Tuesday, February 26, 2013

A Very Busy Supreme Court...

The United States Supreme Court has been especially busy these last two last weeks, so much forewarned, perhaps, that when Chief Justice John Roberts Jr. made a rare appearance in the U.S. Supreme Court's ground-floor press room last Tuesday, welcoming back reporters after the court's long winter recess, he quipped the press corps that if anyone had scheduled a lunch, they might want to push it back.”

Law.com and the National Law Journal’s Tony Mauro and Marcia Coyle reported on that early proliferation of decisions and notifications last Tuesday. All having local import, we want to pass them on to our readers as well, and there was a lot of “catch up” to do.

Tuesday morning, Feb. 19th., Mauro reported that the Court had agreed to hear McCutcheon v. Federal Election Commission, a challenge to one of the pillars of the 1976 Buckley v. Valeo decision, which has governed campaign regulation ever since. The Buckley ruling permitted government regulation of individual contributions to candidates, while giving candidates freer rein under the First Amendment to spend campaign money. The McCutcheon case targets contribution limits. Lyle Denniston over at ScotusBlog had more background on that case. The D.C. district court’s opinion is here.

Mauro’s article summarizes last Tuesday's four cases:
FTC v. Phoebe Putney Health Systems, No. 11–1160, in which the Federal Trade Commission “won a significant round in an antitrust suit filed against a Georgia-created hospital authority that had tried to invoke the immunity that states enjoy when they engage in anti-competitive actions. In the court’s unanimous ruling Justice Sonia Sotomayor said that states are immune only when a local government acts pursuant to a ‘clearly articulated and affirmatively expressed state policy to displace competition.’”

Florida v. Harris, No. 11–817, where “A unanimous court joined in striking down a Florida Supreme Court ruling that had undermined the utility of police searches using drug-sniffing dogs. In this decision Justice Elena Kagan wrote that the Florida ruling imposed an ‘inflexible checklist’ for determining the reliability of drug-detection dogs that made it difficult for police to meet the ‘probable cause’ test for arresting someone based on a canine search. Kagan substituted instead a ‘common-sense’ test for reliability, adding that ‘[a] sniff is up to snuff when it meets that test.’”

Bailey v. U.S., No. 11–770, in which “the court ruled against police, finding that a search warrant of a house does not allow police to search people who left the premises and were detained seven-tenths of a mile away. Justice Anthony Kennedy wrote for a 6-3 majority that the distant search poses ‘an additional level of intrusiveness’ and creates the ‘additional indignity of a compelled transfer back to the premises, giving all the appearances of an arrest.’”

In this case, Justice Breyer dissented, joined by justices Clarence Thomas and Samuel Alito Jr., saying they favored and would follow the Second Circuit Court of Appeals' approach in considering the case, which they found rested its holding upon well-supported District Court findings in “the police having stopped the [suspects] “at the earliest practicable location that was consistent with the safety and security of the officers and the public.”

Chafin v. Chafi, No. 11–1347, where the justices unanimously agreed that U.S. courts still have a role to play in overseas custody disputes, even if the child is abroad and chances are slim for him or her to be returned to the United States. Chief Justice Roberts announced the ruling which involved efforts by Jeffrey Chafin to force the return of his daughter, currently in Scotland with his ex-wife, Lynne Chafin, a Scottish citizen.

“Acting under the Hague Convention on International Child Abduction,” Mauro related, “the mother obtained a federal district court order returning their daughter to her in Scotland. The father fought for custody of the child, but the U.S. Court of Appeals for the Eleventh Circuit dismissed the appeal as moot because U.S. courts were powerless to grant relief. The high court reversed, finding that the possibility of the child being returned to the United States is not so remote that the case is rendered moot.”

In her first article, Marcia Coyle wrote that justices appeared skeptical of an Indiana farmer's claim that Monsanto Corporation lost its right to control the use of its herbicide-resistant soybean after the first sale of that self-replicating seed, Chief Justice Roberts asking in fact, "Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one, anybody could grow more and have as many of those seeds as they want?"

The case, though, is Vernon Bowman v. Monsanto, and has potential implications for a wide range of industries, drawing amicus briefs from intellectual property lawyers, biotechnology companies, agricultural organizations, food-safety groups and others. Coyle's article relates that "Bowman purchased Monsanto's Roundup Ready seeds for his winter planting, and then bought a second, cheaper, set of seeds from a grain elevator for a second planting, assuming that since Monsanto's seeds had deep market penetration, the second set from the grain elevator would be dominated by the herbicide-resistant seeds. He found that to be true after planting them and using the weed killer.

"The U.S. Court of Appeals for the Federal Circuit, affirming the district court, rejected Bowman's argument that the judicially created doctrine of patent exhaustion applies to cut off Monsanto's patent rights. The circuit court held that the progeny of Monsanto's soybean are new articles of manufacture, and patent law prohibits Bowman from making a copy of a patented article… Monsanto's theory is that once that seed is sold, even though title has passed to the farmer, and the farmer assumes all risks associated with farming, that they can still control the ownership of that seed, control how that seed is used."

