Supreme Court limits class actions

MSNBC's Bob Sullivan this morning wrote that "fine print in everyday consumer contracts can include provisions that require Americans to surrender their rights to file class-action lawsuits," according to a U.S Supreme Court ruling this past Wednesday, possibly having almost immediate impact on consumers' ability to fight against companies when they feel their rights have been violated.

The Associated Press, too, yesterday said the 5-4 ideological split, which evolved out of a dispute between AT&T Mobility and a California couple objecting to being charged around $30 in sales tax for what they were told was a free cell phone, is being called a crushing blow by consumer advocates.

"Businesses commonly require arbitration clauses in consumer contracts to protect them from facing their customers in court," the Associated Press article said. "The Supreme Court's decision – which holds that federal arbitration law trumps state laws that invalidate contracts banning class actions -- means that corporations now won't need to worry about consumers, shareholders or even employees banding together and fighting them using lawsuits or arbitration."

"The Federal Arbitration Act (FAA) was enacted in 1925 in response to widespread judicial hostility to arbitration agreements," the Court explained. "… Section 2, the 'primary substantive provision of the Act,' … We have described this provision as reflecting both a 'liberal federal policy favoring arbitration,' [ Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983)], and the 'fundamental principle that arbitration is a matter of contract,' [Rent-A-Center, West, Inc. v. Jackson, 561 U. S. ____ , ____ (2010) (slip op., at 3).] In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, [Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443 (2006), and enforce them according to their terms, [ Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 478 (1989)] ….. Because it 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,' California's Discover Bank rule is preempted by the FAA [ Hines v. Davidowitz, 312 U. S. 52, 67 (1941)].

AT&T v. Concepcion, 09-893

Federal Judiciary Divided Over Changing Criminal Open-Discovery Rule

The Blog of LegalTimes last week noted "Federal judges being divided over the necessity to change rules of criminal procedure to put a greater emphasis and burden on prosecutors to turn over favorable information to defense lawyers," according to a Federal Judicial Center report released in February.

The Center prepared the report at the request of the Advisory Committee on Criminal Rules while it considers whether to amend "Open Discovery" Rule 16 to incorporate the government's constitutional obligation to provide exculpatory and impeachment evidence to the defense or, instead, to create a broader disclosure obligation. In doing this study, a national survey was conducted, which included an online survey of all federal district and magistrate judges, U.S. Attorneys' Offices, federal defenders, and a sample of defense attorneys in criminal cases that terminated during calendar year 2009.

"The judiciary was evenly split on the need for amending the rule," BLT reported, "but judges in districts with local rules or standing orders that require broader disclosure of information than what's required in Rule 16 indicated greater support for a rule change than other judges in the judiciary. The Justice Department opposed a rule change, but more than 90% of the defense lawyers who responded did favor a change."

Survey Results

Electronic Discovery Notes

Electronic discovery has been around for about five years now, but, as a Law Technology News article last week began, "Key to managing the risks and costs associated with electronic discovery in state court is resisting the common misunderstanding that each state has, at least in substantial part, followed the lead of federal courts… In fact, development of e-discovery rules in state court has been far from uniform, with the states pursuing a number of divergent paths to govern this burgeoning area."

"Generally, states have substantially adopted the Federal Rules of Civil Procedure; enacted a unique set of rules that are an amalgam of a variety of sources; or ignored the issue altogether," the article continued, "making an awareness of these rules before a dispute arises is essential." The balance of LTN’s article addresses examples of how states are approaching e-discovery in each of those three categories:

• California and approximately 21 other states have adopted a statute or rules governing e-discovery statute. Most of these states have generally followed the Federal Rules of Civil Procedure, though the specifics of each state's rules vary.



• New York, along with approximately seven other states, have charted their own paths for regulation of e-discovery.



