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

Ohio voter's issue cases

Cincinnati.com this morning reports that "the U.S. 6th Circuit Court of Appeals, in a key ruling dealing with a problematic aspect of Ohio's electoral rules that kept a Hamilton County judicial race undecided for 18 months, declared that Ohio must count provisional votes cast in the right polling place but wrong precinct because of poll worker error., upholding the earlier ruling by U.S. District Judge Algenon Marbley, and meaning that thousands of ballots that otherwise could have been tossed out instead may help decide whether President Barack Obama or Republican presidential nominee Mitt Romney wins the state’s 18 electoral votes --- What’s not known is whether Ohio will appeal Thursday’s decision, as Secretary of State Jon Husted did in another case earlier this week involving Ohioans’ right to cast early in-person absentee ballots on the final three days before the Nov. 6 election.”


Ohio isn’t the only state so embroiled. A BusinessWeek article this morning notes “at least 15 pending nationwide over election law limits on issues such as early voting, registration and identification in the run-up to the Nov. 6 vote. Yesterday, South Carolina became the fourth state to be blocked from requiring voters to show photo identification before casting a ballot, a special panel of three federal judges in Washington ruled that given the time left before the election, requiring photo ID at polling stations puts a burden on minority voters that violates the Voting Rights Act of 1965. “Proper and smooth functioning” of a key protection in the South Carolina law can only be assured in elections after this year, the judges said. (Here)

“ ‘Even assuming the best intentions and extraordinary efforts by all involved, achieving that goal is too much to reasonably demand or expect in a four week-period -- and there is too much of a risk to African-American voters for us to roll the dice in such a fashion,’ U.S. Circuit Judge Brett Kavanaugh said in the ruling.”

The BusinessWeek article also mentioned similar cases underway in Vermont and Texas.

"Fisher v. University of Texas"

Affirmative action, Wikipedia's renditionsays, is a term that "refers to procedures & policies that take factors including 'race, color, religion, gender, sexual orientation, or national origin' into consideration in order to benefit an underrepresented group 'in areas of employment, education, and business', usually justified as countering the effects of a history of discrimination

"The term being first used in the United States in Executive Order 10925 signed by President John F. Kennedy on March 6, 1961, where it was employed to promote actions that achieve non-discrimination.; and then in 1965, where President Lyndon B. Johnson enacted Executive Order 11246 which required government employers to take 'affirmative action' to hire without regard to race, religion and national origin. In 1968, gender was added to the anti-discrimination list. Comparable procedures in other countries are also known as reservation in India, positive discrimination in the United Kingdom, and employment equity in Canada."

This morning The Supreme Court heard oral arguments in what NBC News and most other media outlets have characterized as "the most important civil rights case to come before the justices in the past six years: a challenge to the use of race as a factor in admissions at the University of Texas in Fischer v. University of Texas."

NBC further reported yesterday that "in its most recent high-profile case involving the use of race in education, the high court in 2007 invalidated public school programs in Seattle and Louisville, Ky. that used students' race as a 'tiebreaker' for admission to certain high schools and kindergartens. Chief Justice John Roberts said in his majority opinion on that case: 'The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.'"

But this morning USAToday reported, “Several liberal justices implied that a new ruling from the high court changing the rules laid down in a 2003 University of Michigan case would create havoc not only for admissions offices but for district courts across the country charged with interpreting the law… Conservatives appeared dissatisfied with the current standard for achieving a "critical mass" of minority students, particularly because it's so difficult to define.”

Marcia Coyle's National Law Journal article this morning headlined that "Prospects Look Dim at Supreme Court for University's Affirmative Action Policy."

Ms. Coyle's article notes that the Fisher case has drawn roughly 90 amicus briefs, with more than 70 supporting the University of Texas.


