Thursday, July 29, 2010
By Ohio law, judicial candidates competing in a general election in Ohio are considered nonpartisan candidates. O.R.C. § 3501.01(J).
But, "the first opportunity judges have to present themselves for election by the people is in the primary election.," the complaint says. "Primary election ballots in Ohio, referred to as 'office type' ballots, list judges by their political party. O.R.C. § 3505.03 … The next opportunity for judicial candidates in Ohio to present themselves for election is in a general election, but Ohio law prohibits judicial candidates in the general election from appearing on 'office type ballot,' which allows party affiliation. The prohibition clear in O.R.C. § 3505.04." [ ORC Chapter 3505: General & Special Election Ballots ]
The suit also challenges "two provisions of the Ohio Code of Judicial Conduct: Rule 4.2 (B) (4), stating that a judicial candidate shall not, 'After the day of the primary election, identify himself or herself in advertising as a member of or affiliated with a political party;' and Rule 4.4 (A), stating that 'A judicial candidate shall not personally solicit or receive campaign contributions.'"
Like Kentucky rules were held unconstitutional by the 6th. Circuit Court of Appeals two week ago in Carey v. Wolnitzek, case no. 08-6468/6538.
Tuesday, July 27, 2010
Three principal areas are indicated as being where the state could make improvements that could reduce crime and use existing resources in a more fiscally responsible manner:
- Short sentences for property and drug offenders are not effective at reducing recidivism and create a costly "revolving door."
- Community correction programs do not have clear criteria to inform the selection of program participants, making it difficult for these programs to be cost-effective tools for diverting people from prison and reducing crime.
- Ohio's probation system is a patchwork of independent agencies that do not have consistent policies.
Every three years the Library of Congress reviews & determines whether there are any classes of works that would be subject to exemptions from the statutes prohibition against circumventions of technology that effectively control access to a copyrighted work, that determination being made at the conclusion of a rulemaking proceeding conducted by the Register of Copyrights. Six classes of materials are now designated this period. (See Library announcement) ( Federal Register )
Monday, July 26, 2010
"Amanda's Law" in Kentucky was passed & signed in April, and went into effect July 15th.. Hailed especially by advocates and victims, it amended several portions of that state's domestic violence and abuse statutes, included the use of monitoring-related restrictions and sanctions in domestic violence cases.
The law contained provisions for "emergency protective orders to permit a court to restrain a respondent from going to or near specified locations" (and) to permit a 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. It was suppose to create a new section of the Kentucky statutes "to require the court to assess a person's dangerousness, require that person to wear or carry a global monitoring system device and permit a petitioner to carry a device notifying the petitioner that the respondent is nearby…."
But even with its passage limitations were foreseen. Wave 3 News in Louisville prophetically reported two of them on July 15th. : "First, judges can only use it after a substantial violation of a domestic violence order, like an assault, stalking, kidnapping or harassment. Second, it's up to individual counties how to administer the GPS devices."
Yesterday morning the Cincinnati Enquirer reported that a key component hasn't been implemented. "A provision to place GPS tracking devices on people who have protective orders filed against them is an unfunded mandate that counties are struggling to find money to operate, according to some county officials and their lobbying arm in Frankfort."
One reason counties are not quickly adopting the GPS tracking provision is that the legislation is "vague" on who will pay for it, Denny Nunnelley, the executive director of Kentucky Association of Counties, a lobbying group based in Frankfort, told the Enquirer.
"One option allowed under the law is for counties to join forces and operate a regional GPS tracking system, said Linda Bramlage, the sole family court judge for Boone and Gallatin counties. … The problem is that system doesn't meet the new law's specifications. The law requires that the GPS tracker not only record one's movements, but also directly alert the person who requested the protective order if the person being monitored gets within 500 feet. 'Nobody has any money,' she said, 'but we are going to have to figure out how to do it.'"
Friday, July 23, 2010
That pool is a key piece of President Barack Obama's health care overhaul, with programs being in place until 2014 when health insurance companies will no longer be allowed to deny coverage to people in poor health.
The law, the Affordable Care Act, creates a new program – the Pre-Existing Condition Insurance Plan -- to make health coverage available to you if you have been denied health insurance by private insurance companies because of a pre-existing condition. (Major Provisions of the Act in Chronological Order)
The Pre-Existing Condition Insurance Plan (PCIP), which is administered by either your state or the U.S. Department of Health and Human Services, will provide a new health coverage option for you if you have been uninsured for at least six months, have a pre-existing condition, or have been denied health coverage because of your health condition, and are a U.S. citizen or legally residing here.
