Bits & Pieces Heading to the New Year

Incandescent Light bulb Phase-out
   Starting things off, NBCNews took note that most Americans aren't even aware that their traditional light sources will soon become a rare commodity with the Jan. 1 deadline to end production of 60- and 40-watt incandescent light bulbs according to lighting manufacturer Osram Sylvania’s recently released  sixth annual "Sylvania Socket Survey," which found that only 4 in 10 consumers were aware that 60- and 40-watt light bulbs are being phased out in 2014 as production ends.
   “The government began phasing out 100- and 75-watt light bulbs in 2012 and 2013 respectively, after then-President George W. Bush signed the Energy Independence and Security Act (EISA) into law, mandating that low-efficiency light bulbs be gradually removed from production,” NBC relates. “The elimination of 60- and 40-watt bulbs will have a much greater impact on U.S. consumers because they are the two most popular bulbs on the market.”

Ohio’s exotic animals law
    While it’s still unknown is exactly how many restricted animals are out there, Ohio’s law banning the sale, ownership and breeding of exotic animals takes full effect January 1st., having been passed in June of last year, unsuccessfully challenged in Southern Ohio’s District Court last year, and now awaiting the outcome of its appeal last month in the Sixth Circuit.
   The Columbus Dispatch last week reported that “Although 150 owners, including zoos, registered 888 animals, the “X” factor is the number of owners who have not signed up, either because they are uninformed or are defying the law, and quoted  Dept. of Agriculture Director David Daniels as saying ‘There are people out there who have chosen not to register with us and are skirting the law… When unregistered animals on the restricted list are located in Ohio after Jan. 1, they will be seized by the state.”
  Permit application material and other information is available on the Dept. of Agriculture’s website. The site also warns people To report an escaped dangerous wild animal or restricted snake, call 9-1-1 first, and then 1-855-393-6446.

Repeat Drunken-drivers Registry
  The Ohio Department of Public Safety has expanded its online registry of repeat drunken-drivers having five or more DUI convictions in the past two decades., after reports that the registry contained information from courts in only about half of Ohio's counties.
  The Safety Department is no longer relying on local courts to supply the information and instead is compiling the list from electronic records. That list now numbers 5,300 names compared with about 400 before the update.
  That list is searchable online by zip code, county, or offender’s name.

Minimum-coverage Insurance Premiums
  Speaking of insurance, the Dispatch also reported “Ohio drivers who carry the minimum amount of insurance on their vehicles will  have to boost their coverage the next time they renew their policies thanks to the passage of House Bill 278 (2012) that went into effect on December 22nd.. Minimum levels of coverage that drivers have to have doubled from $25,000 to $50,000 in multi-person accidents and 25,000 for property damages.

Minimum Wage Increases
   USAToday reports that “on Jan. 1, state minimum wages will be higher than the federal requirement of $7.25 an hour in 21 states, up from 18 two years ago, and National Employment Law Project. policy analyst Jack Temple expects another nine states to drift above the federal minimum by the end of 2014, marking the first time minimum pay in most states will be above the federal level.
  “Connecticut, New York, New Jersey and Rhode Island legislatures voted to raise the minimum hourly wage by as much as $1, to $8 to $8.70, by the first of the year, and in California, a $1 increase to $9 is scheduled July 1. Smaller automatic increases tied to inflation will take effect in nine other states including Arizona, Colorado, Florida, Missouri, Montana, Ohio, Oregon, Vermont and Washington.

Ohio Supreme Court considering Accelerated Joint Bachelor’s/Law Degree “3+3” Program Rule Changes

 A post by the Ohio Supreme Court’s news service, Court News Ohio, earlier this week announced the Court’s proposed amendment to Rule I of the Supreme Court Rules for the Government of the Bar of Ohio, which would allow applicants to apply for the bar exam after graduating from a six-year joint bachelor’s/law degree “3+3” program instead of the traditional seven-year program (four years of undergraduate study, and then three years of law school). Lee Ann Ward, director of the Office of Bar Admissions at the Supreme Court, explained that “As it stands now, bar exam applicants who graduate from a “3+3” program must seek a waiver of the rule in order to sit for the exam.”

  Public comments to the proposed amendments will be entertained until January 22, 2014 and should be addressed to:

Lee Ann Ward, director, Office of Bar Admissions
65 S. Front St., Fifth Floor
Columbus, Ohio 43215

Or via e-mail to leeann.ward@sc.ohio.gov.

  Text of Amendment

  U.S. News & World Report last year reported on the emerging trend to develop accelerated JD programs, and Wikipedia describes two such types of programs, noting that, while there are no law schools in Ohio with accelerated “3+3” programs, the University of Dayton School of Law has a 2-year accelerated JD program.

                              

Ohio bills signed into law

Ohio Governor John Kasich signed twelve bills into law last week including:

SB23 ADOPTION RECORDS – Outright repealing the laws that permit post-1963 adoptees who became available or potentially available for adoption prior to September 18, 1996 to file a petition in probate court to obtain information  about the adoptee's biological family, and replaces those repealed laws with a procedure in which adopted persons who are at least 18 years of age may submit a written request to the Ohio Department of Health (ODH) for  ODH to provide the adopted person with a copy of the contents of the person's adoption file.  [ Bill & Analysis ]

 SB200 VOTER REGISTRATION DATABASE – Clarifies that the Office of the Secretary of State must administer the statewide voter registration database & prescribe by rule the format in which the boards of elections must send voter registration records to the Secretary of State; and requires state agencies,  including the Department of Health, Bureau of Motor Vehicles, Department of Job and Family Services, and the Department of Rehabilitation and  Correction, to provide any information and data to the Secretary of State that is collected in the course of normal business and is necessary to register to vote, to update an elector's registration, or to maintain the statewide voter registration database.  [ Bill & Analysis ] 

SB206    MEDICAID – Requires the Director of Medicaid to implement a reform to the  Medicaid program that limits the growth in the per recipient per month cost of the program., so as the cost growth for a fiscal biennium be not more than the lesser of: (1) The average annual increase in the Consumer Price Index medical inflation rate for the Midwest Region for the most recent three-year period, weighted by the most recent year of the three years; and (2) The projected medical inflation rate determined by an actuary under contract with the Joint Medicaid Oversight Committee (JMOC) or, if JMOC disagrees with the actuary's rate, the projected  medical inflation rate that JMOC determines.  [Bill & Analysis ]

HB126  HEALTH CARE POWER OF ATTORNEY-LIVING WILL – Permits a durable power of attorney for health care to authorize the attorney in fact, commencing upon the instrument's execution or at any subsequent time and regardless of whether the principal has lost the capacity to make health care decisions, to obtain information concerning the principal's health; if authorized  as provided in the preceding permits the attorney in fact, commencing upon the instrument's execution or at any subsequent time specified in the instrument and regardless of whether the principal has lost the capacity to make health care decisions, to obtain information concerning the principal's health, and further authorizes a principal in a durable power of attorney for health care to and nominate a guardian of the principal's person, estate, or both for a court's consideration if proceedings for the appointment of such guardian are commenced at a later time and provides that the principal's nomination of such a guardian is revoked by the principal's subsequent nomination of a guardian of  the principal's person, estate, or both. [ Bill & Analysis ]

Ohio Supreme Court Traffic Rule amendments

  The Ohio Supreme Court’s news service last week posted the announcement that the Court had adopted  amendments to the Court’s Traffic Rules facilitating the use of electronic tickets by law enforcement in the state.