Ms. Coyle's second article was posted on Feb. 20th., and reported on the Supreme Court's holding that its 2010 decision in Padilla v. Kentucky, No. 08–651, requiring criminal defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas is not retroactive.

She related "Justice Elena Kagan, writing for a 7-2 majority in Chaidez v. U.S., said the court's 2010 decision in Padilla announced a 'new rule,' and under the court's retroactivity analysis, a person whose conviction was final before the 2010 decision cannot benefit from a new rule of criminal procedure on collateral review. The 'new rule' retroactivity analysis, she continued, "was announced by the court in its 1989 decision, Teague v. Lane, which held that a case announces a new rule if the result was not dictated by precedent existing at the time a defendant's conviction became final, and does not announce a new rule if it is simply an application of the principle that governed a prior decision to a different set of facts." Kevin Johnson at ScotusBlog had more on that case as well on February 21st.

Monday, February 25, 2013

Court case legalizing prostitution in Ohio?

"Dennis Green admits he offered another man $20 in 2011 for sex," a Cincinnati.com article yesterday morning said, but "Green's defense in the criminal case could have a far-reaching impact if his attorneys win their argument -- legalizing prostitution in Ohio."

That case will be before the First District Court of Appeals this morning and, if, the three-judge panel -- Sylvia Hendon, Lee Hildebrandt Jr., and Pat DeWine – agrees with Green's argument,it's headed to the Ohio Supreme Court.

"Green was arrested Oct. 7, 2011," the article says, "and charged with soliciting an undercover officer and loitering to engage in solicitation. After a motion to dismiss the charges, based on his attorney's assertion that making prostitution illegal is unconstitutional, was denied by Municipal Court Judge Fanon Rucker, Green was convicted of soliciting in a plea deal that resulted in the second charge being dropped. He was sentenced to the five days in jail he'd already served on the case, placed on probation for a year, ordered him to get HIV testing and to stay away from the area where the incident happened. Appealing the case, he argues his charges weren't crimes based on free speech and other rights. Green's public defender, Scott Nazzarine, told Cincinnati.com "This really isn’t so much about prostitution itself. It’s about privacy rights and constitutional rights and the government's intrusion into them.Morality is the only justification for this. Any justification for prostitution laws is just a pretext for morality."

"It's payment for sex," Aaron Herzig, a lawyer for the City of Cincinnati, said. "We don't see the Court of Appeals overturning the long history of the city, the state and the nation that criminalized paying for sex."

The Ohio Revised Code defines prostitution as "the promiscuous engagment in sexual activity for hire, regardless of whether the hire is paid to the prostitute or to another. [ORC 2907.01(D)].

Friday, February 22, 2013

Ohio violent offender legislation

We made mention last week of a couple of bills introduced in the Ohio Senate, one of which was
Senate Bill 7, dubbed the "Deputy Suzanne Hopper Act," in honor & memory of the Springfield, Ohio sheriff's deputy shot to death two years ago while investigating a report of gunfire at an Ohio trailer park. Senate Bill 7 would "require judges to report to law enforcement when they sentence a violent offender to mental-health treatment instead of incarceration, or if they approve a conditional release for an individual found incompetent to stand trial or not guilty by reason of insanity." (Senate Bill 7)

The Supreme Court's news service yesterday afternoon had an article in which it was related that "During several interested-party meetings before the introduction of that bill, Fairfield Municipal Court Judge Joyce A. Campbell worked with Sen. Widener to share the judiciary's perspective, and that Judge Campbell, who serves as co-chair of the Ohio Judicial Conference's Criminal Law and Procedure Committee, will be leading the discussion about the bill at the Committee session this morning."

The article quotes Judge Campbell as saying "While the judges understand and applaud his efforts to protect both law enforcement officers and the public, we have expressed our concern that in its current form the bill imposes unrealistic and unfunded reporting requirements on the courts and law enforcement… As a judge that has presided over a mental health docket since 2001, I do not believe this bill will achieve the desired goal."

The Legislative Service's analysis of the Senate Bill 7 is accessible here.

Related to this bill, Senate Bill 44 was introduced by Sen. Kevin Bacon on Feb. 14th., seeking to "authorize the civil commitment of certain sexually violent predators, and require that sexually violent predators who are released from prison be monitored by global positioning system devices and require sexually violent predators to pay the cost of monitoring by global positioning system devices if they are able." The Legislative Service's analysis of that bill is not out yet.

Wednesday, February 20, 2013

Ohio Mental Illness, Civil Commitment Bill

A second bill, introduced in the Ohio Senate on February 14th., is making a number of "changes to the laws governing the civil commitment and treatment provided to mentally ill persons." (See Senate Bill 43)

There is no analysis of the bill at this early point, but provisions within the bill would affect statutes pertaining to Juvenile Court, including "amending the version of section 2151.011 of the Revised Code that is scheduled to take effect on January 1, 2014" (regarding Juvenile Court definitions).

