News Updates by Practice Area

Have you signed up for the news updates by practice area that we prepare every couple of weeks for our subscribers? See your current choices for emailed news at http://www.hamilton-co.org/cinlawlib/interact/list.html by clicking Manage Your Subscription. The areas for which we currently track news include Criminal, Employment, Estates & Trusts, Family Law, IP, Pension Benefits, Real Estate, Tax, Torts, and Workers Comp. Typically, we'll send an email every couple of weeks that includes a handful of summaries of news stories on the topic gathered from a variety of legal news sources. If you need the full text of an article, you can just let us know and we'll get it to you. This is one more way that your law library subscription keeps you up to date and saves you time and money. Want us to sign you up for this service? Just send us an email with the topics that interest you.

Ohio Supreme Court denies newspaper attorney fees in public records case

The Ohio Supreme Court today upheld the 1st District Court of Appeals in denying an award of attorney fees to the Cincinnati Enquirer for legal costs the paper had incurred in pursuing a public records lawsuit against the Cincinnati Public School district. ( Decision )

The Court's summary overviewed the case:

"The newspaper sued the school district in February 2009 after school officials declined to provide the Enquirer with immediate access to the applications and supporting documents submitted by applicants for the district superintendent’s position. In its reply to the paper's public records request, the district indicated that it had not accessed the post office box to which applicants were directed to send their applications, and did not plan to access those documents until March 16, the day after the deadline for candidates to submit their applications. The district offered to provide copies of the requested documents within 24 hours after accessing them on March 16, however, the Enquirer sought a writ of mandamus compelling immediate disclosure and included in its complaint a request for attorney fees."

In January 2010, the 1st District denied the request for attorney fees, holding that the school district was not obligated to provide copies of the requested documents until it had used those documents to carry out the district’s duties and responsibilities, and the district had promptly provided the Enquirer with the requested copies of those documents as soon as it had made official use of them. The Enquirer appealed that ruling to the Supreme Court.

Hamilton County juvenile court election results in court

One of Hamilton County's juvenile court judge benches remains unfilled at this point while a legal tug of war grinds on over a counting of provisional ballots. "The dispute has already seen the unusual step of a federal judge -- U.S. District Court Judge Susan Dlott -- stepping into a state-run election, and ordering the Hamilton County Board of Elections to re-examine 849 provisional ballots that were cast around the county Nov. 2 and deemed by county election officials to be invalid under Ohio election law," a Cincinnati Enquirer article yesterday morning reported.

Democratic candidate Tracie Hunter filed a complaint and motion for a temporary restraining order against the Hamilton County Board of Elections asking the Court to keep the Board of Election from "certifying the election results for Hamilton County Juvenile Court Judge and ordering Defendants to contact provisional voters whose ballots were rejected, ordering Defendants to investigate from Board materials whether poll worker error contributed to the rejection of these provisional ballots and ordering Defendants to count all provisional ballots where poll worker error caused the voter to vote in the wrong precinct."

At issue are some 284 voters who, on election day, went to the correct polling place but cast provisional ballots at the wrong precinct table. Hunter's lawsuit, the Enquirer article said, “asked that the board of elections determine whether or not poll workers erred in not sending those voters to the proper precinct tables, and, if they didn't, to have those votes counted.

John Williams, the Republican judicial candidate, joined the proceedings Monday. He and the Republicans on the board of elections insist that election officials have already done everything required by the law to determine if there was poll worker error, and that if Hunter wants to contest the results of the election, she should do so in state, not federal, court.

District Court Judge Susan Dlott on Monday "denied Hunter's motion insofar as it seeks an order from this Court prohibiting Defendants from certifying the election results for Hamilton County Juvenile Court Judge… (but) granted Plaintiff’s motion insofar as it seeks an order commanding Defendants to investigate whether provisional ballots cast in the correct polling location but wrong precinct were improperly cast because of poll worker error." ( Order )

Williams filed an appeal with the Sixth Circuit that same day respective of the order "granting a preliminary injunction requiring that the Hamilton County Board of Elections undertake an investigation into whether 849 provisional ballots cast in the November 2, 2010 election at the correct polling place but wrong precinct were cast in the wrong precinct as a result of poll worker error."

