Thursday, April 26, 2012

New Criminal Background Check Rules this morning reported the Equal Employment Opportunity Commission's approving & issuing new rules for employers using criminal background checks, calling for careful consideration of how and when such reviews can be used in pre-employment screenings and in the workplace because of their potential to be biased against certain groups, such as racial minorities. [ See new Enforcement Guide ]

EEOC's press release states "The new guidance clarifies and updates the EEOC's longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.

"While Title VII of the Civil Rights Act of 1964 does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex. The guidance builds on longstanding guidance documents that the EEOC issued over twenty years ago.

"The Enforcement Guidance issued today is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers' consideration of a job applicant or employee's criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991. The guidance also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee."

BusinessWeek, The New York Times, and Reuters also had articles.

Tuesday, April 24, 2012

North Carolina death penalty case vacated via racial prejudice

The San Francisco Chronicle last Saturday reported North Carolina Superior Court Judge Gregory Weeks' vacating the death penalty of convicted murderer Marcus Reymond Robinson, in a landmark ruling there, saying prosecutors across the state had engaged for years in a deliberate and systematic pattern of racial discrimination while striking black potential jurors in death penalty cases.

Weeks, in a 167-page order harshly critical of prosecutors, said they had "intentionally used the race of (jury pool) members as a significant factor in decisions to exercise peremptory strikes in capital cases," and that discrimination was a factor not only in the case Weeks heard involving convicted murderer Marcus Reymond Robinson, who is black, but also in capital cases involving black defendants across North Carolina.

The ruling, according to the Chronicle, was the first under North Carolina's Racial Justice Act, passed in 2009, which allows judges to reduce death sentences to life in prison without parole in cases where defendants prove racial bias in jury selection. Prosecutors have 60 days to appeal .

The University of Pittsburgh's Jurist added, "The decision to transform Robinson's death sentence because of racial bias is expected to have a great impact on capital punishment discussions nationwide. The American Civil Liberties Union (ACLU) released a statement expressing its approval of the North Carolina decision and hope that the United States is moving in a direction towards abolishing the death penalty. The statement also notes the significance of Weeks' decision coming almost exactly 25 years after the Supreme Court ruled that ‘evidence of systemic bias is not sufficient to challenge a death sentence’ in the case of McCleskey v. Kemp."

The New York Times, CNN, and MSNBC also had articles.

Monday, April 23, 2012

Ohio Supreme Court Appeal/Trial Court Opinions

The Ohio Supreme Court this morning announced proposed amendments to the Supreme Court Rules for the Reporting of Opinions that would discontinue the publication of bound volumes of Ohio appeals court and trial court decisions as of July 1, 2012.

Public comment on the proposed amendments will be accepted until May 22, 2012.

Amendments to the Rules for Reporting adopted in 2002 contemplated the end of the Ohio Appellate and Ohio Miscellaneous volumes of the Ohio Official Reports at some future date, due in significant part to the declining demand for the print volumes due to the availability of the opinions via electronic publication was the major reason for the decision. Ohio Supreme Court opinions are not affected by this decision and will continue to appear in the Ohio State 3d bound volumes as well as on the Ohio Supreme Court's website.

Comments should be submitted in writing to: Sandra Grosko, Reporter of Decisions, 65 S. Front St., Eighth Floor, Columbus, Ohio 43215 or

Proposed Amendments

Revised Ohio Probate Forms

Ohio’s Supreme Court is also accepting public comments on 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, until May 29, 2012.

Revisions to form 17.0 (Application for Appointment of Guardian of Alleged Incompetent) would add additional items of information for the benefit of the probate court and the proposed ward. Revisions to forms 21.0 (Application for Change of Name of Adult) and 21.2 (Application for Change of Name of Minor) make them comply with House Bill 86. This legislation prohibited a probate court from ordering a name change if the applicant was convicted, pled guilty to, or was adjudicated a delinquent child for having committed a sexually oriented offense or a child-victim oriented offense.