Petition for a writ of certiorari 
Transcript of Hearing

Potential juvenile legislation

In response to last week's Supreme Court decision holding that minors do not have a right to an attorney during police interrogations that come before charges are filed or an initial appearance in juvenile court., the Associated Press last Friday reported State Rep. Tracy Heard is reportedly planning on introducing a bill to require that children under the age of 18 be read their rights regarding interrogation "in their language."


In the Supreme Court's decision , Justice O’Donnell had emphasized that that particular case hinged on a narrow legal question of whether, aside from Miranda, the language in R.C. 2151.352 that granted a separate statutory right to counsel during delinquency “proceedings” entitling a juvenile suspect to legal counsel before the jurisdiction of a juvenile court has been invoked by the filing of a complaint. (See Court's new summary)

Back in April, the Supreme Court amended & adopted Juv.R. 3, requiring consultation mandatory for all situations where a juvenile might face detention, even for something as minor as petty theft. (More )

Ohio Supreme Court pro se domestic relations forms

The Ohio Supreme Court last Friday announced the proposal of 23 standardized domestic relations forms so litigants not represented by an attorney can "meaningfully participate in many family law related proceedings in domestic relations and juvenile courts such as divorces, dissolutions, legal separations, and parenting plans."

Key information, relevant instructions, and tips have been embedded in the forms using plain English as much as possible to assist self-represented litigants in pursuing their cases in court, and, once adopted in final form, the forms will be posted on the Supreme Court's website in a format which will either to able to be completed online or printed out for completion by hand.

The Supreme Court will be entertaining comments until November 13, 2012, which should be directed 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.

Access to Forms

Ohio voter issues

Two lawsuits -- one having just been decided by the 6th. Circuit Court of Appeals, allowing early in-person voting over the final three days before the election, while the other, still pending in the 6th. Circuit, seeks to determine whether certain provisional votes will be counted – will have much to say about the state's procedures for Election Day 2012, Cincinnati.com writes this morning, and "a month before the Nov. 6 presidential election, the rules that will govern how Ohioans cast their ballots remain uncertain."


Of the two suits, Cincinnati.com says, the one concerning provisional ballots – cast when there are questions over a voter's registration – arguably has the greater potential for causing last-minute scrambling among election officials and confusion at the polls.

"Late last August," the article continues, "U.S. District Court Judge Algenon Marbley ordered Ohio to count provisional ballots cast at the right location but in the wrong precinct, a crucial ruling that could prevent thousands of votes from being disqualified as they have been in past elections. That decision changed the rules established by an earlier Ohio Supreme Court ruling under which all provisional votes cast in the wrong precinct must be tossed out, even in cases of poll worker error… Secretary of State John Husted appealed Marbley's decision to the 6th Circuit, leaving both sides waiting for a decision. When it will come is a matter of conjecture."

Ohio Supreme Court's "foreign language interpreter" rules

The Ohio Supreme Court's new monthly Court News Ohio Review newsletter this month has a cover article about the state's new interpreter requirements going into effect next January.


Ohio's court interpreter program actually goes back to the mid-90s when interpreter qualifications, policies, and training were initially identified by the Ohio Commission on Racial Fairness. In 1993, the Supreme Court of Ohio and the Ohio State Bar Association created that commission to examine the issue of racial bias in the justice system. Its report was issued in 1999.

In June 2003, the Supreme Court became part of the National Center for State Courts' Consortium for State Court Interpreter Certification (now Consortium for Language Access in the Courts). It then created its Advisory Committee to Study Use of Court Interpreters in April 7, 2005, which, in turn, issued its Report on the Use of Interpreters in Ohio Courts in February 2006. Findings of the report included Ohio's having no standard qualification process for interpreters and no guidelines, policies or procedures to help assist courts in the use of interpreters in the courtroom…

By the end of 2008 the Supreme Court had rules, guidelines, policies and procedures, and had set them out for public comment, and by the beginning of last year it had its first class of 23 certified interpreters.

