Friday, April 30, 2010

Significant budget cuts hit Kentucky judicial syatem

Massive cutbacks amounting to some $7 million in self-imposed reductions hit the Kentucky court system yesterday, according to a article this morning.

The cutbacks announced by Kentucky Supreme Court Chief Justice John Minton Jr. will eliminate more than 100 jobs, abolish family and juvenile drug courts and trim the budgets of Kentucky's appellate courts, the article said.

In abolishing family and juvenile drug courts, effective Jan. 1 an annualized savings of $1.5 million is expected to be realized. The plan also imposes 3 percent cuts on the state Supreme Court and Court of Appeals budgets, amounting to $140,500 for the high court and $226,400 for the appeals court.

With court filings in Kentucky having hovered around 1.2 million in the past two or three years, Chief Justice Minton said the cuts were targeted to try to minimize the impact. "Our goal would be that we continue to deliver the same level of service, but we're going to be stretching our personnel to do that."

"Meanwhile," the article continued, "the courts could become a victim if state lawmakers fail to pass a new executive branch budget by July 1. That budget funds the operations of prosecutors, law enforcement and public defenders — 'the people who make the cases move through the system,' in Minton's words."

Kentucky Supreme Court’s Press Release

Thursday, April 29, 2010

Ohio Supreme Court Rules of Practice & Procedure amendments

Following up on an earlier posting from the beginning of the year, Ohio's Supreme Court announced yesterday that they had filed "final amendments to the annual update of the Rules of Practice and Procedure, including changes to the criminal discovery process that were developed through a collaborative process led by the late Chief Justice Thomas J. Moyer and including the criminal defense bar and prosecutors --- including changes to the rules of criminal procedure and the rules of appellate procedure. Specifically, the amendments to Criminal Rule 16 call for a more open discovery process, and the revision of several rules of appellate procedure implements a procedure for en banc consideration in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law."

The amendments take effect on July 1, unless before that date the General Assembly adopts a concurrent resolution of disapproval.

Text of Amendments

Sixth Circuit workplace litigation case

The U.S. Sixth Circuit Court of Appeals has ruled that job applicants who sign waivers promising not to sue their employers over workplace disputes aren't automatically barred from filing lawsuits in the future. In a case decided last Monday, the Court said a couple did not "knowingly and intelligently" waive their right to judicial recourse because they didn't know exactly what they were signing, nor were they clear on what the alternatives to litigation would be.

"In determining whether a waiver was executed knowingly and voluntarily," the Court explained, "a court considers:'(1) plaintiff’s experience, background, and education; (2) the amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5) the totality of the circumstances.'"Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 668 (6th Cir. 2003)(quoting Adams v. Phillip Morris, Inc., 67 F.3d 580, 583 (6th Cir. 1995))….."

In this case, "the Court has found that employees did not knowingly and intelligently waive their rights to a judicial forum where they 'were hired on the spot after a brief interview, during which the hiring manager hurriedly presented them with various documents that they were instructed to sign in order to be considered for the job'; where 'managers would place an 'x' in every spot an applicant [was] required to sign, and applicants would be sold to sign every 'x' without any explanation"; and where they were not given an opportunity to revoke their waiver. Walker v. Ryan’s Family Steak Houses, Inc., 400 F.3d 370, 381-82 (6th Cir. 2005)."

Citing its decision in Seawright v. American General Finance Services in 2007, the Court summarized, "They cannot be said to have knowingly and voluntarily waived their right to a judicial forum when they were not informed of the alternative procedures until a month after they began working for HVA. Cf. Seawright, 507 F.3d at 971 (explaining extensive efforts taken by defendant employer to inform employees of new dispute resolution procedures before requiring employees to waive all rights to a judicial forum)."

Alonso v. Huron Valley Ambulance, Inc.

Tuesday, April 27, 2010

U.S. Supreme Court to hear Ohio inmate sexual assault case

An Associated Press article this morning reports that the Supreme Court has agreed to consider reinstating a $625,000 judgment against Ohio prison officials who did nothing to prevent a guard's sexual assault of an inmate and then punished the victim.

Justices said Monday they would review a federal appeals court decision from last year in a case that actually began back in 1996. After having been sexually assaulted while an inmate at the Ohio Reformatory for Women, Michelle Ortiz had filed, an won, jury verdicts for the above-mentioned amount – which the defendants then appealed. The Sixth Circuit had then decided that the defendants were entitled to "qualified immunity" which negated the money award.

