Thursday, December 30, 2010

Ohio consecutive sentencing law

The Ohio Supreme Court yesterday ruled that the U.S. Supreme Court decision in Oregon v. Ice, last year, 1).does not revive former Ohio statutory requirements for judges imposing consecutive sentences in criminal cases; and 2) defendants sentenced by trial judges who didn’t apply those former provisions are not entitled to resentencing. [ State v. Hodge, Slip Opinion No. 2010-Ohio-6320 ]

In Oregon v. Ice, a 5-4 majority upheld as constitutional an Oregon criminal sentencing statute similar to Ohio's pre-Foster statute that required trial judges to make factual findings regarding the seriousness of the crime, the victim's likelihood of reoffending and other factors before ordering that a defendant's sentences for multiple offenses be served consecutively. Arguing that the Ice decision had overruled the Ohio Supreme Court's holding in State v. Foster with regard to consecutive sentences, and had therefore reinstated the requirement of judicial fact-finding that Foster had invalidated, Hodge asked the 1st District to remand his case to the trial court and order that he be resentenced pursuant to the requirements of Ohio's pre-Foster statutes. The 1st. District rejected Hodge's argument and affirmed the trial court's imposition of consecutive sentences as valid.

In its judgment entry, the 1st District stated that because the Ice decision directly addressed only Oregon's sentencing statute, Foster remained binding precedent for Ohio courts until, and unless, the Supreme Court of Ohio ruled on the applicability of Ice to this state’s criminal sentencing procedures. Hodge sought and was granted Supreme Court review of the 1st District's decision.

Writing for the Court in the current decision, the Court summary said "Justice Robert R. Cupp acknowledged that 'the decision in Ice undermines some of the reasoning in the Foster decision that judicial fact-finding in the imposition of consecutive sentences violates the Sixth Amendment. Although there are differences between the Ohio provisions struck down in Foster and the Oregon statutes upheld in Ice, these distinctions are immaterial in light of the broad reasoning employed in Ice’ … Justice Cupp called the impact of Ice on Ohio law 'collateral,' noting that 'there was no constitutional requirement that a judge make findings of fact before imposing consecutive sentences.'"

Chief Justice Eric Brown dissented.

"The United States Supreme Court's holding in Ice makes it clear that the Foster holding regarding the unconstitutionality of the consecutive-sentencing provisions of the comprehensive reform enacted by [S.B. 2] was in error," he wrote. "The judicial fact-finding required by R.C. 2929.14(E)(4) and 2929.41(A) before the imposition of consecutive sentences is not now unconstitutional nor was it ever unconstitutional. Given that R.C. 2929.14(E)(4) and 2929.41(A) have not been repealed, a conclusion that the Foster analysis regarding consecutive sentences was in error must result in the overruling of those infirm portions of Foster, the removal of our judicially imposed holding that these provisions are unenforceable, and the renewed enforceability of R.C. 2929.14(E)(4) and 2929.41(A)."

Wednesday, December 29, 2010

Ohio "Allied Offenses" law

The Supreme Court of Ohio reversed itself today, overruling its 1999 holding in State v. Rance, and now holding that when determining whether two criminal offenses arising out the same conduct are "allied offenses of similar import" that must be merged for sentencing, the state's trial courts must consider the conduct of the accused in each case separately, and not merely compare the elements of the two crimes in the abstract. [ State v. Johnson, slip opinion 2010-Ohio-6314 ]

"Looking back at a line of decisions in which the Court has attempted to apply the Rance "abstract comparison of the elements" test over the past 11 years, Chief Justice Eric Brown cited multiple cases in which that standard has had to be modified, reinterpreted and limited by exceptions in order to avoid absurd results," the Court's summary said.

"In State v. Logan in 1979, Chief Justice Eric Brown noted, the Court set forth what he characterized as a 'cohesive standard' for trial courts to apply in determining whether multiple crimes are subject to merger as allied offenses….The then-familiar Logan two-step approach to R.C. 2941.25 was summarized in State v. Blankenship (1988)… Then in State v. Rance (1999), Chief Justice Brown said the Court tried to clear up confusion about whether, in comparing the elements of two crimes, trial courts “‘should contrast the statutory elements in the abstract or consider the particular facts of the case,’ and determined that it should 'settle this issue for Ohio courts, and we believe[d] that comparison of the statutory elements in the abstract is the more functional test, producing “clear legal lines capable of application in particular cases.'"

"As a result of the Court's need to repeatedly reinterpret and create exceptions to the Rance 'abstract comparison of the elements' test, the Chief Justice wrote, "(t)he current allied-offenses standard is so subjective and divorced from the language of R.C. 2941.25 that it provides virtually no guidance to trial courts and requires constant ad hoc review by this court. It is time to return our focus to the plain language and purposes of the merger statute."

"As guidance to trial courts in future cases where merger of multiple counts for sentencing is at issue," the Chief Justice wrote: "'Under R.C. 2941.25, the court must determine prior to sentencing whether the offenses were committed by the same conduct. Thus, the court need not perform any hypothetical or abstract comparison of the offenses at issue in order to conclude that the offenses are subject to merger. In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. … If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.''"

