Tuesday, June 29, 2010

Public Defender Issues

"State officials in Ohio have demanded improvements in Hamilton County's Public Defende's Office for years, but they've boosted scrutiny in the past few months," the Cincinnati Enquirer reported last Sunday morning, "after the county failed to use $1.2 million in state money specifically given to it to defend poor people. Instead, county officials put it in their general fund, which meant it went for everything from fixing roads to paying child abuse investigations.

"As a result, State Public Defender Tim Young has asked for a written improvement plan, which must be signed off on in July by the county public defender commission, county commissioners and the state public defenders commission…. If state commission members - who expect to see the plan at its next meeting July 23 - don't like what they see, they could pull state money given to the county or sue the county for violating indigent defendants' constitutional rights to a fair trial if changes aren't made."

Last year, the County, Commissioners, and Public Defender’s Office settled a class action suit claiming “systematic failure to provide representation on the issue of defendants’ ability to pay fines and/or costs assessed by Hamilton County Municipal Court, resulting in incarceration despite their inability to pay those fines/costs.

"In 2007," the article Sunday morning said, "County commissioners, paid $100,000 to the National Legal Aid and Defender Association to assess the public defender’s office's management and efficiency. That organization found that attorneys were being discouraged from doing work to save money; the office had few resources; and staff lawyers handled 2½ times the recommended number of cases.," Since then, the office has hired some felony lawyers, which has lessened the caseload.

Ohio Supreme Court adopts amendments on notice of appeal timing; domestic violence/ stalking forms

The Supreme Court of Ohio announced yesterday the adoption of an amendment to the Rules of Practice that addresses when the clock starts ticking to file an appeal in the Supreme Court after a party seeks reconsideration of a decision of an appeals court, or when a party seeks a full review by all members of an appeals court, also known as an en banc review.

Division (A)(6) of S.Ct. Prac. R. 2.2 was adopted in response to an amendment to the Rules of Appellate Procedure that permits a party to file a motion for en banc review with a court of appeals, which, in turn, was a product of the Supreme Court's decision in McFadden v. Cleveland State Univ..

The amendment will become effective July 1, 2010

Language of Amendment

The Supreme Court also announced adoption of amendments to Rules 10, 10.01, and 10.03 of the Rules of Superintendence for the Courts of Ohio and related domestic violence and stalking protection order forms, also becoming effective July 1st.


Forms: Domestic Violence Protection Order Forms

Stalking Order Protection Forms

Form10-A: Protection Notice to National Crime Information Center

Form10-B: Instructions for Completing a Protection Order Notice to National Crime Information Center

Friday, June 25, 2010

"Domestic partner" update

Things don’t always happen this co-incidentially, but we need to update and, indeed, expand a bit, last Wednesday's posting about Ohio expanding its "immediate family” definition to include “domestic partners,” and some of the implications that could follow there.

The United States Department of Labor in a new administrative interpretation issued Tuesday has said “any employee who provides either day-to-day care or financial support to a child can qualify as a parent under the Family and Medical Leave Act, even if they have no biological or legal relationship with the child,” an interpretation which DOL is hailing as “"a victory for many non-traditional families," and which could make it easier for employees such as same-sex partners, grandparents, step-parents, aunts or uncles to take unpaid leave under the FMLA.

"No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill," Labor Secretary Hilda L. Solis said in the Department’s press release. "No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. ... All families, including [lesbian, gay, bisexual and transgender] families, are protected by the FMLA."
"This is a critical step in ensuring that children have the support and care they need from the persons who have assumed parental responsibilities, such as an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty or a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated,” Nancy J. Leppink, deputy administrator of the Department's Wage and Hour Division said. "Nothing in the statute or regulations suggests that we should restrict the rights of various individuals who take on that very important role."
Some, however, are predicting the new interpretation will be challenged in court by groups representing small businesses and/or foes of gay marriage, Thompson Publishing reports. “The Department of Labor has said its new, more broadly applicable administrator interpretations will carry the same weight in legal disputes as the older, individualized opinion letters they are just this year replacing, but Burton J. Fishman, of counsel to Fortney & Scott, LLC, in Washington, D.C. and others, Thompson says, have questioned whether the courts will defer to the new interpretations, arguing they amount to an attempt by DOL to regulate without going through the formal regulatory process. The Family Research Council, too, in its press release Monday, argues the new interpretation conflicts with the Defense of Marriage Act.
So now we have attention being given on the national, federal, level, seemingly meshing… and with the same possible outcomes.
CNN last week quoted Christine Nelson, a program director at the National Council of State Legislatures, as saying that “while there could be a flurry of action by activists as a result of District Court Judge Vaughn Walker's decision in California’s ‘Proposition 8 trial’, which will determine the constitutionality of California's same-sex marriage ban , she doesn't expect anything substantial or noteworthy to come about it politically,” or at least not soon.
Two states – California & Massaschuests -- and the District of Columbia allow same-sex marriage, according to Stateline.org up to two years ago; four or five have civil unions or domestic partners, but for 30 of the states – including Ohio, Kentucky, and Indiana, Nelson said, “it will be next to impossible to get legislation on the table because those states have the Defense of Marriage Act on the books. Enacted by Congress in 1996, the act bars federal recognition of same-sex marriage and allows states the right to do so as well. Since 1996, several states have put into place legislation that prohibits same-sex marriages or "the recognition of same-sex marriages formed in another jurisdiction.”
Of Ohio’s Administrative Code amendment, yesterday, officials said the definition “was already part of contracts with state unions covering 69 percent of the state work force, and has been since 1986. They’re simply applying the same provision to nonunion workers.” Ohio State University law professor Marc Spindelman was quoted in the Columbus Dispatch as saying that “the benefits involved were limited and the proposed change not an attempt to make same-sex relationships the full equivalent of marriage - which is what the Ohio Supreme Court said in a 2007 ruling was required to conflict with the amendment.” (See State v. Carswell, 2007 Ohio 3723)