  Traf.R. 3(F) clarifies that a defendant’s signature isn’t necessary on an electronically produced ticket, and that the same rights, responsibilities, and liabilities apply to an officer who signs a ticket electronically as to a paper one.

“Additionally,” the post notes, “the electronic ticket ‘shall conform in all substantive respects’ to the Ohio Uniform Traffic Ticket. If a court adopts local rules allowing the use of electronic tickets, the issuing officer still must provide the defendant with a paper copy of the ticket.”

 The amendments take effect January 1, 2014.

 Text of Amendments

Consumer Financial Protection Bureau -- Ocwen Financial Corp. mortgage infraction settlement

   A Blog of Legal Times post yesterday related the Consumer Financial Protection Bureau, 49 states – including tri-state Ohio, Kentucky & Indiana – along with the District of Columbia’s  requiring Atlanta-based Ocwen Financial Corp.  to provide $2 billion in loan modification relief to its customers through principal reductions, plus another $127.3 million in refunds to foreclosure victims in a settlement now reached

   Law.com/National Law Journal author Jenna Greene wrote “CFPB Director Richard Cordray called the deal ‘a landmark’ for the agency, which worked with regulators in every state but Oklahoma to craft the settlement, though the consent judgment is still subject to approval by the U.S. District Court for the District of Columbia, where the complaint was filed. Under the settlement, Ocwen is to offer and facilitate loan modifications for borrowers facing foreclosure rather than simply foreclosing—provided the modifications meet investor, guarantor, insurer and program requirements… Further, Cordray said Ocwen have three years to implement the $2 billion principal reductions for underwater homeowners. If the company doesn’t deliver, it must make up the difference in a cash penalty.

  “As for the $127 million to consumers who lost their homes to foreclosure, that penalty comes directly from Ocwen, with  the CFPB estimating 185,000 consumers may be entitled to payments. Consumers whose loans were being serviced by Ocwen, Homeward Residential Holdings, or Litton Loan Servicing, and who lost their homes to foreclosure between Jan. 1, 2009 and Dec. 31, 2012 are eligible.”

Consumer Finance statement

Expanded access to Ohio adoption records

The Toledo Blade and Cleveland Plain Dealer last week were among those carrying news about a pair of Ohio adoption  bills emerging from  their respective legislatures and making their way toward the governor’s desk.

  Prior to 1964 birth certificates in Ohio were considered public record, but in that year the law was changed and they became part of the court’s sealed record with respect to adoptions, openable only for good cause. (See 130 OL 848). That stance was reversed in 1996 with respect to the  rights of an adoptee  and access to original records & adoption files (ORC 3107.38 and 3705.12, both pursuant to  Ohio HB 419, which became effective in September of that year). House Bill 419, however, did not make the law retroactive. [The Ohio Department of Health has an overview of this Here]

  Now we’re taking that final big step with Senate Bill 23 and companion House Bill 61, both introduced on Feb, 12th. by Senators Bill Beagle & David Burke, and Representatives Dorothy Pelanda & Nickie Antonio, respectively, which the Blade article says will enable an estimated 400,000 Ohioans adopted between 1964 and 1996 to have access to those original records. SB 23 has passed both Senate and House scrutiny and is headed to the Governor’s office, but wouldn’t take effect until one year and 90 days after he signs it into law..... 455 days.

  “Biological parents will have the opportunity to place a form in the adoption file indicating whether they want to be contacted by those they put up for adoption,” the article says, “but it would also allow them to have their names redacted from the birth certificate, if they wish --  it also provides for a medical history form to be placed in the file and requires the state to develop a system in which the adoptee can ask a medical history question of his biological parent through the Ohio Department of Health.”

  The Plain Dealer article notes HB 61 passed the House back in April and was referred to Senate’s  Medicaid, Health and Human Services Committee.

  Related to the adoption theme here are are HB 307 and its companion  SB 250, also pending in the Ohio legislature, addressing pre-birth adoption notifications being sent to putative fathers, introduced back in October and earlier this month, respectively

 Those interested or practicing in Ohio adoption law can access an extensive history & analysis of Ohio adoption law in a 1997 Cleveland. State Law Review article by Wendy Weiss centering around the passage of HB 419 and its impact. [“Ohio House Bill 419: Increased Openness in Adoption Records Law,” by Wendy L. Weiss, 45 Clev. St. L. Rev. 101 (1997) – HeinOnline ]
 

Modernizing & Improve the System of Insurance Regulation in the United States

  With all of the confusion, discussion & debate about health care and insurance right now, Sabrina Pacifici’s post on LLRX.com yesterday morning, in fact, at least offer some degree of calm for many --- officials & lawmakers on both state and the federal level included.

   “The U.S. Department of the Treasury’s Federal Insurance Office (FIO) today submitted and released to Congress a report on how to modernize and improve the system of insurance regulation in the United States. Given the significance of the insurance sector in the U.S. economy, and the globally active nature of U.S. insurance firms, the report concludes that in some circumstances, policy goals of uniformity, efficiency, and consumer protection make continued federal involvement necessary to improve insurance regulation. However, the report also concludes that insurance regulation in the United States is best viewed in terms of a hybrid model, where state and federal oversight play complementary roles and where the roles are defined in terms of the strengths and opportunities that each brings to improving solvency and market conduct regulation…The report, mandated under Title V of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), makes recommendations in the areas of insurance sector solvency and marketplace regulation, outlining near-term reforms that states should undertake regarding capital adequacy, safety and soundness, reform of insurer resolution practices, and marketplace regulation, and areas for federal involvement in insurance regulation… “

  The article has a link to the Federal Insurance Office’s  "Howto Modernize and Improve the System of Insurance Regulation in the UnitedStates” report.

  

Ky. announces plan to ensure DNA taken from felons

Kentucky corrections officials announced plans Wednesday to fix a faulty system to ensure DNA samples are in f act taken from every Kentucky felon as required by law, acknowledging the failure to collect samples was more widespread than first reported,” NKy.comreported this morning --- stating that “at the time, the state said DNA had been collected from 75,600 felons since a 2009 change in Kentucky law required DNA samples from every felon, the state disclosing back in July it had failed to collect DNA samples from about 6,300 felons over that four-year period. The Department of Corrections Wednesday reported that an investigation found the number of missing samples actually totaled about 16,000.”