Rules of Superintendence for the Courts of Ohio (Sup. R. 80. Definitions and 88. Appointment of a Foreign Language Interpreter or Sign Language Interpreter.) were finalized & adopted by the Judicial Conference on
June 11, 2011. They go into effect January 1st. 2013  (Here)

New federal discovery rules proposed by International Trade Commission

The Wall Street Journal's Law Blog yesterday morning carried a posting about the International Trade Commission's "proposing new rules that would, ideally, make patent-infringement disputes more affordable by placing limitations on electronic discovery."

The proposed rules, which were published in today's Federal Register, closely tracks the Federal Rules of Civil Procedure, according to the post. "As it is," it says, "if, say, Apple makes a request of Samsung for information that it believes is relevant to an infringement claim, Samsung has to dig through all its emails and documents, no matter how much it costs or how long it takes, for that information. Under the proposed rules, Samsung wouldn’t have to provide discovery from sources that it identified as 'not reasonably accessible because of undue burden or cost.' Apple, however, could then file a motion to compel the production of the electronic documents in question, and Samsung would have to show that the information isn't reasonably accessible. An administrative judge would ultimately decide the issue."

The Federal Register posts that comments on the proposed rules have to be received before 5:15 p.m. on December 4, 2012.

Ohio Supreme Court juvenile cases

The Ohio Supreme Court has decided two juvenile court cases noteworthy of those in that practice.


Yesterday, it held that while Ohio Revised Code Sec. 2151.352 entitles juvenile offenders to representation by legal counsel "at all stages of the proceedings" in delinquency cases, that refers only to court proceedings that take place after the filing of a complaint in juvenile court or upon an offender's initial appearance in  court, but does not confer such a right during police interrogations conducted prior to the filing of a complaint or the offender's initial appearance in juvenile court.

That case, In re M.W., Slip Opinion No. 2012-Ohio-4538, concerned "a juvenile offender," the Court's news service wrote, "who was stopped by a Cleveland police officer while driving without a valid license and initially identifying himself by another name. When the officer discovered the deception and asked why he had used a false identity, the youth stated he thought he had been stopped because of "something to do with" another juvenile the officer knew had been arrested the previous day for aggravated robbery. When asked what he knew about the robbery, he confessed that he had served as a lookout, was arrested and transported to a district police station, where he was advised of his constitutional rights, signed a written waiver of those rights, a statement admitting his role in the robbery. Cleveland Police then filed a complaint in the Cuyahoga County Juvenile Court charging the him with aggravated robbery and a firearm specification."

Supreme Court Justice Terrence O’Donnell stressed, in this case, that "(T)he only claimed right to counsel in this appeal is a statutory one premised on R.C. 2151.352, and our narrow holding does not address any constitutional right to counsel or the issue of waiver. Although M.W. had a Fifth Amendment right to counsel pursuant to Miranda, he did not exercise that right ... His Sixth Amendment right to counsel, which guarantees the right to counsel at all ‘critical stages of the criminal proceedings’ ... had not yet attached because a complaint alleging delinquency had not yet been filed."



This morning the Court held juvenile offenders may waive a required "amenability" hearing to determine whether he should be bound over for trial as an adult, but such a waiver is valid only if (1) the juvenile, through counsel, expressly states on the record a waiver of the amenability hearing and (2) the juvenile court engages in a colloquy (dialogue) on the record with the juvenile to determine that the waiver was made knowingly, voluntarily, and intelligently. (See State v. D.W., Slip Opinion No. 2012-Ohio-4544 )

This case involved a juvenile, 17 years old at the time of offense, charged with felony burglary and other crimes in the Cuyahoga County Juvenile Court. After conducting a hearing at which the court found probable cause, the judge engaged in an off-the-record sidebar discussion with the assistant prosecutor and defense counsel with regard to binding the youth over for trial as an adult at the conclusion of which the judge stated on the record that because the juvenile court had conducted an amenability hearing in a prior case involving different offenses committed by the same youth, and had bound him over for trial as an adult in that case based on a finding that he was not amenable to rehabilitation in the juvenile system, the court would grant bindover in the current case without conducting a new amenability hearing. He was subsequently bound over to the common pleas court and indicted by a Cuyahoga County Grand Jury on one count each of burglary, theft, vandalism, and criminal damaging and two counts of bribery. A jury acquitted him of bribery, but found him guilty of the other charges. He was sentenced to six years in prison and mandatory post-release control.