Ohio gun-control law constitutional

The Ohio Supreme Court this morning upheld a state law on handguns enacted in 2006 that provides that only federal or state regulations can limit an Ohioan's individual right to bear arms, saying ORC § 9.68, which displaces all local gun-control ordinances previously adopted by Ohio municipalities, does not infringe on the "home rule" powers of those municipalities under the Ohio Constitution and does not violate the separation of powers doctrine. [ Cleveland v. State, opinion and Court's summary ]

The City of Cleveland had sought a declaratory judgment against the state in the Cuyahoga County Court of Common Pleas challenging the constitutionality of R.C. 9.68 under the Home Rule Amendment to the Ohio Constitution, the Court’s summary relates. That amendment, contained in Article XVIII, Section 3, provides that municipalities within the state have the inherent authority to exercise all powers of local self-government and to adopt and enforce within their borders local police regulations to protect the safety and health of city residents, so long as such regulations do not conflict with "general laws" of the state.

"The trial court granted summary judgment in favor of the state, citing the Supreme Court of Ohio's 2008 decision in Ohioans for Concealed Carry v. Clyde, in which the Court had held that a Clyde city ordinance prohibiting the concealed carry of weapons in city parks was void and unenforceable because it was in conflict with the uniform statewide guidelines for concealed carry that had been adopted by the General Assembly as part of Sub. H.B. 347.

"The city appealed, and on review, the 8th District Court of Appeals held that R.C. 9.68 was unconstitutional because it violated both the Home Rule Amendment and the separation of powers doctrine. The court of appeals remanded the case to the trial court with a directive to enter summary judgment in favor of Cleveland. In its decision, the 8th District specifically found that R.C. 9.68 was not a "general law" under a four-part test set forth in the Supreme Court of Ohio’s 2002 decision in Canton v. State. The state then sought and was granted Supreme Court review of the 8th District’s decision."

Tuesday, December 28, 2010

Ohio modification to re-sentencing

Last Thursday the Ohio Supreme Court, modifing its 2007 holding in State v. Bezak, ruled that when a trial court that sentenced a criminal offender prior to July 11, 2006 failed to properly include a statutorily required term of post-release control:

  • The sentence is void, is not precluded by the principle of res judicata from review by an appellate court, and may be reviewed at any time, on direct appeal or by collateral attack.

  • The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control.

  • Although res judicata does not bar appellate review of a void sentence, it still applies to preclude review of other aspects of the merits of the offender’s conviction, including the determination of guilt and lawful elements of the sentence pronounced by the trial court.

  • Any appeal from a resentencing hearing at which a mandatory term of postrelease control is imposed is limited in scope to issues arising at the resentencing hearing.

[ See State v. Fischer, slip opinion 2010-Ohio-6238 ]

The Court's summary noted, historically, that "ORC § 2929.191, which took effect on July 11, 2006, authorizes the state's trial courts to remedy a failure to properly impose a mandatory term of post-release control by holding a hearing limited to the correction of that error and then making a "nunc pro tunc" (now for then) entry in the court's journal without conducting a full resentencing hearing. However, in a 2009 decision, State v. Singleton, the Supreme Court of Ohio ruled that trial courts may apply the correction procedure set forth in R.C. 2929.191 only to cases in which an offender was sentenced on or after the effective date of the 2006 legislation.]

In last Thursday's case, Justice Maureen O’Connor wrote that there was "an important part of the analysis of void sentences that we have not focused on in prior cases involving post-release control, including Bezak. … Thus, we reaffirm the portion of the syllabus in Bezak that states 'when a defendant is convicted of or pleads guilty to one or more offenses and post-release control is not properly included in a sentence for a particular offense, the sentence for that offense is void'-- but with the added proviso that only the offending part of the sentence is subject to review and correction. However we now modify the second sentence in the Bezak syllabus as ill-considered. That sentence states that the offender is entitled to a new sentencing hearing for the offense for which post-release control was not imposed properly. … It does not recognize a principle that we overlooked in Bezak: when an appellate court concludes that a sentence imposed by a trial court is in part void, only the portion that is void may be vacated or otherwise amended. Therefore we hold that the new sentencing hearing to which an offender is entitled under Bezak is limited to proper imposition of post-release control."

"Correcting the defect without remanding for resentencing can provide an equitable, economical, and efficient remedy for a void sentence," the Court said. "Here, we adopt that remedy in one narrow area: in cases in which a trial judge does not impose post-release control in accordance with statutorily mandated terms. In such a case, the sentence is void. Principles of res judicata, including the doctrine of the law of the case, do not preclude appellate review. The sentence may be reviewed at any time, on direct appeal or by collateral attack…The fact that the sentence was illegal does not deprive the appellate court of jurisdiction to consider and correct the error. In fact, R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court to modify or vacate any sentence that is 'contrary to law.' Clearly, no such authority could exist if an unlawful sentence rendered a judgment nonfinal and unappealable…."

Thursday, December 23, 2010

Changing roles for Criminal attorneys

The Blog of Legal Times yesterday posted this entry about the "changing role of criminal defense lawyers" in view of the recent Supreme Court case, Padilla v. Kentucky that is imposing new obligations on lawyers to advise clients about the consequences of criminal convictions.

Padilla held that because counsel had to inform a noncitizen criminal client whether his plea carried a risk of deportation, that client would have sufficiently supported allegations that his counsel was constitutionally deficient under the Sixth Amendment's effective-assistance-of-counsel guarantee if not informed… whether that client is entitled to relief depends on whether he/she had been prejudiced against, a matter not addressed by that Court. BLT notes that that ruling has had repercussions not only for lawyers representing immigrants, but also has appeared in cases where guilty pleas have had consequences in areas such as employment, child custody and housing.