• Illinois is among the approximately 20 states that have not yet adopted rules to expressly address e-discovery. However, the Illinois Supreme Court Rules do recognize "the increasing reliability on computer technology and thus obligate ... a party to produce ... materials which have been stored electronically." Ill. Sup. Ct. R. 201(b)(1) (cmt). Likewise, the comments to Rule 214, regarding discovery of documents, make clear that the definition of "documents" includes "all retrievable information in computer storage, so that there can be no question but that a producing party must search its computer storage when responding to a request to produce documents pursuant to [214]." Ill. Sup. Ct. R. 214 (cmt).

In an earlier article from last month, Connecticut's also not having e-discovery rules was examined, where courts have been applying existing statutes, rules, and causes of action to address e-discovery issues. That article, too, says the practice "raises significant questions."

Fios, an electronic service provider based in Portland, Oregon, and K&L Gates' Electronic Discovery blog have overviews of each state's provisions posted here & here, respectively.

States linking drug tests to public assistance programs

A USAToday article, this morning, reports 27 states, including Illinois (Here & Here), Indiana (Here & Here), and Kenucky (Here & Here) to be considering legislation this year that would require recipients of various kinds of public assistance to pass drug tests, according to Meagan Dorsch of the National Conference of State Legislatures.

New Report on Recidivism

"In one of the most comprehensive reports of its kind, the Pew Center on the States found that slightly more than four in 10 offenders, nationwide, return to prison within three years after release, a collective rate that has remained largely unchanged in years, despite huge increases in prison spending that now costs states $52 billion annually.

" 'The system designed to deter (inmates) from continued criminal behavior clearly is falling short,' Pew’s Public Safety Performance Project study, an arm of the non-profit's public policy analysis group, was quoted by USAToday last Wednesday. " 'That is an unhappy reality, not just for offenders but for the safety of American communities.'"

Pew had asked states to report three-year return to-prison rates for all inmates released from their prison systems in 1999 and 2004. According to those survey results, "45.4 percent of people released from prison in 1999 and 43.3 percent of those sent home in 2004 were returned to prison within three years, either for committing a new crime or for violating conditions governing their release… revealing that recidivism rates have been largely stable.

Study results showed a nearly even split between states that had increasing and decreasing rates of recidivism between the 1999 and 2004 year groupings. Oregon, Kansas and Utah led the country in declining number of returns to prison during the study period, with Oregon reporting the steepest drop of 31.9 percent. South Dakota and Washington State reported increases of greater than 30 percent.

From a slightly different perspective, the Report showed Montana and Oregon documented the largest declines in “new crime returns” while North Carolina, Ohio and Oregon reported the largest decreases in returns for parole and other technical violations of supervised release.

Back in February, the Ohio Department of Rehabilitation & Corrections (ODRC) announced its offender recidivism rate wass at an 11- year low, with only 34 percent of inmates returning to prison after release. In Ohio recidivism is calculated on a three year time period. The current rate ODRC reported is based on offenders released in 2007, during which time period, 7.29 percent of offenders returned to prison on a technical violation of supervision or a supervision sanction, and 26.73 percent being returned on a new felony commitment.

Ohio Supreme Court's new online judicial education site

The Ohio Supreme Court yesterday announced that for the first time, anyone interested in education and training from the Supreme Court of Ohio's Judicial College can browse courses, access material, register and take selected courses entirely online, all without leaving home or office.

The Supreme Court's Judicial College has offered online registration to judges and magistrates since February 2009. The new system – dubbed "Judicial eCademy" was launched this week, being the culmination of more than a year of work and planning to increase training options for local judges and other parties, improve efficiency and reduce costs -- extends the convenience to court personnel, guardians ad litem and others whose education needs are served by the Supreme Court, while providing courses and educational materials to all users."

