealed conviction … Damages would double to $1 million if the banned information was available on the Internet."

Ohio Supreme Court 4th. Amendment Learning Tool

The Ohio Supreme Court yesterday announced that its Visitor Education Center would be offering lesson plans & tools for middle- and high school students and teachers to study & consider the Court’s 2009 decision in State v. Smith, requiring police to obtain warrants before searching cell phones and related Fourth Amendment considerations. The decision generated considerable national comment as this was the first such ruling from a state supreme court in the nation.

The lesson plan features a link to the video stream of the oral arguments before the Court and includes topics such as:

• Wording of the Fourth Amendment and related terms
• Basics of search warrants
• Background information about State v. Smith
• A summary of the legal issues surrounding Smith
• Suggestions for classroom discussion and follow-up activities

Additional information and the plan’s link are available on the Court’s announcement

COBRA status

A USAToday article this morning discussed the – at least at present – demise of COBRA benefits for many people. The longstanding federal law passed in 1985, requires employers to continue insurance for former employees, typically for 18 more months, if they pay the entire premium plus a 2% administrative fee. Last year, Congress approved a 65% COBRA premium subsidy, but that ended May 31 and deficit-conscious lawmakers have not renewed it.

"People who started on COBRA before May 31 can still get the aid," the article says, "but those who had exhausted the 15-month subsidy, and the newly unemployed, aren't eligible." The Dept. of Labor’s website has an online link ( Here ) for "individuals who believe they have been incorrectly denied the subsidy, and may request the Employee Benefits Security Administration to review their denial and issue a determination within 15 business days."

While the Obama administration says it favors extending the subsidy, USAToday says, it "is having trouble winning support among lawmakers of both parties who are worried about the federal deficit and are hard-pressed to find ways to pay for the additional cost…" Trying to address those concerns, Congress had at least 41 bills at least mentioning COBRA this session, the latest being by Sen. Robert Casey, D-Pa., who introduced a bill, last June, to "reinstate the subsidy and make it retroactive to give people laid off since June 1 six months of the subsidy instead of the 15 months that the law had provided. It would be paid for by eliminating a tax break on annuity trusts."

Ohio sex offender update

Citing its June 3rd. decision in State v. Bodyke , dispositions were entered by the Ohio Supreme Court, yesterday, in 127 other sexual offender reclassification cases that were pending on appeal. ( See In re Sexual Offender Reclassification Cases, Slip Opinion No. 2010-Ohio-3753 for specific case instances)

An additional 23 sexual offender reclassification cases are no longer being held for a decision in Bodyke, but are held for decisions in three other sexual offender reclassification cases. Those briefing schedules remain stayed pending the outcomes of In re Smith (2008-1624), State v. Williams (2009-0088), and In re Adrian (2009-0189). [ Refer Case Announcements ]

And the Court denied a joint motion for reconsideration/clarification of State v. Bodyke by state officials who had sought "clarification of the Court's remedy-- specifically, whether the Court facially invalidated R.C. 2950.031 and R.C. 2950.032, and thereby struck the provisions entirely, or whether the Court only invalidated those provisions as applied to sex offenders who had been judicially classified under Megan's Law." Justices Cupp and O'Donnell dissented, stating "The majority decision in Bodyke states that it was based on the concern that R.C. 2950.031 and 2950.032 'require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order.' Bodyke, ___Ohio St.3d ___, 2010-Ohio-2424, ___ N.E.2d ___, at ¶ 61. To the extent that particular sex offenders have not been previously 'adjudicated by a court' to be within a particular classification under prior law, those offenders are not affected by the Bodyke decision. I believe that the court should grant clarification for this limited purpose.' [ Denial of Motion Here ]

Ohio lethal injection law upheld

U.S. District Court Judge Gregory Frost, beginning last week, rejected the appeals of 15 Ohio inmates, USAToday reported yesterday morning, upholding Ohio's never-tried "backup method" in executions that would inject drugs directly into an inmate's muscle when veins can't be readily accessed. ( Here )

The article continued by saying that, while the ruling does not affect any pending executions, "it makes future challenges of injection more difficult by pointing out that a higher court has already dealt with the issue."