Comments should be directed in writing to:

John VanNorman, Policy and Research Counsel Supreme Court of Ohio
65 S. Front St., Seventh Floor
Columbus, OH 43215
Or via e-mail to:

Language of Proposed Forms

Thursday, April 19, 2012

Death Penalty Review Panel Study

USAToday this morning relates a new review by the National Research Council this past week indicating that in the more than three decades since the national moratorium on the death penalty was lifted, there's been no reliable research to determine whether capital punishment has served as a deterrent to homicide.

The review, partially funded by the Justice Department's National Institute of Justice, found that one of the major shortcomings in all previous studies has included "incomplete or implausible" measures of how potential murderers perceive the risk of execution as a possible consequence of their actions. Another flaw, according to the review, is that previous research never considered the impact of lesser punishments, such as life in prison without the possibility of parole.

USAToday's article said the study panel reviewed the work of "dozens" of researchers since the Supreme Court's 1976 Gregg v. Georgia decision ended a four-year national moratorium on executions.

Carnegie Mellon University professor Daniel Nagin, who chaired the Council's study committee, was quoted as commenting that "fundamental flaws in the research we reviewed make it of no use in answering the question of whether the death penalty affects homicide rates… We recognize that this conclusion may be controversial to some, but no one is well served by unsupportable claims about the effect of the death penalty, regardless of whether the claim is that the death penalty deters homicides, has no effect on homicide rates or actually increases homicides."

The committee's report brief also notes that "It is important to make clear what the committee's study did not examine. Deterrence is only one of many considerations relevant to deciding whether the death penalty is good public policy. Not all supporters of capital punishment base their argument on deterrent effects, and not all opponents would be affected by persuasive evidence of such effects. The case for capital punishment is sometimes based on arguments that the death penalty is the only appropriate response to especially heinous crimes; the case against it is sometimes based on claims that the sanctity of human life precludes state-sanctioned killings. Other considerations include whether capital punishment can be administered in a nondiscriminatory way, whether the risk of mistakenly executing an innocent person is acceptably small, and the cost of administering the death penalty in comparison with other punishments."

Mortgage/Foreclosure follow-up

As follow-up to our mortgage-funding/home foreclosure post earlier this week, American Lawyers' AmLaw Daily report yesterday cited Christy Romero, TARP's new inspector general’s, scathing report of the nation's so-referred "Hardest Hit Fund," which was meant to help struggling homeowners address foreclosure issues.

report, issued while she was still serving as TARP's acting inspector general, chastised Bingham, Cadwalader, Wickersham & Taft, Locke Lord, and Simpson Thacher & Bartlett for what she said were their sometimes vague billing practices and the Treasury Department for failing to adequately monitor those bills. While the 76-page document Romero put out last week did not single out specific firms, it did serve as a reminder that plenty of Am Law 100 and Second Hundred firms have reaped the benefits of taking on TARP assignments.

AmLaw's post continues, "As for TARP—a program established by the
Emergency Economic Stabilization Act of 2008 in the waning days of the George W. Bush's second presidential term—about 20 firms have legal advisory contracts tied to the program, according to a March report filed by Treasury to Congress. Sibling publication The American Lawyer reported two years ago (LexisNexis subscription article) on the total value of some of those TARP contracts, which are capped at $100 million. (The Am Law Daily has reported separately on Treasury's decision to hire 13 firms to help run programs—like the Hardest Hit initiative—that ran past TARP's expiration date.)" Additional information on those contracts—which are mostly boilerplate agreements for legal advice on investments, asset-backed security deals, debt transactions, mortgage loan modifications, other mortgage-related legal issues, or restructuring matters— are explored in the remainder of the posting.

another AmLaw publication writes of another tiff, this time between the ABA and the U.S. Consumer Financial Protection Bureau, with the latter saying it has the right to see information protected by the attorney-client privilege or the work product doctrine as it promotes fairness and transparency in mortgages, credit cards, and other consumer products. Disagreeing, the ABA sent a comment letter to the CFPB earlier this week, objecting to a proposed rule that gives the agency the right to demand that all banks and other supervised financial entities submit privileged information to the bureau during examinations.

