Ohio Victim Notification--Offender Release

Ohio Governor John Kasich signed a bill on Dec. 20th., introduced by Senators Kevin Bacon and Jim Hughes last Spring that will now require crime victims and their families to be notified when the incarcerated party in their case is being considered for parole or early release. (Senate Bill 160 and Analysis)

Current Ohio law provides that kind of notification when an offender is to appear before the parole board, but only if requested by the victim or victim’s family. (See Ohio Department of Rehabilitation and Correction Office of Victim Services or Attorney General’s sites). Under Senate Bill 160, it is a mandatory notification system that will ensure victims and their families are automatically notified when parole hearings are scheduled for offenders whom committed crimes against them, though victims can also choose to opt-out of receiving notification.

Modifications of Ohio mayor's courts statutes

Articles in The Chillicothe Gazette, Toledo Blade, Columbus Dispatch, Cleveland Plain Dealer and elsewhere over the past few weeks have been abuzz about the Ohio Legislature's moving to eliminate mayors' courts in the state. The Blade reporting on Nov. 27th. that Ohio & Louisiana were the only two states still having mayors' courts in the country, and commenting that "the late Chief Justice Thomas B. Moyer had been a longtime advocate of abolishing mayor's courts in Ohio, while current Justice Paul E. Pfeifer has said people come out of those courts 'feeling like they just participated in a spaghetti western.'"

The changes eliminate nearly 30 percent of Ohio's 318 courts, according to Ohio Supreme Court records.

We tracked three bills in the Ohio House and Senate all aimed at the same measure, the first of which was SB 254, introduced by Senator Tom Patton in November of last year, providing for a population of 200 or more as being necessary for a municipality to have a mayor's court, but allowing "any municipal corporation located entirely on an island in Lake Erie to establish a mayor's court and to have jurisdiction over certain specified matters," along with modifications to the state's texting/ cell phone laws. It was reported out as amended on Dec. 19th..

Representative Courtney Combs introduced HB 253 in April of this year, proposing that that number be 1,000, but again exempting municipal corporations located on Lake Erie islands.

House Bill 606, introduced by Robert Hagen last month, retained the 200 population figure and Lake Erie community considerations, along with those described in Senator Patton's Senate proposal above. SB 254, in fact, was amended, being incorporated into HB 606 with the Senate then concurring, and was sent to Governor Kasich for his signature on Dec. 19, 2012.

HB 606 also expressly abolishes one of the three full-time judgeships of the Youngstown Municipal Court.

Ohio Intervention In Lieu of Conviction statutes clarified

In April 2009, a Warren County, Ohio grand jury indicted a Regina Niesen-Pennycuff on multiple counts of deception to obtain a dangerous drug, each count a fifth-degree felony.

Niesen-Pennycuff initially entered not guilty pleas on all counts, but later petitioned the court to refer her case to an intervention in lieu of conviction (ILC) program through which she would be able to participate in a drug abuse intervention program in lieu of going to trial on the pending criminal charges, the Ohio Supreme Court's summary latter related. Under the terms of Ohio's ILC in ORC 2951.041, Niesen-Pennycuff, having successfully completed the intervention program and with a period of court-monitored abstinence from drug use, the charges against her would be dismissed without a finding of guilt, and she would be free to petition the court for an expungement of her record.

In August 2010, the court filed its entry recognizing Niesen-Pennycuff's successful completion of the ILC program and dismissing all of the charges pending against her, but, in September 2010 when Niesen-Pennycuff filed an application asking the court to seal her record, the state opposed that application, arguing that she would not be eligible to have her record sealed until three years after the date of the dismissal order, which would be August 2013. The trial court agreed and denied the application, advising Niesen-Pennycuff that she would be eligible to reapply in 2013.

The Supreme Court's summary reported that Niesen-Pennycuff appealed the decision with the Twelfth District Court of Appeals affirming the trial court's ruling, but certifying that its decision was in conflict with State v. Fortado, a 1996 decision in which the Ninth District had held that a defendant whose charges had been dismissed following completion of an ILC program was immediately eligible to apply for sealing of his record.

Ohio's supreme court resolved the issue on June 21st., holding that, by virtue of the wording in statute, trial courts have the discretion either to grant the motion immediately under R.C. 2953.52(A)(1), or to impose a waiting period before the record is sealed pursuant to R.C. 2953.32(A)(1).  [ See Opinion Here and Correction Here ]

Supreme Court Justice Paul E. Pfeifer, earlier this week in a Circleville Herald posting on Dec. 17th.,, explained that "when a court such as ours interprets a law, we have to determine the legislative intent behind it; that means we examine the words and phrases used in the language of the law. The ILC law states that the court 'may order' the records to be sealed. The use of the word 'may' instead of 'shall' indicates that the court has discretion on the issue of sealing the records."

Kentucky Post-conviction DNA Testing

Cincinnati.com this morning (Dec. 18) carried an article about Kentucky State Sen. John Schickel's, speaking at a criminal law reform symposium last month at Northern Kentucky University, throwing his support behind legislation previously championed by liberals that would allow a Cincinnati man to proceed with DNA testing on evidence he claims will exonerate him of a 1987 rape and killing in Newport.

Schickel pre-filed legislation Dec. 14th. that would afford DNA testing to inmates like 60-year-old William Virgil, who is serving a 70-year sentence in LaGrange for the killing of VA Medical Center nurse Retha Welch; Rep. Johnny Bell, D-Glasgow, had filed similar legislation in the House earlier this month. DNA testing was not available at the time of Virgil’s conviction.

“Of the 49 states that have laws governing prisoners’ rights to DNA testing on evidence,” the article says, “Kentucky stands with only Alabama in permitting just those on death row to seek the testing, according to the Innocence Project, a New York nonprofit dedicated to exonerating wrongfully convicted people. In neighboring Ohio and Indiana, any person convicted of a serious felony may apply for DNA testing of evidence.

The only state with no law addressing what has become known as post-conviction DNA testing is Oklahoma.

Illinois gun-control measure unconstitutional

The University of Pittsburgh's Jurist Paperchase yesterday (Dec. 12) reported the Seventh Circuit Court of Appeals' finding the state if Illinois' ban on carrying concealed weapons unconstitutional & invalid. [ Moore v. Madigan, 12-1269 ]

"Relying on the Supreme Court's 2008 decision in District of Columbia v. Heller, 554 U.S. 570 (2008), Judge Richard Posner opined that the Second Amendment 'confers a right to bear arms for self-defense, which is as important outside the home as inside,' and that Illinois failed to provide the court with 'more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety.' Posner also relied," the article said, "on the absence of such a law in all 49 other states, reasoning that, if the Illinois ban were 'demonstrably superior,' one may 'expect at least one or two other states to have emulated it.'"

The Seventh Circuit also referenced McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), which held Heller applicable to the states, stating that "both Heller and McDonald say that 'the need for defense of self, family, and property is most acute' in the home, id. at 3036 (emphasis added); 554 U.S. at 628, but that doesn't mean it is not acute outside the home. Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one's home, as when it says that the amendment 'guarantee[s] the individual right to possess and carry weapons in case of confrontation.' 554 U.S. at 592… Confrontations are not limited to the home."

Ohio Supreme Court reaffirms No Individual May Be Detained 'Even Momentarily' Without Cause

The Ohio Supreme Court on Dec. 6 found that the subject of an outstanding arrest warrant still retains Fourth Amendment rights to privacy and cannot be improperly seized or arrested by an officer unaware of that warrant. [ State of Ohio v. Gardner ]

Appellee was in company of a second individual being arrested on an outstanding bench warrant issued for failing to appear at a trial in Butler County in a drug case. Acting in a suspicious manner, he was detained, searched, and subsequently arrested for possession at the scene. After his arrest, police then determined that appelle was subject of an arrest warrant for a traffic violation.

