Friday, January 29, 2010

Ohio state/federal death penalty case

U.S Southern Ohio District Court Judge Gregory Frost yesterday granted death row inmate Mark Brown's motion to join a lawsuit filed last month that challenges the State of Ohio's new lethal injection procedure, which includes a never-before-tried backup method that injects drugs directly into muscles. The suit was initially filed by Lawrence Reynolds, another death row inmate, earlier this month and won't be heard until March 15. ( Order )

Brown's motion, which hasn't been answered yet, also asks that his execution, currently scheduled for next Thursday, be stayed.

Brown is also seeking a stay from the Ohio Supreme Court to argue that newly uncovered evidence would exonerate him. Supreme Court Chief Justice Thomas Moyer there, on Jan. 19th., did not grant an outright stay, but did issue an order suspending the application of any rules of practice "to facilitate the Court's timely consideration of any matters relating to the execution of (Brown’s) sentence." Moyer also ordered that "counsel of record for the parties shall provide the Court with a copy of any document relating to this matter that is filed in, or issued by, any other court in this State or any federal court, as well as any commutation, pardon, or warrant of reprieve issued by the Governor. A copy of the document shall be delivered to the Office of the Clerk as soon as possible, either personally, by facsimile transmission, or by email."

Thursday, January 28, 2010

Ohio Supreme Court/Public Utilities ruling

The Ohio Supreme Court unanimously ruled Tuesday that the Public Utilities Commission of Ohio acted "reasonably and lawfully" in restructuring gas distribution rates for customers of Duke Energy and Dominion East Ohio. ( Text of Decision )

"Prior to 2008," the Court's summary said, "the rate formulas approved by the PUCO for Duke and Dominion East Ohio required the utilities to recover a relatively small percentage of their distribution costs through a flat monthly charge assessed on each customer, and to recover the remainder of their distribution costs via a surcharge on each cubic foot of gas used by a customer during the billing period. In 2008 orders, the PUCO authorized Duke and Dominion East Ohio to adopt a new 'Straight Fixed Variable' (SFV) rate design for recovery of their distribution costs. Under the SFV rate structure, the utility companies were authorized to significantly increase the flat monthly distribution fee charged to each customer, and significantly decrease the distribution-related surcharge on each cubic foot of gas used." The Commission's rate changes were challenged on several points, asserting that it acted "unreasonably and/or unlawfully" in approving new rate structures. The Court found that the "burden of showing that the commission's orders in these cases are unlawful or unreasonable, or that the rate-making process itself was unlawfully carried out., was not able to be substantiated.

Citing City of Columbus v. Ohio Pub. Util. Commission (1984), the Court held that "where a statute does not prescribe a particular formula, the PUCO is vested with broad discretion. The General Assembly left it to the commission to determine how best to carry out the state's policy goals in R.C. 4929.02(A)(4) and 4905.70."

Thursday, January 21, 2010

Standardized Ohio Domestic Relations Forms

Ohio has 88 counties. It also has as many different sets of domestic relations divorce and dissolution forms but currently no standardized forms across the state -- but that's soon going to change.

The Ohio Supreme Court announced Tuesday that a subcommittee of its Advisory Committee on Children, Families & the Courts, has developed a set of forms which have now been published for perusal & public comment.

All domestic relations courts in Ohio would accept the new standardized forms, as well as their own local forms, according to the Court's announcement. It was also noted that the new forms provide domestic relation courts with information such about party income and expenses, assets, debts, the availability of health insurance, and other information judges consider in their cases everyday.

Comments on the proposed forms can be submitted in writing to: John VanNorman, Policy and Research Counsel, Supreme Court of Ohio, 65 S. Front St., Seventh Floor, Columbus, OH 43215, or via e-mail to Comments will be accepted until Feb. 16, 2010.