Wednesday, June 23, 2010

Ohio expands some domestic partner benefits

Ohio's Joint Committee on Agency Rule Review approved amending part of the state's administrative code to allow non-union state employees to take bereavement or sick time for issues related to a live-in partner, despite reservations from its chairman, Republican state Sen. Tom Niehaus (NEE'-hows), who suggested the rule conflicted with Ohio's definition of marriage, which he said was a union between a man and woman, but that the committee had no legal reason to vote no.

USAToday reported that Gov. Ted Stricklands administration had "described the rule as a matter of fairness, saying it extends benefits to non-union employees that union workers already receive."

USAToday also indicated that a group that pushed for Ohio's 2004 constitutional amendment against gay marriages has indicated it may appeal the measure.

The Joint Committee on Agency Rule Review consists of five senators and five members of the House of Representatives, originally being created in 1977. (See ORC 101.35)

The rule in question, OAC 123:1-47-01, adds "or significant other ('significant other' as used in this definition means one who stands in place of a spouse and who resides with the employee)," to the State's definitions of employment terms of "immediate family."

The Committees "Rule Summary and Fiscal Analysis" has more information.

Tuesday, June 22, 2010

Ohio uniform domestic relations forms

The Ohio Supreme Court's announced the adoption of new uniform domestic relations forms, which will enable judges, parents and families, and attorneys to be literally on the same page in divorce and dissolution proceedings.

Before this measure there were no standard forms for Ohio domestic relations courts, with all of the state’s 88 counties having their own separate sets of court forms in divorce and dissolution cases. “Consistency was a key driver in the effort to develop standard forms,” Columbus attorney Heather G. Sowald, Advisory Committee on Children, Families, and the Courts, subcommittee co-chair, said. All domestic relations courts in Ohio will now accept the new forms, as well as their own local forms.

Licking County Domestic Relations Court Judge Craig R. Baldwin, who serves as the other subcommittee co-chair, also pointed out that the forms provide the courts with information such as income and expenses, assets and debts, and health insurance coverage, which domestic relations judges often need to make equitable rulings.

The forms become effective July 1, 2010.

Text of New Forms

Ohio Supreme Court asks comments on juvenile protection order rules

The Ohio Supreme Court is asking for public comment on a new rule that would authorize juvenile courts to issue civil protection orders against juveniles and standardized forms with instructions about how to petition the court for a protection order.

The Court’s announcement says the forms were proposed in response to Am Sub HB 10, which authorized juvenile courts to issue and enforce civil protection orders where the respondent is a minor, regardless of the familial relationship between the parties. That law went into effect on June 17.

Language of the rule and proposed forms is available (Here) from the Court's website.

Comments on the proposed rule and forms should be submitted in writing to: Diana Ramos-Reardon, Domestic Violence Program Manager, Supreme Court of Ohio, 65 S. Front St., Sixth Floor, Columbus, OH 43215, or diana.ramos-reardon@sc.ohio.gov.

Monday, June 21, 2010

U.S. Supreme Court upholds Anti-terrorism law

The Wall Street Journal, New York Times, and Los Angeles Times all had articles this morning reporting the U.S. Supreme Court's upholding a federal law "knowingly providing material support or resources to a foreign terrorist organization." [18 U. S. C. §2339B(a)(1)], rejecting challenges that the measure was so broad as to impinge on U.S. citizens' First Amendment rights of free speech and association. (Text of Opinion )

"Given the sensitive interests in national security and foreign affairs at stake," Chief Justice Roberts was quoted in the New York Times, "the political branches have adequately substantiated their determination that, to serve the government’s interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ nonviolent ends." He was joined by Justices John Paul Stevens, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr..

In dissenting, Justice Stephen G. Breyer said in the L.A. Times that "the 1st Amendment should protect these human rights advocates from prosecution, except when it can be shown they knew they were aiding 'unlawful terrorist actions.'" Justices Ruth Bader Ginsburg and Sonia Sotomayor joined that dissent.

Ohio Supreme Court pro hac vice rule amendments

The Ohio Supreme Court last Friday reminded out-of-state lawyers doing pro hac vice work that, starting Jan. 1, 2011, some significant changes in the state's rules of court will take effect.

Director of Attorney Services Susan Christoff said the changes implemented in Ohio bring the state in line with how other states have handled temporary appearances by out-of-state attorneys. "That being said, it's important to note that pro hac vice has changed in Ohio, and we would hope that Ohio's courts and administrative agencies as well as Ohio judges and attorneys are aware of these coming changes."

The Court's announcement reported that amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:

  • · Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services.

  • · Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.

  • · Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not been granted permission to appear pro hac vice in more than three proceedings before Ohio tribunals in the current calendar year.

  • · Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.

Ms. Christoff also noted that attorneys seeking pro hac vice registration will be able to submit registration applications electronically, and that the Office of Attorney Services will be maintaining an online public directory that includes the names of attorneys who have registered under the new rule and the cases in which they have received permission to appear pro hac vice.