Conflicting holdings of eleven federal circuits regarding the conditions, if any, under which a party may appeal the denial of summary judgment after trial, Ortiz's petition professes. "There are two independent splits among the circuits on this point. First, the circuits are divided whether such appeals are permissible if the party raises a question of law… Second, the circuits are divided whether such appeals---even when raising a question of law—are permissible if the party chose not to immediately appeal the denial of summary judgment…. The Sixth Circuit's decision here falls on the wrong side of both splits, and it illustrates the impropriety of permitting such an appeal in both contexts. This Court can resolve both conflicts and clarify an important question that has left the federal courts (and numerous state courts that look to them for guidance) in confusion about a fundamental issue recurring in courts across the Nation.."

Ortiz v. Jordan and Bright, 09-737

Petition for certiorari
Brief in opposition

Monday, April 26, 2010

Supreme Court to hear video game regulation case reports that the U.S. Supreme Court has agreed to determine whether California can ban the sale or rental of violent video games to minors.

California's law, which never took effect, having been challenged shortly after it was signed and blocked by the U.S. District Court over constitutional concerns, would have prohibited the sale or rental of violent games to anyone under 18. It also would have created strict labeling requirements for video game manufacturers. Retailers who violated the act would have been fined up to $1,000 for each violation."

Courts in other states have struck down similar laws, MSNBC said.

ScotusBlog ventured that "the Court had apparently been holding the case until it decided another First Amendment case involving violent expression — U.S. v. Stevens (08-769). In that ruling, issued last Tuesday, the Court struck down a federal law that banned the depiction in videotapes of animal cruelty, refusing to create a new exception to the First Amendment free speech right."

"California officials on appeal had urged the Ninth Circuit Court of Appeals to adopt a constitutional standard, created for use in cases involving protection of minors against obscene materials, that has never been used when the content was violent in nature, rather than obscene. The standard, derived from the Court’s 1968 decision in Ginsberg v. New York, allows states to pass laws barring minors' access to obscene materials if the law represents a reasonable judgment by the legislature that exposure to such materials will harm minors.

"The Ninth Circuit Court, though, in reviewing California's 2005 ban on sale or rental of violent video games to minors, refused to apply that standard, and, instead, used the most rigorous constitutional standard for judging laws that curb expression — strict scrutiny."

Petition for certiorari
Brief in opposition

Police layoffs

"Since January, Tulsa has laid off 89 police officers, 11% of its force. That has pushed the city to the forefront of a national movement, spurred by hard times, to revamp long-held policing strategies," an article in this morning's Wall Street Journal begins.

"In the crosshairs: community-policing initiatives created over the past two decades, such as having officers work in troubled schools, attend neighborhood-watch meetings and help small-business owners address nuisance crimes like graffiti. Such efforts are popular, and some experts credit them with contributing to the steady drop in the national crime rate since 1991."

Cuts have swept communities from Stockton, Calif., to Naperville, Ill., depleting some departments to 1980s-era staff levels, the article said, "the strain in New York and communities nationwide reminding William Bratton, a former police chief in both New York and Los Angeles, of the 1970s and 1980s. Then, departments lacked resources to focus on crime prevention and community partnerships, or deal with crimes such as drug dealing and prostitution… 'You'd think we would have learned our lessons from the past,' Bratton, who now runs Altegrity Security Consulting, said. 'Policing still requires boots on the ground.'"

While not advocating vigilantism, the same situation in Ashtabula County, Ohio, where the number of deputy sheriffs had been halved because of budget restraints there, led one of their common pleas court judges to advise residents, two weeks ago to be vigilant, organize anti-crime block-watch groups, and to arm themselves. ( Here )

Arizona's immigration bill

Arizona's controversial immigration enforcement law was the target of fresh attacks Sunday as opponents, from national civil rights activists to Phoenix Mayor Phil Gordon, vowed to take their fight to the courts as soon as this week, this morning reported.

Other headlines over the weekend told of protests outside of the Arizona capital building, and Faith in Public Life’s, a "strategy center advancing faith in the public square as a positive and unifying force for justice, compassion and the common good," rushing out a press release calling the new law " 'an affront to moral conscience', and urging comprehensive national immigration reform."

President Obama, "in an unusual White House attack on state legislation," the Wall Street Journal said, "harshly criticized the Arizona measure to crack down on illegal immigration and made clear Friday that he is looking for an election-year fight over the volatile issue," while the Associated Press reported "U.S. Rep. Raul Grijalva, a Democrat, and civil rights activists spoke on Sunday to thousands of people gathered at the state Capitol and called on President Barack Obama to fight the law, promising to march in the streets and invite arrest by refusing to comply." The President has reportedly asked the Justice Department to look at the new law.