Wednesday, April 18, 2012

Private-practice attorneys have qualified immunity while temporarily employed by governmental agencies

The U.S. Supreme Court yesterday held that private-practice attorneys temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit under federal statutes. (See Filarsky v. Delia, 10-1018 )

A National Law Journal article this morning reported that the U.S. Court of Appeals for the Ninth Circuit had denied immunity to California lawyer Steve Filarsky, who was sued along with city employees in Rialto, Calif., by firefighter Nicholas Delia for their actions in an employment dispute. Filarsky, a partner at Filarsky & Watt in Manhattan Beach, had been retained by the city to help investigate the dispute. The Ninth Circuit upheld immunity for the full-time employees, but not for Filarsky, because of his nonemployee status.

"Chief Justice John Roberts Jr., writing the majority opinion, asserted that immunity from civil rights suits under 42 U.S.C. 1983 'should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis,' pointing to the history of civil service, especially in the mid-1800s."

The Court, in its syllabus, noted "common law as it existed in 1871, when Congress enacted §1983, did not draw a distinction between full-time public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities. Government at that time was smaller in both size and reach, had fewer responsibilities, and operated primarily at the local level. Government work was carried out to a significant extent by individuals who did not devote all their time to public duties, but instead pursued private callings as well. In according protection from suit to individuals doing the government's work, the common law did not draw distinctions based on the nature of a worker's engagement with the government. Indeed, examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis are as varied as the reach of government itself. Common law principles of immunity were incorporated into §1983 and should not be abrogated absent clear legislative intent. See Pulliam v. Allen, 466 U. S. 522, 529. Immunity under §1983 therefore should not vary depending on whether an individual working for the government does so as a permanent or full-time employee, or on some other basis…"

Continuing, it held that "nothing about the reasons this Court has given for recognizing immunity under §1983 counsels against carrying forward the common law rule:

• First, the government interest in avoiding "unwarranted timidity" on the part of those engaged in the public's business— which has been called "the most important special government immunity-producing concern," Richardson v. McKnight, 521 U. S. 399, 409—is equally implicated regardless of whether the individual sued as a state actor works for the government full-time or on some other basis.• Second, affording immunity to those acting on the government's behalf serves to " 'ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.' " Id., at 408. The government, in need of specialized knowledge or expertise, may look outside its permanent workforce to secure the services of private individuals. But because those individuals are free to choose other work that would not expose them to liability for government actions, the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts.

• Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is implicated whether those duties are discharged by private individuals or permanent government employees, and finally

• Distinguishing among those who carry out the public's business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to " 'reasonably anticipate when their conduct may give rise to liability for damages,' " Anderson v. Creighton, 483 U. S. 635, 646

Tuesday, April 17, 2012

Hamilton County juvenile court ballot dispute

In what's coming to be believed to be the longest-running election in Hamilton County history, the end, perhaps, got just a bit closer with the U.S. 6th. Circuit Court of Appeals yesterday clearing the way to have some 300 disputed ballots in the razor-close election for Hamilton County juvenile court judge counted. ( Order ) writes, that "The decision does not end the long court battle over the ballots, but it does require county election officials to count the ballots, declare a victor and seat the winning judge while the legal fight continues for months, or even years, in the federal courts."

Summarizing the proceedings over the past 17 months, the 6th. Circuit's order recounted Tracie Hunter's having brought the action challenging the way in which the Hamilton County Board of Elections ("Board") reviewed and counted provisional ballots cast in the 2010 election for judge of the Hamilton County Juvenile Court.

In November 2010, the Southern Ohio district court issued a preliminary injunction directing the Board of Elections to undertake an investigation into Hunter's allegations. Hunter filed an emergency motion with the Sixth Circuit to enforce the injunction which was granted on January 12, 2011. The Board of Elections appealed , with the 6th. Circuit now affirming the district court's injunction, affirming in part and vacating in part the January order, and remanding the issue back to the district court for further proceedings to determine how the Board should proceed.

On remand, the district court conducted a lengthy evidentiary hearing, subsequently issuing a judgment and order determining that the Board had violated provisional voters’ right to equal protection when it considered evidence of the location where provisional ballots were cast for some, but not all, provisional ballots that were cast in the wrong precinct, and enjoining the Board from rejecting otherwise valid provisional ballots that were cast in the correct location, but in the wrong precinct, as a result of poll-worker error.