The case summarized, "Gardner was indicted on one count of possession of crack cocaine and had unsuccessfully moved the trial court to suppress the cocaine found in his possession. Trial court denied the motion, the judge describing the arrest warrant as 'a big elephant in the room.' According to the judge, 'If there's an arrest warrant for Mr. Gardner, the ballgame's over, right? Then everything's cleansed. Even if I agree totally with the defense up till [sic] now.' Ultimately, the judge, citing an unreported Second District decision, Dayton v. Click, Montgomery App. No.14328, 1994 WL 543210, 1994 Ohio App. LEXIS 4551 (Oct. 5, 1994), stated, 'Presuming for a moment * * * there was an illegal stop or illegal search, it matters not. I mean, because in this case we know Officer House didn't discover the arrest warrant until after the stop, search, pat-down and that had all occurred. But it makes no difference under this authority.'

"Upon conviction,Gardner appealed. After characterizing Click and its progeny as 'labyrinthine, if not desultory,' a divided panel of the Second District Court of Appeals reversed, noting that it was not bound by the doctrine of stare decisis to apply Click because the case involved a constitutional question.

The Second District also found there was no evidence showing 'when and how the officers discovered Gardner's name or that there was a warrant; whether the court found facts justifying—or not justifying—a Terry patdown; or whether, if such a patdown were justified, whether the seizure of the drugs was within the plain feel exception.' Id., ¶ 39; thus remanding to the trial court for further proceedings. [State v. Gardner, 2d Dist. No. 24308, 2011-Ohio-5962]


"Click is not good law," the Supreme Court explained in its opinion. "Click and its progeny stand for the proposition that an individual subject to an arrest warrant has 'no reasonable expectation of privacy in being free from being stopped arbitrarily by police' because the warrant is the embodiment of a court's command to arrest the individual. State v. Smith, 2d Dist. No. 22434, 2008-Ohio-5523, ¶ 11; see State v. Williams, 2d Dist. No. 22535, 2008-Ohio-6030, ¶ 21. Under Click, '[t]he mere existence of an outstanding warrant, in other words, renders a seizure lawful, whether or not the officer is aware of the warrant at the time of the seizure.' State v. Gray, 2d Dist. No.22688, 2009-Ohio-1411, ¶ 12.

"{¶ 23} We will not condone the notion that the unlawfulness of an improper arrest or seizure always can be purged by the fortuitous subsequent discovery of an arrest warrant," the Court summiuzed. "As one federal court succinctly stated, 'This argument is preposterous; the Fourth Amendment does not countenance such post hoc rationalization.' Bruce v. Perkins, 701 F.Supp. 163, 165 (N.D.Ill.1988).

"…we recognize that Gardner was the subject of an outstanding warrant (albeit for a traffic violation) and that he had possessed crack cocaine. But efforts 'to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.' Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 58 L.Ed. 652 (1914). There is always a temptation in criminal cases to let the end justify the means, but as guardians of the Constitution, we must resist that temptation. See United States v. Mesa, 62 F.3d 159, 163 (6th Cir.1995)… Fourth Amendment freedoms are not second-class rights; they are indispensable to all members of a free society. See Brinegar v. United States, 338 U.S. 160, 180-181, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting).

"Although we have rejected the state's constitutional claim, we intimate no opinion about whether suppression was proper. We agree with the court of appeals that the trial court denied the motion to suppress without finding whether there was a reasonable, articulable suspicion to justify Officer House's patdown of Gardner and whether the contraband seized could be justified… We thus affirm the appellate court's judgment, including its order to remand this cause to the common pleas court to make the necessary findings and for any other proceedings that may be necessary after those findings are made."

Ohio Supreme Court Rules of Practice/ Code of Judicial Conduct amendments

The Ohio Supreme Court last Friday, Dec. 7th., announced the adoption of reorganized and renumbered Rules of Practice that mirror the flow of a case before the Supreme Court, along with the adoption of several changes to the Code of Judicial Conduct, including an increase in judicial campaign contribution limits that take effect January 1, 2013.

The Court's news service reported "the reorganized Rules of Practice present a more logical ordering of the rules for attorneys and self-represented litigants that is intended to help them locate filing requirements. Many of the changes are clarifying and non-substantive, but there are a few substantive changes. They include:

•Allowing certain documents to be filed by e-mail instead of fax under S.Ct. Prac. R. 3.02(C).
•Adopting rules for cases involving the practice of law to address the procedural and mechanical requirements not specified in the Gov. Bar and Gov. Jud. Rules.

Among the changes the Judicial Rules the service noted are Jud.Cond.R. 4.4(J) and (K) enacting the 5.3 percent increase in the Consumer Price Index for campaign contribution limits that occurred over the four-year period since the Supreme Court was last required by the rules to compute the percentage change. See  chart to view the new limits (in green) for individuals, organizations, and political parties according to the primary and general elections and judges’ jurisdictional levels. ( Full text of Code of Judicial Conduct rule changes here )

Papers of Supreme Court Justice Lewis Powell

Lewis Franklin Powell, Jr. (September 19, 1907 - August 25, 1998) was an Associate Justice of the Supreme Court of the United States from January 7, 1972 until his resignation on June 26, 1987, being nominated by President Richard Nixon on the same day as William Rehnquist and taking over the seat vacated by Hugo Black, the fifth longest-serving justice in Supreme Court history.

Wikipedia's entry relates he "compiled a decidedly moderate record on the Court, cultivating a reputation as a swing vote with a penchant for compromise, and working hard at familiarizing himself with the issues and arguments in the cases, coming up with distinct and well-reasoned positions on them."

Now, twenty years after they first became available to the public, the papers of the late justice are still yielding interesting nuggets, and, a National Law Journal article (subscription) reveals, you don't have to go to Washington and Lee University School of Law in Lexington, Virginia to view them.... They're now being online at the school's website.

Ohio Supreme Court year-end transition cases

As part of a year-end transition process in which the Ohio Supreme Court is releasing a large number of decisions, the Court's news service staff report on December 6, 2012 reported holdings on 18 cases including:

• The Court's upholding the aggravated murder conviction and death sentence of Phillip L. Jones of Akron for the 2007 rape and strangulation killing of Susan Yates. (Case & Case Summary State v. Jones.)

• In Ruther v. Kaiser the Court upheld as constitutional a four-year statute of repose (time limit) for filing medical malpractice lawsuits set forth in R.C. 2305.113(C). The court reversed a decision of the 12th District Court of Appeals that had allowed a malpractice action to go forward despite the passage of more than ten years between the alleged malpractice and the filing of the plaintiff's suit. In its decision, the court applied the test in Westfield Ins. Co. v. Galatis (2003), and formally overruled a 1987 Ohio Supreme Court decision, Hardy v. VerMeulen, which held that a previous statute of repose for medical malpractice actions violated an injured party's constitutional right to a remedy.

• In Doss v. State, the Court held that the reversal by the court of appeals of a Cleveland man's convictions for rape and kidnapping, for lack of evidence was not "proof of innocence" sufficient to support a summary judgment declaring him to be a "wrongfully imprisoned person" entitled to obtain compensation from the state.

• The Court, in State v. Gardner, ruled that an individual who is the subject of an outstanding arrest warrant does not forfeit all expectations of privacy protected by the Fourth Amendment to the U.S. Constitution and the Ohio Constitution, Section 19, Article I. Based on that holding, the court remanded the case of a Dayton-area man to the trial court with instructions to consider whether he was improperly detained and searched by police who were not aware of the existence of the warrant at the time.

• In State v. Roberts the Court held that legislation taking effect July 6, 2010, requiring police and other governmental entities to preserve and catalog DNA evidence, applies to biological evidence already in the possession of those entities at the time of the statute’s effective date.

Elmwood, Ohio's traffic cameras in court

The Governors' Highway Safety Association, a non-profit organization located in Washington, DC. whose members are the state highway safety offices of the 50 states, U.S. territories, and the Indian Nations, evolving, in part, out of The Highway Safety Act of 1966, which established the State and Community Highway Safety Grant Program (U.S.C. Title 23, Section 402), commonly known as the '402 program' to address the problem of unsafe highways, shows that 13 states, the District of Columbia and the U.S. Virgin Islands have speed cameras, and 24 states, the District of Columbia and the U.S. Virgin Islands have red light cameras currently operating at least one location within their boundaries.