Courthouse architecture book

Published by the National Center for State Courts, the Retrospective of Courthouse Design, 2001 – 2010 is the only publication of its kind dedicated exclusively to courthouse architecture that captures noteworthy projects and chronicles the major courthouse design trends over the course of a decade… The latest edition includes the renovation of the Ohio Judicial Center – home of the Supreme Court of Ohio.

"As one of only nine appellate court projects cited in the retrospective, the former 1930s-era Ohio Departments Building was restored and opened in 2004 becoming the first building in the state’s history devoted solely to the judicial branch," the Court said in its announcement yesterday.

You & the Legal System: When to Use Mediation

Save the date! On Friday, December 10 at 12 noon, Sherry L. Davis, Cincinnati attorney and mediator, will present You and the Legal System: When to Use Mediation. Ms. Davis will address these questions:

Mediation: What is it?
When can you mediate?
Why mediate?
Do you need a lawyer to mediate?
Is mediation expensive?
How do we find a lawyer who is “mediation-friendly”?
Can we settle a case using only one lawyer?

The program is free and open to the general public. Please call 513.946.5300 to reserve a seat.

Video-conferences

USAToday this morning noted that "courts across the country are embracing videoconferencing as a way for defendants to appear before a judge without leaving prison or jail, according to a recent survey by the National Center for State Courts, which revealed that 100 of the 162 responding reported that they were already using videoconferencing for some criminal matters."

NCSC overviews court use of video-conferencing as beginning in 1972, "when an Illinois court used a videophone to conduct a bail hearing, courts have been lured by the promise of cost savings and increased security offered by videoconferencing technologies. In 1974 a Philadelphia court installed a closed-circuit television system for preliminary arraignments, and in 1983 Dade County, Florida, implemented videoconferencing for misdemeanor hearings. The videotape made during the hearing was the official court record. In the mid-nineties when the alleged Unabomber’s arraignment on first-degree murder and related charges was scheduled in a New Jersey federal court, Theodore J. Kaczynski (a.k.a., the Unabomber) was being held in Sacramento, California. Estimated costs of transporting the defendant were $30,000. Using teleconferencing, the court conducted the arraignment at a cost of about $45."

The Hamilton County Law Library orchestrates video-conferences for Cincinnati and Hamilton County courts, and makes it available to local participating attorneys.

Foreclosure update

Foreclosure's one of the more enduring – and expanding – issues around today. This week alone…

Testimony before the Congressional Oversight Panel last Tuesday spoke of foreclosures hitting homeowners who were not even in default, and of banks tacking on excessive fees that can drive borrowers into foreclosure situations.

The Associated Press, that morning, said, "The disarray stemming from flawed foreclosure documents could threaten major banks with billions of dollars in losses, deepen the disruption in the housing market and hurt the government's effort to keep people in their homes."

"In the best-case scenario,” the Panel’s report summary said, "concerns about mortgage documentation irregularities mayprove overblown. In this view, which has been embraced by the financial industry, a handful of employees failed to follow procedures in signing foreclosure-related affidavits, but the facts underlying the affidavits are demonstrably accurate. Foreclosures could proceed as soon as the invalid affidavits are replaced with properly executed paperwork.

"The worst-case scenario is considerably grimmer. In this view, which has been articulated by academics and homeowner advocates, the 'robo-signing' of affidavits served to cover up the fact that loan servicers cannot demonstrate the facts required to conduct a lawful foreclosure. In essence, banks may be unable to prove that they own the mortgage loans they
claim to own." ( Committee’s executive summary / Full Report )

"Foreclosures on prime fixed-rate mortgages in the U.S. jumped to a record in the third quarter as unemployment strained household budgets of the most credit- worthy borrowers," a Cincinnati.com article this morning read. "Nationally, 4.4 percent of mortgages were in foreclosure and another 9.4 percent were at least one payment behind, according to the Mortgage Bankers Association." Here at home that meant one out of seven Ohioans and nearly one out of eight Kentuckians with mortgages are either in foreclosures or behind on monthly payments as of the end of September.

