Thursday, March 29, 2012

New Ohio Uniform Power of Attorney Act

Effective March 22, 2012, Ohio adopted the Uniform Power of Attorney Act (Titles 1337.21 to 1337.64 of the Ohio Rev. Code). Changes apply to all powers of attorney in the state except that coupled with an interest in the subject of the power, such as powers given to a creditor; to make health care decisions; a proxy to exercise voting rights of an entity; or a power created on a governmental form to be used for a governmental purpose. [ Revised Code sections on Powers of Attorney ]

Marilyn Maag, a partner at Cincinnati's Porter, Wright, Morris & Arthur and Ohio State Bar Association Certified Specialist in Estate Planning, Trust and Probate Law, posted an analysis of the new law via LexisNexis "Communities" last week. (Full access requires subscription or can be purchased @ LexisNexis Store )

Ohio's new Uniform Power of Attorney Act (SB 117, signed last December) "adopts the Uniform Power of Attorney Act; to modify a trustee's duties with respect to life insurance policies, specifies a trustee's power to distribute trust principal in further trust, provides for the titling of assets in trust form; permits some, but not all, of specified parties to enter into a private settlement agreement; and makes other changes in the Ohio Trust Code; modifies the anti-lapse provisions regarding wills and adopts anti-lapse provisions applicable to trusts; provides a mechanism for a probate court to order a person who suffers from alcohol and other drug abuse to undergo treatment; and provides a procedure for the construction or modification of a trust that refers to the federal estate tax, generation-skipping transfer tax, or Ohio estate tax. (See Ohio Legislative Service's analysis)

Monday, March 26, 2012

Social Media/Facebook Probe

USAToday, this morning, is noting Sens. Chuck Schumer of New York and Richard Blumenthal of Connecticut calling on the Department of Justice and U.S. Equal Employment Opportunity Commission to launch investigations spawned by The Associated Press' reporting last week that some private and public agencies around the country have been asking job seekers for their social media credentials -- a practice that alarms privacy advocates, but the legality of which remains murky. [ Sen. Blumenthal's press release ]

Facebook reportedly warned employers last week not to ask job applicants for their passwords to the site so they can poke around on their profiles, threatening legal action against applications that violate its long-standing policy against sharing passwords.

"Specifically," the article said, "Senators Schumer and Blumenthal want to know if the practice violates the Stored Communications Act or Computer Fraud and Abuse Act -- respectively, prohibiting intentional access to electronic information without authorization and intentional access to a computer without authorization to obtain information."

Schumer and Blumenthal were also addressing whether two court cases relating to supervisors asking current employees for social media credentials could be applied to job applicants. [See Pietrylo v. Hillstone Restaurant Group, Case 2:06-cv-05754 (D.N.J. 2009) and Konop v. Hawaiian Airlines, Inc., Case 99-55106, 302 F.3d 868 (9th Cir. 2002) ]

Related here was a USAToday article last week about local authorities routinely monitoring the Internet. That article noted "the issue of properly handling social-media content is also igniting heated debates about privacy and the limits of the current law that spells out how police can legally retrieve personal data. Adding to the confusion is the reality that rules and logistics for obtaining private information are still not firmly established for many police departments. While about 88% of law enforcement agencies have used social-media sites — Facebook is the most frequently used, while Twitter is gaining — in monitoring and investigative work, according to a survey by the International Association of Chiefs of Police, fewer than half of all law enforcement agencies, 48.6%, have a social-media policies."

Friday, March 23, 2012

Arizona/Ohio death penalty cases

"A quarter century ago," ScotusBlog's Lyle Denniston wrote last Monday, "the Supreme Court ruled that it would be unconstitutional to execute a legally insane individual in Ford v. Wainwright, then extending that ban to the mentally retarded with Atkins v. Virginia in 2002.