Entire Text of Rule Amendments

Friday, June 18, 2010

Bill privatizing Ohio prisons

Ohio Senate Bill 269 would create a regional council of governments; consolidation of boards and commissions for purposes of Central Service Agency support services; privatization of governmental functions; and restructuring of state government, but a Dayton Daily News article yesterday says it's already drawing fire from corrections employees in that city.

Provisions of SB 269 would "create a State Correctional Institution Privatization Commission, consisting of fifteen members, appointed by the President of the Senate, the Speaker of the House of Representatives, the Governor, and the Auditor of State.

"Members of the Commission," the bill says, "shall be qualified by education or experience in corrections, finance, or any other subject that relates to the duties of the Commission as described in division (B) of this section, and shall serve without compensation or reimbursement for any expenses incurred in the performance of their duties on the Commission..."

The Commission will study the Department of Rehabilitation and Correction's operation and management of this state's correctional institutions, and that of private entities of correctional institutions in this state and in other states, developing a plan for the transfer of those operations and management by December 31, 2011, of at least one-half of this state's correctional institutions that currently are operated and managed by the Department of Rehabilitation and Correction to a private entity…..

The Dayton correctional employees, above, opined that "private corporations are not held to the same standards as a publicly run institution, and privatizing prisons would lower the quality of the facilities and create a less safe environment for everyone involved."

Ohio Attorney General's Office to provide representation to Court of Appeals/judges

The Ohio Supreme Court has announced that "state appellate courts and their judges will now being able to turn to the Ohio Attorney General's Office to defend them against non-monetary civil lawsuits -- changes that were implemented under H.B. 10, which was signed into law on March 17 and became effective yesterday. The Attorney General's Office will also provide representation to appeals court employees regardless of whether monetary relief is requested.

A letter distributed earlier this week also distinguishes between non-monetary and monetary cases, stating: "Your representation in lawsuits asking for monetary damages filed against Courts of Appeals and judges of those courts will continue to be handled by counsel contracted with the courts' insurance carrier for those purposes… Courts of appeals with ongoing non-monetary cases or cases involving personnel being handled by county prosecutors or staff are asked to notify the Attorney General, according to the letter. They will work with you to determine, on a case-by-case basis, whether the case should be transferred to the Attorney General’s Office, and if so, the manner and timing of such a transfer."

Ohio bans "transfer fee covenants"

Ohio Gov. Ted Strickland last Monday signed a bill that will bar property developers from collecting transfer fees whenever a home in one of their developments changes hands. ( HB 292 )

A paper by the American Land Title Association earlier this year reported that "'private transfer fee covenants', as they are known, were a relatively new occurrence, originating in California and Texas over the last decade. One of the first reported PTF covenants was created to meet the demands of the Sierra Club and Audubon Society for environmental protections during the development of Fiddyment Farm in Roseville, California, which imposed a 20-year PTF covenant with the proceeds going to preservation of open spaces. A Texas company, Freehold Licensing, Inc. (“Freehold”), in another instance, has advertised a licensed PTF covenant system, and claims that they are awaiting a business method patent. The company purports to be attempting to securitize and monetize PTF covenants as well."

"As new practices, PTFs have only recently shown up in land title records," ALTA's paper says, "so many state legislatures have not fully debated the unintended consequences of these covenants. However, in the six states that have considered PTF covenants, all have curtailed their usage in some manner." Ohio is now at least the seventh.

"California and Texas, where PTF covenants have been more often used, passed PTF covenant laws in 2007: California Civil Code § 1098.5 struck a balance between the California Association of Realtors, who sought a total ban and the California Building Industry Association and environmental groups who sought to keep PTF covenants legal; Texas Property Code § 5.017(b) prohibits covenants that require the buyer of real property to pay a PTF covenant. It has been debated whether the Texas law only bans a buyer from paying the PTF covenant and or whether all residential PTF covenants are illegal. Some take the position that the seller, rather than the buyer, can be made to pay a PTF covenant under the Texas law. It is expected that further clarification of the law will occur during the 2011 Texas legislative session.

"The four other states to act on PTF covenants have all banned their creation after the effective dates of the laws, leaving the enforceability of covenants created prior to enactment up to the courts. See Fla. Stat. Ann § 689.28 (Florida); Mo. Rev. Stat. § 442.558 (Missouri); Kan H.B. 2092 (Kansas); and 2009 Oregon Laws Ch. 298 (Oregon).”

The Ohio State Bar Association's Real Property Law Section has more information about Ohio’s response ( Here ).

Ohio advanced energy tax bill

Gov. Strickland also signed SB 232 yesterday, which is hoped to strengthen Ohio's competitiveness in energy production industries and will make it easier for companies to do business in the state.

"Under the bill," a USAToday article this morning said, "companies would get the break if they create Ohio jobs, begin construction before 2012 and produce energy by 2013 or 2017, depending on the type of energy; those companies will be able to make annual payments instead of taxes, thereby reducing the tax rates."

Thursday, June 17, 2010

Cincinnati sued over panhandling rules

The City of Cincinnati seems headed for another court showdown over panhandling rules with advocates for the homeless filing suit in U.S. District Court over a City Council’s recommendation two weeks ago to require homeless shelters to "discourage panhandling."