Earlier this week, the American Bar Association announced it's having established a task force aimed at answering questions and helping criminal defense lawyers understand and meet new responsibilities – including those broader implications -- to clients stemming from the decision.

The ABA has online resource materials on the Padilla decision and its implications posted on its website, including a 106-page "guide" titled, Padilla & Beyond. That guide has information on the "general implications of the Padilla decision and its impact on the treatment of collateral consequences, followed by separate sections for different members of the legal community: defense attorneys, prosecutors, and judges." [ PDF text of Padilla & Beyond ]

Another resource we've come across that may help attorneys understand the process and implications associated with the decision is "Immigration Consequences of Criminal Convictions: Padilla v. Kentucky,” a 92-page monograph prepared by the Office of Immigration Litigation (“OIL”), part of the U.S. Department of Justice.

"OIL attorneys routinely litigate cases involving immigration statutes described in this monograph and are experts in interpreting and applying these statutes…. The Court's holding, however, affects not only defense attorneys, but also federal and state prosecutors and judges, as well as other interested parties. This monograph is intended to assist these parties in understanding the immigration consequences of an alien’s guilty plea in a criminal case."

Wednesday, December 22, 2010

"Redesigning Ohio:" report on transforming government into the 21st. Century

A report released last Monday by the state's largest metropolitan chambers of commerce says "For floundering state and local governments, status quo is no longer an option and it does not mince words about Ohio's dire situation and the need for leaders to muster the political courage to change it," the Columbus Dispatch reported yesterday morning.

Called "Redesigning Ohio," it makes sweeping recommendations on how Ohio leaders approach state budgeting, local governments, regulations, public unions and criminal justice, including a call to change sentencing provisions and close three prisons. [ Full 50-page PDF here ]

The report is the result of a year-long project undertaken by Ohio's Metropolitan Chambers of Commerce and the Ohio Chamber of Commerce. It notes that, while Ohio is the 7th. most populous state in the nation, 3rd. in manufacturing GSP, and 6th. nationally in Fortune 500 company headquarters, it is also 47th in economic growth and 2nd in job losses, personal income is below the national average, and the price of state and local government is above the national average and headed upward.

"Ohio's criminal justice system is underperforming," for one thing, the report's summary says. "It costs too much and the outcomes are inadequate. From a bottom line perspective, it is time to ask a fundamental question: would public safety, prisoner rehabilitation, recidivism and correctional costs be improved if Ohio directed more nonviolent offenders away from adult prisons toward non-residential community-based monitoring and treatment? We believe the answer is, yes.

Specific recommendations there included:
  • Direct most low-risk, truly nonviolent (and nonsexual) felony 4 and 5 offenders who are amenable to treatment to supervised release in non-residential community-based correctional options, including day reporting, electronic monitoring, work programs and education and treatment programs.

  • Enact legislation to revise criminal sentencing provisions, including limited expansions of earned credit for prisoners, to better protect the public, improve offender outcomes and reduce taxpayer costs.

  • Make smarter investments in the management of probation and parole, including greater use of evidence-based risk assessment instruments, GPS monitoring, and random drug testing.

  • Provide better education, training, and treatment services for prisoners who have a high incidence of functional illiteracy, workforce skill deficits, and mental health/substance abuse problems.

Coincidential to the Ohio report, above, the New York Times yesterday also reported "Mayor Michael R. Bloomberg said that he would be asking New York State to turn over control of prisons and services for juvenile offenders to local governments, a move that he said would end the failed and costly practice of shipping troubled young people from New York City to upstate facilities far from their families."

Tuesday, December 21, 2010

Ohio landfill zoning precedent

Ohio's First District Court of Appeals last Friday ruled that Colerain Township-based Rumpke Sanitary Landfill Inc. meets the guidelines set down by the state Supreme Court in 1992 for an entity to qualify as a public utility and is not subject to local zoning laws, enabling it – pending appeals -- to proceed with a planned $145.5 million expansion. It should be noted up-front that this was a zoning and not an environmental concern action. ( Opinion and Court's summary here )

"A challenge to a legislative enactment under the Ohio Constitution's 'one-subject rule' is a challenge to the authority of the General Assembly to enact that bill," the Court's summary said, "not a challenge to the statutory provisions of the bill itself… Secondly, a township is not a necessary party to a constitutional challenge to an enactment of the General Assembly under the one-subject rule." Section 15(D), Article II of the Ohio Constitution, provides that "No bill shall contain more than one subject, which shall be clearly expressed in its title." Rumpke had filed suit in Sept. 2008 seeking a declaratory judgment against provisions included in the state’s 2009-2010 omnibus bill that specify "privately owned solid waste facility does not fall within the definition of a 'public utility' under those statutes." ( Note: Constitutionality of ORC §303.211 and 519.211, regarding county and township zoning measures was being challenged. ORC §4905.03 and §5727.02 otherwise defines "public utilities" and "public utilities for tax purposes")

None the less "the decision is precedent-setting," Joe Trauth, Rumpke's attorney, was quoted in Sunday morning’s Cincinnati Enquirer "because this is the first time a solid waste landfill has been determined to be a public utility in the state of Ohio."