12 states have passed laws that prohibit (with very narrow exceptions) the use of speed cameras, and 9 states the use of red light cameras

But 20 states have no state law concerning red light camera enforcement, and 29 states don't have laws addressing speed cameras, according to that organization. All of the other states either permit the use of speed cameras (2 + D.C.) or limit their use by location or other criteria (7 + U.S. Virgin Islands).

But according to the GHSA, neither Ohio, Kentucky, nor Indiana have laws regarding either red light or speed cameras, but Ohio does have "programs operating under local ordinances" -- All of which muddles the issue Cincinnati.com began reporting about last month that on Nov. 29th. now has "irate motorists and businesses taking the Village of Elmwood Place's use of speed cameras to court, saying the village is putting money before people in an attempt to increase revenues." (Here)

We had reported back on Oct. 22 that that earlier article had, in fact, found "that the cameras are legal and enforceable based on the Ohio Supreme Court's 2008 decision in Mendenhall v Akron, where the Court "accepted a certified issue by the United States District Court for the Northern District of Ohio, Eastern Division determining 'Whether a municipality had the power under home rule to enact civil penalties for the offense of violating a traffic signal light or for the offense of speeding, both of which are criminal offenses under the Ohio Revised Code.' Although, as certified by the federal court, the issue embraces both speed-limit and red-light enforcement, the record here deals with a single city ordinance involving enforcement of speed limits. We will therefore confine our analysis to comparing the ordinance with the state statute dealing with speed regulations, acknowledging, however, that the same analysis will dispose of questions concerning red-light cameras..."

As of last May, however, the Ohio Supreme Court was still maintaining that position.

None the less, local attorney Michael Allen served the Village of Elmwood on Nov 29th., disputing not only the Village ordinance’s validity & enforceability, but also challenging it’s authority to “instigate a separate administrative procedure outside of it’s statutorily mandated mayors’ court,” and the fact that those procedures don’t follow rules applicable to Ohio trial courts irrespective, including rules of evidence & procedure. (Complaint)

Internet Regulation Bill --- 2

We commented on Nov. 28th. about Congressman Darrell Issa's postings to social media site, Reddit, and how returns there were initially "mixed, with some users confused about what point Issa was trying to make, while others saw it as a stunt."

This morning, Nov. 30, NBCNews follows up saying that "by the morning of Nov. 8th., the time Issa had set for answering questions, the queries had turned into something of a dogpile., with, by far, the most popular question posed illustrated by Reddit user The_Milkman:who asked, 'Hey Darrell, why did you vote for CISPA?'" Indeed, NBC's article said," Issa's sponsorship of CISPA — the controversial Cyber Intelligence Sharing and Protection Act that was approved by the House, but has yet to be approved or vetoed by the president — was the topic of many questions and much ire… Issa's attachment to the controversial piece of legislation — which would expand government agencies' ability to access data from sites like Facebook and Twitter — seemed to poison his attempt to solicit Reddit's help from the start."

The article concluded by saying that "there's a lesson to be learned for politicians and other public figures who are considering this kind of open discussion on a site like Reddit: It's not always going to be a love-in, as it was with President Barack Obama's having crashed servers during the election when he appeared in an impromptu ‘Ask Me Anything’ post ... You may end up like Issa, with a front-page post and 2,500 comments calling you everything from an opportunistic hypocrite to a crony of big business."

But it also conceded that "regardless of the unfriendly atmosphere, Issa answered dozens of questions, including some openly hostile, but regardless of the tone of the conversation, the goal of procuring constructive input on the proposed legislation (the 'Internet American Moratorium Act' or IAMA) seems to have been achieved. A number of comments and suggested changes have been submitted at the site set up for this purpose, and various issues have been raised in the comment threads that may help improve the bill. And the high positive vote count on the IAMA itself indicates that the community is at least interested in discussing the topic."

Internet Regulation Bill

CNN.com is carrying an story this morning (Nov. 28) about Rep. Darrell Issa, a Republican from California proposing a two-year ban on all new federal legislation regulating the Internet.

Issa, an advocate for Internet freedoms, posted a draft of his bill, the Internet American Moratorium Act of 2012, online last Nov. 26 on Project Madison a crowd-sourcing platform that allows citizens to amend individual passages of legislation by adding or striking language. On Nov. 27th., he posted a link to the bill on Reddit, the social news site, inviting users to suggest changes to the proposed legislation, saying he would begin taking questions from users as of the morning of Nov. 28th..

CNN also reported that "it was not immediately clear whether Issa's proposed moratorium would apply to his own Online Protection and Enforcement of Digital Trade (OPEN) Act, introduced last January, which would seek to protect U.S. copyrights and trademarks from infringement by foreign websites, and that the immediate reaction on Reddit was mixed with some users confused about what point Issa was trying to make, while others saw it as a stunt." Issa's bill was referred to the House Subcommittee on Intellectual Property, Competition and the Internet.

Senate Bill 2029, by the same name, was introduced last December by Sen. Ron Wyden of Oregon, read twice and referred to the Committee on Finance.

Ohio CLE Changes Adopted

The Ohio Supreme Court announced yesterday that it has adopted continuing legal education (CLE) changes that will double the number of online credit hours attorneys could earn, allow attorneys to earn a portion of their CLE hour requirement by engaging in approved pro bono activities, and eliminate the requirement to file final reporting transcripts, effective January 1, 2014.

The changes to Gov. Bar R. X resulted from a year-long study by the Commission on Continuing Legal Education and incorporated feedback from a survey of the state’s judges and active attorneys about what changes they would like made to CLE requirements, according to Attorney Services Director Susan Christoff.


Text of the CLE Changes Here

Supreme Court's copyright ownership case

The expanse & involvement of this case alone is interesting.

The morning of Oct. 29th., Lisa Shuchman at Corporate Counsel wrote, "while most federal government offices and businesses were closed in anticipation of the arrival of Hurricane Sandy, it was business as usual at the U.S. Supreme Court, which was hearing arguments in Kirtsaeng v. Wiley, a copyright case that could change a long-standing, fundamental view of property ownership in the United States.

"But, even after oral arguments had been heard, it was impossible to predict how the justices might rule in the high-stakes case, with lawyers on both sides saying some issues would likely remain unresolved no matter what -- So a diverse coalition which includes library associations, museums, bookstores, and online retailers established the Owners' Rights Initiative (ORI) -- a group created to educate members of Congress about how changes to copyright law might affect them."

Shuchman further relates "the case, considered one of the most important intellectual property matters to come before the high court, concerns the 'first sale' doctrine in copyright law -- a concept that leaves owners free to resell, lend, or give away copyrighted items without permission from the copyright holder --- a doctrine long interpreted as one that applies to all goods, regardless of where they originated. But book publishers, software companies, and the movie and music industries, looking to protect their practice of setting different prices for different markets, argue that the doctrine should apply only to goods produced in the U.S."

The case stems from textbook publisher John Wiley & Sons pitted against Supap Kirtsaeng, a student who came from Thailand to study at Cornell and later the University of Southern California. Discovering that textbooks almost identical to those in the U.S. were considerably less expensive in Asia, he had friends and family members send multiple copies of needed books to him, which he then resold to students in the U.S. at a profit. Wiley sued Kirtsaeng for infringing its copyrights; the Court of Appeals for the Second Circuit ruled in Wiley's favor. ( Here )

Brandon Butler and Jonathan Band in their article at LLRX.com and in the Library Journal, noted that "since 1978, the law has protected publishers who sell products at different prices abroad than they do in the US by barring the unauthorized importation of copies purchased abroad (with exceptions for ordinary people bringing home books and the such in their luggage, and, importantly, for libraries importing works for their collections). This importation right is part of a broader distribution right, which allows the copyright owner to control the distribution of copies to the public by sale or lease. Wiley invoked this law in its suit against Kirtsaeng.