  The article continued by reporting that “the investigative report cited a number of factors that led to the missing DNA samples, including a lack of accountability and follow-up measures. It said there was no disciplinary action for not collecting DNA, and employee performance evaluations didn’t take into account DNA collections… While the implementation plan was thorough, there was a lack of sufficient controls, accountability measures or a reliable database to ensure compliance,” according to the report.

  Ky. Gov. Beshear said “(Their) Department of Corrections has implemented an aggressive action plan to retrieve DNA from these offenders in an expedited and efficient manner…. DNA collection is mandated by law, and I fully expect all our agencies not only to collect the samples, but also to maintain accurate records of such, so that our DNA databases are up-to-date for law enforcement use.”  [ KRS 17.170 and  KRS 17.175 ]

 “Some of those felons who owe DNA samples are still in custody; others will have to report to probation and parole offices to provide samples, and nearly 85 percent of the missed DNA samples are for people convicted of property and drug-related crimes,” according to the corrections department, which is also reporting its plan includes a multi-level review already put in place to ensure a sample is taken from every offender prior to release from custody or supervision. Also, every probation and parole supervisor receives a daily list with names of offenders who haven’t given samples.

  “… samples are being collected immediately after the arrest of felons who avoided giving samples during their prior time in custody.”

 Copies of the Kentucky Department of Corrections action plan encompasses many of the recommendations made in an investigative report by the Office of the Inspector General requested by Governor Steve Beshear, is complete and is available here.

 

 

Is Supreme Court Ruling Closing Door on Public Records Access?

  The Supreme Court’s new service this morning is carrying an editorial by the Hudson Hub Times saying “The Ohio Supreme Court closed the door on public records access to JobsOhio yesterday in affirming its exemption as the non-profit entity created by Gov. John Kasich to oversee state economic development efforts,” noting the Court’s having heard arguments in a challenge to JobsOhio brought by an advocacy group that contended it was unconstitutional because the state is prohibited from establishing private enterprises. [ See State Ex Rel. Ullmann v. JobsOhio Et.Al ]

  Realtor Victoria Ullman’s complaint back in August contended “JobsOhio performed a government function and is funded by a lease of a government asset. JobsOhio exists only due to its creation pursuant to R.C. 187 and the liquor revenue granted to it in R. C. 4313. It was designed specifically to avoid public documents production obligations or any other public scrutiny…  R.C. 149.011(B) states: "State agency" does not include the nonprofit corporation formed under section 187.01 of the Revised Code." However, Ohio Constitution 13.01 forbids the General Assembly from creating a corporate entity of any kind. This renders this exemption void ab initio … (therefore)  JobsOhio is unconstitutional and was from its inception pursuant to Ohio Constit. 13.01 and 1302. This court can declare it unconstitutional in toto once it determines that this section of R.C. 149.011 is void pursuant to Ohio Const. 13.  [See also realtor’s Memorandum in support of writ ]

  The State in its motion to dismiss, which the Court granted, responded that “The legislation enabling the creation of JobsOhio, a private not-for-profit entity, could not be clearer in pronouncing that JobsOhio is not a "public office" (and, therefore, not property subject to a public records request) and that documents requested from JobsOhio are not "public records." See R.C. 187.03(A) (JobsOliio shall not constitute a "public office" for purposes of R.C. Chapter 149); R.C. 187.04(C)(1) (records created by JobsOhio are not public records); see also R.C. 149.43(A)(1)(cc) (providing that "public record" does not mean records described in R.C. 187.04(C) that are not designated to be made available to the public); R.C. 149.011(A) ("`Public office' does not include the nonprofit corporation formed under section 187.01 of the Revised Code.");” noting also that “Relator's efforts began in 2011 in her former capacity as the attorney for ProgressOhio.org, Inc. ("ProgressOhio"), and then continued as an amicus curiae in the case of ProgressOhio v. JobsOhio, Case No.2012-1272, pending before this Court. Relator has been unsuccessful in having those claims heard, however, because ProgressOhio lacks standing under Ohio law.”

ProgressOhio v. JobsOhio, Case No. 2012-1272 was heard on November 6^th.

House Bill 1 creating JobsOhio in 2011
[Legislative Service's analysis of HB 1 (2011)]

[See also Jurisdictionalmemorandum of amicus curiae 1851 Center for Constitutional Law in support of appellant filed July 30, 2012 with respect to ProgressOhio v. JobsOhio ]

 

Traffic stop search & seizure differences under state and federal constitutions spelled out in separate case law from U.S. and Ohio Supreme Court cases.

   Ohio’s Supreme Court news service this morning reported the Sixth District Court of Appeals' reversing a defendant’s three-year prison sentence on Fourth Amendment constitutional grounds, remanding the case back down to Wood County Court of Common Pleas. [ State v. Brown, 2013-Ohio-5351  ]

 Terrence Brown was sentenced to three years in prison after pleading no contest to charges he illegally had oxycodone when he was stopped on March 16, 2011, by a Lake Township Police Department officer on I-280 in Wood County. He appealed the sentence contending the township police officer did not have authority to stop him on the highway, and  his right to be free from unlawful search and seizure under the Fourth Amendment of the United States Constitution and Article 1, Section 14 of the Ohio Constitution were violated when the trial judge denied his motion to suppress the evidence that was seized during the traffic stop.

  Appeals Court Judge Arlene Singer examined the difference in protection under the state and federal constitutions spelled out in separate case law from U.S. and Ohio Supreme Court cases, concluded that while Brown’s Fourth Amendment rights were not violated because the officer had probable cause to stop him, there was a violation of his state rights, the Court’s news service said.

  “[In Atwaterv. Lago Vista, 532 U.S. 318 (2001)],” the Court reported, “a stop, even if in violation of state law, is not unreasonable under the Fourth Amendment to the United States Constitution if the stop was based on probable cause,” Judge Singer wrote. “[In State v. Brown] a stop made in violation of state law is reasonable under Article I, Section 14, of the Ohio Constitution only when probable cause to make the stop exists and the government’s interests in allowing unauthorized officers to make this type of stop outweighs the intrusion upon individual privacy."

  Reviewing state & federal case history fromover the years, the Sixth Circuit summarized “It is undisputed that the township officer violated R.C. 4513.39 by making the extraterritorial stop on an interstate highway for a marked lane violation, which is specified in R.C. 4513.39(A) as being within the exclusive jurisdiction of the state highway patrol, sheriffs, and sheriff deputies. Further, no extenuating circumstances were presented to justify an extraterritorial stop by township police officers for this type of traffic violation. Therefore, we find the extraterritorial stop was unreasonable under the Ohio Constitution.”