Arizona's new law

Previous Posting

Friday, April 23, 2010

6th Circuit/ Sanctions vs. law firms over meritless suits

The 6th Circuit Court of Appeals has ruled that, under federal law, courts may not impose sanctions on law firms -- as opposed to individual lawyers -- for knowingly pursuing meritless lawsuits. (See article )

The Court recounted, "In 2005, we affirmed a grant of partial summary judgment for Lexmark International ("Lexmark") in a suit brought by Lexmarks one-time partners, BDT Products and Buro-Datentechnik GMBH & Company KG (hereinafter collectively "BDT"), arising from the contention that Lexmark had misappropriated trade secrets in developing a printer tray that substantially resembled a tray developed by BDT. Following our ruling, the district court granted Lexmark's motion for attorney fees and imposed sanctions to the extent of those fees (more than five million dollars) on BDT, Higgs, and Meisenheimer under Kentucky Revised Statute § 365.886, 28 U.S.C. § 1927, and its inherent powers." Meisenheimer in this case appealed the imposition of those sanctions, arguing that courts may not impose sanctions under § 1927 on law firms (as opposed to individual attorneys), and that, regardless, BDT’s suit was not necessarily meritless and Lexmark has not demonstrated that Meisenheimer (as opposed to BDT or Higgs) acted in bad faith or with improper purpose."

In its reasoning last Wednesday, the Court first addressed the statutory provisions, saying, "Whether this language prohibits the sanctioning of law firms is an issue of law that the court reviews de novo. Claiborne v. Wisdom, 414 F.3d 715,722 (7th Cir. 2005). While we have never directly ruled on this question, after the district court issued its order requiring Meisenheimer to pay sanctions in this case, a Sixth Circuit panel stated in dicta that '§ 1927 does not authorize the imposition of sanctions on a represented party, nor does it authorize the imposition of sanctions on a law firm." Rentz v. Dynasty Apparel Indus., Inc., 556 F.3d 389, 396 n.6 (6th Cir. 2009)(imposing sanctions against attorneys in their individual capacities solely under Fed. R.Civ. P. 11 rather than under § 1927) (citing Claiborne, 414 F.3d at 722-24)… The Rentz court, while offering no analysis itself, cited to Claiborne, 414 F.3d 715, in which the Seventh Circuit collected cases and issued a well-reasoned explanation of why, under § 1927, judges may not appropriately sanction law firms."

"As this case demonstrates," the Court said with respect to the second portions, "there is some confusion regarding what behavior constitutes improper purpose, bad faith or conduct tantamount to bad faith. In particular, it is not entirely clear from our case law whether the simple fact that a party pursued a clearly frivolous and meritless lawsuit constitutes conduct that is 'tantamount to bad faith' sufficient for the imposition of sanctions…"

"For a court to impose sanctions under its inherent powers, it is not necessary that the court find that an action was meritless as of filing, or even shortly thereafter. It can become apparent part-way through a suit that an action that initially appeared to have merit is in fact meritless; parties and attorneys have a responsibility to halt litigation whenever they realize that they are pursuing a meritless suit. As in this case, moreover, a party or firm might enter an action long after the filing of the initial complaint, but may still be sanctionable under a court’s inherent powers if it acts in bad faith. The ‘something more’ that a court must find to meet the third prong of the Big Yank test may similarly occur at any stage of the proceedings. A court imposing sanctions under its inherent powers may consider the nature and timing of the actions that led to a finding of bad faith in determining whether to impose sanctions on conduct from that point forward, or instead to infer that the party’s bad faith extended back in time, perhaps even prior to the filing of the action."

"The Big Yank requirement (Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308, 313 (6th Cir. 1997) that a court find that a party have an improper purpose in filing a suit resembles the Supreme Court’s general requirement that a court find bad faith or conduct tantamount to bad faith. Put another way, satisfying the overarching bad faith requirement mandated by the Supreme Court before imposition of sanctions under a court's inherent powers often automatically satisfies the improper purpose prong of the Big Yank test. See First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501 at 519 n.15 ("This Court has likewise used 'improper purpose' and 'bad faith' interchangeably.")"

Thursday, April 22, 2010

Southern Ohio District Court patent rules

The South District Court of Ohio last Tuesday announced adoption of its Local Patent Rules. Effective June 1, 2010 these rules and associated forms govern practice of all patent cases & proceedings.