"Back in 1966, with Rees v. Peyton," his posting continued, "it ruled that federal courts should not allow a death-row inmate to give up any legal challenges while he was mentally ill. But the Court has never decided whether an individual has any right, under the Constitution or any federal law, to actually be competent in order to take part in a federal habeas review of his case or to have the case put off indefinitely – or sorted out what other legal rights the mentally ill on death row have when, having failed in challenges in state court, they turn to federal courts to press their legal claims. Now, as of Monday, in accepting new cases from Arizona and Ohio it will be addressing at least some of those issues."

Arizona's case, Ryan v. Gonzales, arose from a statute that provides a right to a lawyer for a state prison inmate who is too poor to afford one in a federal habeas case. Gonzalez, sentenced to death for a 1990 murder, later raised an issue of his competence. When state officials took the case on to the Supreme Court, Gonzalez had not yet had a competency hearing, but his habeas was on hold.

Ohio's case, Tibbals v. Carter, Denniston summated, "argues that a Sixth Circuit Court ruling ordering an indefinite delay will bring 'Ohio's capital litigation to a halt, and that under the Sixth Circuit's extraordinarily loose standards, any prisoner can make a minimal showing of incompetence, demand a hearing, and secure an indefinite stay of his habeas proceedings.'" It's urging the Supreme Court to clarify Rees v. Peyton. In that case the Court ordered a competency hearing for Virginia death-row inmate Melvin Davis Rees, Jr., before it would decide whether to allow him to withdraw his court challenge. In a brief order about a year later, it put the case on hold indefinitely, and never again returned to it. Rees died in prison in 1995."

Ryan v. Gonzales, 10-930

9th. Circuit Opinion
Petition for certiorari
Tibbals v. Carter, 11-218

6th. Circuit opinion
Petition for certiorari

Wednesday, March 21, 2012

Supreme Court's Addressing Juvenile Life Sentence Issue

Supreme Court justices seemed likely yesterday, according to a Wall Street Journal article (subscription) this morning, to require additional safeguards before juveniles convicted of homicide can be sentenced to life without parole, if not to abolish such sentences for minors altogether.

"A majority of them," the New York Times surmised, "appeared prepared to take an additional step in limiting such punishments, but it was not clear whether it would be modest or large. The court's precedents have created so many overlapping categories — based on age, the nature of the offense and whether judges and juries have discretion to show leniency — that much of the argument was devoted to identifying the possible lines the court could draw.

"In 2005, in Roper v. Simmons, the court abolished the juvenile death penalty, a decision that affected about 70 prisoners. 'It is worth noting,' that decision said, 'that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.'

"In 2010, in Graham v. Florida, the court ruled that sentencing juvenile offenders to life without the possibility of parole also violated the Eighth Amendment’s ban on cruel and unusual punishment — but only for crimes that did not involve killings. The decision affected about 130 prisoners convicted of crimes like rape, armed robbery and kidnapping."

The cases on review, the Times related, were Miller v. Alabama, No. 10-9646, involving an Alabama man who was 14 in 2003 when he and an older youth beat a 52-year-old neighbor and set fire to his home after the three had spent the evening smoking marijuana and playing drinking games. The neighbor died of smoke inhalation. The other, Jackson v. Hobbs, No. 10-9647, concerned an Arkansas man who was 14 when he and two older youths tried to rob a video store in 1999. One of the other youths shot and killed a 28-year old store clerk whose body was found by her mother and 11-year-old son.

"In more than 90 minutes of argument in two cases," Lyle Denniston at ScotusBlog wrote, "there was no sign that a majority would come together on a flat ban for such a sentence for anyone under age 18 — the preferred outcome sought by two youths’ lawyer…. Although the Court has regularly accepted the notion that children are less responsible for their conduct than adults, and that the Constitution must account for that, it has divided deeply as it applied that to the severity of the punishment it will allow. In these cases, most of the Justices appeared to share the sentiment expressed early by Justice Anthony M. Kennedy that the Court did not want to be forced to choose between two opposite choices: no life-without-parole sentences for any minor, or no limit on the sentence for anyone no matter how young. And there also seemed to be considerable support for Kennedy's apparent willingness to focus mainly on the question of whether such a sentence should be mandatory and, if so, whether that should be keyed to a specific age. Kennedy's views may be crucial, since he has been the author of the Court's key rulings on youths' sentencing."