Chief Justice Maureen O'Connor in this decision, the Court news service relayed,"pointed out that the amenability hearing required under R.C. 2152.12 "affects whether the juvenile faces a delinquency adjudication, or adult criminal sanctions and the label 'felon.' ... Given the nature and consequences of the amenability hearing, juvenile court judges are entrusted with significant authority when conducting the hearings. ... The safeguard of a hearing is contained in the Revised Code and Rules of Juvenile Procedure, and it is grounded in due process and other constitutional protections. As the United States Supreme Court makes clear, 'there is no place in our system of law for reaching a result [the transfer of a juvenile to adult court] of such tremendous consequences, without ceremony − without hearing, without effective assistance of counsel, without a statement of reasons.'"

  "In order to assure that those conditions are met, Chief Justice O'Connor wrote: "(W)e hold that in situations in which a juvenile is subject to discretionary transfer and the juvenile wishes to waive the right to an amenability hearing, the juvenile court must engage in a two-step process to determine the validity of the waiver. First, before being transferred, the juvenile may waive the right to an amenability hearing only if the waiver is expressly stated on the record and through counsel. ... Second, the juvenile court must determine that the waiver is offered knowingly, voluntarily, and intelligently. Proper determination must include a colloquy with the juvenile and must occur on the record. The colloquy allows the juvenile court to fulfill its parens patriae duty (duty to protect a vulnerable party as a parent would) by ensuring that the juvenile fully understands and intentionally and intelligently relinquishes the right to an amenability hearing. And it allows the judge ‘to engage in a meaningful dialogue with the juvenile,’ ... to guarantee that the juvenile’s due process rights are protected."

Number of Repeat Offenders Decline, But Judges Still Want Law Fixed

A study released last week by the Washington-based Council of State Governments' Justice Center indicated "significant statewide recidivism reductions achieved in Kansas, Michigan, Mississippi, Ohio, Oregon, Texas, and Vermont for prison releases between 2005 and 2007."


"For each state," the study's briefing says, "it compared three-year post-release recidivism rates for two cohorts: people exiting prison in 2005 and those released in 2007. The data is among the most current available for statewide three-year recidivism rates. Some states saw particularly sharp reductions during this period, such as Kansas, which achieved a 15-percent decline, and Michigan, which saw an 18-percent ... Ohio showed an 11-persent reduction."

The Justice Center cautioned, though, that while its "brief highlights a cross-section of states with robust, current data that reflect improvements, it is not a comprehensive research report, nor is it an evaluation of any state's recidivism efforts, assessing how changes in the recidivism rate in each state correlate to particular changes in policy or practice."

None-the-less, Cincinnati.com this morning noted cases in which the same law that has helped Ohio reduce its inmate population is also being criticized as too restrictive by many judges seeking more leeway in sentencing,

"The issue came to a head of sorts last week in Washington County at the sentencing for a man who pleaded guilty last month to a fourth-degree felony of unlawful sexual conduct with a 14-year-old boy," the article related. "Judge Susan Boyer expressing her dissatisfaction with the law and warning the offender, Nicholas Leach, that he would be sent to prison if he violated any of the conditions she was imposing -- 90 days in jail and 90 days in a secure treatment center -- told the man, 'At this point, the court does not have available to it the option to send you to prison. But let me be clear: If the court had that option, you would be going.'"

  Assistant Washington County prosecutor Kevin Rings was also quoted as commenting that it was the first time in his career he'd seen a sex offender escape prison.