Cincinnati school desegragation case

Cincinnati Public Schools' efforts to ensure racial balance in its teaching staff have been ruled unconstitutional, striking down one of the last remaining vestiges of the landmark 1974 Bronson v. Board of Education school-desegregation lawsuit, reported earlier this week. (See Bronson v. Board of Education)

U.S. District Court Judge Susan Dlott ruled, Tuesday, that Cincinnati schools could no longer consider race when making staff employment decisions, saying that both district policy and parts of its teacher union contract violate the Constitution's guarantee of equal protection under the law. ( Perrea v. Cin’ti. Bd. Of Education )

Along with Bronson, Justice Diott relied on the U.S. Supreme Court's 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1, stating that "This Court does not write on a clean slate in examining CPS's staff racial balance provisions. The Supreme Court and the Sixth Circuit have analyzed similar affirmative action type programs adopted pursuant to school desegregation plans. Controlling Supreme Court precedents establish that all racial classifications must be subjected to strict scrutiny analysis. 'It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny' (Parents, 551 U.S. at 720) … A plurality of Justices in Parents Involved, Chief Justice Roberts along with Justices Scalia, Thomas, and Alito, further stated that racial classifications could not be used to achieve a goal of mere 'racial balance, . . . an objective this Court has repeatedly condemned as illegitimate.'"

Evolving immigration law yesterday morning asked whether, "Now that Arizona lawmakers have passed what's considered some of the toughest immigration legislation in the country, were other states watching to see whether they should follow in the state's footsteps or stand back," noting that Michael Hethmon, general counsel for the Immigration Reform Law Institute who helped draft the language of the Arizona bill, had said he'd been approached by lawmakers from four other states, which he declined to identify, who have asked for advice on how they can do the same thing where they live.

Hethmon was quoted as saying that "Historically, not only in the U.S. but in virtually all industrialized nations, when the unemployment rates go up ... the public becomes much less sympathetic toward programs which bring in large numbers of foreigners as workers and economic players….Arizona was meant to be the leading edge," he said. "If you are going to work on developing a state-based response to this enormous problem -- the lack of a national immigration policy -- Arizona is the place to do it."

The article relates that "Arizona's bill orders immigrants to carry their alien registration documents at all times and requires police to question people if there's reason to suspect they're in the United States illegally. It also targets those who hire illegal immigrant day laborers or knowingly transport them."

This morning, an article on began, "The nation's toughest immigration effort has yet to be signed into Arizona law, but public-safety and legal experts from across the nation already are debating its ramifications.

"Supporters say it would give police officers more freedom to do their jobs and would require little additional training. They say the bill has just enough teeth to keep departments from continuing to ignore immigration laws; on the flip side, it expressly forbids officers from racial profiling. Opponents say it would require departments to make immigration enforcement a priority over violent crimes, drain already strained financial and manpower resources, force officers to target individuals based on their accent or dress, and result in costly lawsuits against municipalities for participating in racial profiling as well as failing to adequately enforce the law."

Their pursuit of answers has, no doubt, already been given some markers.

To be sure, the Southern Ohio District Court's $100,000-settlement this week is noteworthy. last Monday reported that a suit, brought in May 2008, "filed on behalf of Luis Roberto Rodriguez Trevino, alleged Butler County, Ohio deputies violated his constitutional rights when they "seized" him at a West Chester construction site in 2007. The suit also said the sheriff's office lacked the legal authority to enforce federal laws that make it a civil violation - not a crime - for immigrants to be in the United States without proper documentation."

Wednesday, April 21, 2010

Bill proposing 5% cut in Congressional salaries

The last time Congress cut its pay was April 1, 1933, in the midst of the Great Depression when lawmakers voted to drop their salaries from $9,000 to $8,500. Now, a USAToday article this morning reads, "at a time when polls show Congress' standing at near-record lows, a group of retirees today is endorsing a move to cut lawmakers' pay, and urging support of Rep. Ann Kirkpatrick's effort to get her colleagues to give back 5% of their salaries.

"Kirkpatrick's bill," the article says, "would reduce congressional salaries by $8,700, from $174,000 a year to $165,300. In terms of buying power, that would still leave lawmakers ahead of what they were making in 1990. That year's House salary of $96,600 is equal to $160,850 in today's dollars, according to the Labor Department's consumer price index."