 

Ohio Supreme Court hearing traffic light controversy

   An article in the Toledo Blade last week revealed the Ohio Supreme Court’s agreeing to review a decision by Ohio’s 6th District Court of Appeals that said a challenge of the appeal process for red-light camera citations should not have been thrown out by a Lucas County Common Pleas judge.

   “The appeals court back in June reversed a decision by Common Pleas Judge Ruth Ann Franks to dismiss a 2011 class-action lawsuit filed by Bradley Walker of Kentucky against the City of Toledo and RedFlex Traffic Systems, Inc. Mr. Walker claimed Toledo police had not established an appeals process for those cited by the cameras.”

  The City of Toledo’s memorandum in support of jurisdiction contends “The primary question presented in this appeal is simply - "Does a home rule city that creates an administrative process to review appeals of civil violations of municipal ordinances unconstitutionally interfere with the jurisdiction of the municipal court and act in violatiori of R.C. § 1901.20?" [ Walker v. City of Toledo, et al.]

  Further, the City says, “The issues in this case are of great general interest and public concern. If the Court of Appeals decision stands Toledo's photo enforcement ordinance would be, according to the Sixth District's ruling, a "nullity.'' (Decision and Judgment at ¶ 36) Given the reality that many cities throughout the State have enacted similar programs, the impact of the Sixth District ruling could be profound. If other appellate districts rule differently there would be a lack of uniformity throughout the state…”

  Walker’s contention in answering the appeal is that “RedFlex's and Toledo's propositions of law do not involve a substantial-and unsettled-constitutional question…. charter municipalities do not have home-rule power to regulate a court's jurisdiction. Cupps v. Toledo, 170 Ohio St. 144, 163 N.E.2d 384 (1959), paragraph one of syllabus. As of 1959, this issue is "settled by the decisions of this court." Id. at 149. Thus, if a court's jurisdiction would be different under an ordinance than it is under a statute enacted by the General Assembly, then the ordinance is unconstitutional. Here, under R.C. 1901.20(A)(1), the Toledo municipal court "has jurisdiction." But under Toledo's ordinance, that court does not have jurisdiction. Did the Sixth District correctly determine that Toledo's ordinance violates Article IV, Section 1?”

  The Court last Spring opted not to hear a case of similar circumstances in the Cincinnati suburban community of Elmwood Place.[ Pruiett et al. v. Village of Elmwood Place et al.]

Conduct Guidelines for Ohio Prosecutors and Defense Attorneys Issued

   The Ohio Supreme Court’s news service this morning passed on an announcement of the Ohio Supreme Court’s Commission on Professionalism releasing a new best practices publication to promote professionalism among Ohio’s lawyers. The Professionalism Dos andDon’ts: Conduct of Prosecutors and Defense Attorneys lists a number of guidelines for lawyers on both sides of a criminal matter, and “serves as a reminder that prosecutors and defense attorneys are officers of the court and should work diligently and respectfully as advocates,” in the words of Commission on Professionalism Secretary Lori Keating.

Ohio guidelines for reissuing cancelled health plans

Cincinnati.com this morning has an article relating that “The Ohio Department of Insurance  issued new guidance last  Wednesday for insurance companies considering reissuing plans  they had cancelled because they weren’t compliant with new Obamacare rules that go into place next month.

  Details about the process and rules for insurers to follow as to the reissuance of cancelled plans – which is optional for all insurers and became effective on Tuesday, December 3^rd. – were linked to in Cincinnati.com’s article, and contain additional links to a letter to state insurance commissioners from the Centerfor Consumer Information and Insurance Oversight (CCIIO) on November 14, 2013 recommending the adoption of the CCIIO’s transitional policy for non-grandfathered health insurance plans in the individual and small group markets that would otherwise terminate or require modification as a result of the federal health insurance market reforms required under the Patient Protection and Affordable Care Act (ACA), which further states:

“In light of CCIIO’s transitional policy, insurers in Ohio may offer their insureds the ability to renew, at the insured’s option, plans that were in effect on October 1, 2013, for a policy year starting between January 1, 2014, and October 1, 2014. Issuers wishing to extend coverage shall follow CCIIO’s transitional policy, including federal notice requirements, offering reenrollment or extended coverage to impacted policyholders in the individual and/or small group market in a uniform and non-discriminatory manner in accordance with Ohio law (ORC §3924.03 and §3923.57).”

1st Circuit GPS Tracking Cases

 Law.com and the National Law Journal had an article this morning about the First Circuit U.S. Court of Appeals Chief Judge Sandra Lynch, with senior judges Kermit Lipez and Norman Stahl, hearing arguments in two unrelated warrantless tracking cases, U.S. v. Báez and U.S. v. Oladosu, yesterday.

  The article related the U.S. Supreme Court’s ruling in U.S. v. Jones ruling that held such GPS uses were Fourth Amendment searches, “left open the question of whether such searches were unreasonable or require a warrant. A combined March ruling from the First Circuit on the issue in U.S. v. Sparks and U.S. v. Michaud  also left unanswered questions for the circuit -- the Sparks court allowing the evidence but not decide whether the FBI's use of the GPS was a Fourth Amendment ‘search’ that required a warrant.”

   It also noted that “in October, the Third Circuit ruled in U.S. v. Katzin that police need a warrant for GPS tracking.”

  “In the first case, José Báez appealed his December 2012 conviction for four counts of arson based on evidence from the Alcohol Tobacco and Firearms Bureau’s use of a GPS for 347 days,” the article summarized. “After his conditional guilty plea, District of Massachusetts Judge Douglas Woodlock sentenced him to 15 years in prison, five years of supervised release and ordered him to pay $3.2 million in restitution.” [District Court's case]

  In the second case, “Abdulfatah Oladosu challenged District of Rhode Island Judge William E. Smith’s August 2012 denial of his motion to suppress the GPS evidence. Following his conditional guilty plea for two heroin crimes, Oladosu was sentenced to three years and 11 months in prison and three years of supervised release. Oladosu’s attorney argued that the 47 days of surveillance, or 4 times more than Sparks, raised constitutional questions concerning the reasonable expectation of privacy.” [District Court's case ]

New York Lawsuit Arguing Chimpanzees Have Human Rights

 Steve Wise and The Nonhuman Rights Project’s filing of a habeas corpus petition in Fulton County, New York -- the first of its kind seeking legal rights to non-humans -- has stirred a new life of sorts into an otherwise news-numbed media, and raising some perhaps some “ready-for-their-time” questions despite the lack of more strict precedent …..