Kentucky and Indiana's programs are being administrated thru the Department of Health & Human Services. As of July 1st., eligible residents were able to apply for coverage through the state's Pre-Existing Condition Insurance Plan program run by the U.S. Department of Health and Human Services. Residents in those two states can simply log onto the Plan's website, where they’re taken directly to the application page. The website says for states federally administrated, applicants will need at a minimum:
- A completed and signed application form, and
- A copy of a letter dated within 6-months of your application from an insurance company or health plan showing that you have been completely denied individual coverage because of a pre-existing condition, or you were offered coverage but were denied certain benefits (for example, by a rider to an insurance policy) because of a pre-existing condition.
More information for Kentucky residents is ( Here )and Indiana residents is ( Here ), and more in-depth information for all of the states can be found ( Here ).
Eligible residents of Ohio will be able to apply for coverage through the state's Pre-Existing Condition Insurance Plan program run by Medical Mutual of Ohio through the Ohio Department of Insurance on August 1.
To qualify for coverage:
- You must be a citizen or national of the United States or lawfully present in the United States.
- You must have been uninsured for at least the last six months before you apply.
- You must have had a problem getting insurance due to a pre-existing condition.
"Applications for Ohio's pool will available through a website managed by the state's Insurance Department and Medical Mutual of Ohio, a nonprofit insurance company selected by the state to administer the program," usatoday said. Further information for Ohio residents is available ( Here ) and on the Ohio Dept. Insurance’s site ( Here ) and ( Here ).
MSNBC.com also reported this morning that "Patients will find it easier to appeal denials of health insurance claims under the rules issued yesterday which guarantee consumers the right to appeal denials — directly to their insurers and then, if necessary, to external review boards." Additional information about the new appeals regulation or Consumer Assistance Grants program is available ( Here ) and ( Here ).
Tuesday, July 20, 2010
"The 95-page decision in In re Visteon Corp. promises to alter the playing field in big corporate bankruptcies by mandating compliance with Section 1114 of the Retiree Benefits Bankruptcy Protection Act without exception.," the article says, "marking the first time that any federal appeals court has squarely addressed the scope of Section 1114 and, by demanding a plain reading of the law, could reverse a strong trend among bankruptcy and district court judges to avoid the requirements of Section 1114 whenever the debtor corporation would have been free to terminate retiree benefits prior to the bankruptcy."
"Section 1114 could hardly be clearer," Chief Circuit Court Judge Theodore A. McKee wrote. "It restricts a debtor's ability to modify any payments to any entity or person under any plan, fund, or program in existence when the debtor files for Chapter 11 bankruptcy, and it does so notwithstanding any other provision of the bankruptcy code. There is therefore no ambiguity as to whether Section 1114 applies."
"McKee's opinion," Law.com's article says, "includes a lengthy discussion of the law's legislative history, beginning with a highly controversial bankruptcy in which 78,000 retirees lost their benefits, and shows that Congress was setting out to establish a mechanism that must be followed in any bankruptcy to ensure fairness to workers who often agreed to forgo raises over decades in return for the promise of lifelong benefits."
"..widely disparate sentences don't make sense, ignore federal sentencing guidelines and are a sign of a potentially very big problem, according to the U.S. Department of Justice," Coyle’s article begins. "The DOJ wants the U.S. Sentencing Commission to investigate, with special attention to guidelines for fraud and child pornography crimes. But some sentencing experts say it may be something that the commission does not want to examine too closely.
"The department called for a 'comprehensive review' of the state of federal sentencing in its most recent annual report to the commission on June 28. In the five years since a U.S. Supreme Court decision struck down the mandatory nature of federal sentencing guidelines, the department said, prosecutors' experiences and data 'suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes.'
"If allowed to go unchecked, the two regimes will lead to unwarranted sentencing disparities, disrespect for federal courts and sentencing uncertainty that could lead to more crime, the department said. 'More and more, we are receiving reports from our prosecutors that, in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e., which judge in the courthouse will conduct the sentencing,' said Jonathan Wroblewski, director of the Criminal Division's office of policy and legislation, in the report."
The two "regimes," Coyle reports, are comprised of "judges following the guidelines closely for most offenses, many of which require mandatory minimum sentences," in one camp, and those "judges regularly impose sentences outside of the guidelines, regardless of the nature of the offense," in the other.