Tuesday, April 20, 2010

Ohio Grievance & Disciplinary Board opinion

The Supreme Court of Ohio's Board of Commissioners on Grievances & Discipline issued an advisory opinion about whether a attorney's notes must be turned over to a client when requested.

Opinion 2010-2, rendered April 9th., finds that it depends upon whether “the notes are items reasonably necessary to the client’s representation” pursuant to Prof. Cond. Rule 1.16(d), which requires the lawyer to exercise his or her professional judgment.

U.S. Sentencing Commission Guideline amendments

The United States Sentencing Commission announced yesterday its sending to Congress amendments to the federal sentencing guidelines.

The Commission's press release summarizes the amendments as "expanding the availability of alternatives to incarceration and address the relevance of certain specific offender characteristics in sentencing. The Commission also voted to promulgate guideline amendments on additional topics including hate crimes, the calculation of a defendant’s criminal history, and sentencing corporate offenders.”

E-filing Lawsuit posted an article yesterday from the Texas Lawyer about a woman in Montgomery County, Texas, having filed a class-action lawsuit against that county's court and LexisNexis over their requirement that civil litigants use Lexis for all court filings.

Courts in several jurisdictions, including Butler and Cuyahoga Counties here in Ohio, outsource contracts for court filings according to the ABA, but San Antonio solo Robert L. Mays Jr., McPeters' attorney, says the district clerk returns unfiled any documents not filed through LexisNexis, according to the article. He maintains that the requirement that litigants use LexisNexis exclusively for the court filings violates the Texas Constitution's open courts provision.

Monday, April 19, 2010

Darryl Durr noted on Thursday of last week that U.S. District Court Judge Gregory Frost, of Ohio's Southern District, had dismissed Darryl Durr's claim that Ohio's lethal injection chemicals violated federal prescription drug laws, noting that the U.S. Supreme Court had rejected a similar argument brought by death row inmates 25 years ago. ( Holding )

There, in Heckler v. Chaney, 470 U.S. 821 (1985), "a number of condemned inmates had argued that the states were violating federal law in using drugs to execute them, and that the Food and Drug Administration (FDA) should prohibit the use of the drugs until the FDA certified that the drugs were 'safe and effective' for execution. The FDA unsurprisingly rejected the prisoners' arguments, reasoning that it was primarily concerned with serious dangers to the public, and that such dangers were not posed by the states' procedures for lawfully executing condemned prisoners."

Durr is scheduled to be executed tomorrow morning at 10:00

Last Tuesday, USAToday had reported the American Civil Liberties Union of Ohio's filing a federal lawsuit for Durr, seeking to delay his execution, and maintaining that a Cuyahoga County court, last year, allowed DNA testing on some items at trial, but refused to allow it on a necklace found on the victim. "According to Ohio law," the ACLU professed, "courts must consider appeals from non-death row prisoners who have been refused DNA testing after they were convicted. However, the courts are not required to hear appeals from death row inmates who have been denied DNA testing." The ACLU's requested temporary restraining order was to prevent the state from executing Durr until it could rule on whether he has a constitutional right to a mandatory appeal of his denial of DNA testing.

The District Court, last Friday, denied his TRO request and transferred the case instead to the 6th. Circuit Court of Appeals. In the present case, the District Court saw Durr's challenge as being a habeas corpus issue, not a civil rights matter as had been filed, which presented a jurisdictional problem. "Durr has already pursued & exhausted habeas corpus relief pursuant to 28 U.S.C. §2254," the District Court said. "Under 28 U.S.C. §2244(b)(3)(A), before an applicant can file a second or successive petition for a writ of habeas corpus in district court, the applicant must move in the appropriate circuit court of appeals for an order authoring the district court to consider the application. Absent such an order, a district court does not have jurisdiction to entertain a successive habeas corpus petition. Where, as here, it appears that the applicant has not obtained such an order, a district court must transfer the matter to the appropriate circuit court. In re Sims,111 F3d 45 (6th. Cir. 1997)."

This morning the Sixth Circuit disagreed with the District Court in holding that the proceedings where a habeas corpus matter, but, nonetheless, held that "Durr has stated claims that are cognizable under § 1983, but we conclude that even if Durr were to succeed on those claims, such success would not entitled him to a stay of his execution. Therefore, we AFFIRM the district court's order denying Durr a temporary restraining order or a preliminary junction.” ( Decision )

Ohio Supreme Court examining health care ballot issue

Two weeks ago the Ohio Ballot Board, ruled that the issue proposed by the Ohio Liberty Council, one of the nation's new tea party groups that wants voters to amend the Ohio constitution so the state can opt out of the wide-ranging federal health care law, had to be split into two separate ballot measures. ( Here and Here )

The Ohio Ballot Board prescribes and certifies the ballot language for proposed Constitutional amendments, initiatives, and referenda and oversees efforts to inform voters of proposed ballot issues. The Secretary of State chairs the five member board and the office of the Secretary of State provides professional, technical, and clerical support for the Board.