In dismissing the appeals Judge Frost wrote, that "the Sixth Circuit has conclusively foreclosed nearly all of these challenges absent a distinguishable or particularized showing by an inmate. Reynolds (Brown) v. Strickland, No.2:10-cv-27, (S.D. Ohio Feb. 1, 2010) …. The court of appeals has since proceeded to adhere to the conclusive nature of its holding and has twice upheld this Court's determination that the issues in this litigation have already received an appellate answer…"

"The essential starting point in the appellate disposition of Plaintiff's claims began with this Court's December 7, 2009 denial of a temporary restraining order for inmate Kenneth Biros in Cooey v. Strickland, No. 2:04-cv-1156 (S.D. Ohio Dec. 7, 2009)," the ruling states. "Biros appealed, and on the same day on which this Court had filed its opinion, the Sixth Circuit issued an opinion affirming this Court. Cooey (Biros) v. Strickland, (6th Cir. 2009)." The Sixth Circuit there essentially summarized "[t]he majority of the claims regarding the one-drug IV injection are foreclosed by [Baze v. Rees, 553 U.S. 35 (2008),] and its progeny."

9th. Circuit holds on same-sex marriages

ScotusBlog this morning reported that "the Ninth Circuit Court, acting swiftly on the hotly controversial issue of same-sex marriages in California, on Monday afternoon delayed for at least four months any grant of licenses to gay couples to wed in the state. Under a two-page order, even a hearing will not be held until early December, meaning that any ruling would be unlikely much before the end of the year, if then."

More on pending Proposition 8 issue

Three articles this morning address the West Coast’s "Proposition 8,"same-sex marriage issue, and the possible course it could take.

Law.com’s Tony Mauro’s article, first of all, says "..now that Judge Vaughn Walker has decided that Prop 8, which banned same-sex marriage in California, is unconstitutional, the possibility is real that the case might never make it on appeal all the way to the Supreme Court" because of the issue of standing.

"Under Supreme Court precedent," Mauro writes, "it's unclear that proponents of legislation would have standing to defend it if state officials are not themselves defending it, because they can't show that they are suffering the necessary injury. In Arizonans for Official English v. Arizona, a 1997 case, the Court expressed 'grave doubts' about the ability of such groups to challenge rulings that strike down ballot initiatives… George Washington University Law School associate dean Alan Morrison, a longtime expert on standing and civil procedure, said the Arizona precedent 'came right up to the edge' of saying there was no standing for groups like those that favor Proposition 8. Morrison also noted that since that ruling, new members like Chief Justice John Roberts Jr. and Samuel Alito Jr. have joined the Court and are 'no friends of expanding standing.' Setting high standards for standing has been one of several gate-keeping procedural doctrines conservative justices have used to weed out what they view as excessive or frivolous litigation from the courts."

Mauro also referred to a posting on Cornell Law School professor Michael Dorf’s blog last Monday, who, "while sympathizing with Walker's decision, wrote that a good argument could be made for standing when state officials are reluctant to defend a successful ballot initiative. 'The ballot initiative process is available precisely because the People cannot always trust their elected representatives to carry out their will,'" he said.

Another view of the standing issue came from SCOTUSblog last Thursday.

Along with Arizonans, ScotusBlog also mentions the Supreme Court's 1985 ruling in Karcher v. May, "suggesting that state legislators may sometimes do so when other state officials refuse, provided state law allows for that. The proponents of the ban on gay marriage, in direct conflict with Judge Walker's interpretation of California law, argue that state law does give them the right to be in court. California law, they said, makes their case different from the Arizona English initiative case."