"In his defense, Kirtsaeng invoked the principle of what copyright law calls the 'first sale doctrine,' but what normal people might call owner's rights: a lawful owner of a lawful copy of a copyrighted work can generally do whatever he/she wants with that copy--resell, lend, donate, or even destroy it--without permission from the copyright holder. To put it another way, the author's right to control a particular copy of her work ends after the first sale. Otherwise, copyright would be inconsistent with all the ordinary expectations of owners. The first sale doctrine is especially important to libraries, whose primary activity throughout history has been to buy copies of works and make them available to their communities by lending."

Butler and Band continued in their article by writing "Wiley argues that this principle cannot apply to copies printed outside the U.S., or else they could not block grey market books from U.S. markets. Because first sale protects all distributions (including domestic resale and lending), not just importation, Wiley's argument could radically change the way foreign-made copies are treated by U.S. law. Nevertheless, so far the courts have agreed with Wiley. Even the U.S. government has filed a brief siding with the publisher. Wiley argues that copyright law should protect U.S. companies from having to compete with their own foreign editions, even if this means owners' rights in the U.S. have to be sacrificed."

ScotusBlog's Ronald Mann, in his recap of oral arguments on Oct. 31st., characterized the case as "the latest chapter in a seemingly intractable problem of copyright law: whether a U.S. copyright holder can prevent the importation of 'gray-market' products manufactured for overseas markets. When the Court tried to address this question two terms ago -- in Costco Wholesale Corp. v. Omega, S.A. -- the Court was equally divided (with Justice Kagan recused).

He, too, was reluctant to predict an outcome, writing "It's obviously risky to predict results in cases this close based on oral argument. Clearly the Justices will be mulling the case carefully before the opinions ultimately are released. But one thing is certainly clear: the publishers did not win over any new votes with the argument today, and the government's concession that it could not accept the publisher's position well might have sealed their defeat."


ScotusBlog's case docket

New Ohio Supreme Court rule for early departure judges

The Ohio Supreme Court has issued amendments to Rules III and VII of the state's Judiciary Government Rules requiring judges leaving the bench prior to completing their term to submit a resignation letter to the governor and notification letter to the chief justice at least three days before leaving office. The new rule also instructs departing judges to hand over books, papers, records & other documents,alone with all other property of the court upon their departure.There is no duty to provide prior notification under current rules.

The rule goes into effect January 1, 2013.


Text of Rule Here

Hamilton County e-filing notification system

The Hamilton County Clerk of Courts reminds attorneys practicing in both civil & criminal divisions of the Court of Common Pleas that, effective December 3, 2012, the Clerk's new e-filing notification system will be implemented.

Beginning December 3rd, if you are a registered, active attorney of record on any Common Pleas case, the e-filing system will send you a courtesy e-mail notification that a document has been filed with the Clerk's Office. The electronic communication will be sent to any e-mail address associated with your attorney id in the court system. Only electronically filed documents will generate this notification.

In order to take advantage of this new service, attorneys practicing in the Hamilton County Court of Common Pleas should ascertain that they have a current, accurate e-mail address on file with the Clerk of Courts. Further information is available here.

Ohio Standardized Domestic Relations Forms

The Supreme Court's news service this morning announced the Court was extending the public comment period on 23 proposed standardized forms designed to help pro se litigants meaningfully participate in many family-law related proceedings in domestic relations and juvenile courts such as divorces, dissolutions, legal separations, and parenting plans, and court personnel who are legally limited in the assistance they can provide, along with, indeed, the individual lawyer him/herself, by making practices in all courts more uniform.

Public comment will now close December 14, 2012.

Forms can be viewed here.


Comments on the proposed forms should be submitted in writing to:

Stephanie Graubner Nelson,
Policy and Research Counsel, Children, Families, and the Courts Section,
Supreme Court of Ohio,
65 South Front Street, Sixth Floor,
Columbus, OH 43215,

Or via e-mail to stephanie.nelson@sc.ohio.gov .

Totality of facts & circumstances support OVI probable cause

The 5th. District Ohio Court of Appeals last Nov. 5th. held that "when evaluating probable cause to arrest a suspect for OVI, the totality of the facts and circumstances can support a finding of probable cause to arrest even when no field sobriety tests are administered."

The case involved a seventy-one year old male stopped for committing a marked lanes violation. On approaching suspect's car, the arresting officer noticed an odor of alcohol and, when asked, suspect/appellant admitted to having consumed two glasses of wine prior to driving. Officer also noticed suspect/ appellant's having blood shot eyes, and had difficulty retrieving his identification and insurance documentation. Having a recent hip injury, suspect/appellant asked to perform a non-standardized procedure attempting to touch his fingers to his thumb one way and then the other, which he couldn’t do to the officer's satisfaction. Officer asked suspect/appellant if he would agree to a breath test and was transported him to the Hebron Police Department, where he tested a .126 on the BAC DataMaster. At trial defendant/appellant filed motion to suppress the field sobriety tests, his arrest for lack of probable cause, and the BAC DataMaster results. The trial court excluded the field sobriety tests because the State failed to establish the testing standard and because the officer had not administered the tests in substantial compliance with the NHTSA manual.

 State v. Nethers, 2012-Ohio-5198

Echoing thunder .....

In the wake of last week's elections we have a couple related items of some interest...

The Blog of Legal Times, just a few days before the Election, posted an entry about Representative John Conyers (D-Mich.), the top Democrat on the House Judiciary Committee, along with six other Democratic congressmen saying in a written statement back then that the Department of Justice has "expended substantial federal resources" to delay or overturn state laws that could have a disproportionate impact on minorities, and that he was going to continue to investigate states that have enacted election procedures that could create discriminatory barriers to the ballot box….. 37 states have introduced voting changes that have been cited to negatively impact the right to vote for over five million Americans, according to Conyers. ( Press Release )

Meanwhile, MSNBCnews reported days after that the Supreme Court had announced it would take up a battle over a key part of the landmark Voting Rights Act that civil rights groups fear will be used to “gut that law.” That case is Shelby County, Alabama v. Holder.

Shelby County's petition "puts at issue Congress' decision in 2006 to reauthorize until 2031 the preclearance obligation of Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) of the VRA (which go) far 'beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been pre-cleared by federal authorities in Washington, D.C.' Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202 (2009) (“Nw.Austin”).

  "This Court has twice upheld the preclearance regime against facial constitutional challenge under then prevailing conditions in covered jurisdictions. South Carolina v. Katzenbach, 383 U.S. 301, 303(1966); City of Rome v. United States, 446 U.S. 156 (1980).

(But)" More recently, addressing the 2006 reauthorization, the Court recognized that '[s]ome of the conditions' that it 'relied upon in upholding this statutory scheme in Katzenbach and City of Rome have unquestionably improved. Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.' Nw. Austin, 557 U.S. at 202. Moreover, the 'evil that Sec. 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.' Id. at 203 Because Congress has not since acted to rectify these problems, the constitutional validity of Sections 5 and 4(b) must now be resolved."

Social media election news

NBCnews.com, this morning, blended "election law" with possible social media aspects in maybe a slightly different way with an article about" tweeting a photo of your ballot, showing it on Instagram, Facebook ,or on other sites being illegal & potentially leading to your being prosecuted... Although that apparently hasn't stopped scads of voters from doing it anyway..."

The article has NBC News Justice Department correspondent, Pete Williams, reporting "that the laws banning and restricting photography are 'from a bygone era before the ubiquity of cellphone cameras and social media,' and that they were passed 'to prevent employers or union bosses from pressuring people to vote in a certain way and demanding proof of it,' but also noted that "secretaries of state in several states around the country Tuesday issued statements warning voters to knock off the social media photos of ballots."

"Kay Stimson, communications and special projects director of the National Association of Secretaries of State, a professional organization for secretaries of states around the country, told NBC News, it's not just about photographing ballots; it's about displaying them."

"The Citizen Media Law Project at Harvard University's Berkman Center for Internet & Society posted a chart showing how all 50 states handle this kind of activity, as outdated as it may seem in the age of social media and oversharing."