Supreme Court's proposed rules

Hamilton County forms
Butler County forms
Clermont County
Warren County

Wednesday, January 20, 2010

Amendments to Ohio Supreme Court's Rules of Appellate/Criminal Procedure

The Ohio Supreme Court announced last Friday that it had submitted proposed amendments to its Rules of Practice & Procedures with the General Assembly which include changes to the criminal discovery process calling for more "open discovery" (Crim.R. 16) and several appellate rules of procedure to implement a procedure for en banc considerations in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law (App.R. 14, 15, 25 and 26)

The Court's announcement says, "The new discovery process would allow defense counsel access to materials that, under the current rule, were never disclosed. Changes in Crim. R. 16 also call for establishing a defendant's reciprocal duty of disclosure and seeks to protect victims and witnesses from potential harassment. Revisions to the proposed amendments, published in October 2009, also include language giving a court greater discretion in regulating discovery in cases of a pro se defendant, additional language to give sufficient time for an expert to evaluate statements of a sexual abuse victim who is less than 13 years of age, and several clarifying changes.

"Other changes to the criminal procedure rules include amending Crim. R. 12(K) to accommodate the new interlocutory appeal granted under proposed Crim. R. 16(F)(2) to review a trial court's ruling on a prosecutor's non-disclosure of material. Amendments to Crim. R. 41 permit applications and approvals of search warrants to be accomplished by electronic means, including facsimile transmission."

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

If the General Assembly doesn't make changes or disapprove the amendments, they will take effect July 1, 2010.

Text of Amendments

Thursday, January 14, 2010

U.S. Supreme Court reinstates death penalty in Ohio case

The United States Supreme Court Tuesday reinstated the death penalty sentence for Frank Spisak's 1982 shooting spree at Cleveland State University, overturning a Sixth Circuit Court of Appeals ruling in October 2006. ( Decision )

"(The Sixth Circuit)," the Court said, "erred in holding that the instructions and forms contravened Mills v. Maryland, in which this Court held that the jury instructions and verdict forms at issue violated the Constitution because, read naturally, they told the jury that it could not find a particular circumstance to be mitigating unless all 12 jurors agreed that the mitigating circumstance had been proved to exist… (and) Even assuming that Mills sets forth the pertinent 'clearly established Federal law' for reviewing the state-court decision in this case, the instructions and forms used here differ significantly from those in Mills: They made clear that, to recommend a death sentence, the jury had to find unanimously that each of the aggravating factors outweighed any mitigating circumstances, but they did not say that the jury had to determine the existence of each individual mitigating factor unanimously. Nor did they say anything about how—or even whether—the jury should make individual determinations that each particular mitigating circumstance existed. They focused only on the overall question of balancing the aggravating and mitigating factors, and they repeatedly told the jury to consider all relevant evidence. Thus, the instructions and verdict forms did not clearly bring about, either through what they said or what they implied, the constitutional error in the Mills instructions."

Spisak had also raised an ineffective counsel claim, to which the Court yesterday held "the state-court decision rejecting Spisak’s ineffective-assistance-of-counsel claim was not 'contrary to, or . . . an unreasonable application' of the law 'clearly established' in Strickland v. Washington. To prevail on this claim, Spisak must show, inter alia, that there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' … Even assuming that the closing argument was inadequate in the respects claimed by Spisak, this Court finds no 'reasonable probability' that a better closing argument without these defects would have made a significant difference. Any different, more adequate closing argument would have taken place in the following context: Spisak's defense at the trial's guilt phase consisted of an effort by counsel to show that Spisak was not guilty by reason of insanity…"

6th. Circuit Decision

Ohio's petition for certiorari
Brief in opposition

Wednesday, January 13, 2010

Supreme Court rule amendments

The U.S. Supreme Court released notice of a of revisions to brief and document preparation rules yesterday. They become effective on February 16, 2010.

The Court's announcement highlighted major changes as including:
  • Reduction in the number of words allowed for a Reply Brief on the Merits from 7,500 to 6,000. This change restores the volume limit in effect for such briefs prior to the 2007 Rules revisions.

  • Changes to Rules 26and 34.1 clarify what is to be included on the cover of a Joint Appendix and require that counsel of record include an e-mail address on the cover of every document filed.

  • additions to Rule 34 require a descriptive index of the appendices and citations to the United States Code whenever available.

  • Rule 37 revisions clarify that only an attorney admitted to practice before this Court is permitted to file an amicus curiae brief and that extensions of time for amicus curiae briefs at the merits stage will not be entertained.

Rules of the Supreme Court

Monday, January 11, 2010

Google Legal Scholar

For those of us really "living under rocks" somewhere…. Back in the middle of last November (Nov. 19, 2009 to be precise) Google Scholar was expanded to include free access to court cases and other legal information. Scholar, itself, was introduced back in 2004, "indexing the full text of scholarly literature across an array of publishing formats and disciplines."