The Ohio Liberty Council says it can't offer two new ballot measures by a June 30 deadline.

Last Tuesday morning USAToday was reporting that "the 1851 Center for Constitutional Law, an 'independent legal center dedicated to protecting the constitutional rights of Ohioans from government abuse., formally affiliated with the Buckeye Institute, a Columbus-based free market think tank', has filed a complaint asking the Supreme Court to review the Ballot Board's decision. The center says the board's action was arbitrary and went against its own history." ( Complaint )

Echoing, too, off in the distance were predictions by U.S. Supreme Court Justices Stephen Breyer and Clarence Thomas that their Court would one day be addressing issues on the recently passed health care overhaul bill. (Here and Here)

Friday, April 16, 2010

6th. Circuit Court of Appeals holds Ohio anti-porn law constitutional

USAToday yesterday reported that "a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati found that Ohio law does not violate the First Amendment guaranteeing freedom of speech or the Constitution's commerce clause, which was intended to allow the free flow of goods among the states. ( Decision )

The Court in its opinion said it "certified the question of the scope of Ohio's statute to the Ohio Supreme Court in Am. Booksellers Found. for Free Expression v. Strickland, 560 F.3d 443, 447 (6th Cir. 2009). The Ohio Supreme Court issued an opinion stating that the statute applied only to personally directed electronic communications and that it did not apply to generally accessible communications earlier this year in Am. Booksellers Found. v. Cordray, 922 N.E.2d 192, at 195 (Ohio 2010). As the scope of the statute is limited to personally directed electronic communications, as currently available or developed in the future, we find that the statute does not violate the First Amendment or the Commerce Clause."

Thursday, April 15, 2010

Interim Ohio Supreme Court Justice Eric Brown

Ohio Governor Ted Strickland has announced the interim appointment of Eric Brown, currently a Franklin County probate court judge in Columbus, to the supreme court seat recently vacated by the unexpected death of former Chief Justice Thomas Moyer, who passed away April 2. ( Court’s announcement )( AP article )

Judge Brown received his JD from the Cleveland Marshall College of Law in 1979; and has been admitted to the Ohio, U.S. North Ohio District, Sixth U.S. Circuit, and District of Columbia Circuit bars. After spending five years as an associate at Yulish, Twohig & Assoc., he opened his own law firm with six other attorneys in Cleveland. From 1992 – 1997 he served with the Consumer Protection Section of the Ohio Attorney General’s Office, and was led counsel for Ohio’s part in the tobacco litigation lawsuits from 1996 – 2002. "Following the 1998 settlement, principal responsibility for implementing and enforcing the settlement in Ohio, including compliance issues and numerous, complex litigation matters. Led Ohio's participation in multi-state negotiations to address the economic concerns of tobacco growers, resulting in the creation of a settlement trust; led enactment and enforcement of legislation to help protect Ohio's share of the settlement payments; actively participated in numerous post-settlement multi-state working groups, including economic and payment issues, litigation and enforcement matters."

From 2003 – 2005, Judge Brown served as a magistrate in Franklin County’s Court of Common Pleas, being elected in Nov. 2004 to a full term to a newly created seat on that court and then re-elected in July 2005. Also in 2005, he was appointed a board member of the Franklin County Criminal Justice Planning Board, in Columbus on which he still serves. The Board provides oversight for criminal and juvenile justice programs funded through Franklin County.

He was elected Franklin County Probate Court Judge in November 2008

Judge Brown will be assuming his interim duties on May 3rd.

Judge Brown’s Franklin County profile

Wednesday, April 14, 2010

Ohio mentally ill inmates

In a class action lawsuit filed earlier this year by indigent Ohio residents with psychiatric disabilities soon to, or recently having been, released from prison in Ohio, the Department of Corrections, last Monday filed a motion to dismiss the case.

