Thursday, January 17, 2013

Consumer Financial Protection Bureau Rules

Reuters last week reported that "in one of its most sweeping moves to date, the Consumer Financial Protection Bureau, struck a balance with the new rules that drew guarded praise from both consumer groups and lenders."

"Lenders and consumer groups alike had anxiously awaited the 'qualified mortgage' rules, which are among the most controversial the government watchdog is required to issue by the 2010 Dodd-Frank financial reform law," the article said. "The new rules will force banks to verify a potential borrower's income, the amount of debt they have, and their employment, but they also give banks incentives to issue safer, lower-priced loan products by offering lenders legal shields for such 'qualified mortgages.'"

The Consumer Financial Protection Bureau has this and previous regulatory changes and additional information posted on its website; FoxBusiness, and CNNmoney each had articles, while the National Law Journal has had two. (Here and Here).

Ohio "collateral sanctions"

A Columbus Dispatch article this morning says critics of Ohio's new "collateral sanctions" law, passed last summer, are saying those portions of the new law which no longer require inclusion of information the Attorney General's Office maintains for criminal background checks about arrests and charges that didn't result in convictions has some officials worried that employers are being given a false sense of security about applicants, including the Attorney General.

As examples, the article quotes Attorney General DeWine as saying "he has a list of 'horror stories' of background checks, mainly for juveniles, that involved serious crimes that under the new law can't be reported. The law says that juvenile-court convictions can be reported only if they were for aggravated murder, murder or sex crimes in which the youth was labeled a sex offender. DeWine also cited the case of a county children-services agency that requested a background check on someone who turned out to have a 2006 juvenile-court rape conviction. That information couldn't be reported because he hadn't been labeled a sex offender."

"'From a common-sense point of view,' DeWine said, 'if I was looking for a foster parent or looking for someone to work with children or to be with children, I would want to know whether they had been convicted of rape.'"

The article also reports that "under the new law, processing cases in which someone was arrested but not convicted has to be done by hand, which has created a backlog of background checks and costs taxpayers. BCI has racked up about $30,000 in overtime handling those checks since the law took effect last year. Background checks that once took 20 days now require as long as three months, and that caught the attention of the Ohio Casino Control Commission, where background checks have gone from days to weeks, according to spokeswoman Tama Davis.'That could be an issue in Cincinnati, where the state's fourth and last casino opens in March; about 600 employees are still to be hired,' Davis said. The agency, however, is confident that it will hit its hiring deadlines."

The article concludes by noting that the Attorney General’s Office is addressing the problem and asking legislators to amend the law.

"Sen. Bill Seitz, one of the legislation's sponsors, said he caught wind of the attorney general's concerns late in the legislative process last year and is open to revisions, particularly when it comes to people who jumped bond. 'Lawmakers never intended to reward people who never showed up and faced the music,' Seitz said.

Another of the bill's sponsors, though, Sen. Shirley Smith, disagreed, and said the law was serving the purpose it was meant to. "We shouldn't rush to judgment and prohibit a person from going to work when they have not been convicted," she said. "I don’t think we should say a person should not get a chance at employment just because they’re waiting for a court date."

Monday, January 14, 2013

What Apprendi means

The Supreme Court this morning, Jan. 14th, devoted an hour to oral arguments on the role of judges and juries when the law requires a minimum sentence after conviction of a specific crime. The case is Alleyne v. United States (docket 11-9335).

Our thanks again is to Lyle Denniston at ScotusBlog for his insight here.

"For several decades, the Supreme Court has been struggling," Denniston says " — and often has been deeply divided — over how to sort out the roles of juries and judges in the process of criminal sentencing — specifically, who gets to decide the facts that bear upon how severe a sentence may be? Much of the time, the focus has been on whose duty it is to decide the facts that will support a sentence that is longer than the maximum specified for a given crime. Since the Court’s decision in 2000 in Apprendi v. New Jersey, the Court majority has ruled repeatedly that, if a fact is going to lead to an enhanced sentence, prosecutors have to prove that to the jury and must do so by satisfying the toughest legal standard: beyond a reasonable doubt.