Upcoming courses for April include:

• Continuity of Operations Planning - Tuesday, April 19, 2011 - Columbus


• Guardian ad Litem, Pre-Service Course - Thursday, April 21, 2011 - Cincinnati


• Webinar: Professional Development for Court Leaders: NACM & NASJE - Tuesday, April 26, 2011 - On-line


• 2011 OAM Spring Conference Meetings & Seminars - Wednesday, April 27, 2011 - Oregon (Maumee Bay)

Social Media & the Courts

With Ryan Widmer appealing his murder conviction in the 2008 drowning of his newlywed wife, a recent Cincinnati.com article notes, "the controversy over a juror's use of Facebook during the trial could end up forging new case law or court rules, experts say -- and presents another example of courts struggling to keep up with technology."

"Thomas S. Hodson, an Ohio University journalism professor who also spent 20 years as a lawyer and 10 years as a judge, said Ohio's sample jury instructions, just revamped last year to tell jurors they cannot comment about pending trials on social media, may not go far enough," according to the article. "Maybe in this age of constant conversation, those instructions need to be broadened to include prohibitions about using social media as both a research tool and a discussion venue."

In a release last May, the American Bar Association stated of their new model jury instructions, that they "admonish jurors not to obtain any information from outside sources including the Internet, reference books, newspapers, magazines, television, radio, a computer, a Blackberry, iPhone, smart phone, and any other electronic device, and further admonishes jurors not to send or receive e-mails, use Twitter, text messages or similar updates, blogs and chat rooms, Facebook, MySpace, LinkedIn, and other social media sites of any kind to obtain information regarding the trial."

While jury instructions vary both by state & court in their particulars, there is already a fair amount of material being generated on the relationship between social media & the courts. The National Center for State Courts has set up a "resource center" that includes discussions of recent case law that has been impacted by the online behavior of jurors.

Also of interest might be Ken Strutin's two articles on the "Emerging Legal Issues in Social Media" (Part 1)(Part 2) on LLRX.com

Death sentence restored in California case

The L.A. Times yesterday reported that the U.S. Supreme Court restored a death sentence for a Van Nuys murderer Monday, despite evidence that he suffered severe brain damage as a child.

"Scott Pinholster, who stabbed two men to death in a drug robbery gone bad in Tarzana in 1982, is an epileptic who suffered blows to the head in two auto accidents," the Times article said. "His mother backed her car into him when he was 2, and his head slammed into the windshield during an accident a year or two later. By age 10, he was having outbursts at school. At 11, he was sent to a mental institution.

"…but most of the testimony about his brain damage came nearly 15 years later in a federal court hearing in Los Angeles, which prompted the U.S. 9th Circuit Court of Appeals to reverse Pinholster's death sentence.

"The question for the Supreme Court was whether federal judges erred by relying on the new testimony as the basis for reversing the earlier rulings of California courts, which had affirmed the death sentence.

"By a 5-4 vote, the high court concluded that the federal judges were wrong to have second-guessed the decision of the state courts. Justice Clarence Thomas delivered the decision and relied on a 1996 law that said federal judges should defer to reasonable rulings of state courts."

Cullen v. Pinholster, 09-1088

Ohio Judicial Reforms

"While Ohioans elect their judges, one of three jurists in Richland, Crawford and Marion counties were initially given their robes by a governor," Bucyrus TelegraphForum.com said Monday morning. "Statewide, about one-third of those on the bench today got their start through a gubernatorial appointment, according to Ohio's Supreme Court Chief Justice Maureen O'Connor, who is considering a number of reforms designed to keep politics off the bench .

O'Connor is the second Ohio chief justice to call for judicial reform over the years. Thomas Moyer, who died last year, advocated an appointment retention election system, where judges are initially appointed but face the voters to stay in office. In 2006, House Representative Bill Seitz and State Senator Tim Grendell had companion bills (Here and Here) in the Ohio Legislature that would have "increased the terms of office for judges… changed the qualifications for all judges, and required the Supreme Court to establish a qualification program for candidates for judicial office." Justice Moyer had testified before the Ohio House Judiciary Committee in supporting the judicial reform measures proposed in House Bill 266, though neither bill did well at all. ( Additional information Here and Here)

Hamilton County,Ohio Juvenile Court Judge dispute headed toward Supreme Court

Hamilton County voters last November went the polls to try to elect a juvenile court judge. That still hasn't happened and now we might be headed to the U.S. Supreme Court.