An article first posted by the San Francisco Bar Association last December reported that the legal aspect of Scholar includes "U.S. Supreme Court opinions since 1791 and U.S. federal district, appellate, tax and bankruptcy courts since 1923 in its database. The database also includes U.S. state appellate and supreme court cases since 1950. Cases are cited in Bluebook format, include internal page numbers, and are cross-linked within the database. The service also crawls other free case law providers and provides links to cases on these sites. In addition to case law, Google scholar provides links to secondary sources, such as law reviews and journals." That article was re-published with permission on that same month.

"Google Scholar's free search has drawn praise and criticism," the article reports. "On the positive side, it employs the clean, simple, and fast user experience that Google is well known and admired for. The service does not require a login, allowing users to very quickly check a case name or cite. The search engine works very fast--there is no perceptible delay or lag when returning search results, and results are posted in publicly accessible hyperlinks, making sharing cases very easy. Searches can also be saved if the user logs in. And, of course, the price is right -- users can search, view, and print these cases for free.

“Most reviewers agree, however, that Google Scholar will not replace commercial legal publishers such as LexisNexis® or Westlaw® any time soon. The value in paid services lies mostly in the editorial work they provide on top of caselaw -- e.g., headnotes and cite checking features. While Google's 'How Cited' tool provides some interesting perspective on how the case has been cited and used, it is probably not a replacement for the Shephards or KeyCite system. Something else to keep in mind -- Google Scholar is limited to case law, and does not include statutes or regulations (though those are available for free elsewhere on the Internet)."

More information about Scholar's legal availabilities & concept, basic instructions, and links to some earlier comments and criticisms were posted on google's official blog (Here )

Friday, January 08, 2010

Ohio Supreme Court's New News Service

The Ohio Supreme Court launched a new, comprehensive news delivery service earlier this week that expands access to information about the Supreme Court and Ohio Judicial System. [Court's Announcement ]

By subscribing to specific categories of news, users will be alerted via e-mail or wireless text message when the Court releases information related to their specific topic(s) of interest. Daily news clippings from media outlets statewide are also included. There are also nearly two dozen RSS news feeds provided by the Supreme Court users can subscribe to.

While the Supreme Court of Ohio is the first court in the United States to launch this service, the system is one that is used by numerous federal agencies including the FBI, the U.S. Department of Homeland Security, and the U.S. Department of Defense. In addition, the service has been utilized successfully by governments in Oregon, Minnesota, Indiana and the United Kingdom

To sign up for the new service, users should click the "Get News Updates" icon on the front page of the Court's Web site.

New Ohio Laws

There have been at least three laws passed in the State of Ohio which haven’t gotten maybe as much media coverage as is warranted, but which we’ve been being asked about.

SB 124 Transfers on Death Affidavits , Signed by Gov. Strickland on Dec. 28, 2009, to become effective in 90 days

"… changes the transfer on death (TOD) designation instrument from a deed to an affidavit, to allow real property owners holding title in survivorship tenancy to execute such an affidavit, to clarify the status of a trustee of a trust as a TOD beneficiary and the dower rights of the spouse of the property owner, to make other changes pertaining to the transfer on death of real property, to modify the mortgage lending laws, to temporarily authorize a treasurer or prosecuting attorney of a county with a population of more than 800,000 but less than 900,000 to designate that part of any surplus balance in the county's Delinquent Tax and Assessment Collection Fund be used to pay operating expenses of the respective office in lieu of county general fund money, to allow a county recorder to accept for filing certain nonconforming documents without charging the fees otherwise required to be collected for nonconforming documents …."

The bill also describes the manner in which documents have to be prepared to comply with new recording standards.

Text of Bill Legislative Service’s Analysis

SB 106 Signed by Governor Strickland on December 22 and not to become effective until March 23, 2010

"… to exclude from the application of the savings statute certain estate and trust proceedings that have limitation periods, to raise the threshold amount for the termination or avoidance of guardianships of small estates of wards, to raise the threshold amount for the avoidance of guardianship upon the settlement of claims of minors or adult incompetents, to clarify that termination of marriage revokes any trust provision conferring a beneficial interest on the former spouse, to modify the period within which a plaintiff in a wrongful death action may commence a new action after the reversal of a judgment for the plaintiff or the plaintiff's failure otherwise than upon the merits, and to modify the residency qualifications for a person's appointment as a guardian.."