But the Apprendi decision left intact older rulings by the Court that a judge, applying the least-demanding standard (preponderance of the evidence), had the authority to decide to increase a sentence above the minimum. That involves what are called “mandatory minimum sentences.” A legislature decides that, for some crimes, the convicted individual should have to face the prospect of a minimum sentence that is higher than the floor while still below the maximum. The theory is that something about a specific crime made it more serious and thus deserving of more punishment. This principle was established clearly by the Court in the 1986 decision in McMillan v. Pennsylvania. It has since been reaffirmed, but by a shakier majority, and the Court is now set to reconsider the issue.

Mr. Denniston’s recapitulation of those arguments is here..  

The Petition for a writ of certiorari and Response are here.

Gallup finds 63% of Americans still favor death penalty

More than half of Americans recently polled, according to a Columbus Dispatch article this morning, still favor the death penalty for murder convictions.

The paper reports that the results of the 2012 USA Today/Gallup poll of about 1,000 adults are similar to findings from the 2011 poll when 61 percent of respondents favored capital punishment, and in 2010, when 64 percent were in favor of the practice.

"Gallup," the Dispatch article said, "has polled Americans on the death penalty since 1936, when 59 percent agreed with the practice. This current one, done by phone from Dec. 19-22, within days of the Newtown, Conn., shooting spree that claimed the lives of 28 people, including 20 elementary school children, has a margin of error of plus or minus four percentage points.

"Support of the death penalty peaked at 80 percent in 1994 and hit a low of 42 percent in the 1960s."

Gallup also surveyed our opinions of guns laws in the aftermath of the Newtown, Conn., school shootings with 38% --- Close to four in 10--- saying gun laws should be stricter. That's up from 25% who held this set of views a year ago, and is the highest since 2001. Still, the pollster reported, "more Americans are either satisfied with current gun laws, 43%, or think they should be loosened, 5%, too."

Gallup here reported "after a decade of little change in Americans' overall level of satisfaction with the nation's gun laws, significantly more now express dissatisfaction and want laws to be stricter -- yet another sign that the tragic events at Sandy Hook Elementary School in Newtown, Conn., in December have given Americans pause on the issue, at least in the short term.

"Other recent Gallup polling, however, shows Americans are not prepared to relinquish their Second Amendment rights, as majorities reject banning the possession of handguns by civilians, or even outlawing the manufacture or possession of certain 'semi-automatic guns known as assault rifles'; but they are clearly more open to further restricting the sale of guns, including with more background checks and bans on high-capacity magazines. Thus, Biden's task force enjoys a window of opportunity, albeit with apparent limits, to address Americans' concerns about gun violence."

Friday, January 11, 2013

Corporate campaign donations

Sue Reisinger at's Corporate Counsel writes that, with the beginning of the new year, both Congress and the Securities and Exchange Commission are pondering what to do about secret corporate campaign donations -- an outcome that could mean general counsel would be grappling with several new rules on corporate giving at some point.

"The Friday before the long Christmas 2012 weekend --and without a press release --" Reuters reported, "the agency's Division of Corporation Finance posted an agenda item with the Office of Information and Regulatory Affairs simply stating 'The Division is considering whether to recommend that the Commission issue a proposed rule to require that public companies provide disclosure to shareholders regarding the use of corporate resources for political activities.'"

"SEC has been under growing public pressure," Reisinger's article continued, "to consider a disclosure rule after the U.S. Supreme Court unleashed unlimited independent spending in its Citizens United v. Federal Election Commission decision in 2010. That landmark opinion also endorsed strong disclosure laws -- so a bipartisan panel of law professors filed a petition with the SEC in August 2011, requesting that the agency pass a corporate disclosure rule. (See proposed rule)

"Meanwhile, a disclosure bill—the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act—was reintroduced with bipartisan support in the U.S. House of Representatives on the first day of the 113th Congress last week -- the third time that lawmakers have tried to pass the DISCLOSE Act, which would require contributors of at least $10,000 to publicly reveal their gifts."