ScotusBlog also pointed that if the case does falter because of a lack of "standing," Judge Walker’s 136-page opinion on August 4 against Proposition 8 would stand as a precedent, but one that represented the judgment of a single federal jurist, without the enlarging endorsement of a federal appeals court or of the Supreme Court. District Court rulings, even those that are widely admired within the legal community, do not have the compelling force behind them that a higher court’s decisions do.

"In practical terms, what that would mean was that gay marriage would be legal in California, the nation's largest state. And this would add a sixth state that permits same-sex couples to enter legal marriage. Such nuptials , however, would still be illegal in more than three dozen states, since the Supreme Court would have had no chance to turn Judge Walker’s ruling into a nationwide, binding precedent."

The third article, in the New York Times this morning, adds another wrinkle, quoting Vikram Amar, a professor of law at the University of California, Davis, who said "the proponents of Proposition 8 had made more compelling arguments in recent court filings than they had in the two-week trial in January and in their closing arguments in June." In particular, Mr. Amar said, the defendant-interveners had done a good job in arguing that allowing same-sex marriages to proceed during appeals of Judge Walker’s decision could lead to confusion about their validity… "I do think that if there are marriages that are entered into and then he's overturned, those marriages are vulnerable." Amar, opposes Proposition 8.


Wikipedia's entry on same-sex-marriages notes that, "in 2005, the U.S. District Court in Nebraska's Citizens for Equal Protection v. Bruning, holding that prohibiting recognition of same-sex relationships violated the Constitution was overturned on appeal by the United States Court of Appeals for the Eighth Circuit in 2006, which ruled that 'laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States.'" [See also Wikipedia’s "Same-sex Marriage in the United States" and "Same-sex marriage law in the United States by state" ]

Same-sex marriage update

By now we guess everyone heard that "the federal judge who overturned California's same-sex marriage ban had more bad news for the measure's sponsors: he not only is unwilling to keep gay couples from marrying beyond next Wednesday, but doubts the ban's backers have the right to challenge his ruling."

Back on August 4, Chief U.S District Judge Vaughn Walker in San Francisco's Northern California District Court, declared the state's "Proposition 8” ban on gay marriages unconstitutional, but also granted proponents a temporary stay of execution delaying that ruling from taking immediate effect. ( Aug. 4th. Finding of Facts )

Judge Walker yesterday "rejected the request to delay his decision striking down Proposition 8 from taking effect until high courts can take up an appeal lodged by its supporters. One of the reasons, the judge said, is he's not sure the proponents have the authority to appeal since they would not be affected by or responsible for implementing his ruling," USAToday said.

"Walker did, however, give opponents of same-sex marriage until Aug. 18 at 5 p.m. to get a ruling from the 9th U.S. Circuit Court of Appeals on whether gay marriages should start before the court considers their broader appeal. Their lawyers filed an request asking the 9th Circuit to intervene and block the weddings on an emergency basis late Thursday."

Perhaps causing some confusion, there are two separate cases here at issue. Law.com yesterday pointed out that "Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown took positions against the stay last week, with Brown declaring in a court filing that 'the harm to the plaintiffs outweighs any harm to the state defendants.' That brought up the question as to whether the proponents of Proposition 8 had standing."

[ In the way of additional notation, both California’s Northern District and 9th. Circuit Court of Appeals special access portals to major documents in their respective cases ]


Judge Walker's Order denying stay
Permanent Injunction

Health Care Law follow-up

Following up on yesterday's health care post, USAToday yesterday began an article, "Six weeks before the nation's health care delivery system begins a huge transformation, confusion reigns…..Many key parts of the new law, signed by President Obama in March, take effect in several stages beginning next month and continuing through 2015. Because it's so complex, consumer advocates worry that people won't take advantage of its benefits, so they have embarked on a nationwide education campaign." We took note.

Cheryl Matheis of AARP, the nation's largest seniors organization, was quoted saying, "Historically, people don't use services as much as the services are available to them, because they're just not aware."