Monday, April 16, 2012

Ohio & the National Mortgage/ Foreclosure Settlement

In what was being described as the largest joint federal-state settlement ever obtained, US District Court Judge Rosemary Collyer for the District of Columbia two weeks approved the $25 billion settlement agreement between US Attorney General Eric Holder, along with Department of Housing and Urban Development Secretary Shaun Donovan and 49 state attorneys general, and the nation's five largest mortgage servicers -- Bank of America Corporation, JPMorgan Chase & Co., Wells Fargo & Company, Citigroup Inc. and Ally Financial Inc. (formerly GMAC) -- addressing mortgage loan servicing and foreclosure abuses. That investigation began in October 2010, the University of Pittsburgh's Jurist PaperChase summarized last week, with the forming of a bipartisan group called the Mortgage Foreclosure Multistate Group (MFMG), culminating with the agreement's being reached in February, but requiring court approval to proceed . [The National Conference of State Legislatures has a settlement summary here ]

Jurist referenced that, back in 2009, the US Senate rejected that portion of the Helping Families Save Their Homes Act (Pub.L. 111-22) that would have allowed bankruptcy judges to modify mortgages on primary residences prior to that bill's being signed into law. A USAToday article last week now related federal government's plans to proposing new rules giving homeowners more ways to avoid foreclosure and get accurate accountings of their monthly mortgage payments via the Consumer Financial Protection Bureau, created three years ago via the Dodd-Frank Wall Street Reform & Consumer Protection Act (Pub.L. 111-203). That article says "mortgage servicers would now be required to give all borrowers standardized monthly statements and warn them about interest rate or insurance changes, and make 'good-faith efforts' to contact borrowers at risk of foreclosure, giving them options to avoid losing their homes. There are also stipulations for improving record-keeping and providing foreclosure counseling to those who need it. Those rules will formally be proposed this summer and finalized by January 2013.

A second USAToday article last week, however, related that a report just released from the Office of the Special Inspector General for the Troubled Asset Relief Program said "the program, available in 18 states and the District of Columbia, suffered a 'significant delay' given lack of planning by the U.S. Treasury Department and slow uptake by mortgage loan servicers and mortgage giants Freddie Mac and Fannie Mae, and unless changes are made, not all of the funds may be spent by the program's end in December 2017… Treasury officials say the report 'misses the mark,' and that the program, geared toward helping the unemployed or underemployed in states hard hit by recession or home price declines, has 'kept tens of thousands of families in their homes.'"

USA’s article notes that "Treasury allowed states to tailor their programs to their needs, with itsapproval. While an innovative approach, that also created problems because mortgage servicers, who manage home loans, had to deal with dozens of different programs and were often slow to do so…. State programs to reduce the amount of principal owed on mortgage loans also struggled -- One reason: Freddie Mac and Fannie Mae, which own or guarantee 60% of home loans, doesn't allow principal reduction, and Treasury didn't do enough early on to get big servicers and Freddie and Fannie on board, according to the report. Now that states have set up programs and systems, funds are flowing more rapidly. The amount spent as of Dec. 31 was almost double that of three months prior…"

In the midst of the national fevor, Ohio's supreme court, on April 4th, heard a certified conflict case to determine whether a bank or mortgage company can file a foreclosure lawsuit in Ohio without having proof at the time that it actually holds the mortgage or note. Ohio's supreme court is involved because its appellate courts have issued conflicting decisions on whether a bank needs all the paperwork in order initially or can "catch up" by filing it before the judge rules, according to a Columbus Dispatch’s article. That decision, according to the paper, could have implications not only throughout the state, but also the rest of the country.

The Dispatch article's background on the case said a couple, back in 2006, had bought a house for $335,000, securing a loan for $251,250, after which the husband had lost his job and they moved to Indiana in search of work and putting their home on the market. When they couldn't keep up their mortgage payments in early 2009 they contacted Wells Fargo about a loan modification or short sale, and had a short-sale buyer with the closing set for June 2009. Freddie Mac, however, filed a foreclosure suit in April, saying it was the "holder" of the promissory note but not attaching a copy of that note. It also said it had obtained an assignment of the mortgage but did not attach documentation of the assignment. Neither document was filed until later that year., with Freddie Mac attorney Scott King saying to have the legal right to sue, all a plaintiff needs is to allege facts giving the court jurisdiction to rule, and down the line the bank can back up its suit with the necessary documents.