The Greater Cincinnati Coalition for the Homeless, along with a shelter and a homeless panhandler, argue that such a policy would be unconstitutional because panhandling is protected by the First Amendment. They also say the proposal would create a new oversight process that would allow the city to withhold government money from shelters that accept panhandlers. ( Complaint )

Cincinnati Enquirer article
City Motions Contested from June 3rd. ( Here, Here, & Here )

Bill giving collective-bargaining rights to state public safety workers near vote in Senate

The Wall Street Journal this morning discuses "The Senate's moving closer to passing legislation that would require states to grant public-safety employees, including police, firefighters and emergency medical workers, the right to collectively bargain over hours and wages."

There are three versions of the bill. ( HR 413 )( S 1611 ) and ( S 3194 )

"Known as the 'Public Safety Employer-Employee Cooperation Act,' the bill would mainly affect about 20 states that don't grant collective-bargaining rights statewide for public-safety workers or that prohibit such bargaining. State and municipal associations, as well as business groups, oppose it, saying it will lead to higher labor costs and taxes, at a time of budget deficits," the article says. "The bill, however, prohibits strikes and leaves to states' discretion whether to engage in collective bargaining in several areas, including health benefits and pensions."

The article also notes that "if the bill becomes law, state and municipal associations expect legal challenges, saying the legislation might violate states' constitutional rights… If the legislation passes and states choose not to grant the minimum collective-bargaining rights outlined in the bill, the Federal Labor Relations Authority, which oversees labor-management relations for federal employees, would step in and implement collective-bargaining rights for these workers."

Tuesday, June 15, 2010

Attorney misconduct may entitle prisoner's "equitable tolling"

The U.S. Supreme Court yesterday "sympathized," as Law.com this morning put it, "with a Florida death row inmate whose lawyer had missed a deadline for his habeas appeal and failed to communicate with him for years despite numerous written pleas for help." [ Holland v. Florida, 09-5327 ]

Summarizing the case, ScotusBlog reported, "In 1996, petitioner Albert Holland was convicted of murder and sentenced to death in a Florida state court. His direct appeals were unsuccessful: the Supreme Court denied certiorari, thereby triggering the start of 28 USC §2244(d)’s one-year limitations period, on October 1, 2001. Approximately one month later, Bradley Collins was appointed to represent Holland in his post-conviction proceedings. Collins filed a motion for post-conviction relief in state court in September 2002, thereby tolling the limitations period and leaving Holland with approximately two weeks to file his federal habeas petition if his motion for state post-conviction relief was denied. The Florida Supreme Court denied relief, issuing its mandate affirming the denial on December 1, 2005 – at which point the limitations period continued to run.

"Although Holland had repeatedly written to Collins asking about the state court proceedings and the Antiterrorism & Effective Death Penalty Act (AEDPA) limitations period, and had instructed him to file his federal petition before the limitation period expired, Collins nonetheless failed to file a timely federal habeas petition and failed to even tell Holland that the Florida Supreme Court had released its decision affirming the denial of Holland’s motion. In January 2006, after the one-year limitations period had expired, Holland eventually learned that the Florida Supreme Court had denied post-conviction relief. One day later, he filed a pro se federal habeas petition.

"The district court dismissed Holland’s federal habeas petition as untimely, holding that Holland was not entitled to equitable tolling because he had not been diligent in pursuing his rights. On appeal, the Eleventh Circuit affirmed. It assumed without deciding that Collins had been “grossly negligent,” but, in its view, “no allegation of lawyer negligence . . . can rise to the level of egregious attorney misconduct that would entitle [Holland] to equitable tolling” unless there are allegations of affirmative misrepresentations, bad faith, dishonesty, divided loyalty, or mental impairment on the part of the attorney."

ScotusBlog's analysis continued by stating that "the question presented was whether 'gross negligence' on the part of a prisoner's lawyer can amount to exceptional circumstances warranting equitable tolling. It was not, however, clear whether the Court would also decide an antecedent question: whether equitable tolling is available under the AEDPA at all. The Supreme Court had twice assumed, without deciding, that § 2244(d) allows for equitable tolling (Pace v DiGuglielmo, 544 US 408 (2005); Lawrence v. Florida, 549 US 327 (2007)), but Florida challenged that assumption, and asked the Court to find that equitable tolling is never available; asserting that the antecedent question is ‘fairly considered’ part of the question presented.

Answering these questions, The Supreme Court, Monday in its syllabus, held "Section 2244(d), the AEDPA statute of limitations, is subject to equitable tolling in appropriate cases.

"Several considerations support the Court’s holding. First, because AEDPA’s “statute of limitations defense . . . is not 'jurisdictional,'" Day v. McDonough, 547 U. S. 198, 205, 213, it is subject to a 'rebuttable presumption' in favor “of equitable tolling, Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95–9…..

"Second, §2244(d) differs significantly from the statutes at issue in United States v. Brockamp, 519 U. S. 347, 350–352, and United States v. Beggerly, 524 U. S. 38, 49, in which the Court held that Irwin’s presumption had been overcome.