"Note that the (Citizen Media Law Project) chart documenting one's vote," Stimson further commented, "shows that while most states do not expressly prohibit recording/photography inside of polling sites, the majority of states do prohibit the public display of marked ballots," she said. "The states that do have such laws have adopted them to prevent vote buying and voter coercion."

"Additionally, Stimson added, 'it is important to respect the integrity of the voting process. States generally prohibit any form of conduct that serves to intimidate voters, interferes with their right to exercise their vote, or disrupts voting.'"

More Ohio election law ongoings

New York Times reporters Mark Landler and Michael Shear yesterday wrote, "President Obama and Mitt Romney hunted for last-minute support on Sunday in a frenetic sprint across battleground states, even as their parties faced off in the first of what could be a growing number of legal disputes over presidential ballots and how they are counted."

Among those players they noted "Republican election officials here in Ohio going to court this morning to defend an 11th-hour directive to local election officials that critics say could invalidate thousands of provisional ballots by forcing voters to attest to the type of identification they provide."

Last week, the 6th Circuit Court of Appeals stayed District Court Judge Algenon Marbley's recent decision that would have required Ohio to count provisional ballots cast in the wrong polling location so long as they were cast in the correct county, agreeing with Ohio Secretary of State Jon Husted and Attorney General Mike DeWine in saying that District Court Algenon Marbley's expanded ruling improperly 'absolves voters of all responsibility' not only for voting in the correct precinct, but even for finding the right building.

Also last week, U.S. District Judge Susan Dlott refused to change an Ohio law that could prevent some prisoners from voting on Election Day, saying she will consider claims that the law is unconstitutional, but that she so far has not seen enough evidence to convince her that that is the case. "The court appreciates the importance of an individual's right to vote," Dlott was quoted by Cincinnati.com, "However, at this late date, so near in time to a presidential election, the court also is mindful of the importance of avoiding a rash decision, and overturning the law now could cause further confusion and violations of voters’ rights."

While dening a temporary restraining order to block enforcement of the law, she decided to allow the case to go forward after the election. No date has been set for the next hearing.



Hamilton County Democratic Party chairman Tim Burke meanwhile recently joked in yet another Cincinnati.com article that the possibility that Ohio could keep the nation waiting for weeks to learn who won Tuesday's presidential election was "really a plot to fill Ohio's hotels with lawyers." That, the article noted, "as with many jokes, has some basis in fact, as as Election Day approaches, the first wave of lawyers are already swarming over Ohio to prepare for the possibility that the election may be decided not just at the polls, but in court."

The Blog of Legal Times, finally,  had a posting Friday saying "that Representative John Conyers (D-Mich.), along with six other Democratic congressmen on the House Judiciary Committee had announced they would be continuing to investigate states that have enacted election procedures that could create discriminatory barriers to the ballot box, of which there are currently 37 states which have introduced voting changes that have been cited to negatively impact the right to vote for over five million Americans."

Foreclosure action void if filed before becoming actual party in interest

A Columbus Dispatch article hailed the Ohio Supreme Court's decision in Fed. Home Loan Mtge. Corp. v. Schwartzwald, last Wednesday, an important safeguard for homeowners.

In the unanimous ruling, the justices said that a foreclosure action is invalid unless the lender actually holding the promissory note and assignment of mortgage is a party to the case when it is first filed in court. That reversed a Second District Court of Appeals decision in Greene County that, in turn, conflicted with rulings from two other districts on the need for the "real party of interest" to be part of foreclosure filings -- Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 (1st Dist.), ¶ 15-16; Bank of New York v. Gindele, 1st Dist. No. C 090251, 2010-Ohio-542, ¶ 3-4; and Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675, 2009-Ohio-1092, ¶ 21 -- cases holding that a lack of standing cannot be cured by substituting the real party in interest for an original party pursuant to Civ.R. 17(A).

The Court's news service wrote that in writing for the unanimous court, Justice Terrence O'Donnell "explained that in order to invoke the jurisdiction of a trial court, a party initiating a lawsuit must have 'in an individual or representative capacity, some real interest in the subject matter of the action.'"

"'We recognized that standing is a 'jurisdictional requirement' in State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, (1973)," Justice O’Donnell wrote, "and stated: 'It is an elementary concept of law that a party lacks standing to invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the subject matter of the action.' ... And recently, in Kincaid v. Erie Ins. Co., (2010), we affirmed the dismissal of a complaint for lack of standing when it had been filed before the claimant had suffered any injury."

"Citing the U.S. Supreme Court's 1992 holding in Lujan v. Defenders of Wildlife that 'standing is to be determined as of the commencement of suit,' and state court decisions supporting that same conclusion from Oklahoma, Vermont, Maine, Connecticut, Florida, Mississippi, and Nebraska, Justice O’Donnell pointed out that in this case 'Federal Home Loan concedes that there is no evidence that it had suffered any injury at the time it commenced this foreclosure action. Thus, because it failed to establish an interest in the note or mortgage at the time it filed suit, it had no standing to invoke the jurisdiction of the common pleas court.'"

In its specific reference, Justice O’Donnell wrote that "Ohio Civil Rule 17(A) allows an authorized representative of a real party in interest, such as the executor or administrator of an estate, the trustee of a trust, or a party with a shared contractual interest in disputed property to initiate a lawsuit on behalf of the real party in interest, but does not 'allow a party with no personal stake in a controversy to file a claim on behalf of a third party, obtain the cause of action by assignment, and then have the assignment relate back to commencement of the action.'"

Criminal DNA profiles may be retained indefinitely

The Ohio Supreme Court yesterday ruled that when the state has lawfully obtained a sample of a person's DNA in the course of a criminal investigation, and has used that sample to establish a DNA profile of the subject, that person does not have standing to object to the state's retention of that profile, and the state is authorized to retain and use it in a subsequent criminal investigation even when the subject is subsequently acquitted on charges that were the basis for obtaining the DNA sample. (State v. Emerson, Slip Opinion No. 2012-Ohio-5047)

The Court news reporter stated that the case involved a criminal defendant accused of rape in 2005, in the course which investigation a search warrant was executed to obtain a DNA sample, which was processed, a profile there obtained, and placed into the law enforcement Combined DNA Index System (CODIS) at the local level and, eventually, was entered in a "suspect" database at the state level. The suspect was subsequently acquitted of the rape charge, though after his acquittal his profile remained in the CODIS database and he had not sought to have it expunged.

In July 2007, Cleveland police investigating a murder found blood that was not the victim’s on a door handle at the crime scene, submitting the sample to the Cuyahoga County Coroner's Office which in turn did a DNA analysis of the blood sample, entering that resulting DNA profile into the CODIS database at the local level as a forensic unknown, and subsequently to the state. In August 2008, a report generated at the state level determined that the DNA profile obtained from the homicide scene matched the profile on file with that that had been obtained in connection with the 2005 rape prosecution and retained in CODIS after the suspect’s acquittal in that case.

Obtaining a search warrant and new DNA sample from the suspect that matched the current crime scene material and investigation, the suspect was indicted on one count each of aggravated murder, aggravated burglary, and tampering with evidence.

A motion to suppress was filed, but an evidentiary hearing led the trial court to deny that motion. The matter proceeded to trial, and a jury found the suspect guilty of aggravated murder and tampering with evidence. On appeal, the Eighth District Court of Appeals affirmed the judgment of the trial court. (Here )

The state's supreme court here upheld the Eighth District,the Court's news service relaying Justice Robert Cupp's writing, "Appellant (Emerson) argues that he has a reasonable expectation of privacy in the DNA profile obtained from his sample. ... Specifically, that the state was permitted to use the DNA profile only for the 2005 rape investigation and its retention and subsequent use subjected him to a new Fourth Amendment search and seizure."

  "A DNA sample and a DNA profile are not one and the same. Instead, a DNA sample is processed by a specialist to obtain the DNA profile. ... Once the sample is processed, a record is made of the profile. Accordingly, this scientific process results in a record separate and distinct from the DNA sample. Because a scientific process must be performed on a DNA sample by an agent of the government to obtain the DNA profile, and the DNA profile is separate and distinct from the DNA sample, we conclude that the DNA profile obtained from appellant’s DNA sample was the work product of the government. Therefore, appellant had no possessory or ownership interest in the DNA profile."

