Friday, July 20, 2012

Ohio Supreme Court clarifies declaratory judgment standard of review

Last Wednesday Ohio's supreme court held "that an appellate court reviewing a declaratory judgment matter should apply a deferential 'abuse of discretion' standard in reviewing the trial court's determination of whether the case is appropriate for declaratory judgment, but should apply a non-deferential 'de novo' standard in reviewing the trial court's determinations of legal issues in the case.

Writing for the session Justice Paul E. Pfeifer explained that, "while R.C. Chapter 2721 authorizes Ohio's common pleas courts to issue declaratory judgments, it limits that authority to cases in which there is an actual, justiciable dispute between the parties, and '(I)n keeping with the long-standing tradition that a court does not render advisory opinions, (the laws) allow the filing of a declaratory judgment only to decide 'an actual controversy, the resolution of which will confer certain rights or status upon the litigants.' ... Not every conceivable controversy is an actual one. As the First District aptly noted (in League for Preservation of Civil Rights v. Cincinnati, 1940), in order for a justiciable question to exist,'[t]he danger or dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future events ... and the threat to his position must be actual and genuine and not merely possible or remote.'"

"While the syllabus of the Supreme Court's 2007 decision in Mid-American Fire & Causalty v. Heasley held that '(d)ismissal of a declaratory judgment action is reviewed under an abuse-of-discretion standard,' Justice Pfeifer noted that the only issue before the court in Mid-American was whether the dispute between the parties met the threshold test of presenting a justiciable question.

"... some courts have interpreted Mid-American as establishing an abuse-of-discretion standard to all aspects of a declaratory judgment action. ... Today, we reiterate that the abuse-of-discretion standard applies to the review of a trial court's holding regarding justiciability; once a trial court determines that a matter is appropriate for declaratory judgment, its holdings regarding questions of law are reviewed on a de novo basis."

The case here was Arnott v. Arnott, Slip Opinion No. 2012-Ohio-3208.

2011 Ohio Supreme Court's Ohio Courts Statistical Summary

The Ohio Supreme Court announced last Tuesday that the 2011 Ohio Courts Statistical Summary showed the total number of new cases filed in Ohio courts last year reached a 10-year low.

"All combined," the Court's announcement said, "the number of new cases decreased by 4 percent over 2010, with traffic cases in municipal and county courts constituting 43 percent of all new filings across all courts. The last time this few new cases were filed was 26 years ago in 1985.

"Another significant trend contained in the report concerns general divisions of common pleas courts. Each one of the case categories (administrative appeals, criminal, foreclosures, other civil, other torts, product liability, professional tort and workers' compensation) declined compared to 2010 with those in criminal, professional & other torts, product liability, and workers' comp. experiencing 10-year lows."

Also released was the Court's companion publication – the Ohio Courts Statistical Report – which includes raw statistical tables of activity in Ohio's courts from trial courts to appellate courts including statistics about caseloads, case terminations and clearance rates from the previous year.

Tuesday, July 17, 2012

Decade-long Abortion Law Study

The University of Pittsburgh's Jurist Paper Chase last Friday carried a piece on The Guttmacher Institute's releasing a study detailing how "the enactment of numerous anti-abortion laws over the past decade has affected the reproductive rights of American women and created discrepancies among states."

"In order to develop a picture of the current state of American women's reproductive rights," Jurist said, "the study analyzed the types of abortion restrictions passed in each state over the past 10 years, designating each state as 'supportive' for passing provisions in only one category of restrictions, 'middle-ground' for enacting provisions in two or three categories or 'hostile' for four or more categories.

"It found that this year states have enacted 39 new restrictions on abortion access, down from 80 restrictions passed by this time last year, and that 55 percent of all American women live in one of the 26 states that have hostile regulations against abortion rights."

[ Link to Study ]

ABA 50-State Survey of Legal Malpractice Law and the National Law Journal, last Friday, had an interview with Scott Bertschi, a partner at Atlanta-based Arnall Golden Gregory, who, with Meri Baldwin of San Francisco's Rogers Joseph O'Donnell and Dylan Black of Bradley Arant Boult Cummings in Birmingham, Alabama, recently finished editing A 50-State Survey of Legal Malpractice Law.

Published by the
American Bar Association and available to members of the ABA Section of Litigation only, the survey gives an overview of the laws governing attorney wrongdoing in every jurisdiction in the country. A collection of state-by-state articles on legal malpractice and related torts, each article addresses the elements, defenses and key issues common to claims against lawyers.