"Finally, the Court disagrees with respondent's argument that equitable tolling undermines AEDPA’s basic purpose of eliminating delays in the federal habeas review process, see, e.g., Day, supra, at 205–206. AEDPA seeks to do so without undermining basic habeas corpus principles and by harmonizing the statute with prior law, under which a petition’s timeliness was always determined under equitable principles. See, e.g., Slack v. McDaniel, 529 U. S. 473, 483…

"The Eleventh Circuit's per se standard is too rigid," the Court said. "A 'petitioner' is 'entitled to equitable tolling' if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing. Pace v. DiGuglielmo, 544 U. S. 408, 418. Such 'extraordinary circumstances' are not limited to those that satisfy the Eleventh Circuit’s test. Courts must often 'exercise [their] equity powers . . . on a case-by-case basis,' Baggett v. Bullitt, 377 U. S. 360, 375, demonstrating 'flexibility' and avoiding 'mechanical rules,' Holmberg v. Armbrecht, 327 U. S. 392, 396, in order to 'relieve hardships . . . aris[ing] from a hard and fast adherence' to more absolute legal rules, Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238, 248.

Law.com’s article, however, also notes that "in dissent, Justice Antonin Scalia said the law 'leaves no room for equitable exceptions' to the one-year deadline. Scalia also said that, because a defendant has no right to counsel on appeal, 'the rule holding him responsible for his attorney's acts applies with full force.' Thus, even when the missed deadline was caused by a lawyer's error, 'the petitioner is out of luck,' Scalia said. Justice Clarence Thomas joined Scalia's dissent."

Monday, June 14, 2010

Congress-Supreme Court arbitration showdown

Marcia Coyle, in her Law.com article this morning, predicts "Congress and the U.S. Supreme Court appearing to be headed for a collision over mandatory arbitration in consumer and employment contracts, with two actions over the last month moving the branches closer to impact: The justices agreed to decide next term whether a class action ban in a cell phone arbitration agreement is unconscionable -- being AT&T v. Concepcion -- and major financial reform legislation, which would give government agencies the power to ban or limit mandatory arbitration agreements, moved into a House-Senate conference committee."
[AT&T v. Concepcion's Petition for certiorari Brief in opposition 9th. Circuit opinion ]

"In late April the Court heard arguments in Rent-A-Center v. Jackson, the second of the term's most important arbitration challenges and now awaiting decision," according to Coyle. "Antonio Jackson sued his employer for race discrimination and retaliation. The trial court granted the employer's motion to dismiss and to compel arbitration according to an agreement in Jackson's employment contract. Jackson appealed, arguing the arbitration agreement was procedurally and substantively unconscionable and that the issue of unconscionability must be decided by a court, not the arbitrator. The 9th U.S. Circuit Court of Appeals agreed that the threshold issue of unconscionability is for a court to decide even if the agreement assigns that issue to the arbitrator…. If Rent-A-Center wins, the role of courts in deciding whether an agreement is unconscionable before ruling on motions to compel arbitration will be reduced, if not eliminated, according to arbitration experts. And if Jackson prevails, it will be easier to avoid arbitration and consumers and employees will be encouraged to challenge it on unconscionability grounds."[Petition for certiorari Brief in opposition 9th. Circuit opinion ]

Also in April, the Court decided the term's other arbitration challenge: Stolt-Nielsen S.A. v. AnimalFeeds International. There, the majority held that arbitrators cannot impose class arbitration on a party when the arbitration agreement is silent on that issue, creating what Ms. Coyle phrased "the classic conservative-liberal split that marks many of the Court's arbitration decisions. Justice Ruth Bader Ginsburg, joined by Justices John Paul Stevens and Stephen Breyer, dissented (Justice Sonia Sotomayor did not participate)."

Congress’ input…Tucked away in the 2010 defense department spending bill President Obama signed last December was the so-called Franken amendment, named after Minnesota Sen. Al Franken. "The amendment,"this morning's article says, "prohibits the award of Department of Defense funds to any federal contractor that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual-assault tort claims. Franken's amendment was a response to Halliburton Co.'s efforts to require a former employee, Jamie Leigh Jones, to arbitrate rather than litigate claims related to her rape on company property by Halliburton employees."

"The Arbitration Fairness Act of 2009," Coyle continues, "would ban pre-dispute arbitration agreements in employment, consumer and franchise contracts… ( Senate version )( House version )

"And, the House and Senate financial reform bills, now in a joint conference committee, would give the U.S. Securities and Exchange Commission authority to limit or ban mandatory arbitration in brokerage and investment advisory contracts. Both bills also create a consumer financial protection agency that could restrict or prohibit its use in credit cards, mortgages and other financial products."

Stay tuned.

Friday, June 11, 2010

Ohio Youth Prisons

Ohio is leading the way in reducing the number of minors in prison, according to a Cleveland Plain Dealer article last weekend.

"After struggling for years to treat young criminals in razor wire-ringed institutions, states across the nation are quietly shuttering dozens of reformatories amid plunging juvenile arrests, softer treatment policies and bleak budgets," the article says, with there being a number of factors pushing states to close facilities.

"During the early 1990s, tough-on-crime legislators turned to the juvenile system. Nearly every state lowered the minimum age for kids to be tried as adults or increased the kind of crimes that land kids in the adult system.

“In stark contrast to the growing adult prison population, the number of juveniles in state lockups has dropped dramatically, partly because there have been fewer juvenile arrests and more offenders in county-based treatment programs," the article continued. Juvenile arrest rates fell 33 percent between 1997 and 2008, according to the latest U.S. Justice Department data., and, in Ohio, the number of juvenile offenders plummeted by nearly half over the last two years -- from about 1,730 kids as of mid-2008 to about 950 today -- pushing the state to close three facilities which should save about $40 million annually, according to juvenile corrections officials.