Proceeding through the courts, Greene County's Second District Court of Appeals issued its decision and entry in the case on July 27, 2011, certifying "In a mortgage foreclosure action, the lack of standing or a real party in interest defect can be cured by assignment of the mortgage prior to judgment" as the question spurring conflict in the state. (See Notice of Certified Conflict )

Thursday, April 12, 2012

Connecticut abolishes death penalty

The state of Connecticut is set to become the 17th in the nation to abolish its death penalty, replacing it with a penalty of life imprisonment without the possibility of release for certain murders. Connecticut's House of Representatives passed the measure last night by an 86-63 vote after its senate had passed it last week. (See Senate Bill 280)

As is the case in many of the remaining death penalty states, capital punishment existed in Connecticut since colonial times, but, as a CNN article this morning relates, was forced to review its laws invoking the death penalty beginning in 1972, when the Supreme Court in Furman v. Georgia required greater consistency in its application and a moratorium was imposed until Gregg v. Georgia in 1976 upheld the constitutionality of capital punishment."Since then," CNN reported, "Connecticut juries have handed down 15 death sentences, of which only one person has actually been executed. Michael Ross, a convicted serial killer, was put to death by lethal injection in 2005 after he voluntarily gave up his appeals."

Connecticut has 11 people on death row. The bill, however, is prospective in nature, meaning that it would not apply to those already sentenced to death.

New York Times coverage adds that Gov. Dannel Malloy's signature on the bill will leave New Hampshire and Pennsylvania as the only states in the Northeast that still have the death penalty. New Jersey repealed it in 2007. New York's statute was ruled unconstitutional by the state's supreme court in 2004, and lawmakers have not moved to fix the law.

The Times also notes "Republican critics of the bill said the exemption for those currently awaiting execution cast a cloud over the vote, both because it undercut the moral argument of death penalty opponents and because future appeals or government action had the potential to spare the 11 men….. But Democratic legislators — swayed by at least 138 cases nationally in which people sentenced to death were later exonerated and by arguments that the death penalty is imposed in a capricious, discriminatory manner and is not a deterrent to crime — voted for repeal. They noted that a repeal in New Mexico in 2009 that also exempted those already on death row had thus far withstood challenges.

As we reported earlier, here in Ohio, U.S. District Court Judge Gregory Frost's denying the motion for a temporary restraining order and preliminary injunction staying the execution of Mark Wiles next week effectually ended this state's unofficial death penalty moratorium that dates back to November, but its supreme court task force charged with examining the state's procedures has last reported that it could take at least two years to complete its study.

The University of Pittsburgh Law School's Jurist has more.

Wednesday, April 11, 2012

Initiative Disabling Stolen Cell - iPhones

A USAToday article this morning is reporting that "within six months Americans calling participating wireless providers and reporting their smart- or cellphone stolen, will be having that provider's blocking the device from ever being used again -- the system hopefully being rolled out globally using common databases across carriers over the next year and a half."

he nationwide database is part of an agreement between the Federal Communications Commission and the nation's cellular providers to create a database that would be used to permanently disable stolen smartphones. (Announcement) That would presumably be strengthened by a bill proposed by Sen. Charles Schumer, D-N.Y., making it illegal to circumvent the database as well. (See FCC chairman Julius Genachowski’s statement)

Theft of mobile devices make up some 30-40% of all robberies in major U.S. cities. "iPhone and smart phones nowadays are like catnip for criminals," Schumer was quoted by CBS News and USAToday. "They've valuable, they're exposed, and they're easy to steal…. Our goal is to make a stolen cellphone as worthless as an empty wallet. By permanently disabling stolen them, we can take away the incentive to steal a them in the first place and put a serious dent in the growing rates of iPhone and smartphone theft."

Tuesday, April 10, 2012

Ohio death penalty protocol

ABC News last Friday reported the decision by U.S. District Judge Gregory Frost ending an unofficial death penalty moratorium in Ohio dating back to November, with his denying the motion for a temporary restraining order and preliminary injunction staying the execution of Mark Wiles next week.