The Justice Department in its report essentially said the disparity problem is apparent enough that the commission has an obligation to look into it, according to Douglas Berman of Ohio State University Michael E. Moritz College of Law. "I think they recognize that, with a fairly lenient-leaning commission, they sometimes won't love the outcome, but they see the benefit of having rules everybody respects."
Related, Prof. Bergman yesterday wrote of an "intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply 'Booker Reconsidered.'"
"I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the 'division of institutional responsibilities' in his analysis," Bergman said, "but I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece. Indeed, this piece strikes me as another example of both Booker and federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.
"And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a). If in fact the 'wrong reasons' are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences. Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases."
Finally, as part of its "Notice of Proposed Priorities & Request for Public Comment," yesterday morning, the Sentencing Commission's statement includes "Continuation of its work with the congressional, executive, and judicial branches of government, and other interested parties, to study the manner in which United States v. Booker, 543U.S. 220 (2005), and subsequent Supreme Court decisions have affected Federal sentencing practices, the appellate review of those practices, and the role of the Federal sentencing guidelines."
"The Commission," the announcement continues, "anticipates that it will issue a report with respect to its findings, possibly including (A) an evaluation of the impact of those decisions on the Federal sentencing guideline system; (B) development of recommendations for legislation regarding Federal sentencing policy; (C) an evaluation of the appellate standard of review applicable to post-Booker Federal sentencing decisions; and (D) possible consideration of amendments to the Federal sentencing guidelines. Such findings will be informed by the testimony received at seven regional public hearings the Commission held in 2009–2010, feedback received from the judiciary contained in the Results of Survey of United States District Judges January 2010 through March 2010 issued in June 2010, and other information and input."
Public comment to the notice should be received on or before August 18, 2010, and sent to: United States Sentencing Commission, One Columbus Circle, NE., Suite 2–500,South Lobby, Washington, DC 20002– 8002, Attention: Public Affairs—Priorities Comment.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer, Telephone: (202) 502–4597.
Friday, July 16, 2010
The new regulations, which take effect next Monday, July 19, 2010, make a variety of changes to how DOL will interpret the child labor provisions of the Fair Labor Standards Act, Thompson-West Publications says in a newly released special report.
"Perhaps the most significant among them is the lifting of a decades-old restriction that limited the industries in which 14- and 15-year-olds were permitted to work. Now, instead of being allowed to work only in retail, food service and gasoline service establishments, young workers may work in other environments such as state and local governments, banks, insurance companies, advertising agencies and information technology firms.
"Other important changes include new prohibitions on youth peddling and other activities; the establishment of a work-study program; and the incorporation of higher penalties for child labor violations that result in a serious injury or death."
Regarding those tougher penalty structure, “Employers who illegally employ individuals ages 12 or 13 will face a penalty of at least $6,000 per violation. If a worker is under 12 years of age and illegally employed, the penalty will be at least $8,000. Penalties for illegally employing workers under age 14 could be raised to $11,000 under certain conditions.” DOL said a later June press release.
The Department of Labor’s Wage and Hour Division published its Final Rule "designed to protect working children from hazards in the workplace while also recognizing the value of safe work to children and their families," May 20th.
Child labor regulations relating to agricultural jobs were for the most-part not addressed by the current changes, but are being looked into now. The exception to that is that "individuals under age 12 may be employed with parental consent, but only on very small farms that are not subject to the federal minimum wage requirements. Individuals ages 12 and 13 may be employed in agricultural work on the same farm as a parent, or with a parent's consent. Generally, no hired farm worker under age 16 years may perform hazardous work or be employed during school hours."
The Department of Labor has additional information posted:
- Fact Sheet: “Updating Child Labor Regulations for the 21st Century”
- Child Labor Final Rule, Nonagricultural Employment 14- and 15-Year Olds - Major Changes (Reg. 3 side-by-side comparison of new rule and current rule)
- Child Labor Final Rule, Nonagricultural Employment 16- and 17-Year Olds—Major Changes ( hazardous occupations side-by-side comparison of new final rule and current rule )
Thursday, July 15, 2010
"In the realm of the regulation of legal immigration, State regulation of legal aliens is preempted unless Congress specifically provides such power to the States. See, e.g., Graham v. Richardson, 403 U.S. 365, 378 (1971)," the brief continues. "Thus, 'state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress.' Toll v. Moreno, 458 U.S. 1, 12-13 (1982)(emphasis added).