An Equal Justice Initiative report in 2007 had identified 19 states -- Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Illinois, Iowa, Michigan, Mississippi, Missouri, Nebraska, North Carolina, Pennsylvania, South Dakota, Tennessee, Washington, and Wisconsin -- as having life without parole statutes for minors under fourteen.

Miller v. Alabama
Alabama Court of Criminal Appeals opinion
Petition for certiorari

Jackson v. Hobbs
Arkansas Supreme Court opinion
Petition for certiorari

Biotech Industry takes Notice of Patent Rejection Ruling

An second article in this morning's Wall Street Journal (subscription) reported the Supreme Court's "jolting the biotechnology industry with a unanimous ruling that threw out two medical-testing patents and suggested companies need to do more to prove their discoveries are really new, sparking uncertainty about the booming field of personalized medicine, in which some of the world's largest drug companies are vying to tailor treatments to patients' unique make-ups by using diagnostic tests."

"Although 'laws of nature, natural phenomena, and abstract ideas,'" the Court said in its 28-page decision yesterday, "are not patentable subject matter under §101 of the Patent Act, Diamond v. Diehr, 450 U. S. 175, 185 (1981), 'an application of a law of nature . . . to a known structure or process may [deserve] patent protection,' id., at 187. But to transform an unpatentable law of nature into a patent eligible application of such a law, a patent must do more than simply state the law of nature while adding the words 'apply it.' See, e.g., Gottschalk v. Benson, 409 U. S. 63, 71–72 (1972). It must limit its reach to a particular, inventive application of the law……

"This Court has repeatedly emphasized a concern that patent law not inhibit future discovery by improperly tying up the use of laws of nature and the like. See, e.g., Benson, 409 U. S., at 67, 68. Rewarding with patents those who discover laws of nature might encourage their discovery. But because those laws and principles are 'the basic tools of scientific and technological work,' id., at 67, there is a danger that granting patents that tie up their use will inhibit future innovation, a danger that becomes acute when a patented process is no more than a general instruction to 'apply the natural law,' or otherwise forecloses more future invention than the underlying discovery could reasonably justify. The patent claims at issue implicate this concern. In telling a doctor to measure metabolite levels and to consider the resulting measurements in light of the correlations they describe, they tie up his subsequent treatment decision regardless of whether he changes his dosage in the light of the inference he draws using the correlations. And they threaten to inhibit the development of more refined treatment recommendations that combine Prometheus’ correlations with later discoveries. This reinforces the conclusion that the processes at issue are not patent eligible, while eliminating any temptation to depart from case law precedent."

Wednesday, March 07, 2012

State "concealled carry" initiatives

USAToday notes this morning that there are legislatures in a dozen states considering laws that would eliminate the need to have a permit to carry concealed weapons. Those states are Colorado, Iowa, Georgia, Kentucky (i.e., HB 280, HB 484 ), Maine, New Hampshire, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota and Virginia, according to the National Rifle Association.

Gun-control advocates are naturally viewing the efforts as part of a long-range strategy to eventually weaken gun laws across the country, while supporters say armed, law-abiding citizens prevent crime.

"Andrew Arulanandam, policy director for the National Rifle Association's Institute for Legislative Action, which supports these legislative efforts, argues that crime rates are low in four states — Alaska, Arizona, Vermont and Wyoming — that already allow residents to carry without a permit," the article says. "Our viewpoint is, a good person will always be a good person… They don't need a license to be a good person."