"A yard debris-only landfill in Northeast Ohio's Portage County," the article related, "tried for public utility status back in 1992 -- an attempt which failed after reaching the Ohio Supreme Court when public utility guidelines where laid down. Those guidelines, as the appeals court noted, require the business, among other things, to provide, 'an essential public service.'" (See A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees, 1992-Ohio-23 here )

Friday's article also noted that "the expansion project would also increase the landfill's lifespan from 30 to 50 years. Mount Rumpke – so nicknamed because it is the highest point in Hamilton County – sits atop a former valley where the Rumpke family once raised pigs in the 1940s. The man-made mountain of garbage is the busiest landfill in Ohio."

Friday, December 17, 2010

Ohio Human Trafficking Bill

"Ohio doesn't immediately come to mind to most people when the issue of modern-day slavery is raised, but as other parts of the country clamp down on the human traffickers, the Buckeye State has been in danger of becoming a safe haven for them," the Youngstown Vindicator said last Tuesday.

"While 1,000 young people between the ages of 12 and 17 forced into the sex trade in one year may pale in comparison to the 20,000 victims in the United States, the number is still significant for a state in middle America," the Vindicator's article said. "Another 800 immigrants are sexually exploited and pushed in sweatshop-type jobs."

As recently as last summer, Ohio was on the Polaris Project’s “Dirty Dozen” list – "states that failed to enact basic human trafficking provisions or have provisions that fail to adequately address the growing crime." ( Here )

That presumably ends with the passage of Ohio's new law, Senate Bill 235, introduced in March and shadowed by House Bill 493, introduced in April, which reached concurrence and was sent to Governor Strickland last Tuesday.

Included in the bill is a final amendment made by Bill Seitz designed to codify a recent holding of the Ohio Supreme Court in State v. Cabrales, 2008-Ohio-1625, regarding allied offenses of similar import with respect to the offense of trafficking in persons and the definition of corrupt activity, which Attorney General Richard Cordray specifically supported in a letter to the Senate back in April. Seitz said it would "avoided needless stacking of charges and unintended results of [aggravating] prison overcrowding."

The General Assembly had directed the Attorney General's Office to establish a Trafficking in Persons Study Commission in Jan. 2009. That Commission’s Report, the Attorney General's press release, and other related information is posted on the Attorney General's website.

Thursday, December 16, 2010

Sixth Circuit e-mail privacy case

The fraud case against Berkeley Premium Nutraceuticals might be the beginning of the end of a law that allows government agents to read e-mails without a search warrant., a article said yesterday.

The 6th. Circuit Court of Appeals here in Cincinnati, last Tuesday, upheld the 2008 criminal conviction of Berkeley's top executive, Steven Warshak, but also cast doubt on the way federal investigators obtained hundreds of corporate e-mails to build their case against him and other company officials. "It's significant," the article says, "because it declares for the first time that private e-mails are entitled to the same constitutional protection as letters, phone calls and other forms of communication, and, if it stands, would wipe out a large chunk of the Federal Stored Communications Act of 1986, which allows authorities to seek permission from a magistrate or judge to snoop into electronic communications instead of getting a search warrant." [ See U.S. v. Warshak ]

Citing the 1987 Supreme Court case Illinois v. Krull, the 6th. Circuit here in pertinence, said , "Warshak enjoyed a reasonable expectation of privacy in his emails vis-à-vis NuVox, his Internet Service Provider…Thus, government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause. However, because the agents relied in good faith on provisions of the Stored Communications Act, the exclusionary rule does not apply in this instance…"

"In Krull," the 6th Circuit said, "the Supreme Court noted that the exclusionary rule's purpose of deterring law enforcement officers from engaging in unconstitutional conduct would not be furthered by holding officers accountable for mistakes of the legislature. Thus, even if a statute is later found to be unconstitutional, an officer 'cannot be expected to question the judgment of the legislature.' However, an officer cannot 'be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional.'" ( Illinois v. Krull, 480 U.S. 340, 355 )

Tuesday, December 14, 2010

Immigration Law Update

A case "involving a question of exceptional national importance: whether state legislatures and municipal governments may override Congress's judgment concerning United States immigration policy," as was described by the petitioning U.S. Department of Commerce, has been accepted to be heard by the Supreme Court.

Last week reported that "The Supreme Court had seemed to have offered at least tenuous support for an Arizona law that would punish businesses hiring illegal aliens, it’s being the first High Court challenge to a variety of recent state laws cracking down on illegal immigrants, an issue that has become a political lightning rod nationwide, and which outcome’s could serve as a judicial warm-up for a separate high-profile challenge to a more controversial Arizona immigration reform law working its way through lower courts." [Petition for certiorari][ Brief in opposition]

At issue here, the article continued, was "Arizona's passing its Legal Arizona Workers Act in 2007, allowing the state to suspend the licenses of businesses that 'intentionally or knowingly' violate work-eligibility verification requirements," the article says. "Companies would be required under that law to use E-Verify, a federal database to check the documentation of current and prospective employees. That database had been created by Congress as a voluntary, discretionary resource… In its lawsuit, the Chamber of Commerce argues federal law prohibits Arizona and other states from making E-Verify use mandatory -- The state argues its broad licensing authority gives it the right to monitor businesses within its jurisdiction.

The 9th. Circuit Court of Appeals in September 2008, in affirming the District Court’s upholding of Arizona’s law, said the "case was a facial challenge to an Arizona state law, enacted in 2007 and aimed at illegal immigration, that reflects rising frustration with the United States Congress's failure to enact comprehensive immigration reform. The Arizona law, called the Legal Arizona Workers Act, targets employers who hire illegal aliens, and its principal sanction is the revocation of state licenses to do business in Arizona….. We uphold the statute in all respects against this facial challenge, but we must observe that it is brought against a blank factual background of enforcement and outside the context of any particular case. If and when the statute is enforced, and the factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision."

