Friday, May 27, 2011

Wisconsin collective bargaining law

Dane County Circuit Judge Maryann Sumi yesterday struck down Wisconsin Gov. Scott Walker's controversial collective bargaining law, ruling that a legislative committee violated the state's open meetings law when it hastily convened to amend the measure, which Gov. Walker then signed March 11.

The ruling, though, won't end the legal battles over the law which sharply curtails the collective bargaining rights of most public employees in Wisconsin., and an appeal is all but certain, the Wisconsin State Journal said this morning. In another article, The Wall Street Journal points out the decision was based on how the law was passed, not its substance, and may be being re-examined by the state Supreme Court.

Judge Sumi concluded her ruling, yesterday, by saying that "It was not the court's business to determine whether 2011 Wisconsin Act 10 was good public policy or bad public policy; that's the business of the Legislature." What is this court's responsibility, however, is to apply the rule of law to the facts before it."

The state's Supreme Court is set to hear oral arguments on June 6 over whether to take the case immediately in response to an earlier request by the state Department of Justice and state Department of Administration challenging Judge Sumi's authority to act in the case. The high court also has yet to rule on an appeal by DOJ lawyers that was filed after Sumi issued a restraining order in March barring implementation of the law, the State Journal said. The Wall Street Journal added that "Republican lawmakers could wait for the Supreme Court to rule, or they could attempt to pass the bill again, either on its own or as part of the state budget."

A third article, this one in The L.A. Times, also noted that "As the Wisconsin fight intensifies — with six Republican and three Democratic senators facing recall elections, most likely July 12 — union workers and their allies in Ohio are halfway toward their goal of collecting more than 450,000 signatures to put a measure on the fall ballot that would repeal that state's anti-union law, which sharply curtails the collective bargaining rights of public employees. Recall proponents need to gather 231,149 valid signatures by the end of June; they say they had collected 214,399 signatures as of last week."

Ohio's Senate Bill 5, which has been much compared to Wisconsin's, was signed on March 31st., but does not become effective until July 1, 2011.

Judge Sumi's Decision
Findings of Fact Conclusions of Law and Judgment

Thursday, May 26, 2011

Southern Ohio District Court abortion pill ruling

Southern Ohio District Court Judge Susan Diott, last Monday, rejected arguments that the 2004 Ohio law that restricts the use of the abortion-inducing RU-486 pill by making it illegal for doctors to prescribe it after the seventh week of pregnancy was unconstitutionally vague and violated a woman's right to choose by forcing her to choose a surgical abortion over the medication. (Decision)

The case that started back in August 2004 with Planned Parenthood's having filed a complaint in Southern Ohio U. S. District Court challenging "the constitutionality of the Ohio abortion-inducing drug statute on the grounds that it was void for vagueness, violated patients’ rights to bodily integrity, lacked an exception to protect the life or health of the patient, and unduly burdened patients' right to an abortion; seeking preliminary and permanent injunctions restraining the state of Ohio from enforcing it, and a declaration that the statute violates the right to due process of law."

The District Court found for Planned Parenthood, but, on appeal, the Sixth Circuit, while affirming in part, relying on Ayotte v. Planned Parenthood of N. New England (2006) , also held that the absence of an exception for the life or health of the woman does not necessarily justify an injunction against the entire statute, and remanded the case to determine the proper scope of the preliminary injunction. [ Planned Parenthood Cincinnati Region v. Taft (C.A.6, 2006).]

In response to another appeal over the last seven years, the Sixth Circuit sua sponte certified two questions of state law to the Ohio Supreme Court in 2008 seeking an interpretation of the Act. [ Planned Parenthood Cincinnati Region v. Strickland ]

The Supreme Court's opinion stated that "[t]he plain language of R.C. 2919.123 mandates that physicians providing mifepristone to patients for the purpose of inducing an abortion do so in accordance with the FDA drug approval letter and the final printed labeling it incorporates, including compliance with the 49-day gestational limitation and the treatment protocols and dosage indications expressly approved by the FDA." [ Cordray v. Planned Parenthood Cincinnati Region, 122 Ohio St. 3d 361, 2009 Ohio 2972 (2009)]

In light of the Ohio Supreme Court's opinion, the Sixth Circuit vacated the permanent injunction issued in 2006, noting, however, that the preliminary injunction based on the Act's lack of a health or life exception should remain in force, again remanding it for consideration of the Ohio Supreme Court's opinion, "as well as issues identified in [the] previous remand and any other issues that the parties may raise." [ Planned Parenthood Southwest Ohio Region v. Strickland, (6th Cir. 2009).]