  An NPR article this morning says “the lawsuit uses a cornerstone of the legal system to seek this change. The Nonhuman Rights Project filed a writ of habeas corpus, which historically compels a judge to call upon a person's captor to explain why he has a right to hold the person captive – ‘More specifically,’ Michael Mountain writes in a Nonhuman Rights Project blog post,  ‘our suits are based on a case that was fought in England in 1772, when an American slave, James Somerset, who had been taken to London by his owner, escaped, was recaptured and was being held in chains on a ship that was about to set sail for the slave markets of Jamaica.  Somerset's godparents filed a writ of habeas corpus on Somerset's behalf in order to challenge Somerset's classification as a legal thing. The case went before the Chief Justice of the Court of King's Bench, Lord Mansfield, and, in what became one of the most important trials in Anglo-American history, Lord Mansfield ruled that Somerset was not a piece of property, but instead a legal person, and he set him free.’

  While “the motion argues chimps are being treated by the law as slaves,” the article says, “it also argues that the law right now already gives legal personhood to nonhumans in many instances: domestic animals, for example, who are the beneficiaries of trusts and, of course, extending some human legal rights to corporations, and argues, leading scientists say that ‘... Chimpanzees possess such complex cognitive abilities as autonomy, self-determination, self-consciousness, awareness of past, anticipation for the future and the ability to make choices; display complex emotions such as empathy; and construct diverse cultures. The possession of these characteristics is sufficient to establish common law personhood and the consequential fundamental right to bodily liberty.’”

  The Nonhuman Rights Project asks the chimp be freed as a pet sent instead to a sanctuary where he can be properly taken care of.

  Project’s 91-page Memorandum of Law in Support of Order to Show Cause and Writ of Habeas Corpus and Order Granting the Immediate Release

Enhanced Online Legal Research Resources Available at Ohio Supreme Court Law Library

 The Supreme Court’s news service this morning announced patrons at the Supreme Court’s law library will now have free access to more resources when they perform legal research thanks to new upgrades obtained with a new contact with Westlaw, according to Erin Waltz, library public services manager, allowing WestlawNext  to be available on two patron terminals, one each on the north and south sides of the 11th-floor library at the Thomas J. Moyer Ohio Judicial Center on South Front Street in Columbus, Ohio.

  Waltz said the contract includes access to all major Ohio legal treatises, statutes, regulations, jury verdicts, and briefs, as well as civil and criminal pleadings, motions and memoranda. In addition, the contract includes access to case law, statutes, and regulations from the other 49 states and federal cases, statutes, regulations, and legal treatises.

 The Court’s Law Library is open to the general public, providing a full range of services to all patrons in addition to providing library services to the Justices and Supreme Court staff,  state legislature, state administrative agencies, and attorneys.

Library’s online databases

Exclusionary Rule & Suppression in First Circuit Unlawfully Obtained DNA Case

 A Law.com/National Law Journal article Monday relayed “the First Circuit Court of Appeals on Nov. 22. in U.S. v. Thomas agreed with defendant Michael Thomas that authorities violated his Fourth Amendment rights when they obtained his DNA during a Postal Inspection Service’s prior investigation of suspicious mail sent to his former school. Thomas was never charged in that case, and the investigation was closed in 2006, but the First Circuit panel none-the-less upheld U.S. District Judge D. Brock Hornby of Maine’s ruling in 2011 not to suppress that evidence and Thomas was subsequently sentenced last year to 71 months in prison on charges related to threatening the lives of various politicians.

  Chief Judge Sandra Lynch of the First Circuit wrote the opinion, joined by judges William J. Kayatta Jr. and O. Rogeriee Thompson, stating in pertinances:

“… While we agree with Thomas that the method of                    obtaining his DNA, under Maryland v. King,                                 133 S. Ct. 1958(2013), violated the Fourth                                     Amendment, we affirm, under Herring v.                                      United States, 555 U.S. 135 (2009), the district                           court's denial of Thomas's motion to suppress in                         2011.

  “Relying on Herring v. United States, supra, the                           court concluded that the exclusionary rule                                   should not be applied because there was no                                  flagrant or deliberate police misconduct at any                            point, deterrent value, given this absence. The                            costs of exclusion, the court reasoned, outweighed                    the benefits.

“The exclusionary rule is ‘designed to safeguard                         Fourth Amendment rights generally through its
deterrent effect.’ United States v. Calandra,                                 414 U.S. 338, 348 (1974); see Davis v. United                                States, 131 S. Ct. 2419, 2426 (2011) ("The                                         [exclusionary] rule's sole purpose . . . is to deter                        future Fourth Amendment violations." (emphasis                      added)). Exclusion is not an automatic                                             consequence of a Fourth Amendment violation,                         but rather is available only where the benefits of                        deterring the police misconduct that produced the                    violation outweigh the costs of excluding relevant
    evidence. Herring, 555 U.S. at 141.

“Importantly, in Herring, a case involving a                                  negligent mistake, the Court held:

'To trigger the exclusionary rule, police                           conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. . . . [T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. 555 U.S. at 144.'

“There is no serious argument presented that Herring's deterrence-based analytical standards are limited to cases of error produced by negligence, and we apply those standards here.

“Significantly for our purposes, the Herring criteria also include consideration of whether thepolice error is 'attenuated' from the events that occur following the error. 'Attenuatio' ispresented by Herring as a necessary component of its deterrence analysis. Where an error "arises from nonrecurring and attenuated negligence," the Court held, it is "far removed from the core concerns that led us to adopt the [exclusionary] rule in the first place," and because the resulting deterrent value is necessarily minimal, exclusion is not warranted. 555 U.S. at 144.”

Immunities in Drug Emergency Assistances

  Ohio Representatives Robert Sprague & Denise Driehaus introduced a bill on  11/26/2013 seeking  to provide an immunity from arrest, prosecution, conviction, or supervised release sanctioning for minor drug- possession offenses for a person who seeks or obtains medical assistance for him/her-self or another person who is experiencing a medical emergency as a result of ingesting drugs or alcohol, or for a person  experiencing such a medical emergency and for whom medical assistance is sought.

The bill would substantially provide that…

  “Sec. 2925.11(B) (2)(a) A person acting in good faith who seeks or obtains medical assistance for another person who is experiencing a medical emergency as a result of ingesting drugs or alcohol shall not be arrested, charged, prosecuted, convicted, or penalized pursuant to this chapter for a minor drug possession offense or be found in violation of any community control sanction or post-release control sanction based on a minor drug possession offense if the evidence of the obtaining, possession, or use of the controlled substance or controlled substance analog that would be the basis of the offense was obtained as a result of the person seeking the medical assistance……

Text of Introduced Bill

Indiana’s Seventh Circuit Orders Further Review of "Robocall" Ban

  We all know what “robocalls”  are --- computerized auto-dialers calling at dinner time or whenever, delivering a pre-recorded message telling us a prescription’s ready, wanting us to buy something, or vote for one guy, some issue, or something else.