CNN predicts the case will serve "as a bellwether to how the Court will view the larger, more controversial state immigration law from Arizona last summer." In particular is the case brought by the Justice Department which up to this point resulted in an order from the District Court "granting in part and denying in part Defendant State of Arizona and Janice K. Brewer's Motion to Dismiss, and granting Plaintiff 30 days to file any amended complaint." The Justice Department appealed that to the 9th. Circuit which heard arguments on November 1. [ Order ]

Ohio Supreme Court disciplinary measure amendments

The Ohio Supreme Court adopted changes to the state's disciplinary rules & procedures governing hearings & complaints before the Board of Commissioners on Grievances & Discipline it announced yesterday. They will become effective Jan. 1, 2011. (See amendments )

The Court is also currently seeking public comment on proposed amendments that would allow suspended attorneys, in limited circumstances, to apply for reinstatement while subject to probation or other post-conviction sanction. (See Court’s announcement here, and proposed amendments here )

Comments to these amendments, which will be accepted until Jan. 11, 2011, should be submitted in writing to:
Richard A. Dove
Assistant Administrative Director, Supreme Court of Ohio
65 S. Front St., Seventh Floor
Columbus, Ohio 43215
Or via e-mail @

Friday, December 10, 2010

Foreign law inclusion

Oklahoma overwhelmingly passed a constitutional amendment last Election Day barring judges from considering Islamic or international law in Oklahoma state courts. Now, a USAToday article reported yesterday, Muneer Awad, a recent University of Georgia law school graduate born in Michigan, who claims he's standing up for the U.S. Constitution and trying to defend the First Amendment, has sued in Oklahoma District Court, and was granted a temporary injunction, to block the amendment from taking effect. Oklahoma has naturally appealed.

The article relates that although Oklahoma's law is the first to come under court scrutiny, according to the National Conference of State Legislatures bills in at least seven states, including Arizona, Florida, Louisiana, Oklahoma, South Carolina, Tennessee and Utah, propose like measures, with Tennessee and Louisiana already having similar versions banning the use of foreign law in certain circumstances.

Last May, Virginia Rep. Bob Goodlatte introduced a House Resolution 473, joined by 24 cosponsors, "Expressing the sense of the House of Representatives that judicial determinations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution of the United States." That was referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties in August 2009. Now, according to, Newt Gingrich, former speaker of the U.S. House, may push for a federal law that "clearly and unequivocally states that we're not going to tolerate any imported law."

More EPA news

Adding to & side-baring our post about the Supreme Court's accepting certiorari for the global warming/ environmental protection case, American Electric Power Co. v. Connecticut, we see in the New York Times this morning that "the Obama administration is retreating on long-delayed environmental regulations — new rules governing smog and toxic emissions from industrial boilers — as it adjusts to a changed political dynamic in Washington with a more muscular Republican opposition.

"The move to delay the rules, announced this week by the Environmental Protection Agency," the Times said, "will leave in place policies set by President George W. Bush. President Obama ran for office promising tougher standards, and the new rules were set to take effect over the next several weeks… Now, the agency says, it needs until July 2011 to further analyze scientific and health studies of the smog rules and until April 2012 on the boiler regulation. Mr. Obama, having just cut a painful deal with Republicans intended to stimulate the economy, can ill afford to be seen as simultaneously throttling the fragile recovery by imposing a sheaf of expensive new environmental regulations that critics say will cost jobs."

"The delayed smog rule," the article reported further, "would lower the allowable concentration of airborne ozone to 60 to 70 parts per billion from the current level of 75 parts per billion, putting several hundred cities in violation of air pollution standards. The agency says that the new rule would save thousands of lives per year but cost businesses and municipalities as much as $90 billion annually… The boiler rule would affect 200,000 industrial boilers, heaters and solid waste incinerators and is intended to cut emissions of mercury and other dangerous pollutants in half.

"Lisa P. Jackson, the E.P.A. administrator, described the rules delay as a technical and tactical decision. She said she was delaying them for a matter of months merely to get 'further interpretation' of scientific and health studies of their effects. An agency official said the delays were not a response to Congressional threats to curb the agency’s power or cut its budget."

Thursday, December 09, 2010

U.S. Supreme Court's global warming/ climate 'nuisance' case

The U.S. Supreme Court granted certiorari earlier this week in two cases – Wal-Mart v. Dukes and American Electric Power v. Connecticut – both of which involve corporate interests and have generated headlines and significant coverage, as ScotusBlog put it. Nabiha Syed’s post has links to a number of those articles from the national press.

In Wal-Mart v. Dukes, the largest employment discrimination case in U.S. history, the Court has agreed to review whether claims by individual employees may be combined as a class action. [ Petition for Certiorari ] [ ScotusBlog ]

American Electric Power Co., Inc. v. Connecticut is of perhaps more proximal interest because, as the Columbus Dispatch reported, it "is a massive environmental suit that seeks to hold coal-fired power plants in the Midwest liable for causing global warming." [ Petition for certiorari ] [ ScotusBlog ]

The essence of the case is that states are saying power companies are contributing to a public nuisance by releasing greenhouse gases into the air, and they therefore should be able to turn to the courts to require those companies to reduce emissions. The power companies, on the other hand, "maintain that the Clean Air Act supplants the federal common law when it comes to greenhouse gas emissions."