Last Monday, Judge Diott denied Planned Parenthood's renewed motion for summary judgment, along with the State of Ohio's motion as to Planned Parenthood's claim that the Act unconstitutionally lacks an exception for the health or life of the woman, GRANTING the state's Motion for Summary Judgment as to Planned Parenthood’s’ claims that the Act is unconstitutionally vague, that the Act violates a woman’s right to bodily integrity, and that the Act imposes an undue burden on a patient’s right to choose abortion.

Wednesday, May 25, 2011

Court Orders for Fourth Circuit Health Care Reform challenge

Following oral arguments back on May 10th., the Fourth Circuit Court of Appeals, in considering challenges to the federal health care law, raised additional issues about its authority to rule on the constitutionality of the new health care law’s mandate for virtually everyone to have health insurance coverage.

Lyle Denniston at ScotusBlog last Monday wrote that "Raising the prospect that it may throw out challenges to the new health care law's mandate for virtually everyone to have health insurance, the Fourth Circuit Court on Monday told lawyers in the two cases to file new briefs on the scope of its authority. In two identical orders, the three-judge panel indicated it wanted to explore further how to treat the financial penalty that individuals would have to pay to the federal government if they did not obtain health coverage by 2014." ( Denniston’s post )

Briefs ordered by the Fourth Circuit aren’t supposed to be longer than ten pages, and are due by May 31st.

The Fourth Circuit has an audio link to arguments in the cases ( Here )

Monday, May 23, 2011

Continued decrease of new cases seen in Ohio

The Ohio Supreme Court announced last week that "a year after seeing a 10-year low in the total number of new cases filed in Ohio courts, that number dropped even further in 2010 according to the annual Ohio Courts Statistical Summary.

Taking all courts combined, 2,830,264 new cases were filed in 2010, which was a 5 percent decrease over 2009. With traffic cases in municipal and county courts constituting 43 percent of all new filings across all courts, the number of new filings in this category dipped to 1,205,036 in 2010.

Hamilton County "land bank" endeavor

Last Monday, carried a news article about the Hamilton County commissioners planning to take money from every school district, township and county levy-- whether those entities approve or not— to create a so-called "land bank," in which the county will amass clusters of properties so that developers can pick from larger development sites, similar to what they'd find in the suburbs.

Some were obviously objecting to being forced to pay, especially since almost every local school and government is already facing steep cuts from the expected state budget and revenue shortfalls due to the lingering effects of the recession., and at least one, according to the article, questioned the legality of taking money from county levies.

Be that as it may, County Commissioner Todd Portune, along with then-Commissioner David Pepper, pitched the idea of land bank back in 2008. But it wasn't until the state passed a law in April last year that made it easier for counties to fund land banks. The law specifically allowed counties to take delinquent taxes to fund the land bank entities.

The law which the Enquirer and were referring to is ORC 1724, which was created in 2009 (SB 353) and amended last year (HB 313). Summarized, those bills:

"Authorize a county with a population exceeding 1.2 million to form, within one year of the act's effective date, a county land reutilization corporation (CLRC), a nonprofit corporation, for the purposes of promoting development and managing and facilitating the reclamation, rehabilitation, and reutilization of vacant, abandoned, tax-foreclosed, or other real property.”

Revised Code Chapter 1724, however, does not specifically use the terminology "land banks," but HB 56, introduced in January and in the Judiciary & Ethics Committee since March does. While it has not yet passed its pertinent provisions with regards to "land banks" are:

  • Provides that properties foreclosed due to delinquent taxes that are forfeited to a political subdivision, school district, or land bank are free of taxes, assessment charges, penalties, interest, costs, and subordinate liens.

  • The board of county commissioners may dispose of abandoned property itacquires under the bill pursuant to rules it adopts. The rules must specify that theproperty be placed in the county's land bank if the county has a land bank. If the county does not have a land bank, the board is to dispose of the property at itsdiscretion.[ 2308.06(C)]

  • Under continuing law, when the forfeiture is to a county land reutilization corporation (county land bank), the transfer of the property is free of "taxes, assessment,charges, penalties, interest, and costs" and subordinate liens. However, the law is silent with respect to the treatment of liens when the transfer is made to a politicalsubdivision or a school district.