Friday, July 13, 2012

FBI/Justice Dept. Crime Lab Review

The Washington Post Tuesday reported that the "Justice Department and FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence -- an undertaking the largest post-conviction review ever done by the FBI, that will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery."

"The action," the Paper said, "came after it
reported back in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases, and at a time when the National Academy of Sciences is urging the White House and Congress to remove crime labs from police and prosecutors' control, or at least to strengthen the science and standards underpinning the nation’s forensic science system."

A congressionally mandated report from the National Research Council, three years ago, found serious deficiencies in the nation's forensic science system and called for major reforms and new research. Rigorous and mandatory certification programs for forensic scientists were lacking, according to the report, as were strong standards and protocols for analyzing and reporting on evidence.

"Forensic evidence is often offered in criminal prosecutions and civil litigation to support conclusions about individualization -- in other words, to 'match' a piece of evidence to a particular person, weapon, or other source. But with the exception of nuclear DNA analysis, no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” the report found.

The Washington Post had a second article back in April on this study in which it also reported that "Congress and the Obama administration were then trying to regulate forensic science to help establish standards, with Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Commerce, Science and Transportation Committee Chairman John D. Rockefeller IV (D-W.Va.) weighing legislation that could subject techniques to greater scientific scrutiny and help establish their ranges of accuracy."

Leahy's bill, the
"Criminal Justice and Forensic Science Reform Act of 2011" (SB 132), which would create a new office of forensic science in the Justice Department, was introduced in January 2011, and referred to the Senate Judiciary Committee. Rockefeller was preparing legislation to expand the role of the National Science Foundation and National Institute of Standards and Technology in setting scientific standards and research goals." That bill, The Forensic Science and Standards Act of 2012, was introduced yesterday, "coming amid growing concerns nationally that many criminal justice proceedings use evidence developed through flawed forensic work." also had a story this morning here.

Wednesday, July 11, 2012

12th. District Ohio Appeals Court Intoxilyzer 8000 Holding

Ohio's 12th. District Court of Appeals last Monday added to the state's evolving Intoxilyzer 8000 & impaired driving case law volumn with a decision that solely examined the symantics of that portion of the Administrative Code dealing with "instrument check," or calibration requirements, for approved breath-testing machines. (See State v. Kormos, 2012 Ohio 3128)

The case, as phrased it, is a case of "first impression," which has not been considered by the 12th District Court of Appeals before. The ruling will apply to all similar cases in eight southwest Ohio counties, including Butler, Clermont and Warren, and have the potential of influencing cases in Hamilton County and elsewhere in the state.

Pertinent to the appeal was Ohio Administrative Code Sec. 3701-53-04, specifying the "instrument check," or calibration requirements, for approved breath-testing machines, with the state argument being the trial court's decision in suppressing test result evidence was based on an erroneous interpretation of Ohio Adm.Code 3701-53-04(B), as it applies to the Intoxilyzer 8000.

Applying Webster's Third New International Dictionary's definition of the word "subject" to Ohio Adm. Code 3701-53-04(B), the 12th. District said, "it was quite clear that a 'subject test' is synonymous with running the Intoxilyzer 8000 on a single 'subject,' i.e., 'individual' under law enforcement's control. Because the language set forth by the Health Department is clear and definite, we must apply it as written and hold that there is only one 'subject' being tested during any one breathalyzer test. See Kneisley v. Lattimer-Stevens Co., 40 Ohio St.3d 354 (1988). It follows that the items listed in the 'Subject Test Report' form, including 'Subject Test 1' and 'Subject Test 2,' are simply recurring components of the same breathalyzer test, where one subject blows twice before reaching the end result.

"We also note that our view of Ohio Adm.Code 3701-53-04(B) is consistent with what appears to be the Health Department's current interpretation thereof. See State ex rel.Turner v. Eberlin, 117 Ohio St.3d 381, 2008-Ohio-1117, ¶ 17 (courts must give due deference to the department's reasonable interpretation of administrative regulations); State v. Yoder, 66 Ohio St.3d 515, 518 (1993).