ScotusBlog's post Wednesday also noted that "the Court's consideration as to whether states can use the tort theory of public nuisance to regulate carbon dioxide emissions will affect other cases pending around the country on the same issue. In a New York Times article published last Monday morning, Lawrence Hurley mentioned Kivalina v. Exxon Mobil Corp., in the 9th U.S. Circuit Court of Appeals, ,yet to be argued, and Comer v. Murphy Oil, which was initially decided in favor of the plaintiffs by the 5th U.S. Circuit Court of Appeals, but had the ruling vacated after the court moved to rehear the case but then realized there was no quorum after several judges had to recuse themselves. ( Here ) Kivalina is an Eskimo village of about 400 people that'll have to be relocated allegedly because of the effects of global warming. Hurley also noted North Carolina v. Tennessee Valley Authority as being another case that focuses on an attempt to regulated emissions under state common law -- that case is possibly on its way the Supreme Court, too, after the 4th U.S. Circuit Court of Appeals ruled in favor of the Tennessee Valley Authority. [ Kivalina complaint ] [ North Carolina’s petition for re-hearing / Decision challenged ]

In 2007, the Supreme Court had ruled in Massachusetts v. EPA, 549 U. S. 497 (2007) that "the Environmental Protection Agency (EPA) has abdicated its responsibility under the Clean Air Act to regulate the motor vehicle emissions of four greenhouse gases, including carbon dioxide." These cases concern the much larger issue of power plants.

Ohio gun control legislation

The Toledo Blade yesterday morning said "Gun-rights supporters maneuvered in the Ohio House Tuesday to force votes on bills allowing concealed-carry permit-holders to carry guns into bars and alcohol-serving restaurants and easing other restrictions on permits."

"Rep. Danny Bubp (R., West Union)" the Blade said "is employing a rarely used discharge petition to dislodge the bills from a Democratic-controlled House committee where they have yet to have hearings. Mr. Bubp filed the resolution Tuesday, along with the signatures of 50 members of the 99-member chamber, to force votes Wednesday on the floor to bring the bills before the full House."

Senate Bill 239 would "permit a concealed carry licensee to possess a firearm in liquor permit premises, or an open air arena," while Bill 247 is sub-titled the "Civil Firearm Rights Act," and purports to "conform the restoration of civil firearm rights with federal law and U.S. Supreme Court case law; eliminate the prohibition against persons with certain misdemeanor drug offense convictions acquiring or possessing firearms or dangerous ordnance; and to allow restoration of civil firearm rights for firearms that are dangerous ordnance."

The Enquirer, however, this morning noted too that "if the Ohio House, controlled by Democrats until Jan. 2, agrees to recess its two-year session before Tuesday, Senate Bills 239 and 247 will die. House Speaker Armond Budish, D-Beachwood, said he doesn’t intend to call any more sessions beyond Thursday… The Ohio House tentatively planned a voting session for 12:30 p.m. Thursday, but House rules require a waiting period to vote on the gun bills. That means Tuesday would be the earliest legislators can vote to pass either bill."

There are numerous Ohio mayors against both Senate bills including Cincinnati Mayor Mark Mallory, Addyston Mayor Dan Pillow, North College Hill Mayor Daniel R. Brooks, Silverton Mayor John Smith, Wyoming Mayor Barry Porter according to the Enquirer’s article.

Senate Bills 239 and 247 are but two of a total of nine gun control bills introduced in Ohio this past year, six of them in the House where they’re still in committee.

"Red Flag" legislation update

The Blog of Legal Times Tuesday morning reported that the U.S. House of Representatives had given final congressional approval to a bill designed to exempt lawyers and some other professionals from new regulations to prevent identity theft.

Senate Bill 3987 summary

Wednesday, December 08, 2010

Ohio Death Penalty update

On March 7, 2009, Anthony Kirkland attacked, beat, attempted to rape, robbed and strangled 13 year old Esme Kenney to death and then partially burned her body. Kirkland was apprehended shortly later at the crime scene with property belonging to the victim; there was also a match of the victim's DNA on Kirkland. At questioning Kirkland confessed to the crimes on Kenney, and three additional crimes. On March 17th., he was indicted on twelve counts of murder, attempted rape, abuse of corpse, and aggravated robbery in relation to three of the crimes. On June 22nd., he was indicted for murder and abuse of corpse in the fourth crime.

The indictments were consolidated for trial purposes, and, on March 12, 2010, Kirkland was found guilty of all counts including death penalty specifications.

In November of this year he filed a direct appeal to the First District in Ohio, but, since Ohio's right of direct appeal was amended in 1994 to eliminate the jurisdiction of courts of appeals to reviews on direct appeal judgments that imposes a sentence of death, and placing that right directly to the Supreme Court, the appeal was dismissed.

Kirkland filed his direct appeal to the Supreme Court May 12th, and eight days later a motion to stay his execution.

Last month there was a "joint motion to supplement the record" filed because the case had involved a separately indicted non-capital homicide, but when counsel for defendant-appellant reviewed the record, it was discovered that the trial court did not generate an entry ordering this case be consolidated for trial. The motion to include was granted yesterday.

Ohio Juvenile Center follow-up

In following up on yesterday's post about Washington County's Marietta Juvenile Detention Center, Washington County Juvenile Court Judge Timothy Williams defended the center's staff and policies and said the court's top priority was ensuring the safety, health and rehabilitation of children in the system, but conceded saying that the center and attorneys suing on behalf of eight prisoners were discussing mediation and a possible out-of-court settlement in the matter.