"The underlying issue," it's summed up, "is that there were voters who went to the right polling place, but voted or were directed to vote in the wrong precinct. In other words, right church, but the wrong pew. Over 280,000 people voted on Nov. 2. That included 11,000 people who cast provisional ballots, 800 of which have been questioned."

"As it currently stands," Cincinnati-based WCPO reported last January, "Republican John Williams leads Democrat Tracie Hunter by 23 votes. However, a provisional vote question has led to orders from U.S. District Court Judge Susan Dlott (here & here) on counting hundreds of ballots, rulings (here, here & here) from former Ohio Secretary of State Jennifer Brunner and opinions from the Ohio Supreme Court." The Sixth Circuit Court of Appeals has now heard it, too.(Here)

Now Hamilton County’s Board of Elections has apparently decided to appeal the 6th. Circuit. ( Here )

"It is not a high profile race," Ohio State University's Election Law @ Moritz, said in its Jan. 14 post, (but) "it could create a high profile precedent…. (appearing) to have the potential of forcing the U.S. Supreme Court itself, or at least one of its Justices (indeed, its newest member, Justice Elena Kagan), to weigh in on how the precedent of Bush v. Gore applies to other elections besides the one in which it arose (which was, of course, the 2000 presidential election)."

Utah American Indians decision

Restricting the use of eagle parts and feathers to members of federally recognized American Indian tribes for religious purposes does not violate the religious freedoms of non-Indians seeking the same right, an Associate Press/ MSNBC article relayed last week from Denver's 10th. U.S. Circuit Court of Appeals. (U.S. v. Wilgus, 09-4046 on March 29th.)

Federal law prohibits possession of the feathers or parts of eagles, but contains an exception to when the feathers are possessed "for the religious purposes of Indian tribes." The regulations implementing the exception limit its scope only to members of federally-recognized tribes , of which there are 565, and they're required to apply permits. (See "Eagle Act")

The defendant, here, was arrested in possession of 141 bald & golden eagle feathers. He is "a follower of a Native American faith", though not a member of a federally-recognized tribe, nor an Indian by birth. He "interposed as a defense," the Court's decision said, "the Religious Freedom Restoration Act of 1993 ("RFRA"), which prohibits the federal government from substantially burdening the religious freedom of individuals, unless it does so to forward a compelling governmental interest via the least restrictive means. (He) argued that the government's choice to limit legal possession of eagle feathers to members of federally-recognized tribes substantially burdens his religious exercise which, he claims, requires him to possess eagle feathers.

The District Court of Utah hadn't accepted this argument, but the Appeals Court, here, sitting en banc, reversed and ordered a hearing on whether the "Eagle Act" was the least restrictive means of serving the government's interests. [United States v. Hardman, 297 F.3d 1116, 1135-36 (10th Cir. 2002) (en banc)]. The district court on remand conducted a number of hearings, considering both live testimony and documentary evidence, and held that application of the "Eagle Act" in this instance did violate "RFRA". [ United States v. Wilgus, 606 F. Supp. 2d 1308, 1334-35 (D. Utah 2009) ]

The Court here again reverses.

Upcoming CLEs

We're pleased to offer the following CLE opportunities in April and May. Our CLEs are free to current subscribers.

April 14: Two Westlaw sessions: Basics 12:30-1:30 Secondary Sources 1:45-2:45
April 19: Lexis Search Tips- 1:00-2:00
May 27: Prenuptial Basics with presenter Cathy R. Cook - 1:00-2:00

All have been approved for 1.0 hour of general Ohio CLE. To sign up, please call 513.946.5300. The Lexis and Westlaw CLEs are $35 each for nonsubscribers. The Prenuptial Basics CLE is $50 for nonsubscribers.

If you'd like information about joining the Law Library, see http://www.hamilton-co.org/cinlawlib/join.html