GAO, earlier this week, in response to an investigation called for by Senator Sherrod Brown, the Cleveland Plain Dealer reported, found that more than 50 percent of all abandoned foreclosures that it identified were in Ohio, Michigan and Indiana. "Ohio is one of the states hardest hit by the practice of mortgage companies walking away from foreclosures they've already started, leaving homeowners and communities to deal with the blight and costly fallout -- seven of the 20 metropolitan areas with highest numbers of abandoned foreclosures were in Ohio- -- with the Cleveland area ranked at No. 3 after the Detroit and Chicago areas." Cincinnati-Middletown, Toledo, and Pittsburgh round out the bottom three in that order. [ GAO Summary, Highlights, or Full Report, here. Also see Plain Dealer report from July 2009 instigating investigation ]

Review of Ohio "castle doctrine"

Evolved from our English common law heritage, "castle law doctrine" has long been with us if only in unwritten form. It essentially says it's a manner of self defense if a person kills or injures someone who has illegally intruded in their home or vehicle. As a written declaration, Florida was at least one of the first to pass laws of this nature, but Wikipedia says that, as of May 28, 2010, thirty-one states have some form of Castle and/or Stand Your Ground law.

Ohio's law is of the first type, wherein there is no "duty to retreat" if you're in your home or car, while Kentucky (Here and Here ) and Indiana are both of the latter type, where there no duty to retreat, regardless of where an attack occurs.

Ohio passed its in June 2008, but now USAToday, in discussing a Columbus Dispatch article over the weekend, says "the two-year-old law that was intended to protect Ohio homeowners who shoot intruders in self-defense is instead increasingly being manipulated to help murder suspects avoid taking responsibility for their crimes," according to some prosecuting attorneys.

Your Rights in the Workplace

As a public service, the Hamilton County Law Library, in conjunction with the Cincinnati Bar Association's Lawyer Referral Service, will present You and the Legal System: Your Rights in the Workplace on Friday, November 19, 2010 at 12:00 noon at the Hamilton County Law Library. This program is free and open to the public. Attorneys are welcome to attend but please note that the session is intended primarily for the non-lawyer citizen. It will last one hour. 

Kelly Mulloy Myers, an attorney with Freking & Betz in Cincinnati, will be our speaker. Ms. Myers specializes in labor and employment law. Ms. Myers will discuss the issues that employees should consider when faced with the loss of a job:
•Filing for unemployment
•Should I take a severance package?
•What laws protect me as an employee?
•Should I see a lawyer?
•Are there deadlines to keep in mind?

Please call 513.946.5300 at the Hamilton County Law Library or email masweeney@cms.hamilton-co.org to reserve a seat. 

Supreme Court criminal sentencing cases

The Supreme Court ruled per curiam last Monday that Federal courts could not issue writs of habeas corpus to state prisoners whose confinement does not violate federal law. "We have repeatedly held that 'federal habeas corpus relief does not lie for errors of state law,'" the Court said, citing its 1991 decision in Estelle v. McGuire. "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions… [and] it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts. The habeas statute unambiguously provides that a federal court may issue the writ to a state prisoner 'only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'" 28 U. S. C. §2254(a). This in response to the Indiana-born case, Wilson v. Corcoran, 10-91.

This morning the Court spoke ruled unanimously saying that Congress did not intend in 1998 to spare individuals convicted of federal crimes from an extra sentence if they used a gun during a drug offense or a violent crime.