  • HB 56 would "enact sections 2308.01 to 2308.09 of the Revised Code to permit the trial of a corporation in absentia in a criminal proceeding initiated by complaint and relative to residential foreclosure actions."

    " 'Land banking', is described by Wikipedia as "the practice of purchasing raw land with the intent to hold on to it until such a time as it is profitable to sell it on to others for more than was initially paid. Typically parcels of land desirable for land banking are those that lie directly in the growth path of rapidly developing cities. The initial goal is to buy undeveloped land that will increase in value because it lies in the path of urban growth. The investment objective is to identify these parcels well in advance of the developers and wait for the value to be realized."

    A 2009 USAToday article described them as "an idea gaining national attention for its positive impact on urban blight and abandonment at a time when most cities are dealing with more foreclosures. Instead of selling abandoned or foreclosed structures at auction, the city or county creates a land bank of properties. Some homes are fixed up and sold. The worst of the homes are demolished, and the land is then sold to nearby homeowners or developers."

    And The Secretary of Housing & Urban Development, defines "land banks" as "governmental or nongovernmental nonprofit entities that focus on the conversion of vacant, abandoned properties into productive use," and provides a resource on its website of how some state and local governments and organizations are addressing the problem through their creation and operation. ( Here )

    HUD also has a 27-page PDF guide, "Revitalizing Foreclosed Properties with Land Banks," with more information.

Thursday, May 19, 2011

New Kentucky Penal Code

Kentucky's 2011 Interim Legislative Report, issued last month, carrys an article about that state's new penal code law, "The first major overhaul of the state's penal code in over 35 years that could save the state more than $420 million over the next decade, with more than half those savings reinvested in programs to reduce the number of repeat drug offenders statewide."

House Bill 483 was signed into law by Gov. Beshear last March 3rd.

The previous, outdated code was believed to be a primary reason for a 45 percent jump in the state's prison population since 2000. Comparably, the national rate of incarceration has risen 13 percent over the same period, the article says.

"About 40 percent of the state's approximately 20,000 inmates are serving time for drug crimes, state officials reported; Those who commit low-level non-violent drug crimes, like possession of small amounts of controlled substances, are the primary targets for reduced sentencing under Kentucky's new law… In fact, all possession offenses—except first-degree felony possession—are misdemeanors under the new law."

Kentucky's new law maintains the state task force that worked with the Pew Center on the States to create the reforms that went into HB 463. It was that task force—the Task Force on the Penal Code and Controlled Substances Act—that devised the recommended changes to the most recent penal code, last revised in 1974. ( Task Force’s Report )

Thursday, May 12, 2011

6th. Circuit gets Health Care Law appeal this morning reports "the fight over President Obama's health care law will come to Cincinnati next month when the U.S. 6th Circuit Court of Appeals hears arguments about whether the law is constitutional."

The case, Thomas More Law Center, et al. v. Barack Hussein Obama (case 10-2388), is one of five that have been decided so far in the lower courts and are now in the federal appeals courts,’s article says. More than 30 lawsuits have been filed over the health care law. Of the five referred to previously, three courts have upheld the law as constitutional – including this case from the Eastern District of Michigan -- while the other two rejected all or parts of it in what many believe is a case headed for the Supreme Court.

6th. Circuit Brief
Eastern District of Michigan’s opinion

Tuesday, May 10, 2011

New Ohio Supreme Court parenting coordination rules

The Ohio Supreme Court announced yesterday that it would be accepting public comment on proposed new rules governing courts' use of parenting coordination, a child-focused alternative dispute resolution process ordered by the court in which a coordinator assists high-conflict parents in implementing parental rights and responsibilities.

The new Rules of Superintendence for the Courts of Ohio focus upon those courts that wish to use parenting coordination, include the factors that should be present when ordering it, set forth the role parenting coordinators should play in the process, the qualifications he or she should possess, and the need for courts to adopt local rules governing its use.

Comments on the proposed rules, which will be entertained until June 8th., should be submitted in writing to:

Jacqueline Hagerott, Dispute Resolution Programs manager
Supreme Court of Ohio
65 S. Front St., Sixth Floor
Columbus, OH 43215

Or via e-mail to

Language of Proposed Rules.