Text of Bill Legislative Service’s Analysis

HB 332 (2008) Bill was signed by Gov. Strickland on August 6, 2008, but some provisions didn’t become effective until January 1, 2010

"…adopting the Revised Uniform Partnership Act to be known as the ‘Ohio Uniform Partnership Act (1997),’ to establish that on and after January 1, 2009, the act governs new partnerships and partnerships that elect to be governed by the act, to establish that effective January 1, 2010, the act governs all partnerships in Ohio, and to establish that effective January 1, 2010, the existing Ohio Partnership Law no longer governs partnerships."

Ohio Revised Code Chapters 1775, 1777, and 1779 repealed, being revised & replaced by Chapter 1776, etc.

Text of Bill Legislative Service’s Analysis

Tri-State Court Rule Updates

Along with new laws going in effect, Ohio and Indiana, especially, from our area, have a number of changes in their court rules.

Ohio Rule Amendments:

Kentucky’s Amended Order 2010-01 "authorizes a statewide system (hereinafter "E-Warrant System"), designed to track arrest warrants, criminal summons, bench warrants, and Emergency Protective Orders (EPO's) issued in Kentucky. Law enforcement personnel, prosecutors, and court officials in various counties have agreed to participate in a pilot project (hereinafter "E-Warrant Project"), the first of which was implemented effective September 23, 2008 ."
    Indiana Rule Updates:

    Ohio "Open Discovery" Update

    Near the end of the year, the Cleveland Plain Dealer reported that the Ohio Supreme Court had "approved amendments to Rule 16 of the Ohio Rules of Criminal Procedure that will require greater sharing of evidence between prosecutors and defense attorneys before a trial."

    The amendment still has to be sent to the General Assembly for approval, but, back in May, the two houses issues a joint resolution to the Supreme Court requesting that it amend the rule to provide for more open discovery. That done, the amendment would take effect July 1, 2010.

    "Open discovery" has been an issued debated – at least in Ohio – for some time, with both sides having points in their favor. "The new procedures would eliminate some of the 'gamesmanship' by both prosecutors and defense lawyers," Cleveland defense attorney Ian Friedman, who led the recent charge for open discovery as president of the Ohio Association of Criminal Defense Lawyers, said.

    Eight Ohio District Court of Appeals Judge Sean Gallagher in Cleveland, Ohio, told the Plain Dealer that the Supreme Court's approval was " like solving a major international conflict (or) peace in the Middle East." Judge Gallagher is chairman of the Ohio Supreme Court's Commission on the Rules of Practice & Procedure.

    (See also our posting from May 20th. on "Open Discovery")

    Monday, January 04, 2010

    Ohio Supreme Court amendments to Rules of Practice

    The Ohio Supreme Court has adopted amendments to its Rules of Practice that implements a new numbering system and section/rule citation style. Arabic numerals instead of Roman numerals now designate different portions of the rules, and general categories are labeled as "sections" and specific portions of each section as "rules." ( Amendments )

    The Courts announcement said "significant changed included a new section that covers the Supreme Court's original jurisdiction for petition challenges according to Article II, Section 1g of the Ohio Constitution, and a new section that covers mediation proceedings and emphasizes the availability of this option at the Supreme Court level," but that most were non-substantive and made to clarify language in the rules.

    Amendments become effective Jan. 1, 2010.

    Amendments to Ohio Supreme Court's Rules Governing Procedure on Complaints & Hearings

    The Ohio Supreme Court, last March, adopted major revisions to its Code of Judicial Conduct

    On December 16, 2009, the Ohio Supreme Court adopted amendments to the Rules & Regulations Governing Procedure on Complaints & Hearings Before the Board of Commissioners on Grievances & Discipline to distinguish an opinion providing guidance under the former Code as a "Former CJC Opinion." ( Court’s Announcement)( New Amendments)

    The Rules & Regulations Governing Procedure on Complaints & Hearings Before the Board of Commissioners on Grievances & Discipline are Appendix II of Court's Rules for the Governent of the Bar

    The amendments became effective Jan. 1, 2010