"Lastly, we note that Ohio Adm.Code 3701-53-04(B) does not refer to dry gas control testing before, after, and in between 'every subject test ***.' If it did, we would be more inclined to agree with Kormos that each time a particular individual blows into the Intoxilyzer 8000, another 'subject test' occurs, which would require a dry gas control test. However, the Health Department did not insert such language, and we cannot expound upon its silence to construe the phrase 'subject test' beyond its common and unambiguous meaning. Thus, it is clear there is only one 'subject test' per person breathalyzed, even if the test includes two incidents of blowing. As a result, we decline to interpret the code phrase that requires dry gas control tests 'before and after every subject test' as requiring them 'before and after every separate blow.' See Grubb v. Hollingsworth, 12th Dist. No. CA91-12- 024, 1992 WL 276547, *2, 1992 Ohio App. LEXIS 5086 (Oct. 5, 1992) (courts cannot rewrite the law or judicially insert words that are not used); State v. Ferrato, 167 Ohio App.3d 136, 2006-Ohio-3219, ¶ 11 (11th. Dist.).

"... we find the Intoxilyzer 8000 calibration sequence comports with the requirements of Ohio Adm.Code 3701-53-04(B)."

Expanding Realms of the Practice of Law

A couple of articles these past two or three weeks would seem to hold a measure of interest at least to most of our readers & patrons as well as those who may follow. The practice of law is getting more involved and expanding into new frontiers, as it were.

A article last week related that the "dismal job market for newly minted lawyers has influenced how most law school administrators approach their course offerings, with 76 percent of the institutions surveyed by the American Bar Association reporting that they've modified their curricula to adapt… The influence the employment picture is having on law school classes is seen most obviously in the rise of so-called practical skills courses: clinics, simulations and externships. Law schools have increased their course offerings in each of those areas, according to the report."

Two weeks ago there was also an
article about the American Bar Association's "tackling technology issues in its model rules" at its annual meeting next month. "Model Rule 1.1 requires lawyers to provide competent representation to clients," that article said... "To do so, the comment to Rule 1.1 has always required lawyers to 'keep abreast of changes in the law and its practice.' The 20/20 Commission's recommended amendment to Rule 1.1 provides that this mandate will now include 'the benefits and risks associated with technology.' Lawyers who in the past blindly relied on third-party service providers for electronic discovery, search technology, data storage and security, cloud computing, and other technology needs will, to provide 'competent' representation, have to conduct a reasonable level of due diligence about what can go wrong in their use of technology to serve client needs."

Tuesday, July 10, 2012

Ohio Supreme Court Specialized Docket Certification Procedure

In his Annual State of the Judiciary Address, three years ago, former Chief Justice Thomas J. Moyer reported that "from the inception of Ohio's first drug court in Hamilton County in 1995, the use of specialized dockets in Ohio has been broadened to address such issues as mental illness, domestic violence and re-entry courts. Today, 129 specialized dockets are used by courts ranging from Common Pleas, Juvenile, Municipal and County Courts." (Chief Justice Moyer's speech)

Since the establishment of the Hamilton County Drug Court, Ohio has been recognized as a national leader in the implementation of specialized dockets. In 2001, the Supreme Court created the
Specialized Dockets Section to assist and support local courts in developing specialized programs uniquely tailored to helping specific populations within the court system. In 2009, the Court created a 15-member advisory board charged with advancing the goals of Ohio's specialized dockets program. (announcement). Two years later it promulgated Rule 36.02 of the Rules of Superintendence for the Courts of Ohio, consisting of 12 standards intended to create a minimum level of uniform practices yet still allow courts to tailor operations to meet their individual needs. Some of the standards require courts to engage in a planning process, use a non-adversarial approach, hold regular treatment team meetings, and conduct regular status review hearings. (announcement). Today, there are nearly 150 specialized dockets operating in Ohio including drug courts, mental health courts, re-entry courts, OVI courts, veterans courts, sex offender courts, felony non-support courts and domestic violence courts.

Last year the Supreme Court adopted
rules that require specialized docket programs to be certified and meet minimum standards by January 1, 2013.

Last Friday, the Court announced it was accepting public comment on amendments outlining the procedures for receiving Supreme Court certification for a specialized docket program.(
announcement). Under the proposed amendments, courts operating specialized dockets would be required to submit an application, undergo a site visit and submit specific program materials to the Specialized Docket Section as part of the certification process.

Comments on the proposed amendments should be submitted in writing before August 7 to:

Melissa Knopp, Specialized Dockets section manager
Supreme Court of Ohio
65 S. Front St., Sixth Floor
Columbus, Ohio 43215

Or via e-mail to

Text of Proposed Amendments.

Friday, July 06, 2012

DNS malware attack warning this morning warned that more than a quarter of a million PC users could find themselves cut off from the Internet on Monday unless they've done/do a quick check of their computers for malware that could have taken over their machines more than a year ago -- warnings that have been splashed across Facebook and Google, with internet service providers sending out notices, and the FBI setting up a special website.