Parenting coordination evolved out of the Ohio Task Force on Family Law & Children back in 2001, an undertaking started two years earlier in "recognition of the fact that children and families are better served when paramount importance is placed on the needs of children and the responsibilities of the adults who care for them, with both parents needing to be parents, no matter where the child is living." Background information there can be found in the Task Force’s final report.

Wednesday, May 04, 2011

Ohio medical marijuana this morning reports that "several states have started reassessing their medical marijuana laws after stern warnings from the federal government that everyone from licensed growers to regulators could be subjected to prosecution."

Warnings in Washington state led Gov. Chris Gregoire to veto a proposal that would have created licensed marijuana dispensaries in that state, and like cautions have also gone to officials in California, Colorado, Montana and Rhode Island, the article said. Federal authorities recently conducted a series of raids at grow operations in Montana, helping push lawmakers to put stricter limits on the industry. Raids also targeted at least two dispensaries in Spokane on Thursday, a day before Gregoire decided to veto the proposed law.

The article continued by saying "Justice Department officials said in 2009 that, as a general rule, prosecutors should not focus federal resources 'on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.' A memo on the subject, however, did leave open the possibility of federal prosecution even when people comply with state law, but Holder indicated that would not be policy…. 'The policy is to go after those people who violate both federal and state law,' Holder told reporters at the time."

Some 15 states & the District of Columbia have approved the medical use of marijuana, which is not legal under federal law, and about half of those states regulate medical marijuana dispensaries. It is illegal in 22 states, including Kentucky @ Indiana, but another 12 states, including Ohio, have some form of legislation under consideration. ( More Here @ Here )

The movement to legalize medical marijuana in Ohio has been reignited in another venue as well, according to a Cleveland Plain Dealer article last Monday, with Peter B. Lewis – the billionaire chairman of Progressive Corp. and well-known medical marijuana advocate -- seeking proposals to run a campaign to legalize medical marijuana in the state. The issue would go on the ballot in 2012.

"While Democratic lawmakers have tried and failed in recent years to pass a medical marijuana law in Ohio," this article says, "Lewis' latest inquiry represents a different track in that by going directly to voters through a ballot initiative, Lewis and his supporters could circumvent a GOP-controlled legislature and a Republican governor who likely would oppose such a law."

Tuesday, May 03, 2011

Ohio Supreme Court rule addressing conflicting or competing orders

The Ohio Supreme Court has announced it will be accepting public comment until June 1 on a new rule designed to minimize the effects of "dueling protection orders" or conflicts between protection orders and orders granting parental rights and responsibilities.

New Rules 10.06 of Superintendence for the Courts of Ohio would advise courts on how to address conflicting or competing orders:

  • Part A of the rule directs courts to "make a reasonable effort to determine the existence and terms of any domestic violence civil protection orders, domestic violence temporary protection orders, and orders involving allocation of parental rights and responsibilities issued by other courts and involving the same parties." The rule leaves the method up to the courts but suggests using the Ohio Courts Network as one alternative.

  • Part B of the rule recommends that if courts become aware of another subsequent conflicting order consideration should be given to amending a previous order, if appropriate, "to allow or restrict contact between the defendant or respondent and the child or children of the defendant or respondent or other protected persons."

    • Text of Proposed Rule

      Those interested in commenting on the proposed rule should submit their views in writing to:

      Diana Ramos-Reardon, Domestic Violence Program Manager
      Supreme Court of Ohio
      65 S. Front St., Sixth Floor
      Columbus, OH 43215
      or via e-mail to

      Ohio Supreme Court Traffic Rules

      The Ohio Supreme Court announced yesterday that it has adopted amendments to the Ohio Traffic Rules that clarify the authority of traffic violations bureaus and conform the required experience of magistrates.

      • Notable changes to Traffic Rule 13(B) include:

        (5). "Driving without being licensed to drive when jail is a possible penalty" ( dropping the exception relating to when "a driver's or commercial driver's license had been expired for six months or less" )
        (6). "A third moving traffic offense within a twelve-month period when jail is a possible penalty"( provision the adding ?jail? li )<>

      • Changes to Rule 14 specify that magistrates need to "have been engaged in the practice of law for at least four years and be in good standing with the Supreme Court of Ohio at the time of appointment," conforming to match magistrate requirements under the Rules of Superintendence for the Courts of Ohio.

      Changes become effective July 1st

      Text of the amendments