"The need for outreach became apparent in recent weeks following the release of three polls, USAToday said:,

• The National Council on Aging posed 12 questions about the law to 636 seniors and found that fewer than 17% of them knew half the answers. For instance, only one in three knew that Medicare will offer free annual wellness exams


• The Kaiser Family Foundation, a non-profit research organization, and Harris Interactive market research firm found similar confusion among both seniors and the general population.

"More than four in 10 people in the Kaiser poll wrongly," the article said, "believe the law included a government panel to make end-of-life decisions for Medicare patients. More than one-third in the Harris Poll said it included a government plan to compete with private insurers, something that was scuttled during congressional debate. 'The level of ignorance and misinformation is sort of astounding,' says Humphrey Taylor, chairman of the Harris Poll. 'It seems people are still reacting to the rhetoric, not the substance of what is in the bill, because they don't actually know what is or is not in the actual legislation.'"

"Despite outreach from the federal and state governments, insurers, businesses and consumer groups, however, it is up to the individual to seek the available care, coverage or tax credits… In the case of the health care law, the article reminds, a number of provisions kicking in this year must be claimed. Among them:

• Young adults. If they lack coverage, they can stay on their parents' plans up until they turn 26.


• Tax credits. As many as 4 million small businesses are eligible for tax credits of up to 35% of their health insurance costs.


• Preventive services. Consumers can obtain tests such as mammograms and colonoscopies without having to pay a share of the cost.


• High-risk coverage. People with pre-existing conditions or who are uninsured at least six months can get this coverage through a state or federal high-risk pool.

BloomBussinessWeek, yesterday, posted that "Aiming to ensure strong consumer protections and clear disclosures about retained asset accounts (RAAs), National Conference of Insurance Legislators (NCOIL) President Rep. Robert R. Damron (KY) today released a draft Beneficiaries' Bill of Rights. The model legislation came on the heels of Rep. Damron’s August 4 announcement that NCOIL needed to provide guidance for the 44 states that do not currently regulate the use of such accounts..."

In NCOIL's announcement Damron said, "The model bill guarantees that life insurance consumers and beneficiaries will be fully protected during their greatest times of need. Our model would forbid insurers from using RAAs as a default method of paying death benefits and require that beneficiaries opt in to allow use of such accounts. The legislation would mandate that insurers using RAAs provide clear and comprehensive disclosure about beneficiaries' policy options and would require the specific disclosure that beneficiaries can write one single check to access the entire death benefit.

"…We are sending the model legislation to the National Association of Insurance Commissioners (NAIC) in advance of the group’s summer meeting and would hope that the NAIC will use this as a focal point for any measure that they will develop. We think it addresses the concerns that have been raised by various attorneys general and others that have been investigating the issue. Legislators will be prepared to move on this model during our NCOIL Annual Meeting in November in order for legislatures to consider it in 2011 sessions."

National Conference of Insurance Legislators' Press Release
Proposed "Beneficiaries’ Bill of Rights"

FTC, states sue bogus health insurers

Cincinnati.com also reported this morning that "The Federal Trade Commission and 24 states, including Ohio & Indiana, filed 54 lawsuits or regulatory actions against companies selling 'medical discount plans' alleged to be bogus." The plans, which David Vladeck, director of the FTC's Bureau of Consumer Protection, and state officials said were marketed to an estimated 47 million uninsured Americans, often provided no benefits.

"The health-care overhaul, signed into law by President Barack Obama in March, has created the potential for fraud, Vladeck said, because the major provisions to extend coverage to at least 32 million people don't go into effect until 2014.'I think the uncertainty about the benefits that will be available under the federal insurance program, and the fact it doesn't kick in until 2014, is giving scammers very fertile ground for this…They're trying to capitalize on the uncertainty.'"

An MSNBC article said "the Obama administration is trying to prevent companies from taking advantage of consumers in the wake of the health reform passage, including warning traditional insurers not to use the law as an opportunity to push through big rate increases."

The FTC filed three cases charging companies with deceptively marketing medical discount plans. Their announcement, yesterday, links to the particulars of those three cases along with a summary of the state law enforcement initiatives.