ABC notes Judge Frost has never found Ohio's execution process unconstitutional, meaning the delays have been based on technical questions about lethal injection & procedure. Last Wednesday he summed the situation up "The protocol is constitutional as written and executions are lawful, but the problem has been Ohio's repeated inability to do what it says it will do. As a result, this Court has dealt with inmate challenges to the constitutionality of Ohio's execution protocol for close to eight years. During that time, the litigation has morphed from focusing primarily on allegations of cruel and unusual punishment to allegations of equal protection violations. And as this Court has previously stated, "Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms."

"The Court is admittedly skeptical about Ohio's ability to following through on its latest reforms," Frost wrote, "Wiles in turn has at best presented evidence suggesting that it is an even question whether Defendants can or will do what they are telling this Court they will do. Defendants have presented evidence that suggests that the scale tips in their favor on this issue. The burden of proving entitlement to a stay falls on Wiles, and he has fallen just short of meeting that burden. This Court is therefore willing to trust Ohio, just enough to permit the scheduled execution.

"The Court reaches this conclusion with some trepidation, given Ohio's history of telling the Court what Defendants think they need to say in order to conduct executions (or in convincing themselves that things are fine enough when they are not) and then not following through on promised reforms. As in prior injunctive relief decisions, the Court does not conclusively hold here that Ohio’s method of execution practices are constitutional or unconstitutional. Today’s decision only recognizes that based on all of the record evidence, Wiles has not met his burden of persuading this Court that he is substantially likely to prove unconstitutionality and prevail in this litigation."

The University of Pittsburgh Law School’s Jurist also had an article.

Thursday, April 05, 2012

Ohio Supreme Court juvenile consultation rules of practice this morning continued coverage of the Ohio Supreme Court's contemplating an issue of whether to require juvenile offenders facing the possibility of detention to consult with an attorney before deciding to waive their right to an attorney.

"Current court rules," the article notes, "don't require such meetings, and the proposal is pitting youth advocates against some judges who say the requirement hinders the rights of parents and juveniles to make the decision themselves…

The proposal would make consultation mandatory for all situations where a juvenile might face detention, even for something as minor as petty theft, a push that's almost a decade old now, dating back to a 2003 American Bar Association report that found many poor children in the state routinely waived their right to an attorney. Three years later, an analysis of 2004 state data found that "an estimated two-thirds of the 147,867 juveniles who were the subject of delinquency or unruly complaints resolved in 2004 faced those proceedings without an attorney; another recent report, from the Children's Law Center, found that roughly 15% of children committed to Ohio Department of Youth Services facilities and 20% of those placed at community corrections facilities were unrepresented by counsel during their delinquency proceedings… Most of these children waive their right to counsel. They do so, however, without an appreciation of their constitutional rights and without fully understanding the consequences of their waive."

The proposed rules are part of a package being considered initially published for comment last October. The amendments were revised by the Commission on the Rules of Practice and Procedure and approved for filing. A second round of public comment was then commenced, running thru March 6. The Court could then revise and file the amendments with the General Assembly before May 1, the amendments then taking effect on July 1 unless the General Assembly adopts a concurrent resolution of disapproval before then.

According to the Supreme Court's announcement back in February, it had unanimously approved the proposed amendments for filing with the General Assembly and publication for a second comment period except for the amendments to Juv. R. 3. With respect to Juv. R. 3 -- mandating that juveniles consult with legal counsel before waiving their right to an attorney in specific cases --- the Court voted 4-3 in favor of filing and publishing proposed amendments with Justices Terrence O’Donnell, Judith Ann Lanzinger, and Robert R. Cupp voting against filing the proposed amendments.

Wednesday, April 04, 2012

Ohio Supreme Court voids life-long registration/community notification for juvenile sex offenders

The Ohio Supreme Court yesterday morning voided provisions of the Ohio Adam Walsh Act (AWA) that impose automatic lifelong registration and community notification requirements on juvenile sex offenders who had been tried within the juvenile court system, finding them unconstitutionally "cruel & unusual."