"(R)etention by the state of a DNA profile for possible future comparison with profiles obtained from unknown samples taken from a victim or a crime scene does not differ from the retention by the state of fingerprints for use in subsequent investigations. ... We note that numerous courts around the country have examined this issue and have reached the same conclusion that we do here—a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample. A defendant lacks standing to object to its use by the state in a subsequent criminal investigation."

Ohio Election Law Updated

The Cincinnati-based U.S. 6th Circuit Court of Appeals, in what could be the final major court ruling dealing with Ohio's electoral procedures prior to next Tuesday's presidential election, yesterday put a hold on a judge's recent decision that would have required Ohio to count provisional ballots cast in the wrong polling location so long as they were cast in the correct county, Cincinnati.com this morning reported.

"The 6th Circuit agreed with Ohio Secretary of State Jon Husted and Attorney General Mike DeWine in saying that District Court Algenon Marbley's expanded ruling improperly 'absolves voters of all responsibility' not only for voting in the correct precinct, but even for finding the right building.

"Though voters must rely heavily on poll workers to direct them to the proper precinct in a multi-precinct voting place, they are not as dependent on poll workers to identify their correct polling place," the appeals court wrote in its 10-page PER CURIAM decision.

"... the harm to Ohio, the Secretary, and the general public caused by issuance of this injunction easily outweighs any potential harm to the plaintiffs if their view of the law is eventually determined to be correct. The injunction, it should be noted, both requires the expedited issuance of new instructions to poll workers less than two weeks before the election and refuses enforcement of a presumptively constitutional policy regarding voter eligibility. Ne. Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1012 (6th Cir. 2006) ("There is . . . a strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote."). Moreover, the inevitable result of the injunction's dramatic changes to Ohio's precinct voting system will be interference with orderly election administration and greater confusion among poll workers and voters. Early voting is already underway in Ohio. See "Voting Early in Person," Ohio Sec'y of State, http://www.sos.state.oh.us/SOS/elections/Voters/absentee/inperson.aspx . Changing election rules in this manner while voting is occurring disrupts the electoral process and threatens its fairness. These harms to the public and its elected government are significant ones..."

Ohio election law litigation

... and on and on it just seems to go

An article on Cincinnati.com this morning reports "a program intended to simplify Ohio voter registration changes produced headaches for the Hamilton County Board of Elections, which this week found itself needing to very quickly review and update records for more than 2,000 people., but that 'unfortunate rush' in processing those changes will produce advantages on Election Day by significantly reducing the number of voters who cast provisional ballots according to a spokesman for Ohio Secretary of State Jon Husted yesterday."

But another wild card in declaring a winner on Election Night could be just those thousands provisional ballots, given to voters when their eligibility is in question, often because of address changes or other discrepancies, a Cleveland Plain Dealer article yesterday morning said. Election boards hold the ballots 10 days to determine eligibility, and Ohio's said to have one of the highest provisional ballot rates in the country.

"If Ohio is held up, and Ohio is essential to know who won, then the presidency is going to get held up," the article quoted Edward Foley, director of Election Law at Ohio State University Moritz College of Law as saying.

"More than 200,000 provisional ballots were cast in Ohio in 2008. About 40,000 were determined to be ineligible in that election with Barack Obama defeating John McCain and carrying the state by about 262,000 votes. The margins were closer, though, in 2000 and 2004. George W. Bush carried Ohio over Al Gore in the 2000 election by about 165,000 votes. In the 2004 election, Bush margin over John Kerry was less than 119,000.
“Southern Ohio U.S. District Court Judge Algenon Marbley last week expanded his initial August ruling that Ohio must count provisional votes that are cast in the wrong location due to poll worker error, which can happen in polling sites that handle more than one precinct. Secretary of State Jon Husted is appealing that ruling, too, to the U.S. Sixth Circuit Court of Appeals." (Appeal document)

Judge Marbly's action came after last week's 6th. Circuit ruling that upheld his original holding from back on August 27th. were the 6th. Circuit "sustained part of the preliminary injunction in appeal, affirming the wrong-precinct remedy and reversing the deficient affirmation remedy. The district court's judgment in No. 12-3916 is affirmed and the matter is remanded so that the district court may expeditiously address (1) the equal protection issue created by the consent decree’s provision for the counting of deficient-affirmation ballots by SSN-4 voters, and (2) a motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots."

Ohio Supreme Court Holds Indigent Parent Does Not Have Right to Appointed Counsel in Purge Hearings

The Ohio Supreme Court ruled yesterday that a hearing to determine whether someone has purged him- or herself of a previous court order of civil contempt is a civil rather than a criminal proceeding, and, therefore, the Due Process Clauses of the U.S. and Ohio constitutions do not guarantee an indigent parent the right to appointed counsel at a civil-contempt purge hearing in a child support case.

The case in question, the Court's news service reviewed, involved an order issued by the Athens County Juvenile Court compelling Michael Liming to pay a specified amount each month to his ex-wife, Denday Damos, for the support of the couple's two children.

Liming appealed the denial of his request for appointed counsel at the purge hearing, and, on review, the Fourth District Court of Appeals held that the original contempt proceeding against Liming had been civil in nature and did not convert a later purge hearing into a criminal proceeding at which Liming had a right to appointed counsel under either the Sixth Amendment or Due Process Clause of the U.S. Constitution. The Fourth District noted, however, that its denial of a due process right to counsel at a purge hearing was in conflict with a 2001 ruling on the same issue by the Sixth District Court of Appeals, where that court had held that the trial court, exercising criminal contempt powers, was punishing that appellant for not complying with its previous orders. [ See Samantha N. v. Lee A.R., 6th Dist. Nos. E-00-036 and E-00-037, 2001 Ohio App Lexis 540 (Feb. 16, 2001)].

In resolving the conflict between appellate districts. Justice Judith Ann Lanzinger wrote that "based on the evidence before the trial court, the agency established that Liming had not met his purge conditions. Because he had the burden of proof and failed to produce evidence of inability to pay, the trial court's failure to expressly find that he had the ability to pay did not convert the purge hearing into a criminal proceeding. Therefore, the right to counsel under the Sixth Amendment to the United States Constitution and under the Ohio Constitution, Article I, Section 10 did not apply," the Court News Summary reported.

"Justice Lanzinger also reviewed the recent U.S. Supreme Court holding in Turner v. Rogers (2011) which stated: 'the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year)'; the majority noting that Turner was instructive but did not answer the precise question before the court concerning a purge hearing. Justice Lanzinger proceeded to employ the Mathews v. Elridge (1976) balancing test and concluded that the factors weighed against requiring the state to provide Liming with counsel at the civil-contempt purge hearings.”

"Justices Terrence O’Donnell and Paul Pfeifer joined in dissenting, disagreeing with the majority holding that a hearing was not required to determine the contemnor's ability to pay. Justice O’Donnell wrote that in his view, before a trial court may enforce a suspended contempt sentence that includes incarceration based on non-payment of child support, the court must conduct a hearing at which an indigent contemnor has access to appointed counsel, and the court must determine at that hearing whether the contemnor had the ability to pay the support ordered by the court.

"Also citing the Rogers holding that courts enforcing contempt sentences based on non-payment must either appoint counsel or adopt 'alternative procedures' that safeguard the rights of indigent persons before depriving them of their personal freedom, Justice O’Donnell wrote: 'Ability to pay is at the heart of contempt for failure to pay. A contempt action includes hearings to determine contempt as well as the purge of that contempt, and the right of a parent facing incarceration due to noncompliance with the purge conditions of a contempt order is not dependent on the nature of specific hearing or whether the action is civil or criminal; rather, the right of an indigent parent to counsel is dependent on the ability to pay.'"

Ohio prisoners' voting rights case

A hearing in Ohio's Southern District Court this morning examined yet another voting issue -- whether county elections boards should be stopped from enforcing a Nov. 3 absentee-ballot request deadline for people who are jailed.