Brian Malte, director of the state legislation section of the Brady Campaign to Prevent Gun Violence, doesn’t quite see it that way and argues permitless systems put law enforcement officers in a bad situation when they encounter someone with a weapon and is critical of efforts that would allow people who have never even shot a firearm to carry one in public. He said, "They want a gun in every nook and cranny in society with no permission needed and no background check… That’s just a recipe for disaster."

Ohio has nine "concealed carry" bills listed, including HB 54, which amended Revised Code sections 2923.13 and 2923.14 "to conform the restoration of civil firearm rights with federal law and U.S. Supreme Court case law" and SB 17, which allows concealed carry in premises serving liquor & open air arenas. Both of those passed and became effective last September.

HB 422, introduced in January, would "repeal requirements that a concealed carry licensee inform an approaching law enforcement officer that the licensee is a licensee and is carrying a concealed handgun and keep the licensee's hands in plain sight after the officer begins approaching and until the officer leaves…"

Tuesday, March 06, 2012

Proposed Ohio Supreme Court Attorney Disciplinary Rule Changes

The Ohio Supreme Court announced it will entertain public comment on proposed rule amendments yesterday to refine the existing default judgment process when a lawyer fails to comply with his professional duty to respond to disciplinary charges., specifying Rule 5 on Disciplinary Procedure and new Section 6a Interim Default Suspension of its Rules for the Government of the Bar of Ohio. [ Proposed Amendments ]

Recommended by the Board of Commissioners on Grievances & Discipline, the Court's announcement said the proposed changes are intended to meet two goals:
•to protect the public from a lawyer who has ignored his or her duty to cooperate with the disciplinary authorities or is attempting to manipulate or delay the process while continuing to practice law
Comments should be submitted in writing to:
Richard A. Dove, Secretary, Board of Commissioners on Grievances & Discipline
65 South Front Street, 5th Floor
Columbus, Ohio 43215-3431
or not later than April 3, 2012
It is asked that you include your full name and mailing address in any comments submitted by e-mail, and not to submit comments both via regular mail & e-email.

It is also noted that ff your comment/s refer to a specific provision of the proposed amendments, to reference the line numbers that appear along the left margin of the proposed amendments.
•to encourage respondents to participate in the disciplinary process and do so more promptly, and

Twitter in the News

ZDNet newsletter this morning addresses whether Twitter could be blamed for its users' tweets when they are deemed unlawful, either through defamation, libel, or breaking a court order -- and the answer's seemingly -- depending on -- where you are "maybe"... or at least that nobody really knows yet.

The newsletter relays that legal analysis site Out-Law published an interesting, theoretical piece, describing how Twitter could fall foul of the law -- through no apparent fault of its own but by giving its users free reign over what they say, stemming from a case in Australia where Twitter itself is being sued by Melbourne resident Joshua Meggitt, after writer and television critic Marieke Hardy wrongly named in a tweet who she thought was behind a defamatory blog dedicated to her…

A New York Times article tells how "Mark W. Miller didn't think Cincinnati should be spending money on a streetcar project, and said so on Twitter, urging his hundreds of followers to vote against the project, which was on the local ballot last November…. What he got instead was a legal action from supporters of the streetcar project under an Ohio law that forbids false statements in political campaigns."

Miller's group, the Coalition Opposed to Additional Spending and Taxes, sued the Ohio Election Commission, which hears complaints under the Ohio law, in federal court last November, seeking to have the law declared unconstitutional. [ Complaint ] What's interesting and of pertinence here is the Times' noting that Ohio Attorney General Mike DeWine, in his official capacity, asked the court to dismiss the case on procedural grounds, but in a brief filed on his own behalf acknowledged his duty to defend his state's laws, which he had done by instructing lawyers on his staff to represent the commission, but personally being opposed to their position.

"'What really was the final straw for me,' he was quoted as saying in an interview, 'is looking at what can happen with social media, with private citizens who all they want to do it express their point of view. It's a town hall. It's a public square, really.'"