On yet another front, CorpCounsel says, the nonprofit advocacy group Public Campaign Action Fund released a report last week suggesting that corporate campaign contributions are fueling the record amount of filibustering. That report, released January 3, accuses Republican senators of averaging 130 filibusters in each two-year session of Congress—double the number in each session when the Democrats were last in the Senate minority.

The L.A. Times and Rep. Chris Van Hollen, who reintroduced the DISCLOSE Act from previous sessions last week, have addition information along with a link to the bill’s summary

Thomas' Legislative Information link to the bill (HB 148), introduced Jan. 3, 2013,  is here.  

Thursday, January 10, 2013

New Consumer Financial Protection Bureau guidelines issued

A Reuters article this morning reported that more than five years after the housing market collapsed, the U.S. government's Consumer Financial Protection Bureau consumer watchdog agency has announced it will now require banks to verify a borrower's ability to repay loans to ward off the kind of loose lending that helped push the U.S. economy into recession.

"The U.S. economy is still feeling the after-effects of the bubble, which sparked a global credit crisis after it burst in 2006," the article said. " As the housing market imploded, banks sharply tightened the screws on lending.

"The new rules are intended to combat lending abuses that contributed to the U.S. housing bubble, when shoddy mortgage standards led American households to take on billions of dollars in debt they could not afford.

"Regulators said the new rules would head off future crises by preventing irresponsible lending, without forcing banks to restrict credit further. Lenders will have to verify a potential borrower's income, the amount of debt they have and their job status before issuing a mortgage.

"And because lenders are likely to want the heightened legal protection that comes with offering certain "plain vanilla" loans, the rules could go a long way in determining who gets a loan and who can access low-cost borrowing rates."

Consumer Financial Protection Bureau (CFPB) Statement

Wednesday, January 09, 2013

Ohio Specialized Court Docket Certification

Beginning January 1, 2014, Ohio courts operating specialized docket programs will be required to be initially certified by the Ohio Supreme Court.

Under the certification amendments, the Court's news service this morning reported, 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. To help those courts prepare for certification, the Supreme Court compiled several step-by-step guides which include a flowchart overview that lists the steps necessary for certification, a certification application, and several templates to adopt local rules, prepare handbooks, and execute participation agreements. Guides are posted on the “Specialized Dockets Certification” button on the Court's home page in the right-hand margin.

Additional information is also available on the Specialized Dockets Section's window.

Text of Specialized Court Docket Rules

Supreme Court clarifies extent of federal rights of insane/incompetent

Lyle Denniston over at ScotusBlog last March wrote "a quarter century ago the Supreme Court ruled that it would be unconstitutional to execute an insane individual, extending that ban in 2002 to the mentally retarded. In 1966, it ruled that federal courts should not allow a death-row inmate to give up any legal challenges while he was mentally ill, but it 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” --- Up until now.

The cases were Ryan v. Gonzales, No. 10–930, from Arizona's 9th. Circuit, combined with Tibbals v. Carter, No. 11–218, from Ohio's 6th. Circuit, with the Court unanimously holding on Jan. 8th. that ,"at some point, the State must be allowed to defend its judgment of conviction [not implicating the prohibition against " 'carrying out a sentence of death upon a prisoner who is insane.'" Panetti v. Quarterman, 551 U. S. 930, 934 (2007) (quoting Ford v. Wainwright, 477 U. S. 399, 409–410 (1986)) ] …. If a district court concludes that the petitioner's claim could substantially benefit from the petitioner's assistance, the district court should take into account the likelihood that the petitioner will regain competence in the foreseeable future. Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State's attempts to defend its presumptively valid judgment." ( Ryan v. Gonzales, 10-930 )

Mr. Denniston's recapitulation of the Court's Jan. 8th. decision noted "the Ninth Circuit Court and the Sixth Circuit Court, relying on different federal statutes and both relying in part on what the Supreme Court had done in Rees v. Peyton, some 42 years ago, had concluded that a finding of incompetence for both men justified a postponement of their federal habeas cases until they could regain competence. The Ninth Circuit cited a law that gives a right to a free lawyer in a habeas case involving a death row inmate, and the Sixth Circuit relied on a law that gives federal judges the authority to order the hospitalization of a mentally incompetent individual facing a criminal trial.