Cincinnati.com this morning related that a group called Fair Elections Ohio along with several prisoner advocacy groups, filed a class-action lawsuit last week against Ohio Secretary of State Jon Husted, Ohio Attorney General Mike DeWine, and each of the heads of county elections boards, alleging "the provision of the Ohio Revised Code Sec. 3509.08 that sets a deadline of Saturday at noon for jailed electors to request an absentee ballot violates the Equal Protection and Due Process Clauses  of the Fourteenth Amendment of the United States. Constitution, the Voting Rights Act, Article I, Section 2, and the Seventeenth Amendment of the United States Constitution."

The groups, first of all, ask the District Court to "prohibit the implementing or enforcing a Saturday at noon deadline for detainees to request an absentee ballot, and require provision of a practicable means of voting for all confined voters at least equivalent to that provided for hospitalized persons pursuant to Ohio Rev. Code § 3509.08(B)."

Secondly, they’re asking Ohio Secretary of State Jon Husted "notify the state's eighty-eight county boards of elections and the sheriff of each county of the state that all jailed electors and those placed in custody on misdemeanor charges or convictions and/or upon felony charges between Friday, November 2, 2012 at 6:00 p.m. and Tuesday, November 6, 2012, have the right to vote, prescribing how he shall notify said boards and county sheriffs and further direct said boards regarding the means by which such rights are to be effected and enforced."

A restraining order in those respects was also requested.


Amended Complaint

Expanded Legal Assistance Program (ELAP) for Military Attorneys in Ohio

The Ohio Supreme Court adopted a new rule on Sept. 11th. which will enable military attorneys stationed in Ohio to represent lower-ranking service members in Ohio tribunals, effective January 1, 2013. ( Here )


The Court's news service this morning relates that military attorneys seeking this status will need to file an application,certificates of good standing and admission, and provide an affidavit from their commanding officer with the Office of Attorney Services. They also will need to meet all the requirements governing the practice of law in Ohio, including continuing legal education requirements.

Applicants would also have to meet the following criteria:

•be admitted to practice in at least one other U.S. jurisdiction

•be employed by, serving in, or assigned to the armed forces at an Ohio military installation

•and be authorized to provide legal assistance pursuant to 10 U.S.C. 1044.

Local traffic speed-control camera controversies

The idea behind taking pictures of drivers breaking the speed limit, in this country at least, dates back to at least 1905, Wikipedia's article on the subject says, with the first systems being introduced in the late 1960s using film cameras to take pictures. The first red light camera was introduced in 1965; first radar use in 1971, and the first mobile speed traffic camera in 1982.

The article continues by noting that "the first speed camera systems in the USA were in Friendswood, Texas in 1986 and La Marque, Texas in 1987, with neither program lasting more than a few months before public pressure forced them to be dropped."

Their popularity's no better in the tri-state or neighboring communities with the Village of Elmwood being most notable this past month or so. Cincinnati.com this morning notes that "Elmwood's cameras are the first in Hamilton County, which is coming a little late to the speed camera party. Other cities throughout the state – and, indeed, the country – have had the cameras in place for years, and other Ohio cities – including Cleveland, Dayton, Columbus and Toledo – have both red-light and speed cameras, according to the Insurance Institute for Highway Safety and Highway Loss Data Institute. Red-light cameras came up in Cincinnati in 2008, but the city became the first in the country to block photo monitoring devices with a charter amendment passed by voters."

 Information from the Governors' Highway Safety Association indicates "13 states, the District of Columbia and the U.S. Virgin Islands have speed cameras currently operating in at least one location. 12 states have passed laws that prohibit (with very narrow exceptions) the use of speed cameras. with 29 states having no law addressing speed cameras. All other states either permit the use of speed cameras (2 + D.C.) or limit their use by location or other criteria (7 + U.S. Virgin Islands)."

 Cincinnati.com’s article relates that neither Ohio, Kentucky, nor Indiana has either set standards or passed laws dealing with issues such as how much a police agency can charge and whether the car's driver or owner gets the ticket for red-light and speed camera violations.

  The article does indicate, though, that the cameras are legal and enforceable based on the Ohio Supreme Court's 2008 decision in Mendenhall v Akron, where the Court "accepted a certified issue by the United States District Court for the Northern District of Ohio, Eastern Division determining 'Whether a municipality had the power under home rule to enact civil penalties for the offense of violating a traffic signal light or for the offense of speeding, both of which are criminal offenses under the Ohio Revised Code.' Although, as certified by the federal court, the issue embraces both speed-limit and red-light enforcement, the record here deals with a single city ordinance involving enforcement of speed limits. We will therefore confine our analysis to comparing the ordinance with the state statute dealing with speed regulations, acknowledging, however, that the same analysis will dispose of questions concerning red-light cameras..."

 As of last May, however, the Ohio Supreme Court maintains that position.

Newly Adopted Ohio Probate Forms

The Supreme Court's news service announced this morning that the Ohio Supreme Court has adopted rule amendments to revise probate court forms that concern appointing a guardian of an alleged incompetent and a name change application for an adult or a minor, becoming effective January 1.


Text of New Forms Here

U.S. Supreme Court denies Ohio voting case

U. S. Supreme Court Justice Elena Kagan denied Ohio Secretary of State Jon Husted's request, Tuesday, to overturn or put on hold lower federal court rulings authorizing early voting on the final Saturday through Monday before Election Day. (Here)

"A protracted legal battle began last spring," a Cincinnati.com article yesterday morning said backgrounding the multiple cases' histories, "when the Republican-controlled Ohio legislature eliminated early in-person voting on the final weekend before the election as part of what they billed an election reform package. Democrats, however, called it a voter suppression effort aimed at tilting the political playing field toward Republicans.

"After more than 300,000 signatures were collected to place a referendum on the ballot aimed at overturning the measure, Statehouse Republicans -- not wanting an issue on the November ballot that could galvanize Democrats perhaps as much as the presidential race -- repealed most of the proposed changes. But the elimination of early voting on the final Saturday through Monday before the election stayed in place, except for military members and Americans living abroad.

"That prompted a lawsuit by the Obama campaign, the Democratic National Committee and the state Democratic Party in which they argued that the plan violated non-military voters’ constitutional rights.

"U.S. District Judge Peter Economus sided with the Democratic groups and reinstated early voting during the three-day period, saying that different voting schedules for different groups of voters posed significant legal questions. (Here) The Cincinnati-based U.S. 6th Circuit Court of Appeals upheld Economus’ ruling, stressing that early voting restrictions would be especially harmful to women, minorities, older voters and those with lower incomes and less education. While military voters deserve expanded voting hours because of the nature of their jobs and uncertainty over deployment, 'we see no corresponding justification for giving others less time,' the 6th Circuit said." (Here)

Secretary of State Husted appealed that decision last week to the U.S. Supreme Court, with military groups and attorneys general from 15 states joining his attempt to block the 6th Circuit decision. The appeals court ruling, they argued, "raised significant constitutional red flags" and impinged on Ohio officials' right to establish their own voting procedures.

Receiving Kagan's decision, Husted set uniform early voting hours for the three days in all 88 Ohio counties: 8 a.m. to 2 p.m. Saturday, 1 p.m. to 5 p.m. Sunday and 8 a.m. to 2 p.m. Monday.


Lyle Denniston at SotusBlog had a post with more information as well as links to articles in other major publications.

Ohio Supreme Court holds courts must allow for nontechnical language of nonlawyers in filing of search warrant affidavits

Ohio's supreme court last week held "that in determining whether information in a search-warrant affidavit was false, a court must take into account the nontechnical language used by nonlawyers."