Justice Paul E. Pfeifer concluded, in the Court's summary, that "In sum, the limited culpability of juvenile non-homicide offenders who remain within the jurisdiction of the juvenile court, the severity of lifetime registration and notification requirements of PRQJOR status, and the inadequacy of penological theory to justify the punishment all lead to the conclusion that the lifetime registration and notification requirements in R.C. 2152.86 are cruel and unusual. We thus hold that for a juvenile offender who remains under the jurisdiction of the juvenile court, the Eighth Amendment forbids the automatic imposition of lifetime sex offender registration and notification requirements."

Justices Terrence O’Donnell and Robert R. Cupp dissented.

Reiterating the reasoning in his July 2011dissent in State v. Williams, 2011 Ohio 3374, Justice O’Donnel here wrote that in his view the registration and notification requirements imposed by S.B. 10 "are civil in nature and part of a regulatory scheme designed to protect the public from sex offenders. Because application of those requirements to juveniles pursuant to R.C. 2152.86 does not alter S.B. 10's nonpunitive purpose, that view also applies to juveniles such as C.P.," also pointing out that the lifetime registration requirements imposed by R.C. 2152.86 apply to only a small subset of the most serious juvenile offenders, and asserted that juveniles have no special constitutional due process right to a judicial review before being subjected to the mandatory post-release registration requirements established by the legislature.

In his dissent, Justice Cupp wrote that courts reviewing legislative enactments such as the juvenile offender registration requirements in R.C. 2152.86 are required to begin with the strong presumption that they are constitutional, and may find punitive provisions "cruel and unusual" only if the punishment is "grossly disproportionate" to the offense. While the majority cites the U.S. Supreme Court's holding in Graham v. Florida, 130 S.Ct. 2011, as precedent for today's decision, Justice Cupp noted that Graham dealt with a penalty that was more severe than the registration requirements imposed on C.P. in this case. "The punishments held by the United States Supreme Court to categorically violate the Eighth Amendment ban when applied to juveniles are the death penalty (in) Roper v. Simmons ... and lifetime imprisonment without the possibility of parole for serious, but non-homicide, crimes (in) Graham, Justice Cupp wrote in the Court's summary. "I do not find the requirements at issue here pertaining to registration and notification to rise to such a level as to be even remotely comparable."

In re C.P., Slip Opinion No. 2012-Ohio-1446

Tuesday, April 03, 2012

Supreme Court holds strip searches not Fourth Amendment violations

The New York Times this morning reports "U.S. Supreme Court Justice Anthony M. Kennedy's, joined by the court's conservative wing, writing that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations" in holding that individuals arrested for any offense, however minor, may strip-searched before being admitted to jails even if officials have no reason to suspect the presence of contraband.

"Federal appeals courts had been split on the question, though most of them prohibited strip-searches unless they were based on a reasonable suspicion that contraband was present," the article continued, and, while the Supreme Court did not say that strip-searches of every new arrestee were required, it ruled Fourth Amendment prohibitions of unreasonable searches did not forbid them. "Monday's decision endorsed a recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, allowing strip-searches of everyone admitted to a jail's general population -- at least seven other appeals courts, on the other hand, had ruled that such searches were proper only if there was a reasonable suspicion that the arrested person had contraband."

"'The Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers,' stressed Justice Samuel Alito Jr. in a article this morning. 'It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.'"

Justices Breyer, Ginsburg, Sotomayor & Kagan dissented. "I cannot find justification for the strip search policy at issue here — a policy that would subject those arrested for minor offenses to serious invasions of their personal privacy," Breyer wrote.

"The petition for certiorari asks us to decide 'whether the Fourth Amendment permits a . . . suspicionless strip search of every individual arrested for any minor offense . . . .'," the dissent reads. "This question is phrased more broadly than what is at issue. The case is limited to strip searches of those arrestees entering a jail's general population… The kind of strip search in question involves more than undressing and taking a shower (even if guards monitor the shower area for threatened disorder). Rather, the searches here involve close observation of the private areas of a person's body and for that reason constitute a far more serious invasion of that person’s privacy… Such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an 'unreasonable search' forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband.

Florence v. County of Burlington, No. 10-945