Meanwhile, Ohio's juvenile prison reforms continue. Spurred by class-action lawsuits back in 2004, a Cleveland Plain Dealer article last year, summarized that "since then much has changed. A legally binding agreement that came out of the suits probably gave the Ohio Youth Services and its director, Tom Stickrath, the power to begin badly needed reforms.

"Stickrath, who took charge of the embattled department in 2005, recognized many of the problems outlined in the lawsuits and had already begun to work toward some improvements… He said one of the things he is proudest of is that every change -- whether philosophical or procedural -- is being documented and tracked so the progress is accounted for and sustainable."

A current issue now is a small number of incarcerated youths who have been refusing meals, usually breakfast and presumably because they'd rather stay in bed and sleep. USAToday last week related that U.S. District Court Judge Algenon Marbley ordered the state to explain what he referred to as false or inaccurate numbers about meals refused by juvenile inmates.

Ohio Health Care Intiatives

Tucked away in Ohio's 2009 operating budget (HB 1) are health care reforms provisions intended to directly decrease the number of uninsured in the state while increasing the number of small businesses that provide employee health insurance.

The state’s Department of Insurance says "These recent law changes will provide health insurance access for more than 109,000 Ohioans over the next three years, the initial reforms including a rate-cap on individual coverage for those with pre-existing health conditions; increasing the dependent age coverage limit to 28 years old; soon mandating small employers permit business workers to purchase health coverage with pre-tax dollars; and extending the state’s mini-COBRA program so small business employees can maintain health benefits for themselves and their family in the event they become unemployed." (See Department’s site for more information )

Part of Ohio's new health care law, which takes effect July 1st., allows young adults to stay on their parents' health insurance until they turn 28, even though the companies are exempt, making Ohio one of the few states to exceed the extension to age 26 mandated by President Barack Obama's health care overhaul, articles on USAToday reported this morning.
"Young adults have one of the highest uninsured rates, often because they can't find jobs or because employers don't offer health coverage for entry-level positions., the article said, adding that “while broad, Ohio's new benefit won't help children whose parents work at private, self-insured companies that pay their workers' medical claims directly rather than buy insurance. These firms, including Procter & Gamble Co. and Honda Motor Co., fall outside state regulation."

The Toledo Blade, this morning, also notes Gov. Ted Strickland’s having signed into law a bill that would use 40 medical practices across Ohio as a laboratory to test whether a streamlined system of health care can raise efficiency and reduce costs. ( HB 198 )

Medigap/ MedSup

The Ohio Department of Insurance has a reminder posted "reminding Ohioans soon approaching or currently on Medicare, that recent law changes to “modernize” Medicare supplemental insurance became effective June 1, 2010. The changes include the adjustment of some of the plan benefits, the addition of new plans, and a reduction of choices from 14 to 11.

"Also referred to as Medigap and MedSup, the coverage is sold by private insurance companies to help Medicare beneficiaries pay the coinsurance, copayments, or deductible amounts not covered by Original Medicare. The policies are “standardized” and the plans are sold as the same identical letters by each company. Monthly premiums vary from plan to plan and from company to company. Generally, you must be 65 or older when you buy a Medigap policy and have Medicare Part A (hospital insurance) and Part B (medical insurance)."

Ohio Supreme Court holds involuntary commitment process civil in nature

The Ohio Supreme Court last Monday held that "the involuntary commitment of a criminal defendant who is charged with a violent first or second-degree felony and who remains mentally incompetent to stand trial beyond the one-year statutory time frame for restoring competency does not violate that person's constitutional rights to due process or equal protection," and, further, that, because the commitment process set forth in R.C. 2945.39 is civil in nature, the state is not required to afford a person committed to a mental health facility under that statute the same constitutional rights afforded to a defendant in a criminal prosecution.” [ State v. Williams, 2008-2424 ( Case )( Court’s Summary ) ] [ See also ORC §2945.38 re one-year statutory time frame in Ohio, and §2945.401 re “incompetency finding or insanity acquittal, continuing jurisdiction of court ]

"With regard to the civil or criminal nature of Williams' commitment proceedings, Justice Cupp wrote: 'Our consideration of R.C. 2945.39 and related statutes leads us away from the view that the commitment of an incompetent defendant under R.C. 2945.39 is the functional equivalent of criminally confining the defendant. Nor do we see any indication of an overriding intent to punish or confine criminal defendants within the statutory framework. Rather, we view R.C. 2945.39 and related statutes as designed primarily for the purpose of protecting the public. In particular, we note that R.C. 2945.39(D)(1), which requires the trial court to order the least-restrictive commitment alternative available consistent with public safety and the defendant’s welfare ... explicitly states the court ‘shall give preference to protecting public safety.’ This statement gives voice to the predominant intent underlying R.C. 2945.39.

" ... Moreover, R.C. 2945.39 ... does not require a finding of scienter (intentional wrongdoing), nor does it implicate retribution or deterrence, which are the primary objectives of criminal punishment and the two most telling factors that a particular statute is criminal in nature. ... R.C. 2945.39 does not implicate retribution, because it does not affix culpability for prior criminal conduct. ... We conclude that R.C. 2945.39 is a civil statute. Consequently, a person committed under the statute need not be afforded the constitutional rights afforded to a defendant in a criminal prosecution."

A similar case on the federal level was handed down last week by the U.S. Supreme Court in United States v. Comstock, where that Court held “Federal law allows a district court to order the civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date he would otherwise be released under 18 U. S. C. §4248.”