Williams said, "We believe mediation to be a better option than expending the extensive resources necessary to defend the matter in traditional litigation," USAToday this morning reported.

Tuesday, December 07, 2010

Inhumane treatment alleged at Ohio juvenile center this morning reported that "Inmates at an Ohio juvenile detention center are regularly locked up for 23 hours a day, denied running water and medical treatment and endure harsh punishment, including cleaning a gymnasium with toothbrushes, according to a federal lawsuit filed Monday."

Ohio Supreme Court rejects lethal injection challenge

The Jurist,, a Web-based legal news and real-time legal research service created in 1996 by University of Pittsburgh law professor Bernard Hibbitts as a clearinghouse of online legal materials authored by other law professors, eventually evolving to bridge the gap between the legal academy and the public, last week reported the Ohio Supreme Court’s rejecting of another challenge to the state's lethal injection method of execution. ( See Scott v. Houk )

A certified question from Ohio's Northern District Court asked whether there was "a post-conviction or other forum to litigate the issue of whether Ohio's lethal injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520,170 L.Ed.2d 420 (2008), or under Ohio law?” The Court, in a split 5-2 decision, answered that there was not.[ Scott’s motion to certify ]

The Court said it has held "opportunities for review more than satisfy defendants' "constitutional rights to due process and fair trials" while also protecting Ohio’s "inherent power to impose finality on its judgments," citing State v.Steffen (1994), 70 Ohio St.3d 399, 407, 412, 639 N.E.2d 67. "The Ohio General Assembly," the majority opinion stated, "has not yet provided an Ohio law cause of action for Ohio courts to process challenges to a lethal-injection protocol… Accordingly, until the General Assembly explicitly expands state review of death penalty cases by creating a methodology for reviewing Ohio's lethal-injection protocol, we must answer the certified question as follows: There is no state postconviction relief or other state-law mode of action to litigate the issue of whether a specific lethal-injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under Ohio law."

Dissenting were Chief Justice Eric Brown and Justice Paul E. Pfeifer. In that dissent Chief Justice Brown posited:

"[Ohio's] statutory right provides greater protection against pain and suffering than the Eighth Amendment against cruel and unusual punishment. The United States Supreme Court has explained that "[s]imply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm that qualifies as "cruel and unusual" under the Eighth Amendment. Baze v. Rees (2008), 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420, quoting Farmer v. Brennan (1994), 511 U.S. 825, 846, 114 S.Ct. 1970, 128 L.Ed.2d 811. In order for a petitioner to succeed on an Eighth Amendment challenge, he must show that an "alternative procedure [is] feasible, readily implemented, and [will] in fact significantly reduce a substantial risk of severe pain." Baze at 52. Thus, the burden on a petitioner to establish an Eighth Amendment violation is worlds apart from establishing a violation of the affirmative requirement in R.C. 2949.22(A) that the warden shall ensure that an execution be quick and painless"

Friday, December 03, 2010

Another Ohio taser case

"The use of tasers has come under increasing scrutiny in recent years in Cincinnati and other cities because of questions about their safety and their proper use," a Cincinnat Enquirer article this morning began.

Last Wednesday we reported a taser case in Columbus in which a suspect had been seriously injured while trying to escape police over a fence and when tasered. ( Here)

This is a Cincinnati case that started out as a “jaywalking” incident from which a suspect ran, and then in which a police officer used a taser on a the suspect, whose injuries were minor, not because he jaywalked, but because he was running away, an act the officer believed could indicate his involvement in a more serious crime.

This morning's article says the City & police department maintain the officer "followed his extensive training on Taser use and also followed a city policy that gives officers necessary discretion on when to use a Taser or some other force to stop a suspect."

The City had thus filed a motion to dismiss based on plaintiff’s "failure to state a claim." District Court Judge Timothy Black, in a 17-page order, denied the motion saying in part, "The City's training program, as reflected by the official policy, permits officers to deploy tasers in these situations. Plaintiff maintains the training is inadequate because it does not require officers to balance the government's interest in seizing a fleeing person against the risk of serious injury as required by the Fourth Amendment. Based on the literature, case law, and even an explicit warning from the taser manufacturer, the high risk of serious injury or death was established and the City knew, or should have known, of that risk. However, the City continued to advise its officers that the use of the taser on a nonviolent fleeing misdemeanant was permissible. Consequently, Plaintiff has alleged sufficient facts to go forward on this claim that the City's policy, which explicitly permits such deployment, is unconstitutional on its face."

WikiLeak legislation

WikiLeaks, online since 2006, has hardly been a household name and, as CNN’s news blog said yesterday morning, "doesn't look like it would stir incredible worldwide controversy. But that's what the whistleblower website has done since this summer, and most recently over the Thanksgiving holiday weekend when it published part of what it says is a cache of more than a quarter-million U.S. diplomatic cables. The leak of this classified material could be embarrassing at best, some say -- At worst, revelations in the cables ‘can damage national security’ and ‘may put lives at risk.'", meanwhile, reported that "following the latest baring of U.S. secrets on the Internet, Congress was now poised to pass legislation giving employees in the most sensitive government jobs a way to report corruption, waste and mismanagement without turning to outside organizations like WikiLeaks.