"For inmates with psychiatric disabilities," the inmates' complaint had professed, "an abrupt and unprepared reentry into a community or entry into some form of post-release supervision represents an enormous barrier to a successful transition. When inmates with psychiatric disabilities are released into communities without required accommodations, they are often unable to meet requirements that may condition their release or make use of the referrals, counseling, and services available in the communities they inhabit, if those services are available. In many communities into which inmates with psychiatric disorders are released, needed services are minimal and inadequate or non-existent. As a result, they experience predictable and preventable exacerbations of their symptoms and they also face arrest for even non-criminal behavior that may constitute a technical violation of the conditions of their release."

A USAToday snippet yesterday said attorneys for the Department of Rehabilitation and Correction maintain the inmates don't have standing to bring the lawsuit because all have already been released from prison, and that they haven't shown how the state can be blamed for their homelessness or lack of jobs after being released.

The case was brought by the Ohio Justice & Policy Center, a local activist group "working for productive, statewide reform of the criminal justice system."

Ohio media coverage of criminal cases

The Ohio Supreme Court yesterday morning barred Henry County Court of Common Pleas Judge Keith P. Muehlfeld from enforcing a "gag order" prohibitting the news media from publishing or broadcasting stories about the proceedings in an upcoming manslaughter trial until after a jury has been impaneled for the separate trial of a second defendant charged in the same incident. ( Court's holding and summary )

The case in which the gag order was issued involved the death of a child, for which the state had charged the child's mother, Jayme Schwenkmeyer, and her boyfriend, David Knepley, with manslaughter and child endangering. The charges arose from a joint indictment, but the Henry County Court of Common Pleas granted the defendants' motions that they be tried separately.

Judge Muehlfeld originally scheduled Knepley's jury trial to begin on July 20, 2009, the Court's opinion says, "with Schwenkmeyer's jury trial to begin on July 27, 2009. On July 20, Judge Muehlfeld granted a Schwenkmeyer motion to prohibit print and broadcast media from reporting about the trial proceedings in Knepley's case until the jury was impaneled for Schwenkmeyer’s trial, although he permitted members of the media to have access to the Knepley trial. The judge stated in the entry that he considered the order necessary to prevent the tainting of the jury pool in the second case… Both cases were subsequently rescheduled, and the order of the trials was reversed, with Schwenkmeyer’s trial to begin on December 7, 2009, and Knepley’s trial to follow a couple months later, on February 8, 2010.

With the order in which the trials were to be heard now reversed, the blackout was modified to apply to Schwenkmeyer's trial and until a jury had been impaneled for Knepley.

The Toledo Blade, on January 27, 2010, filed action for a writ of prohibition to prevent Judge Muehlfeld, from restraining it "from speaking or publishing information that [it]has lawfully obtained or will lawfully obtain in the course of the criminal proceeding."

Monday, April 12, 2010

Sacramento, Calif. case management computer system questions

Sacramento County Superior Court leaders last Tuesday were reported to be dumping their out-of-state connection to a controversial computer system and, instead, operating their own network locally -- "a poke in the eye to the Administrative Office of the Courts," says, "which plans to spend more than $1 billion on a statewide case management system connecting all 58 trial courts with each other and law enforcement and child welfare agencies."

"Sacramento court leaders say that by installing the system's server locally, instead of housing it at its current location with an AOC contractor in Arizona, court information technology specialists can design their own fixes to the problems… Local control will also allow the court to determine how much information it shares with other courts and agencies," Presiding Judge Steven White told "The AOC is spending too much money on a system that will exchange information that most judges just don't need."

Los Angeles, Orange, and San Diego superior courts control their own servers locally, the article said, while Ventura, San Joaquin, and Fresno -- along with Sacramento -- route their systems through the Arizona center.

Public Official Immunity in Ohio

In a case stemming from a 2004 identity theft in which personal information had been acquired from a traffic ticket’s having been posted on the county’s website, the Ohio Supreme Court last Friday ruled that “ when the allegations contained in a civil complaint are directed against an office of a political subdivision, an officeholder named as a defendant in that complaint is sued in his or her official capacity, rather than as an individual; claims therefore against the officeholder are subject to the “political subdivision” immunity analysis set forth in R.C. 2744.02(C), rather than the ‘political subdivision employee’ immunity standards set forth in R.C. 2744.03(A)(6).