Tuesday, June 08, 2010

Ohio clarifies "John Doe" lawsuit rule

Another Plain Dealer article, this morning, looked at the Supreme Court's clarification of "John Doe lawsuits" under Ohio Rule of Civil Procedure 15 --- interpretations often wrong.

"Some observers," the article said, "believed that court rules allowed suits with fictitious names and gave the person who brought the complaint up to a year -- even if that extended beyond the statute of limitations -- to come up with actual names of their targeted defendants."

Not so, the Court said last month. "To construe the rule to allow the use of placeholders for unidentified defendants would eliminate the statute of limitations for every cause of action," Justice Terrence O'Donnell wrote for the court's majority. [ Erwin v. Bryan, 2009-0580 ] [ Court's Summary ]

Justice Paul E. Pfeifer, dissenting, cited Chief Justice Celebrezzes dissent in Varno v. Bally Mfg. Co. (1985), writing: "the majority's inconsistent application of the rules' interaction demands service on an unknown defendant prior to the runningof the statute of limitations and makes no allowance for Civ.R. 3(A)'s post-filing period. Clearly, Rule 15(C) was designed to assist plaintiffs by allowing amendments to relate back to the time of the original filing and was not intended to add yet another obstacle in the path to the courthouse. 'Because of relation back, the intervening statute of limitation does not interfere with the opportunity to amend.' I can't offer a more coherent or concise explanation as to why the court is as wrong today as it was in 1985."

Civ.R 15
Civ.R 3

Supreme Court Approves Bureau of Prisons' 'Good Time Credit' Calculations

The United States Supreme Court by a 6-3 vote, yesterday, endorsed a long-standing Bureau of Prisons (BOP) method of calculating "good time credit" based on the length of time actually served, not the length of the term imposed by the sentencing judge, a Law.com article this morning said -- a decision affecting the prison terms of nearly 200,000 inmates in federal prisons across the nation.

"The federal sentencing statute at issue," the Court said, "provides that a 'prisoner . . . serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of [that] sentence . . . of up to 54 days at the end of each year' subject to the Bureau of Prison's (BOP) 'determination . . . that, during that year, the prisoner' has behaved in an exemplary fashion. 18 U. S. C. §3624(b)(1)."

"In announcing the opinion," Law.com said, "Justice Breyer called his reading of the statute "the most natural" -- a blend of statutory interpretation and Algebra 101 -- which he said the "mathematically inclined" might like reading. The method allowing 54 days of credit for each year of a sentence, he said, would improperly give a well-behaved prisoner credit for both time served and time that was not served, but was offset by past good behavior."

Justice Kennedy, joined by Stevens and Ginsburg, in a strongly worded dissent, said the ruling will add "tens of thousands of years" collectively to time served, at a "cost to taxpayers of untold millions of dollars." In human terms, Kennedy added, the ruling will be "devastating to the prisoners who have behaved the best."

Barber v. Thomas, 09-5201

Friday, June 04, 2010

Ohio AG 's statement re Bodyke decision

"The broad provisions of Ohio's Adam Walsh Act remain in place. In striking down a narrow portion of the act, the court has reinstated the classifications and community notification and registration orders imposed by judges under prior state law for certain offenders who had been sentenced before Jan. 1, 2008. Offenders who were classified on or after Jan. 1, 2008 are unaffected by today’s ruling. Those 26,000 offenders who had been reclassified under Ohio’s Adam Walsh Act will now revert to their prior classifications before the act was passed. To comply with the court’s order, my office will work to reclassify these offenders through Ohio’s Electronic Sex Offender Registration and Notification database (eSORN) and will notify offenders of their new classification. We will also continue to support local law enforcement agencies as they work to provide families with the information they need to keep their children safe."

[ Ohio Attorney General's statement re State v. Bodyke ]

State v. Bodyke, 2008-2502

Thursday, June 03, 2010

Ohio's sex offenders "tiers" found unconstitutional

In a narrowly tailored decision, The Ohio Supreme Court this morning voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorized the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, "Megan's Law." The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution. ( See State v. Bodyke, 2008-2502 )

Citing the Supreme Court of Ohio's 1902 decision in Gompf v. Wolfinger, 67 O.St. 144, Justice Maureen O’Connor wrote: "'A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted ...' The reclassification scheme in the AWA works to 'legislatively vacate the settled and journalized final judgments of the judicial branch of government.' ... (T)he General Assembly cannot vest authority in the attorney general to reopen and revise the final decision of a judge classifying a sex offender," the Court said in its summary.

"The decision also discussed an important legal doctrine, stare decisis, which provides that judges should follow prior, relevant precedent when deciding cases. Justice O’Connor, who authored the 2003 decision that announced the Ohio standard for overruling precedent, Galatis v. Westfield Insurance Co., 100 O.St3d 216, clarified Ohio law on stare decisis in two important regards. First, quoting from this Court’s 1989 decision in Rocky River v. State Emp. Relations Bd., 43 O.St3d 420, she reiterated the rule that 'stare decisis applies to rulings rendered in regard to specific statutes, [but] it is limited to circumstances "where the facts of a subsequent case are substantially the same as a former case.'" ... Noting that the AWA is substantially different from Megan's Law, she concluded that the court's prior decisions that had upheld that the constitutionality of Megan’s Law were not dispositive of Mr. Bodyke’s appeal, which involved a new statute, the AWA.