  Wikipedia relates “The federal Telephone Consumer Protection Act of 1991 (TCPA) regulates automated calls, with all robocalls --- though exempt from the National Do Not Call Registry --- still having to identify who is initiating the calls and including a telephone number or address whereby the initiator can be reached to be considered legal [See 47 U.S.C. § 227(d)(3); 47 C.F.R. §64.1200(b)]. That article continues by saying “Some 23 states have laws that regulate or prohibit political robocalls in one way or another. Indiana and North Dakota prohibit automated political calls; In New Hampshire, political robo-calls are allowed, except when the recipient is on the National Do Not Call Registry; and many states require the disclosure of who paid for the call, often requiring such notice be recorded in the candidate's own voice.”

  The patch-work of state laws previously implied regulating political robo-calls has created problems for national campaigns over the years -- now highlighted with a National Law Journal’s article this morning about the  the Seventh Circuit Court of Appeals having remanded Patriotic Veterans v. State of Indiana back down to Southern District of Indiana Judge William Lawrence for a consideration of the ban’s First Amendment implications, along with reversing his September 2011 ruling that the Federal Telephone Consumer Protection Act pre-empted the Indiana law as it applies to interstate robo-calls. Lawrence had granted an injunction, but the Seventh Circuit stayed it that December.

Ohio Mayors’ Courts new online caseload reporting portal

  In Ohio, "mayor's courts" existed by virtue of the law conferring jurisdiction on officials of  municipal corporations to hear and determine prosecutions for violations of municipal ordinances and certain moving traffic violations up until 2002 without population formalities. In that year, however, House Bill 24 “generally imposed such a requirement by specifying that only mayors of certain municipal corporations having a population of more than 100 had jurisdiction to hear and determine such prosecutions.” (Sec. 1905.01.) At about the same time HB 490 (2002) and SB 57 (2003) came along proscribing Sec. 1905.033. (A), in which “mayors of a municipal corporation who conduct a mayor's court shall register annually with the supreme court as provided further in this division…  not later than the fifteenth day of January in any year in which the mayor conducts a mayor's court or at least fifteen days before the mayor first conducts a mayor's court in a particular year, whichever is later…” This past March legislation was passed further “increasing from more than 100 to more than 200 the population necessary for a municipal corporation to have a mayor's court and jurisdiction over certain specified matters.  [HB 606 ]

  The Supreme Court’s news service earlier this week reported that Ohio’s 300-plus mayor’s courts will now be receiving new prompts to comply with their caseload reporting requirements under a new online portal developed by the Ohio Supreme Court when they register their courts by that January 15, 2014 deadline, including a 23 minute video presenting an overview of the registration and quarterly reporting process. [Mayor's Courts Registration & Reporting]

Presentence investigation reports in criminal case before sentencing

 The Ohio Supreme Court’s new service Monday morning made note of the Court’s hearing State of Ohio v. Lashawn Amos and Christopher Richmond v. State of Ohio on Tuesday, both asking whether trial courts must consider a presentence investigation report in a criminal case before sentencing a defendant to community control, with the state noting that the appellate court decided the cases on the same day, but seemingly to have ruled differently on the issue. The state asserted Ohio statute (ORC 2951.03) and Crim Rule 32.1 make pre-sentence reports mandatory before a court can impose a community control sanction.

State of Ohio v. Lashawn Amos case docket
            Memorandum in support of jurisdiction
            Appeals case, State v. Amos, 2012-Ohio-3954 

State of Ohio v. Christopher Richmond case docket
         Memorandum in support of jurisdiction                                   Appeal case, State v. Richmond, 2012-Ohio-3946 

Ohio Veterans’ Health Care System proposed

A bill to create an Ohio Veterans’ Health Care System  was introduced by in the Ohio House yesterday by Representative Lynn Wachtmann “to provide eligible veterans with comprehensive health care services, including health, medical, hospital, dental, and surgical benefits.”

  The program would to provide veterans who are eligible for benefits under Medicaid, to instead be provided  health care insurance through this veterans health care program. When the Ohio veterans health care system becomes operational, veterans receiving health care benefits under the medicaid program will instead  be transferred to and enrolled in the Ohio veterans health care system.

  Principal with the bill -- Sec. 5902.20(C) would provide that “the director of veterans services, in consultation with the superintendent of insurance, the director of administrative services, and the director of job and family services, select the structure of the system from one of the following three options:

 (1) A state subsidized comprehensive health care plan provided by an insurance company authorized to do business in this state;

(2) A state subsidized high deductible health care plan provided by an insurance company authorized to do business in this state, to be provided in conjunction with an obligation for the state to make periodic direct deposits into an individual health savings account, established by the veteran, which qualifies under Section 223 of the Internal Revenue Code; or

      (3) A voucher program that grants subsidies to            eligible veterans for purchasing private health            insurance under the Patient Protection and                Affordable Care Act, Pub. L. No. 111-148,                    124 Stat. 119, through its health insurance                  marketplace exchange to the extent not                      otherwise  subsidized under the Patient                       Protection and Affordable Care Act.

Text of HB 353

Arguments ricochet around Ohio gun bill debate

An article in yesterday morning's Columbus Dispatch heralded “the latest proposals sweeping changes to Ohio gun laws, including a 'stand your ground' provision, has generated fierce debate in the state’s House ."

  House Bill 203, introduced last June by Representative Terry Johnson, amended by a substitute bill in the Policy & Oversight Committee last month, contains several controversial provisions that have drawn fire from law enforcement and advocates for gun restrictions., including efforts to ensure that cities can’t avoid paying attorneys fees when their gun laws are challenged, and ensuring that people don’t get concealed-carry licenses in Ohio who don’t even qualify for purchasing a gun. It is scheduled for a possible committee vote today.

 The Dispatch article contains a look at some major provisions and arguments from both sides of the debate.

Ohio Delay in Execution of Ronald Phillips

Ohio Gov. John Kasich announced last Wednesday that he has postponed Ronald Phillips' execution date until July of next summer in order to investigate whether the convicted killer’s organs can be donated to family members.

  Phillips, the Cleveland Plain Dealer yesterday reported, was sentenced to death in 1993 for raping and killing the 3-year-old daughter of his girlfriend and was denied clemency by Kasich on November 7th. His execution has drawn some notice over the past months as he would’ve been the first person put to death in Ohio using a new and untried lethal-injection cocktail consisting of midazolam, a sedative, and hydromorphone, a morphine derivative. With execution postponed, Dennis McGuire may become the first inmate put to death using the new cocktail. McGuire, a Preble County man convicted of raping, choking and stabbing a pregnant woman in 1989, is scheduled to die Jan. 16, 2014.