"The problem began last year," USAToday explained, "when international hackers ran an online advertising scam to take control of more than 570,000 infected computers around the world. When the FBI went in to take down the hackers late last year, agents realized that if they turned off the malicious servers being used to control the computers, all the victims would lose their Internet service. In a highly unusual move, the FBI set up a safety net, bringing in a private company to install two clean Internet servers to take over for the malicious servers so that people wouldn’t suddenly lose their connections.

According to the FBI, as many as 277,000 computers could be infected worldwide -- down from about 360,000 in April -- with as many as 64,000 still-infected computers in the United States. Most victims don't even know their computers have been infected, although the malicious software probably has slowed their online surfing and/or disabled their antivirus software, making their machines more vulnerable to other problems.

While it was the first time they'd done something like this, FBI officials acknowledged that it may not be the last, since authorities are taking on more of these types of investigations -- the temporary Internet system set up, though, will be shut down at 12:01 a.m. EDT (0401 GMT) Monday, July 9... and people whose computers are still infected will lose their internet connection, having to contact their service providers for help deleting the malware and reconnecting to the Internet.

The USAToday article also contains a link via which a computer can be checked to see whether it is infected, with users being able to visit a website ran by the group brought in by the FBI @ The site also includes links to respected commercial sites that will run a quick check on the computer, and lays out detailed instructions if users want to actually check the computer themselves.

CRN and CNN also have articles.

Debtors' Prisons Revisited?

The New York Times, last Monday, carried an article about indigent and low-income people, "mushrooming of fines and fees levied by money-starved towns across the country and for-profit businesses that administer their system," and the inevitabilities of the three coming together with growing numbers of poor people, ending up jailed and in debt for minor infractions.

Debtors' prisons, as such, widespread until the early 19th. Century, began to fall in disfavor in a wave of state constitutional reform banning the imprisonment for debt during the 1830s and with the advent of federal bankruptcy law. Today, it's generally viewed in most states that the inhibition against imprisonment for debt exists where there is no claim of fraud or other criminal liability, act, or action.

That, however, is not an absolute either. The Wall Street Journal, last year, noted, "More than a third of all U.S. states allow borrowers who can't or won't make payments on credit-card or auto loan balances and other bills to be jailed. Judges have signed off on more than 5,000 such warrants since the start of 2010 in nine counties with a total population of 13.6 million people."

"With so many towns economically strapped," the Times, last Monday, quoted Lisa W. Borden, a partner in Baker, Donelson, Bearman, Caldwell & Berkowitz, a large law firm in Birmingham, Ala., who has spent a great deal of time on the issue, as saying "there is growing pressure on the courts to bring in money rather than actually meting out justice. The companies they hire are aggressive. Those arrested are not told about the right to counsel, whether they are indigent, or offered an alternative to fines and jail… There are real constitutional issues at stake here."

"Supreme Court ruled almost 50 years ago in Gideon v. Wainwright , that those accused of crimes had to be provided a lawyer if they couldn’t afford one, but in misdemeanor offense the right to counsel is often not even brought up, even though defendants can run the risk of jail time.

"The issue of using the courts to produce income has caught the attention of the country's legal establishment, too," the article continued, reporting that "a recent study by the nonpartisan Conference of State Court Administrators, 'Courts Are Not Revenue Centers', said that in traffic violations, 'court leaders face the greatest challenge in ensuring that fines, fees and surcharges are not simply an alternate form of taxation,' and citing a 2010 study, by the Brennan Center for Justice at the New York University School of Law which examined the fee structure in the 15 states with the largest prison populations -- including California, Texas, New York, Florida' and Ohio -- asserting, 'Many states are imposing new and often onerous 'user fees' on individuals with criminal convictions. Yet far from being easy money, these fees impose severe -- and often hidden -- costs on communities, taxpayers and indigent people convicted of crimes. They create new paths to prison for those unable to pay their debts and make it harder to find employment and housing as well as to meet child support obligations.'"

"These companies are bill collectors," John B. Long, a lawyer in Augusta, Ga., who is taking the issue to a federal appeals court this fall told the Times, "but they're given the authority to say to someone that if he doesn't pay, he is going to jail…. There are things like garbage collection where private companies are O.K. -- No one's liberty is affected – but the closer you get to locking someone up, the closer you get to a constitutional issue."

The ABA Journal has a like article here..