Kentucky immigration resolutions

Cincinnati.com this morning reported that "two Northern Kentucky fiscal courts took different paths reaching similar conclusions on a nationally controversial issue yesterday."

"Kenton County Fiscal Court endorsed the Arizona immigration law by a 3-1 vote at its meeting yesterday morning, while. later in the evening, Boone County Fiscal Court offered its support by the same margin.

"In Kenton County, the resolution passed with little discussion or public input," the article said, but over in Boone County, "the debate lasted more than an hour and attracted an audience of about 70 people, many of whom weighed in on the resolution.”

An MSNBC.com article said of the Boone County meeting that "Leo Pierson, of the League of United Latin American Citizens (LULAC), said the resolutions send a troubling message. 'There are Hispanics that are citizens and documented legal residents in Northern Kentucky and they're not happy,' Pierson said. 'The message received by the Hispanic community is that, you know, they're not wanted: 'We don't want your type here.'"

MSNBC said "Boone County Commissioner Cathy Flaig, president of the Northern Kentucky Tea Party, supported the resolution, and she was surprised by the reaction…. 'I was kind of surprised that there were that many people there that were so upset,' Flaig said. 'The resolution had nothing to do with any racial issues at all. It was nothing more than a resolution in support of the state of Arizona. Nothing in this resolution should be intended as discrimination – nothing at all."

That resolution, the MSNBC article said, included additional language intended to ease fears about racial discrimination by stating directly that the resolution was not intended to discriminate.

Ohio Supreme Court Rules of Judicial Conduct amendments

Taking action in response to the decision by the U.S. Sixth Circuit Court of Appeals last month in Carey v. Wolnitzek that struck down similar rules in Kentucky, the Ohio Supreme Court has amended portions of two of its Rules of Judicial Conduct governing disclosure of political party affiliation and solicitations of campaign contributions by judicial candidates.

The Court’s announcement, yesterday, said in the "Comment portion" of revised Rule 4.2, the Justices adopted language urging judicial candidates to minimize references to their party affiliation in campaign materials, while revised Rule 4.4 contains an explanation of the continued need for a prohibition on the personal solicitation or receipt of campaign contributions.

The amendments became effective today
.
Text of Amendments

Some recent Spreme Court decisions already having impact

"The United States Supreme Court term that just ended produced an unusually large number of cases that have had nearly instant impact in courtrooms and on practitioners across the country," Tony Mauro at Law.com wrote this morning, mentioning Citizens United v. FEC, Skilling v. U.S., Stolt-Nielsen v. AnimalFeeds International Corp., and Morrison v. National Australia Bank… . McDonald v. Chicago and Bilski v. Kappos, both issued on the final day of the term June 28, are launching new litigation over firearm regulations and patent eligibility, respectively.

"But two decisions that got fewer headlines when they were announced are also producing a broad ripple effect in courtrooms," the article says, and both were written by now-retired Supreme Court Justice John Paul Stevens: Padilla v. Kentucky and Carachuri-Rosendo v. Holder. In Padilla, the Court ruled that a lawyer's failure to warn an immigrant client about the consequences of a plea agreement on possible deportation amounts to ineffective assistance of counsel. In Carachuri-Rosendo, the Court sided with immigrants in revising the way minor drug offenses are calculated for deciding whether alien offenders should be deported.

"The Padilla case in particular," Mauro writes, "is being cited in much broader contexts than the case itself. The obligation of lawyers to advise clients about collateral consequences of plea bargains well beyond immigration issues -- from pension benefits to housing -- is being tested in the aftermath of Padilla. Judges have already issued conflicting rulings on the retroactive effect of the decision." (See earlier Law.com article, “Courts Differ On Retroactive Effect of High Court Counsel Ruling”).