    Phillips had initially approached The Department of Rehabilitation and Correction earlier this week, which denied his of seeking to determine whether he would be a viable organ donor to his mother, who has kidney disease, and his sister, who has a heart condition, according to the Associated Press. Phillips is also willing to donate organs to other people if he couldn't help his relatives, his attorney, Lisa Lagos, told the AP. Lagos said the request wasn't a delaying tactic but an attempt by Phillips to make a final gesture for good. That request had been denied with the DRC saying it wasn’t aware of any other time that an Ohio death-row inmate has made an organ donation, according to spokeswoman JoEllen Smith, although noting that it has happened in other states such as California, where a SFGate article back in April 1995 reported convicted killer Steven Shelton’s donating one of his kidneys  to save his mother's life after his brother, Nelson Shelton, also sentenced to die for beating a man to death after an 18-hour drinking binge in 1992, first offered but was not a compatible donor, was executed in March. Steven Shelton was scheduled to die April 5, but received a stay because he has not exhausted his appeals. That article proceeded to say that “that transplant is not the first from an inmate to a relative, but it was believed to be the first time an inmate condemned to die has donated an organ. Officials at the Death Penalty Information Center in Washington and the United Network for Organ Sharing in Richmond, Va., knew of no other death row transplant cases.”

  The issue isn’t really that unique as Gov. Kasich said in a statement to the Associated Press that he “realized this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen, and said he wanted to allow time for medical experts to study whether Phillips could donate non-vital organs, such as a kidney, before being executed.” It did open questions, though.

   A Columbus Dispatch article this morning said “questions abound after Gov. John Kasich’s unprecedented decision to postpone Ronald Phillips’ execution: Who pays his transplant bill? What are the ethical and logistical concerns? Will anyone want organs from a child rapist/killer?

  “Halting an execution to allow an inmate to donate his organs is unprecedented in the United States, leaving even experts such as Dr. Robert Higgins, director of Ohio State University’s Comprehensive Transplant Center, at a loss about what happens next.“It raises ethical and moral dilemmas and will require some deliberation,” he told The Dispatch. “It’s unclear how the process will move forward. That’s a logistic nightmare."

  Other media sources raise questions about the practicality and ethical hurdles imposed as well. An NBC News article yesterday categorized it as a “a proposal that experts say would be a logistical nightmare and an ethical minefield,” and cites Arthur Caplan, a professor of medical ethics at NYU Langone Medical Center, as saying, “"The only options for executing someone to obtain vital organs is to either shoot them in the head or chop their head off and have a team of doctors ready to step in immediately. No doctor is going to do it," he said. "It violates all medical ethics and now you're making the doctor the executioner."

  A  Fox News article relates “Some medical experts and others warn that execution chemicals could render organs unusable. They are also deeply disturbed by the prospect of death row inmates donating organs, even if it can ease shortages so severe that patients die while on the waiting list, questioning whether the condemned can freely give consent, or are desperately hoping to win clemency. They worry that such practices would make judges and juries more likely to hand out death sentences. And they are troubled by the notion of using inmates for spare parts.”

Ohio Supreme Court: ProgressOhio v. JobsOhio

A Columbus Dispatch article yesterday afternoon relays the question of “Whether a liberal policy group and two Democratic lawmakers can sue JobsOhio's having now morphed into a larger question of who can sue the government.”

 “The issue before the high court is whether ProgressOhio, state Sen. Michael Skindell of Lakewood and now-former Rep. Dennis Murray of Sandusky have legal standing to sue over the constitutionality of Gov. John Kasich’s JobsOhio plan in 2011,” the Dispatch’s article says -- and two lower courts have already ruled they did not, making the implications stemming from what happens tomorrow when the JobsOhio case presents oral arguments before the Ohio Supreme Court stretch far beyond this one lawsuit.

 Franklin County’s Common Pleas and Appeals courts ruled that Rothenberg, Skindell and Murray didn’t have legal standing to sue because they could not prove personal injury by the creation of JobsOhio, nor their claiming harm to the public.

 -- and The Dispatch reported another catch. “Rothenberg’s original lawsuit had nothing to do with standing, but whether it was constitutional for the state to ‘invest’ in a private corporation such as JobsOhio. The language of the law includes a provision requiring that all constitutional challenges had to be filed within 60 days of the law’s effective date, but the principal act that Rothenberg and his counterparts say is unconstitutional — JobsOhio’s acquisition of the state’s wholesale liquor profits, to fund the agency — didn’t take place until Feb. 1 of this year, long after that 60-day window for constitutional challenges closed.

 “If groups representing the public are not allowed to sue over potentially unconstitutional provisions passed by the legislature,” Rothenberg was quoted as saying. “it gives extraordinary power to the legislature to pass things in conflict with our Constitution.”

Internet Postings of Ohio Public Records

  Ohio House Representatives Mike Duffey and Christina Hagan, last week introduced a set of bills professing “the general assembly recognizes that public-use data from government agencies offers an avenue toward open and transparent government, stimulates business innovation, and can help government agencies become more effective; and declaring it to be a public purpose and function of the state to facilitate the ability of the public easily to find, download, and use data sets generated and held by the state government and other public offices, herein creates the DataOhio board to:

• Recommend categories of public records that state agencies and local governments should make available to the public online in an open format;
• Recommend technology standards for open data use in the state that reflect the most current standards nationally and within other states;
• Recommend accounting standards for financial data in the state to facilitate comparison across governmental units and services;
• Recommend metadata definitional standards for nonfinancial data in the state to facilitate comparison and use of this data across governmental units; and
• Consider creation by the state of data.ohio.gov, an online catalog of data sets made available by state agencies and local governments, as well as collaboration with efforts underway at the federal and state levels.

  Secondarily, having “the director of administrative services establish, administer and operate a web site to function as a portal and catalog where public records and data sets of public records, created by state government and other public offices, can be located and accessed by the public online.

  "The web site shall be registered at data.Ohio.gov, and the state shall consider participation and affiliation of data.Ohio.gov with data.gov, the official online data catalog of the United States government.”


Texts of Proposed HB 321 and HB 323 

Ohio House balks at proposed permanent Ohio income-tax cut

   The Columbus Dispatch this morning is carrying an article which is saying “after the state Controlling Board last week approved spending $2.56 billion in federal dollars to expand Medicaid for about 275,000 low-income Ohioans, Sen. Chris Widener’s proposal for a 4 % permanent state income-tax cut in Senate Bill 210, introduced last week, instead wants to take the estimated $400 million gained from expanding Medicaid and turn it into the income-tax cut – and it’s getting a cool reception from House GOP leaders.