"Second, Justice O'Connor wrote, that "there is a more vital and compelling limitation on the doctrine as it has developed in Ohio: its inapplicability to constitutional claims." Citing the Court’s decision in Rocky River, she noted that the Court then had acknowledged that stare decisis "does not apply with the same force and effect when constitutional interpretation is at issue."

The Court's summary indicated that an "appropriate remedy for the separation of powers violations identified in today’s decision, would be the severance (deletion) of the reclassification provisions (R.C. 2950.031 and 2950.032) from the AWA while leaving the remainder of the statute in place would correct the constitutional defect identified by the Court without detracting from "the overriding objective of the General Assembly, i.e. to better protect the public from the recidivism of sex offenders."

Wednesday, June 02, 2010

"Miranda" update

The U.S. Supreme Court last Monday held that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations, the Associated Press reported yesterday morning, a decision Justice Sonia Sotomayor, dissenting, said turns defendants' rights "upside down." [Berghuis v. Thompkins, 08-1470 ]

A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, but the Court has now added in the 5-4 decision that suspects must tell police they are going to remain silent in order to stop an interrogation, just as they must tell police that they want a lawyer. The suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Michigan, saying little, occasionally answering "yes," "no,""I don't know," nodding his head and making eye contact as his responses, the AP article recounts. But when one of the officers asked him if he prayed for forgiveness for "shooting that boy down," Thompkins said, "Yes."

He appealed his conviction, saying that he had invoked his Miranda right to remain silent by remaining silent.

The Cincinnati-based Sixth Circuit Court of Appeals agreed and threw out his confession and conviction.

The Supreme Court, however, citing Davis v. United States, held that "Thompkins' silence during interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked ‘unambiguously’….. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis."

Justice Sotomayor in her dissent, though, wrote, "The Court concludes that when mirandawarnings have been given and understood, "an accused’s uncoerced statement establishes an implied waiver of the right to remain silent… More broadly still, the Court states that, "[a]s a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.

"These principles flatly contradict our long-standing views that “a valid waiver will not be presumed . . . simply from the fact that a confession was in fact eventually obtained," Miranda, 384 U. S., at 475, and that “[t]he courts must presume that a defendant did not waive his rights,” Butler, 441 U. S., at 373. Indeed, we have in the past summarily reversed a state-court decision that inverted Miranda’s anti-waiver presumption, characterizing the error as “readily apparent.” Tague, 444 U. S., at 470–471. At best, the Court today creates an unworkable and conflicting set of presumptions that will undermine Miranda’s goal of providing “concrete constitutional guidelines for law enforcement agencies and courts to follow.." At worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided for the constitutional guarantee against self incrimination."

A New York Times article yesterday also reported that Monday’s decision followed two in February that also narrowed and clarified the scope of the Miranda decision: Florida v. Powell, 08-1175, allowed police officers to vary the wording of the warning, while Maryland v. Shatzer, 08-680 allowed second rounds of questioning of suspects who had invoked their rights as long as after two weeks had passed after their release from custody.

The Washington Post, Law.com, and Wall Street Journal all have more information

Sex Offender "Travel Requirements"

The U.S. Supreme Court Monday held that, while the Sex Offender Registration and Notification Act (2006) "makes it a federal crime for any person (1) who 'is required to register under [SORNA],' and (2) who 'travels in interstate or foreign commerce,' to (3) 'knowingly fail to register or update a registration', 18 U. S. C. §2250(a),….. That section does not apply to sex offenders whose interstate travel occurred before SORNA’s effective date." [Carr v. United States (08-1301)]

Appellant Thomas Carr pleaded guilty in an Alabama state court to first-degree sexual abuse in May 2004, wherein he was sentenced to 15 years' imprisonment, with all but two years suspended. Receiving credit for time previously served, Carr was released on probation on July 3, 2004, and registered as a sex offender as required by Alabama law. But in late 2004 or early 2005, prior to SORNA’s enactment, he relocated from Alabama to Indiana, not complying with Indiana’s sex-offender registration requirements. In July 2007, Carr came to the attention of law enforcement in Fort Wayne, Indiana, following his involvement in a fight. On August 22, 2007, federal prosecutors filed an indictment in the United States District Court for the Northern District of Indiana charging Carr with failing to register in violation of §2250. Carr moved to dismiss the indictment, asserting that because he traveled to Indiana prior to SORNA’s effective date, it would violate the Ex Post Facto Clause to prosecute him under §2250. District Court denied his motion. The United States Court of Appeals for the Seventh Circuit consolidated Carr's appeal with that of a similarly situated defendant, who, in addition to raising an ex post facto claim, asserted that §2250, by its terms, does not apply to persons whose interstate travel preceded SORNA’s enactment.

The Court in its considerations noted that there was division among the appeal courts with respect to the meaning of Section 2250’s "travel requirement." Aligning itself with the Seventh Circuit, the Eleventh Circuit analogized 18 U. S. C.§2250(a) to the felon-in-possession statute, §922(g), and applied it to a sex offender who traveled before SORNA became applicable to him [ United States v. Dumont, 555 F. 3d 1288 (2009)]. In contrast, the Eighth Circuit has stated in dictum that §2250(a) “punishes convicted sex offenders who travel in interstate commerce after the enactment of SORNA." [United States v. May, 535 F. 3d 912, 920 (2008)]. There was also a separate conflict among the Courts of Appeals as to when SORNA’s registration requirements became applicable to persons convicted of sex offenses prior to the statute’s enactment.