[ The Court's ruling here held ] "the actions taken in Rees v. Peyton in 1966 and 1967 did not give state prisoners a right to delay their federal court challenges until they are mentally competent enough to proceed. No federal law, the Court decided unanimously, gives an incompetent state prisoner any right to keep a habeas case on hold until he can regain mental understanding of what is going on ....

"Although the Court did not say so explicitly, this new decision also appeared to mean that state prisoners have no freestanding right to be competent so that they can take part when their case gets into a federal habeas court — an issue separate from whether they had a right to a delay while they remain incompetent."

An interesting note here might be what NBCNews, back on Nov. 26th., phrased was the Supreme Court's turning down its opportunity to consider whether states can ban the insanity defense in criminal cases. That case was Delling v. Idaho -- Idaho being one of four states in the nation not allowing an insanity plea. Delling's lawyers "argued that the Constitution's guarantee of due process demands the insanity defense be available because it has strong roots in the legal system. And, they said, the ban on cruel and unusual punishment 'forbids criminal punishment that violates broadly and deeply held Anglo-American legal practices.' Idaho defended its statute, which banned the defense in 1982, contending that "moral incapacity is only one of four different historical approaches to insanity in criminal cases, no one of which is constitutionally required."

While the Court declined to hear Delling, Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor joined in dissenting from the Court's denial of Delling's petition for certiorari. (Here)

Monday, January 07, 2013

Ohio Supreme Court to Reconsider DNA Test Case

The Ohio Supreme Court will hear arguments tomorrow, Jan. 8th. on a case involving a request by death row inmate Tyrone Noling to retest DNA evidence recovered from the scene of the 1990 double murder for which he was convicted and sentenced to death in 1996.

The Court's news service briefing recounted that initial testing of saliva from a cigarette butt found in the driveway of the victims' home, conducted in 1993, excluded both Noling and a co-defendant, Gary St. Clair, as the source of the saliva, but that testing techniques available at the time were not able to link the saliva sample to any one individual. Noling had been convicted based primarily on trial testimony by two alleged accomplices who said they had waited in a car while Noling and St. Clair entered the victims' home to rob it, and that Noling had admitted shooting the victims. Noling, who was serving a prison term for breaking into and robbing two homes in Alliance on the same day as the murders, which took place 20 minutes away in Atwater, denied any involvement in the robbery or killing of the victims. The alleged accomplices have since recanted their testimony.

"In 2008, Noling, filed a motion in trial court seeking to have the DNA on the cigarette butt retested, based on his discovery that police investigating the murders had also compared the saliva to a sample taken from another man, a Daniel Wilson, and found that Wilson had not been excluded as a possible source of the saliva. Wilson had lived near the crime scene in Atwater in 1990, and was later convicted of murder and sentenced to death in an unrelated case. He was executed on June 3, 2009, but his DNA profile is on file in the state's CODIS database."

The court overruled Noling's 2008 motion for new testing, holding that, under then-current state law, a new DNA test could be ordered only if there had not been a prior "definitive" test of that evidence, and found that the 1993 test had been "definitive" because it had positively excluded Noling and his alleged accomplices as the source of saliva on the cigarette butt.

Then, in 2010, the General Assembly enacted S.B. 77, which allows retesting of biological evidence if the defendant can show that because of advances in testing procedures, a new test could disclose information that the first test could not, and that there was a strong probability the new test would identify the true perpetrator of the crime. Noling filed a new motion seeking retesing of the saliva on the cigarette butt to determine if it matched Wilson's DNA profile. The trial court however again denied his motion, citing a separate provision of the law stating that, once a defendant's motion for new DNA testing of evidence has been denied, a court may not entertain any subsequent motions seeking retesting of the same evidence, and that, because Noling's 2008 motion seeking retesting of the cigarette butt had been denied, the court could not consider any new motions to retest that same evidence. Noling sought and was granted Supreme Court review of the trial court’s ruling.