"'The Court left open what the rule would be for other consequences, like parole and sex-offender status, so a lot of cases are being filed,' said Stephen Kinnaird, a partner in Paul, Hastings, Janofsky & Walker's Washington office who argued and won the Padilla case, was quoted as saying, and Washington solo practitioner Margaret Love, who has written extensively about collateral consequences, said it might be the most important 'right to counsel' case since Gideon v. Wainwright… It's a case where you pull a little string and things begin to unravel. It's a gift from Justice Stevens that will keep on giving."

Call for review of death row cases in Ohio

Several high-ranking officials in Ohio, including former Attorney General Jim Petro and Supreme Court Justice Paul Pfeifer, are calling for a comprehensive review of all death-row cases and a possible a moratorium on executions while that review's carried out, USAToday.com reported this morning.

Petro told the Columbus Dispatch yesterday that an independent task force should examine the cases of inmates on death row and that the state should halt executions in the meantime. The former attorney general, who supports the death penalty, none-the-less said, "We should show restraint, caution and diligence with these cases… DNA has opened a lot of people's eyes with what it can do. When you are talking about death, you can't afford to make even one mistake."

Justice Pfeifer, who was one of three Republican state senators who brought back the state's death-penalty law in 1981 after the old law was declared unconstitutional, said the state needs to look at "whether or not death is the appropriate penalty."

"Attorney General Richard Cordray," the USAToday article said, "on the other hand, said he hasn't seen anything to justify a moratorium of executions in Ohio, and Gov. Ted Strickland doesn't support an additional review either. 'I would caution against setting up sort of an extra-judicial process to replace what is a very understood and rigorous approach to these matters,' he said."

Both Strickland and Cordray, did say, though, that DNA testing should be done on evidence collected in the cases of seven men who have served time in Ohio prisons, including one currently on death row.

Ohio Supreme Court adoption rulings may boost birth father's rights

The Columbus Dispatch also carried a story yesterday about two recent Ohio Supreme Court rulings in favor of birth fathers that some observers say are putting putative-father laws on shaky ground. (See In re Adoption of G.V. and In re Adoption of P.A.C.)

"I don't think it's hit people yet just how pervasive this might be," Susan Eisenman, an Upper Arlington adoption lawyer was quoted as saying. "If the guy doesn't want the adoption to go forward, all he has to do is file a paternity suit. Even if he's done nothing for the child, he can stop it."

Others, however, praise the decisions as a fair and sensible tip of the scales toward biological fathers, saying that putative-father registries in Ohio and elsewhere deserve to take some legal hits because the little-known laws can be used as blunt instruments to sever parental rights.

"Ohio’s Putative Father Registry was created in 1996 as a way to allow children to be promptly placed for adoption and avoid court battles.," the article said. "Putative essentially means reputed - the man thinks he's the father of the child but is not married to the child's mother and has not established paternity in court…. To be considered a putative father, the man must sign the registry within 30 days of the birth. But, even then, he might not be able to block adoption if a judge determines that he was not supportive of the mother and child."

In the two cases the court decided by 4-3 rulings last month, neither father had paternity legally determined before the adoption proceedings began. "One man," the article related, "whose child was placed for private adoption in Lucas County, had signed the registry on time. The other had not signed the registry but had been involved with the mother and sought to contest the adoption of his daughter by the woman's new husband in Hamilton County."

The facts in the two current cases differ, but the Court's holding in both was near identical, based on its 2006 precedent, In re Adoption of Pushcar…. “In In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, this court stated, 'The issue presented for our review is whether a probate court must refrain from proceeding with the adoption of a child when an issue concerning the parenting of that child is pending in the juvenile court. We hold that, in such circumstances, the probate court must defer to the juvenile court and refrain from addressing the matter until adjudication in the juvenile court.' We consider our holding in Pushcar to be dispositive of the issue."

Virginia AG state immigration opinion

The State of Virginia, a Washington Post article yesterday relates, joined the national debate over immigration, with Virginia Attorney General Ken Cuccinelli II's having issued an opinion that authorizes law enforcement officers to check the immigration status of anyone stopped by police for any reason.