"But the same standard does not apply to aliens who are unlawfully in the country. As the U.S. Supreme Court explained in De Canas v. Bica, 424 U.S. 351, 354 (1976), it 'has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power[.]' Rather, States have authority to act with respect to illegal aliens, if that action is consistent with the Federal objectives set by Congress. De Canas, 424 U.S. at 357. Congress intended to allow States to regulate concurrently with the Federal government with regard to the employment of illegal aliens and, therefore, such regulation is not preempted. Toll, 458 U.S. at 13 n. 18."
"'Arizona, Michigan and every other state have the authority to enforce immigration laws,'" Cox says, "'and it is appalling to see President Obama use taxpayer dollars to stop a state's efforts to protect its own borders… My mother was a legal immigrant who faithfully carried her green card with her for years before gaining citizenship -- it certainly is not too much to ask legal immigrants to do the same today.'"
The American Bar Association filed a brief as well yesterday, saying in its part, "While the ABA believes, as discussed in the ABA Commission on Immigration 2010 Report, that the federal immigration system must be reformed, and while the ABA appreciates Arizona’s desire to tackle the problems faced by that state, the ABA also urges that our Constitution does not allow for unilateral state action in the formulation of immigration law. Immigration matters are and must remain federal, and states should not be permitted to enforce immigration law independently of specific federal authorization; the practical result of the contrary would be the undermining of uniformity in immigration law and immigration law enforcement."
"The Supremacy Clause," ABA’s brief postulates, "provides that the ‘Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.’ U.S. Const., art. VI, cl. 2.. As it pertains to this case, the Constitution has vested exclusive power over naturalization matters with the federal government, U.S. Const. art. I, § 8, cl. 4, and the Supreme Court, recognizing that immigration is uniquely a federal matter, has stated, “The authority to control immigration . . . is vested solely in the federal government." Truax v. Raich, 239 U.S. 33, 42 (1915).
Tuesday, July 13, 2010
Roughly 1,000 state-level trial judges responded to the survey, which posed questions about their dockets, self-representation and the impact on the courts, the ABA’s press release said. "More than half of the judges stated that their dockets increased in 2009, with the most common areas of increase involving foreclosures, domestic relations, consumer issues such as debt, and non-foreclosure housing issues such as rental disputes."
"Sixty percent of judges said that fewer parties were being represented by lawyers, with 62 percent saying that parties are negatively impacted by not being represented. The impact is exemplified, through a failure to present necessary evidence (94 percent), procedural errors (89 percent), ineffective witness examination (85 percent), failure to properly object to evidence (81 percent) and ineffective argument (77 percent)."
Additionally, comments by judges indicated that pro se litigants do not provide legal research or support for their positions, and that they fail to prepare judgments and orders, or prepare them in ways that are improper or unenforceable.
"The increase in non-represented parties makes this more difficult for courts, too," the ABA said. "The lack of representation has a negative impact on the court, said 78 percent of the judges, and 90 percent of judges stated that court procedures are slowed when parties are not represented."
But the survey felt that the problem was potentially deeper, in fact, than that. "Fifty-six percent (56%) of the judges in the survey, the results showed, "think that the court is negatively impacted when there is not a fair representation of the facts. This is a fairly sophisticated analysis that the court suffers if it cannot properly do its job. Likewise, 42% of judges are concerned that they compromise the impartiality of the court in order to prevent injustice. This may explain why only 62% of the judges say that parties are negatively impacted if the court is trying to prevent such negative impact; however the court suffers in doing so. Also troubling to 26% of the justices is that the court allows an injustice to occur when one of the parties is not able to properly present the valid claims or defense that they might have."
Preliminary Survey Results
Monday, July 12, 2010
That resolution was came back this morning, the New Jersey Court holding that "…The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands. Because defendant was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is
reversed." [ See State v. German Marquez, A-35-09 ]
The language issue is one states have grappled with on similar cases for years, with none requiring translations of these statements for non-English speakers, Jeffrey Mandel, who filed a brief in support of the Marquez case for the Association of Criminal Defense Lawyers of New Jersey, told USAToday.
"At least seven states call for 'reasonable' efforts to be made by police to have those facing prosecution understand the consequences of refusing the test," that article said, definitions of 'reasonable' having varied, however, depending on the judge and the facts of each case, and several rulings having focused on an officer making a good faith attempt to convey the warning. Another five states – Ohio included -- follow the view of New Jersey's Democratic Attorney General Paula Dow that the law requires the statement be read, not that drivers must understand it.