This morning's decision, the combined cases of Abbott v. United States, 09-479 and Gould v. U.S., 09-7073, ScotusBlog's Lyle Denniston writes, "resolves a dispute among lower courts about the effect of a 12-year-old change of the federal law that adds at least five years to a criminal's prison sentence for using or carrying a gun during either a drug crime or a crime of violence. That added period of years extends beyond any sentence for the underlying crime. Congress provided that extra punishment, the Court recalled in the decision, to punish independently for having a gun during a criminal episode."

Ohio foreclosure case could set state precedent

The Columbus Dispatch last Wednesday reported that a Cuyahoga County, Ohio foreclosure case could set a new precedent in the state which may, in turn, "hasten settlement between home lenders and the attorneys general of the 50 states, who are investigating allegations of fraud in foreclosure filings."

The case has created a showdown between GMAC and Ohio Attorney General Richard Cordray, who filed a friend-of-the-court brief in the case arguing that the Court should punish GMAC-- the fourth-largest U.S. mortgage lender-- for its conduct., the Dispatch article said. "Cordray is asking Judge Nancy Russo of Cuyahoga County Common Pleas Court not to let GMAC simply submit new documents to cure defects without consequences. He's taken the same stand against Wells Fargo, which has said it found defects in 55,000 foreclosures."

The Attorney General's website recalls that "After filing a lawsuit against GMAC for fraud earlier this month, Cordray demanded that the loan servicer withdraw all pending foreclosures in which questionable affidavits were used in Ohio. This foreclosure case, U.S. Bank National Association v. James W. Renfro, was one of a handful of cases in which GMAC willingly filed a motion to withdraw. However, on October 25, Judge Nancy Margaret Russo denied the motion and ordered GMAC to provide the court with “proof of integrity of all documents submitted” at a pretrial set for November 8. To inform the court of evidence of affidavit tampering, Cordray filed an amicus brief." ( Further discussion here )

After JPMorgan Chase & Co. and Ally Financial Inc.'s GMAC mortgage unit said they would stop repossessions in 23 states where courts supervise home seizures and Bank of America Corp. froze foreclosures nationwide, the attorney generals from all 50 on Oct. 13 announced a coordinated inquiry into whether banks and loan servicers used false documents and signatures to justify hundreds of thousands of foreclosures. As part of its probe, the 50-state group established an executive committee of top legal officers from 12 states-- Arizona, California, Colorado, Connecticut, Florida, Illinois, Iowa, New York, North Carolina, Ohio, Texas, and Washington-- and a number of state banking regulators, including those from Arizona, Florida, Illinois, Indiana, Kentucky, Ohio, Nebraska, Maine, and Vermont. ( See Joint Statement ) A Bloomberg/Newsweek article, also earlier this week, said that, while the probe was on a “fast track”, a global settlement of that task force investigation is unlikely, and that it would most likely be one bank at a time.

Class-action ramifications possible for millions of consumers

"A case involving AT&T Mobil that went before the U.S. Supreme Court yesterday has sweeping ramifications for potentially millions of consumers," the Chicago Tribune said last Monday morning.

"If the court rules for the telecom," the Tribune article says, "any business that issues a contract to customers, such as for credit cards, cell phones or cable TV, could prevent them from joining class-action lawsuits…. and that could also apply to employment agreements such as union contracts."

At issue is whether the Federal Arbitration Act of 1925 pre-empts state courts from striking down class-action bans and whether companies can bar class actions in the fine print of their take-it-or-leave-it contracts with customers and employees.

The case is AT&T Mobility v. Concepcion, 09-893.

AT&T Mobility in their petition for certiorari maintains that "the lower courts are in disarray as to whether and, if so, when, the FAA preempts state-law limitations on class waivers in arbitration provisions… Courts generally would have no need to reach the FAA preemption issue unless they first were to conclude that the applicable state law would bar enforcement of the arbitration provision. But 25 States and the District of Columbia already have held that provisions that require arbitration to be conducted on an individual basis are enforceable so long as arbitration is free or inexpensive and individual remedies (including statutory fee-shifting awards) are not limited, so a preemption ruling is unlikely in cases governed by the law of those States."