Nolting's memorandum in support of jurisdiction

State's memorandum in response

Friday, January 04, 2013

Ohio Court Interpreter Rule: Effective Jan. 1st.

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

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

Its Rules of Superintendence for the Courts of Ohio (Sup. R. 80. Definitions and 88. Appointment of a Foreign Language Interpreter or Sign Language Interpreter.) were finalized & adopted by the Judicial Conference on June 11, 2011, but it was decided to delay implementation until January 1, 2013 to allow courts at the local level sufficient time to prepare for the inclusion.

The Court's news service this morning reported that the Court has made a roster of interpreters certified in American Sign and foreign languages available on its website to assist Ohio courts with their new obligation under Sup.R. 88. Organized by geographic region, the list includes court interpreters based in Ohio and elsewhere but available for work here, and also lists those individuals who are provisionally certified in a foreign language and those who are ASL qualified interpreters.


While the New Year's pretty well underway and most of the big stuff like the Mayan apocalypse, our averting the fiscal cliff thing, and more portions of President Obama's health care law going into effect are out of the way for now, there were still a number of changes and new laws going into effect perhaps a bit more noteworthy for those of us in southwest Ohio that some may find a reminder useful.

Minimum wage workers in Arizona, Colorado, Florida, Missouri, Montana, Ohio, Oregon, Rhode Island, Vermont and Washington got increases of between 10 and 15 cents an hour , translating to an extra $190 to $410 per year on average, according to the National Employment Law Project, a nonprofit advocacy group, CNNmoney reported . In Ohio, minimum wage increased to $7.85 per hour effective January 1, 2013, applying to businesses with annual gross receipts of at least $288,000.00. Employers with gross receipts under $288,000.00 must pay the federal minimum wage of $7.25 per hour. ( See also's article )

The repeal of Ohio's Estate Tax, part of Governor John Kasich's 2012-2013 budget takes effect on January 1, 2013. For those dying in 2011 and 2012, the estate tax is still applicable --- 6% on assets above the $338,333.33 exemption, up to $500,000, and a 7% tax on assets above $500,000.00. Elliott Stapleton, a Cincinnati probate law attorney and partner at at Cornetet, Meyer, Rush & Kirzner Co., L.P.A, has written a helpful article on those changes available here. Additional information is available at the Ohio Dept. of Taxation and Ohio Legislative Service.

For those here in Hamilton County, there are also new Rules of Court going into effect on January 1st..

There were changes to the method for applying the exclusion amounts in Ohio's commercial activity tax rate with portions of HB 508, passed back in June, going into effect the first of the year. ( Here ) Taxpayers will now be able to use unused exclusion amounts carried forward from any year prior to 2013, but only through the end of 2012.

Attorneys practicing before the Ohio Supreme Court have a whole new set of Rules of Practice as well ringing in the New Year. The Court's news service said Clerk of the Court Kristina Frost reported that the Court "recognized that for some attorneys, the transition would require some extra reading and double checking on the new numbers for rules they regularly cite, which is why the new rules were published on our website and spread the word to the state bar, local bar associations, and to make sure attorneys are award of the changes."

"The reorganization presents a more logical ordering of the rules for attorneys and self-represented litigants that is intended to help them locate filing requirements."

The Clerk's Office has prepared a conversion chart so attorneys can find the old rule they know and compare it to the new, renumbered rule here.

Finally, portions of House Bill 487, also from back in June, covering aspects of criminal records including employment with a community-based long-term care agencies, home health agencies, hospice care programs, nursing homes, medical assistance programs, employment with the department of developmental disabilities, and the employment of persons responsible for a child’s care in out-of-home care ; went into effect January 1st.. The basics for Ohio criminal records checks are contained in Revised Code §109.572.