Friday, July 09, 2010
"As irrational prejudice plainly never constitutes a legitimate government interest, the Defense of Marriage Act (DOMA) violates the protection under the Fifth Amendment to the Constitution," Tauro was quoted as saying.
In the Defense of Marriage Act it was "only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled," Tauro said, adding, "the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning."
USAToday said of the ruling that "it could have implications far beyond the state if upheld by a higher court after an appeal by the Obama administration…
"The rulings apply to Massachusetts, but if a higher court with a broader jurisdiction were to hear an appeal and agree with the judge's rulings, their impact would spread, said Boston College professor Kent Greenfield, a constitutional law expert. The rulings might encourage other attorneys general who oppose DOMA to sue to try to knock it down… One thing that's going to be really interesting to watch is whether the Obama administration appeals or not."
A Law.com article notes, "If Chief U.S. District Judge Vaughn Walker is looking for a little more ammunition in order to shoot down California’s Proposition 8, one of his Massachusetts colleagues just gave him some." That case ended last month, with a decision being expected at any time.
Two states – California & Massaschuests -- and the District of Columbia allow same-sex marriage, according to Stateline.org; four or five others have civil unions or domestic partners, but for 30 of the states – including Ohio, Kentucky, and Indiana, according to Christine Nelson, a program director at the National Council of State Legislatures,“it would be next to impossible to get legislation on the table because those states also 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."
Tuesday, July 06, 2010
"There have been times when there were 30 people in the courtroom and maybe half of them have their cell phones out, taking photos and texting," said Judge Ethna Cooper. "Having been around long enough, it's easy to figure out what's going on." --and what's going on, she and other judges believe, is the proliferation of cell phone use to threaten and interfere with the criminal justice process.
Cincinnati and Hamilton County aren't the only ones addressing the potential problem. Indiana law bans cameras and outside recording equipment from most courtrooms, but they're allowed elsewhere, including in areas where witnesses sometimes wait to testify. The Allen County Courthouse in Fort Wayne was the first in Indiana to ban cell phones from the building, beginning in November 2006. Steuben County soon followed suit. Now, in an article last month in the Columbus Republic, it was reported that the Tippecanoe County sheriff's office was considering banning cell phones from the county courthouse too to prevent distractions and security risks.
Cell phones were banned from courtrooms at the U.S. District Court in Davenport, Iowa back in March. In April Chief Judge Bobbi M. Alpers of the Seventh Judicial District issued an administrative order there banning electronic and digital communications devices from the building. That order went into effect May 24 and applies to many courthouse visitors, but not employees.
Thursday, July 01, 2010
As the Cincinnati Enquirer puts it, "On Tuesday, a package of reforms, spearheaded by the Cincinnati-based Ohio Innocence Project and approved by Ohio lawmakers, takes effect…. On July 1 , Ohio becomes an 'open-discovery' state -- which means prosecutors and defense lawyers must share more information up front than in the past, including police reports, witness statements and expert witness reports."
"This is the biggest year for criminal justice reform in the state of Ohio in a long time and possibly forever," Mark Godsey, the University of Cincinnati law professor who heads the Innocence Project, said.
Senate Bill 77, which was signed by Gov. Strickland back on April 5th becomes effective today. Provisions include an expansion of categories of the mechanism that authorizes certain convicted felons to apply for and, if specified criteria are satisfied, obtain DNA testing; a general requirement for the preservation of "biological evidence" for certain specified offenses and for specified periods of time by "governmental evidence‐retention entities."
It "requires any law enforcement agency or criminal justice entity in Ohio that conducts 'live lineups' or 'photo lineups' to adopt specific procedures for conducting those lineups prior to conducting any on or after the act's effective date, and identifies mandatory requirements that at a minimum must be imposed under those procedures."
The bill also defines "'custodial interrogation' as any interrogation involving a law enforcement officer's questioning that is reasonably likely to elicit incriminating responses and in which a reasonable person in the subject's position would consider himself or herself to be in custody, beginning when a person should have been advised of the person’s right to counsel and right to remain silent and of the fact that anything the person says could be used against the person, as specified by the United States Supreme Court in Miranda v. Arizona and subsequent decisions, and ending when the questioning has completely finished."
Along with Senate Bill 77 a number of court rule amendments also go into effect today, too, including the renowned "open- discovery" Rule 16 described above. Other rule amendments can be accessed on the Supreme Court's website.