In overviewing the case in particular, the Court's news service related that "in the affidavit filed with the court to establish probable cause for requesting a search warrant, the detective stated that two former students of a suspect had come to the police station together to report separate incidents in which, after establishing a close relationship with each of them as his student aide, the suspect had engaged in improper sexual touching of one victim, a minor identified as E.S., at school, and had taken digital photographs of the nude vaginal area of the second victim, identified as E.K., and had also engaged in touching of a sexual nature with E.K.. Suspect/defendant had filed a pretrial motion to suppress the evidence obtained through the search of his home based on a claim that the search-warrant affidavit had intentionally misled the court by describing E.K. as a "victim," and failing to disclose that E.K. had told police that the incidents involving the nude photograph and sexual touching of her had taken place when she was an adult, and that she had consented to those acts.

"The trial court granted the motion to suppress, holding that because nothing in defendant's alleged conduct with E.S. established grounds to issue a search warrant of suspect/defendant's home, and that affidavit had portrayed E.K. as a second "victim" despite knowledge that consensual adult conduct with E.K. was not a crime, 'knowingly and intentionally made false statements in his affidavit,' and that without those statements the affidavit did not support a finding of probable cause. State appealed, and Tenth District Court of Appeals voted 2-1 to affirm the judgment of the trial court suppressing the evidence from the search."

In explaining the Court's decision, Justice Evelyn Lundberg Stratton wrote: "The focus of the trial and appellate courts in this case was on the detective's use of the word 'victim' to describe E.K., the woman who was over 18 at the time of the sexual conduct alleged in the affidavit. According to the detective's own testimony, however, he considered her to be a victim because Defendant's relationship with E.K. involved a pattern of grooming and manipulation that began when E.K. was a minor and a student of Defendant. Although the affidavit indicated that the 'inappropriate' touching of E.K. occurred after she graduated from high school, the detective testified that he had told the judge about the teacher-student relationship. It is therefore difficult to understand how the courts could have deemed the affidavit misleading, since it stated clearly that victim #2 (E.K.) had graduated before the 'inappropriate' touching began.

"The United States Supreme Court has explained (in United States v. Ventresca, 1965) that search-warrant affidavits are usually drafted by nonlawyers and should be reviewed with that in mind. ... The detective selected 'victim' as a generic term to describe the two women in the affidavit so as to not identify them by name. The trial court conceded that Defendant had created 'some measure of victimization' with regard to E.K., but then went on to find that the detective had used the term 'victim' in reference to E.K. to intentionally mislead the trial judge who reviewed the search-warrant affidavit."

State v. Dibble, Slip Opinion No. 2012-Ohio-4630

Ohio Supreme Court Rules of Practice and Procedure, Commercial Docket amendments

The Ohio Supreme Court, on October 8, announced publication of a set of proposed amendments changing state rules of appellate procedure, civil procedure, criminal procedure, juvenile procedure and Rules of Evidence.

The Court's announcement stated that "Many of the proposed changes targeted inconsistencies, allowed for electronic service, removed outdated concepts, or move rules to other sections that make more sense. There are, however, a few substantive changes to existing rules, including:

•Proposed amendments to Civ. R. 4.4 and Juv. R. 16 would make it clear that service by posting can be used in initial actions and expand it to post-decree matters. In addition to the traditional 'posting' of a notice on the courthouse bulletin board, service would use the county clerk of court's website if it exists, although the amendments don’t require electronic posting.

•Amendments to Civ. R. 10(D)(2) and Evid. R. 601 seek to enhance the affidavit of merit requirement and clarify who qualifies as an expert in a medical claim. The amendments distinguish between medical malpractice cases and other medical, dental, optometric or chiropractic claims. An amendment to Evid. R. 601 would require experts to have devoted three-quarters of their professional time to active clinical practice at the time of the event giving rise to the claim.

Comments to the Rules of Procedure and Practice will be addressed until November 13, 2012, and should be addresses to:

Jo Ellen Cline, Government Relations Counsel
Supreme Court of Ohio
65 S. Front St., Seventh Floor
Columbus, Ohio 43215 or via email to j.cline@sc.ohio.gov 

Text of the proposed Procedure and Practice amendments

The Court last Friday also announced publication and the commencement of public commentation for the permanent rules governing the operation of commercial dockets in Ohio, to be used to resolve business-to-business disputes quicker and provide consistency to the process by judges developing expertise in this area.

The Court's announcement here stated that "The Supreme Court adopted temporary rules on May 6, 2008 to establish a multi-court pilot program to assess the best method of establishing commercial civil litigation dockets in the state. Pilot commercial dockets were established in common pleas courts in Cuyahoga, Franklin, Hamilton and Lucas counties."

Earlier this year, the Task Force on Commercial Dockets issued a final report in which it recommended the Supreme Court adopt rules allowing for the permanent establishment of commercial dockets, and finding that the benefits of the program included accelerating decisions, creating expertise among judges, and achieving consistency in court decisions around the state.

Comments on the Commercial Docket Rules may also be made until November 13, 2012. These should be addressed to:

John VanNorman, Policy and Research Counsel
Supreme Court of Ohio
65 South Front Street, Seventh Floor
Columbus, OH 43215 or via e-mail to john.vannorman@sc.ohio.gov

Language of Proposed Rules

Supreme Court's look at Inmate Competency

A couple more notable cases heard by the Supreme Court last week were Tibbals v. Carter and Ryan v. Gonzales, "examining the scope of the right to counsel and other such rights in death penalty cases in federal habeas courts in which the convicted individual's mental competency is at issue. That," Lyle Denniston at ScotusBlog said, "divides into a set of issues about legal representation, and a separate set of issues about competency and potential delays of the federal habeas case — possibly for years — until the individual is found to be mentally competent to proceed."

"Individuals accused of crimes have a constitutional right to a lawyer," Denniston's article continues " — and a free one if they cannot afford that on their own — at all significant stages of their cases, up to the point of conviction. That is true whether they are charged in state or federal court. Whether they have a similar right once they begin appeals to challenge their conviction or sentence is less certain. One thing, though, is clear: if a state prisoner uses up all appeal rights in state courts, and starts a challenge in federal habeas court, there is no guarantee of a right to a lawyer – unless the individual is facing a death sentence. But that is a right under a federal law, not the Sixth Amendment.

"A separate question about rights in a federal habeas case arises when the individual, or his lawyer, raises an issue of the convicted person’s mental competence to go forward with the case. The only constitutional right that the Supreme Court has recognized for mentally incompetent individuals convicted of crimes is that they cannot be given the death penalty; that was established in Ford v. Wainwright in 1986. Any 'right to competence' thus would have to be found, if at all, in a statute. That is a quite unsettled area of criminal law, and one of the reasons for that uncertainty is that the Supreme Court in 1966 and 1967 issued a decision and orders that have been understood in very different ways by lower courts. The Justices may now be ready to sort that out, along with other habeas law issues, in two new cases — one from Ohio, the other from Arizona."

"Tibbals v. Carter and Ryan v. Gonzales arose against the background of the Justices' actions nearly fifty years ago in a Virginia death penalty case, Rees v. Peyton. A ruling in 1966 was the first of two significant actions by the Court in the case. Melvin Davis Rees, Jr., had been convicted of murder, and given a death sentence. Shortly after his case had reached the Supreme Court, Rees told his lawyers to drop the appeal and take no further action. His lawyers then told the Court they could not do that in good conscience, because they believed he was mentally incompetent and thus not able to make such a fateful decision for himself. The Court ordered that more evidence be gathered on his mental state.

"After a federal judge ruled that Rees was, in fact, mentally incompetent, the Supreme Court in 1967 — in its second action in the case – simply put Rees's petition on an indefinite hold. That hold, in fact, lasted for some twenty-eight years, until Rees died in 1995. Without ever having acted on his case, the Court then dismissed his petition. The meaning of those actions has almost never arisen again as an issue for the Supreme Court."

"Lawyers for Arizona death row inmate Ernest Gonzales and Ohio death row inmate Sean Carter say yes, and that federal judges should have discretion to hold up proceedings until they're ready," local accounts conveyed, "but the federal government and some states argue there should be no delays in cases when the necessary information can be found in state trial records, and say there should be a time limit in all other instances."

Tibbals v. Carter

Petition for a writ of certiorari
9th. Circuit opinion

Ryan v. Gonzales

Petition for a writ of certiorari
6th. Circuit opinion