  “The entire Senate GOP leadership team signed on to support the bill, which got its first hearing this week,” the  article said. “ Widener, one of the ‘yes’ votes on the board, has touted it as a way to build upon the phased-in 10 percent income-tax cut passed in the two-year budget that took effect in September, saying that by allowing all Ohio taxpayers to directly benefit from the unbudgeted savings is the economically sensible and the right thing to do,”

  House Republicans don’t exactly see it that way. House Speaker William G. Batchelder, was attributed as saying    he’s still looking for assurances that $400 million is the correct amount, and that, if it is, there are other issues that probably should be addressed first, saying “veterans are not being adequately treated, and the tremendous problems with heroin addiction in this state among the many problems we’d probably should look at before doing a (tax) cut of that size.”.

Reduced Food Stamp Benefits

  With cuts to food stamp benefits starting tomorrow – by some estimates totaling $5 billion just a few weeks before the start of the holiday season – we have yet another  issue about to show more face.

  “Congress has the power to stop the cutbacks,” CNNMoney reported last week, “but experts say that’s highly unlikely at a time when Republicans are calling for even more drastic cuts to food stamps, which benefits were bumped up in the midst of the recession… The temporary provision expires Nov. 1, and families nationwide have already received emails and letters warning that their benefits were going to be reduced.

  “Some 47.6 million people --  or nearly 15% of the population – are now getting food stamps, according to September federal data,”  CNN’s article said. “That compares to 26.3 million, or 8.7% of the population, in 2007.”

  Focus House Bill 3102 .

  FoxNews yesterday morning now suggests “as House and Senate negotiators met for the first joint talks on the bill that includes sharp cuts to food-stamp funding, an open question was whether lawmakers would get serious about targeting fraud in the massive program.

  “A recent inspector general audit suggested a full-blown crackdown on food stamp fraud could save $222 million a year,” the article said. “Food stamps, officially known as the Supplemental Nutrition Assistance Program, are part of the larger farm bill, but are being dealt with through the House’s separate Nutrition Reform and Work Opportunity bill. Among the anti-fraud measures in the bill is one that requires states to get tough on households that repeatedly ask for replacement EBT cards, which have largely replaced food stamps or vouchers as the method by which food is actually purchased at stores.”

Ohio Legislation Proposals

State Representatives , Dorothy Liggett Pelanda and  Nickie Antonio, along with Representatives Ruhl, Barborak, Gonzales, Ramos, Sheehy, Maag, Cera, Heard, Lundy, Hagan, R., Fedor, Phillips, Williams, Ashford, Grossman, Celebrezze, Reece, Scherer, and O'Brien cosponsoring, introduced a bill that would provide “no fee, cost, deposit, or money may be charged for the modification, enforcement, dismissal, or withdrawal of a domestic violence, anti-stalking, sexually oriented offense, or other type of protection order or consent agreement. [ HB 309 ]

   Senator Pro Tempore President Christopher Widener, with Senate President Keith Faber, Majority Floor Leader Tom Patton , Majority Whip Larry Obhof, and Senator Scott Oelslager co-sponsoring introduced a bill seeking a permanent income tax rate reduction of 4% for all tax brackets beginning in 2014, while Tim Schaffer and Bob Peterson proposed “authorize an income tax credit for donations to the permanent endowment fund of an eligible community foundations in Senate Bills 210 and 211, respectively.


  Senate Minority Whip NinaTurner with co-sponsors Tim Schaffer, Assistant Minority Leader Joe Schiavoni, and Minority Leader Eric Kearney have introduced SB 212 which in pertinence provide:

“Sec. 101.48. (B)…. Beginning with terms of office that commence after the effective date of this section, once each year, each member of the general assembly shall be subject to a controlled substance assessment to determine whether there is reasonable cause to suspect the member has a chemical dependency. The assessment shall be conducted by a qualified individual selected by mutual agreement of the clerks of the senate and house of representatives. If pursuant to an assessment there is reasonable cause to suspect that a member has a chemical dependency, the member shall submit to a controlled substance test to determine whether the member has a controlled substance test failure. The costs of such assessment and testing shall be paid by the member. The member shall be reimbursed the costs of the testing if the member's test does not reveal a controlled substance test failure.

“ (C) Once each calendar quarter on dates selected by mutual agreement of the clerks of the senate and house of representatives, approximately twenty-five per cent of the membership of the general assembly, chosen randomly, shall undergo a controlled substance assessment…

“(D) Refusal to submit to a controlled substance assessment or test as authorized under this section is an admission that the member has a controlled substance test failure...

“(E) If a member of the general assembly is determined by a controlled substance test conducted under this section to have a controlled substance test failure, the member shall do the following:

(1) Take an additional controlled substance test every thirty days until the member no
longer has a controlled substance test failure;

(2) Undergo substance abuse counseling provided by, or coordinated through, the
employee assistance program established under section 3701.041 of the Revised Code.
[ Renumbered as § 124.88 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013]

Continuing Duties to Former Clients

 The Ohio Supreme Court’s Board of Commissioners on Grievances & Discipline Opinion 2013-4 centers around whether public defenders who represent former clients in criminal cases that end in conviction may present evidence of that conviction to impeach the former client in a current case, expanding on a statement from a previous opinion which addressed the imputation of conflicts in a public defender’s office. In addition to Rule 1.9, Opinion 2013-4 also considers Rules 1.4, 1.6, and 1.7 of the Ohio Rules of Professional Conduct.

  Quoting the Board of Commissioners’ opinion, the Court’s news service last Friday related  that “impeachment of a former client violates Prof.Cond.R. 1.9(c) because the public defender would be using information relating to the prior representation to attack the credibility of the former client, which would disadvantage that former client. However, the public defender may proceed with the current representation if the former client’s criminal conviction is generally known, the use of former-client information is permitted or required by the Rules of Professional Conduct, or the former client provides informed consent;” expanding on the Commission’s previous statement five years ago in Opinion 2008-4,  addressing the imputation of conflicts in a public defender’s office where it stated that “if a former client in an unrelated matter is a witness in a defendant’s criminal case, an assistant county public defender may represent the criminal defendant, but may not use or reveal information of the former client that is protected from disclosure under Prof.Cond.R. 1.9(c).”

Bill Proposing Non-resident Credit on Municipal Income Taxes

Ohio Senator Tim Schaffer yesterday again  introduced a bill which the Plain Dealer was referring to as a “controversial attempt to reduce the burden on twice-taxed commuters,”  and one he’s  “introduced in various similar forms during the past six general assemblies… all without success.”

  SB 208, the Plain Dealer’s article says, “would require large Ohio cities – including Cleveland, Cincinnati, Columbus, Dayton, and Toledo – to offer non-residents an annual tax credit equal to either 10 percent of their liability for the year or the amount by which the tax amount exceeds 2 percent of their taxable income, whichever is greater… Supporters say it’s unfair that such people are assessed income tax both where they work and where they live, while opponents  say the proposal would be a severe financial blow to Cleveland and other large cities who rely on such money to provide needed services.”

  Revised Code 718.121, which went into effect in 2004, covers “second municipalities imposing taxes after the time period allowed for refund."