"Cuccinelli's opinion is less stringent than that portion of the Arizona law stopped by a federal court last week," the Post says. "Under the Arizona law, authorities were required to question people who they had 'reasonable suspicion' were illegal immigrants.

"'Our opinion basically says Virginia law enforcement has the authority to make such inquiries so long as they don't extend the duration of a stop by any significant degree,' Cuccinelli told a news conference Monday. 'That's consistent with Supreme Court authority.'"

The Post further indicated that the Virginia attorney general had issued the opinion in response to a query by Del. Robert G. Marshall, who had sought clarification on whether "Virginia law enforcement officers, under present state law, could conduct investigations into the immigration status of persons stopped or arrested by law enforcement and, specifically, whether Virginia officials presently have the same authority as Arizona officers under a recently enacted Arizona statute, and, further, whether that authority extends to Virginia state park personnel and local zoning officials." Marshall told The Post he chose to seek the legal opinion because he feared that the state senate, under Democratic control, would not approve legislation permitting law enforcement officers to inquire about legal status during routine stops. "Bills seeking similar powers were killed in the Senate in recent years," he said.

For the record, the Virginia AG advised that "Virginia law enforcement officers, including conservation officers, may, like Arizona police officers, inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States."

In the current setting, Mr. Cuccinelli cited an opinion issued by his Office in 2007 which addressed "whether state and local officers in Virginia had the authority to detain and arrest individuals who have violated a criminal law of the United States, including a criminal violation of the immigration laws of the United States, (concluding) that law enforcement officers in Virginia in fact had the authority to arrest persons for criminal violations of immigration laws. Indeed, it would be most surprising if state and local officers lacked that authority, where appropriate, to arrest individuals suspected of committing federal crimes such as bank robbery, kidnapping or terrorism. State and local officers are not required to stand idly by and allow such criminals to proceed with impunity." (cited 2007 Opinion)

Both current opinion and that from two years ago make the distinction, however, between criminal and civil sanctions. Thus, while stating that "law enforcement officers in Virginia in fact have the authority to arrest persons for criminal violations of immigration laws…. The 2007 opinion further noted that federal law is unclear regarding the authority of state law enforcement to arrest for civil violations of immigration laws, concluding that, absent an agreement between the federal government and a state or local law enforcement agency authorizing arrests for civil, as opposed to criminal, violations of immigration laws, known as a §287(g) agreement, state officers should refrain from making arrests for civil violations until the law is clarified. There has been no clarification or change in the law since the 2007 opinion was issued that would suggest a different conclusion at the present time."


Then-Ohio Attorney General Marc Dann issued comparable opinions with the same civil/criminal distinctions in June & September 2007.

Free Program: Low Cost/No Cost Public Records Searching

On Thursday, August 19 at 12:30 p.m., Mary Lynn Wagner, Director of Information Resources at Keating Muething & Klekamp, will present low cost/no cost strategies for effectively investigating potential witnesses, potential jurors, and potential clients.

Location: Hon. Robert S. Kraft Boardroom, Hamilton County Law Library

To register: Call 513.946.5300

Ohio "unauthorized practice"/ attorney registration rules

The Ohio Supreme Court on July 6, 2010 adopted amendments to the Rules for the Government of the Bar relating to the Unauthorized Practice of Law (Gov. Bar R. VII), effective September 1, 2010, except Section 2(A)(1)(e) which will be effective January 1, 2011.

Section 2(A)(1)(e) is the "granted permission to appear pro hac vice by a tribunal in a proceeding in accordance with Gov. Bar R. XII and rendering legal services in that proceeding." [ Rule XII Pro Hac Vice amendments adopted Sept. 1, 2009, becoming effective Jan. 1, 2011 ]

Also becoming effective September 1st 2010 is the Supreme Court’s Gov. Bar R. VI, governing the Registration of Attorneys.


Court’s announcement re Gov. Bar Rules VI and VII
Text of Pro Hac Vice amendments ( Gov. R. XII )