Case summary

Monday, April 05, 2010

Ohio Chief Justice Thomas J. Moyer,
Apr. 18, 1939 -- Apr. 2, 2010

Born in Sandusky, Ohio on April18, 1939, Thomas J. Moyer was the longest-serving current state chief justice in the United States. He passed away suddenly last Friday, April 2, 2010 at the age of 70, leaving wife Mary. (Articles here and here)

The Columbus Dispatch, Friday, reported that Justice Moyer was set to retire at the end of the year after hitting the mandatory age of retirement set by Ohio’s constitution. He was the third longest serving chief justice in Ohio history, behind Justices Edward S. Matthias in 1915 and Carl Weygandt in 1933, who served 38 and 30 years, respectively.

Moyer presided over several matters of some importance on the Supreme Court over the years, including the DeRolph decision in 2002, dealing with school funding, and the late-nineties Sheward fight over tort reform.

Among other accomplishments, the Supreme Court under Justice Moyer’s leadership:
  • In 2002, revamped the rules governing the reporting of opinions in Ohio (Rules for the Reporting of Opinions: ) to standardize the publication of opinions from the Supreme Court and the courts of appeals to increase public access and availability written opinions.

  • In March 2004, began broadcasting live all Supreme Court Oral Arguments on cable TV and on the Internet ( The cable signal reaches more than 5 million homes across Ohio (signal availability is at Ohio's courts are among only a small number of courts in the United States that broadcast all arguments live. All cases are also archived on the Internet.

  • In 2005, put the Court's entire docket online ( ), allowing anyone anytime to check the status of a case, learn about new filings, and locate counsel information.

  • In 2006, began closed-captioning all oral arguments to facilitate access by deaf and hard-of-hearing citizens and enable public access to unofficial transcripts of all proceedings in a searchable database. Ohio is one of only two state courts in the country with this service. ( )

  • Last year the Court addressed “open discovery” in Ohio courts approving new rules governing pretrial procedures, amending Rule 16 of Ohio’s Rules of Criminal Procedure so as to require greater sharing of evidence between prosecutors and defense attorneys before trial. ( )

Supreme Court’s mentions here and here

Friday, April 02, 2010

Kentucky's gps/domestic violence abusers legislation

With the Supreme Court's hearing the Robertson v. U.S. ex rel. Watson domestic violence case Wednesday, the timing on this is interesting.

Prospects for Kentucky legislation aimed at keeping track of domestic abusers using ankle monitors have improved considerably after discussions between two key lawmakers, an Associated Press article on reported yesterday.

House Bill 1 would amend statutes relating to domestic violence definitions to define "global positioning monitoring system" and permit a court to restrain a respondent from going to or near specified locations. It would also "create new sections of KRS Chapter 403 to permit the petitioner in a domestic violence order case to inform the court of places the petitioner does not want the respondent to go into or near; require the court to assess the respondent's dangerousness; permit the court, as part of a domestic violence order, to order a respondent to wear or carry global monitoring system device and permit a petitioner to carry a device notifying the petitioner that the respondent is nearby; require the court to notify the petitioner of the operation and limitations of global positioning monitoring system devices, and provide a penalty for removing or tampering with the device; it would also create a new section of KRS Chapter 403 to require the Department of Corrections to contract with entities providing global positioning system monitoring services to provide services meeting the requirements of the statutes…."

The bill is being called "Amanda's law," in remembrance of Amanda Ross who was shot to death last year, presumably by her former boyfriend. The Lexington Herald-Leader has more.

Kentucky records law expanded

With little more fanfare than mention in last Monday's paper, a bill intended to increase public scrutiny of two scandalized groups representing locally elected officials – the Kentucky Association of Counties and Kentucky League of Cities -- won final passage from lawmakers this week.

The jest of the bill is to subject the two organizations to Kentucky's open records and open meetings laws, and would require the groups to follow strict ethics guidelines and undergo annual audits. (See SB 88 here)

Thursday, April 01, 2010

ABA vs. FTC --- again

The National Law Journal this morning observed the American Bar Association and Federal Trade Commission "tangling again" --this time, over regulations aimed at mortgage fraud.

In this latest round, the FTC had announced back in February a rule proposal that would affect for-profit companies that try to prevent home foreclosures by helping consumers re-negotiate their mortgage loans. The rule, printed in the March 9th. 2010 Federal Register, would bar the collection of advance fees and impose recordkeeping requirements, among other regulations, the article said.

"The rule would exempt lawyers in some cases, but the ABA says the exemptions are too narrow. In an 11-page letter to the FTC, Thomas Susman, the ABA's chief Washington lobbyist, writes that the rule as written could drive lawyers out of the mortgage-modification business and, as a result, harm consumers. The ABA wants a broader exemption for lawyers and their non-lawyer employees."