In Ohio, cases such as Cuyahoga County’s Alexander v. Wells Fargo Fin. 1, and Stachurski v. DirecTV, Credit Acceptance Corp. v. Davisson, Price v. Taylor, and Howard v. Wells Fargo, Minn., “Tr.” from Ohio's Northern District Court, were among those exemplifying that position.

Concepcion's position entering the arena was that "Every federal circuit and every state supreme court to confront the question presented has held that the Federal Arbitration Act (FAA) does not preclude courts from striking down particular class-action bans as unconscionable under generally applicable state contract law…. Every federal circuit and state court of last resort to have decided the question has reached the same conclusion: The FAA does not preclude courts from striking down particular class-action bans under generally applicable state contract law -- The courts of last resort in at least nine states--Alabama, California, Illinois, Massachusetts, New Jersey, New Mexico, North Carolina, Washington, and West Virginia -- have squarely reached that conclusion."

A link to ScotusBlog's transcript of the oral arguments is available here.

DOJ wants inclusion in Ohio county jail stun-gun case

The U.S. Department of Justice last Wednesday asked Ohio's Southern District Court to allow it to be made a party in a case alleging that deputies at Franklin County jails "break the law and violate inmates' civil rights with excessive stun-gun use, including routinely using stun guns on inmates who are disabled, pregnant or under the influence of drugs or alcohol," USAToday reported this morning. ( Motion )


A lawsuit, filed back in July by current & former inmates, asks for class action status and both compensatory and punitive damages. In paperwork filed last Monday the DOJ told the Court that under the Violent Crime Control & Law Enforcement Act, "the United States had an interest in civil litigations wherein private plaintiffs seek to suppress widespread practices of unconstitutional conduct by law enforcement officials through injunctive relief & prospective monitoring. A private litigant's request for an injunction & monitor that could also be obtained by the United States under the Act implicated the United States' interest and expertise in ensuring that the scope of the relief requested is adequate to eliminate the unconstitutional practices alleged."


The Washington Post has more here

ABA Ethics Study of Attorney Client-Development Tools

The American Bar Association is looking at the possibility of pursuing further study over the next two years of the ethics of attorney online client development tools such as blogs, websites, and Facebook, a Law Technology News article last Monday said.

The ABA's Commission on Ethics 20/20 submitted a 15-page report discussing potential ethics concerns over "lawyers' use of Internet-based client development tools" last September, highlighting four specific areas of possible research and regulation: internet-based client development tools such as Facebook, LinkedIn, and Twitter; blogging; pay-per-click advertising; and lawyer websites. The Commission is taking no position on the matters addressed in the report, saying that its goal is to describe the several issues the Commission has identified in this context and elicit comments on possible approaches the Commission is currently considering.

Those questions & comments should be directed by December 15, 2010, to:

Natalia Vera
Senior Research Paralegal, Commission on Ethics 20/20
ABA Center for Professional Responsibility
321 North Clark Street 15th Floor
Chicago, IL 60654-7598
Phone: 312/988-5328 Fax: 312/988-5280

e-mail mailto:veran@staff.abanet.org

Comments received may also be posted to the Commission’s website

Ohio trial access case

The Ohio 12th District Court of Appeals yesterday sided with the Cincinnati Enquirer in holding that Warren County, Ohio Common Pleas Court Judge Neal Bronson should first have held a hearing prior to not allowing a reporter observe jurors on a trip to a crime scene in a recent case that Paper reported this morning. ( Article )

The 12th. District followed precedent set almost 25 years ago by the Ohio Supreme Court holding that "[a]ppropriate deference is given to [the public's] rightof access when the petitioner is given an opportunity to be heard at a proceeding wherehe may voice his objections… [t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." [ See State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986), 28 Ohio St.3d 418, 421]