"Without protections spelled out by law, whistleblowers risk being fired or demoted for informing their chains of command about misconduct, according to Tom Devine, legal director at the Government Accountability Project, a nonprofit 501(c)(3) public interest group founded in 1977. That leaves no alternative to anonymous -- and potentially damaging -- leaks unless whistleblowers are willing to jeopardize their careers."

Senate Bill 372 was introduced by Hawaii Sen. Daniel Akaka in February 2009 and placed on the Senate's Legislative Calendar under General Orders in December of that same year, according to the Library of Congress' site. The Center for Public Integrity, a Washington-based public interest group who’s stated mission is "producing original investigative journalism about significant public issues to make institutional power more transparent and accountable," has more.

In the meantime, this morning's reporting that "leaders of the Senate intelligence committee called on Attorney General Eric Holder Thursday evening to prosecute WikiLeaks founder Julian Assange for espionage."

Thursday, December 02, 2010

ABA, FTC, "red flag rules" & U.S. Senate bill

The Blog of Legal Times yesterday reported, that "the American Bar Association has been battling for more than a year with the Federal Trade Commission to exempt lawyers, especially, from new regulations designed to fight identity theft. Now, Congress has decided to step in.

"With no fanfare and no recorded vote, late Tuesday, the Senate approved legislation that could accomplish what the ABA was hoping to achieve -- a bill that would narrow the definition of 'creditor' under the Fair and Accurate Credit Transition Act of 2003, likely ensuring that lawyers would not meet the new definition."

"Senate Bill 3987," the post says, "would define a creditor largely as someone who 'uses credit reports, furnishes information to credit reporting agencies or ‘advances funds…based on an obligation of the person to repay the funds or repayable from specific property pledges by or on behalf of the person.'"

In a statement last summer the FTC summarized the last three years: "the rule became effective on January 1, 2008, with full compliance for all covered entities originally required by November 1, 2008. The Commission has issued several Enforcement Policies delaying enforcement of the Rule. Most recently, the Commission announced in October 2009 that at the request of certain Members of Congress, it was delaying enforcement of the Rule until June 1, 2010, to allow Congress time to finalize legislation that would limit the scope of business covered by the Rule. Since then, the Commission has received another request from Members of Congress for another delay in enforcement of the Rule beyond June 1, 2010."

The ABA also then noted that it had won a federal district court ruling last December holding that the Red Flags Rule should not be applied to attorneys, and that physician groups, including the American Medical Association, had likewise sued the FTC on May 21 after it refused to apply the same reasoning to exclude doctors from enforcement. The ABA district court ruling was appealed last February with oral arguments having been held last Nov. 15th. . The AMA case was being "held in abeyance" until the appeals court decides the ABA case. ( See Order )

Ohio Attorneys CLE Requirement

The Ohio Supreme Court's administrative office reminds attorneys with last names beginning with the letters M through Z that they need to complete their Continuing Legal Education (CLE) hour requirements by Dec. 31.

Practicing attorneys in the State of Ohio are required to complete 24 CLE hours, including one hour of instruction on ethics, one hour of instruction on professionalism, and a half-hour of instruction on substance abuse, every two years. Judges have an increased hour requirement of 40 hours every two years and also must attend Judicial College courses.

The Library doesn't have any more CLEs for attorneys scheduled this year, but is hosting a judicial CLEs tomorrow (Dec. 3) and on Dec. 17th..

[ See Court’s announcement ]

Wednesday, December 01, 2010

Ohio Supreme Court criminal cases

In a 5-1 majority opinion written by Justice Robert R. Cupp this morning, the Supreme Court of Ohio ruled that an plea-bargaining agreement between a Lake County man and local prosecutors in which the defendant entered a guilty plea of aggravated vehicular assault, and the state agreed to drop two criminal specifications and continue the defendant's bond, constituted a "negotiated guilty plea" that barred the state from later charging the defendant with vehicular homicide when the victim died as a result of his injuries.

Court’s summary here

The Court yesterday ruled that when a trial court fails to include restitution in the sentence that is pronounced on a criminal defendant at his sentencing hearing, or in the journal entry recording that sentence, the court may not later add restitution to that person's sentence by means of a "nunc pro tunc" (now for then) entry amending the court's journal.

Court's case summary

Also, in a 7-0 decision yesterday, the Supreme Court held that a court of appeals could not reverse a criminal conviction based on the improper admission of spousal testimony in violation of Evidence Rule 601(B) unless the appellate court conducts a plain-error analysis and determines that the outcome of the trial would have been different if the spousal testimony had not been admitted. "Ohio Evidence Rule 601(B)," the Court said, "provides that the spouse of a criminal defendant is not competent (not legally eligible) to testify against his or her spouse at trial unless the defendant is charged with a crime against the spouse or their children, or unless the spouse freely elects to testify."

Court’s summary

Ohio taser use suit

A lawsuit filed on behalf of a suspect attempting to elude police officers was filed Tuesday in U.S. District Court in Columbus against the Columbus suburb of Perry Township, its board of trustees and a township police officer. (Complaint)

The suspect was scaling a fence last August attempting to escape police when he was tasered on the fence and fell head first on to the concrete, receiving serious & debilitating injuries. The suit charges police violated the suspect's constitutional rights, seeks unspecified compensatory damages against the officer and the township, and punitive damages against the officer.

The filed complaint references cases such as the Supreme Court's Tennessee v. Garner (1985) – which also involved a suspect attempting to elude police over a fence – which held that the "use of deadly force against an apparently unarmed, non-dangerous fleeing suspect may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others."