Otherwise affected are:
• 2923.125, 2923.1213, 2923.13 (concealed carry)

• 2945.37, 2945.38, 2945.39, 2945.40, 2945.401 (competency)

• 2967.22 (Involuntary commitment)

• 5119.23 (mental and physical condition of confined person)

• 5120.17 (Transferring inmate to psychiatric hospital.)

• 5122.01, 5122.03, 5122.05, 5122.10, 5122.11, 5122.13, 5122.141, 5122.15, 5122.19, 5122.21, 5122.27, 5122.30, 5122.31, 5122.311 (Hospitalization of Mentally Ill)

• 5139.54 (Medical release or discharge from Youth Services)

• 5305.22 (Real estate may be conveyed free from dower if spouse incompetent.)

• 5907.06 and 5907.09 (mentally ill person subject to hospitalization by court order whose mental condition causes the person to be dangerous to the community shall not be admitted to a veterans’ home)

• Enacting section 5122.111 [“To initiating proceedings for court-ordered treatment of a person under section 5122.11 of the Revised Code, a person or persons shall file an affidavit with the probate court that is identical in form and content to the following… (Form)].

Ohio GPS monitoring bill of Sexually Violent Predators

Ohio State Sen. Kevin Bacon introduced a bill yesterday, Feb. 14th., that would "authorize the civil commitment of certain sexually violent predators, and require that sexually violent predators who are released from prison be monitored by global positioning system devices and require sexually violent predators to pay the cost of monitoring by global positioning system devices if they are able." (Senate Bill 44)

Friday, February 15, 2013

Test of Constitutionality of Dodd-Frank Act

Jenna Greene at The Blog of Legal Times had a post yesterday citing eight additional states -- including Ohio -- joining a lawsuit challenging the constitutionality of the Dodd-Frank Act, Consumer Financial Protection Bureau, and CFPB Director Richard Cordray’s appointment.

The suit, filed last June, by State National Bank, the 60-Plus Association, a non-partisan seniors advocacy group; and the Competitive Enterprise Institute, a non-profit public interest group,is challenging "the unconstitutional creation & operation of the Consumer Financial Protection Bureau (CFPB),an agency created by Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act…. The unconstitutional appointment of CFPB Director Richard Cordray and the unconstitutional creation and  operation of the Financial Stability Oversight Council…"

That complaint proports "Titles I and X of the Dodd=-Frank Act comprise unprecedented violations of the ‘basic concept of separation of powers and the checks & balances that flow from the scheme of a tripartite government, citing U.S. v. Nixon, 418 U.S. 683.

Ms. Greene reported "the original suit focused in large part on the Consumer Financial Protection Bureau, complaining that it 'aggregates the power of all three branches of government in one unelected, unsupervised and unaccountable bureaucrat,' as former White House counsel C. Boyden Gray, founder of Boyden Gray & Associates in Washington, said when the suit was filed.

Michigan, Oklahoma, and South Carolina joined the suit in September, challenging as well “the unconstitutional creation and operation of a new authority for the ‘orderly liquidation’ of financial institutions under Title II of the Dodd-Frank Act ("Orderly Liquidation Authority").

Federal officials filed a motion to dismiss in November stating the " lawsuit cobbled together an array of disparate challenges to the constitutionality of three titles of an act of Congress and the constitutionality of the President’s appointment of an executive officer. Despite the roving allegations of unconstitutionality set forth in the Amended Complaint, not one of the statutorily authorized actions that Plaintiffs speculate might someday cause them harm has yet occurred. As such, each of the Plaintiffs’ various claims of injury falls far short of the imminent, non-conjectural injury required to demonstrate Article III standing and, for similar reasons, each of their claims is unripe."

A motion was filled Feb. 13th. to allow Alabama, Georgia, Kansas, Montana, Nebraska, Ohio, Texas and West Virginia plaintiffs to join the suit.

Kentucky DNA Collections on Felony Arrests

Kentucky.comreported this morning that its House approved a measure Wednesday, Feb. 13th., that would allow police to collect DNA swabs from people arrested on felony crimes without having to first get a court's permission.

If its General Assembly approves House Bill 89, Kentucky would become the 26th state in the U.S. to allow the automatic collection of DNA evidence at the time of arrest, before a suspect's trial and/or conviction. Rep. Mary Lou Marzian, D-Louisville, did note that her bill allows those who were charged but not convicted of a crime to have their DNA removed from the database.

Ohio's parallel rendition, Ohio Senate Bill 77,  became law on July 6, 2010.

The article also referenced the U.S. Supreme Court's being scheduled to hear a case at the end of this month that is expected to decide whether state laws that allow collection of DNA before a conviction are legal under the U.S. Constitution. That case, Maryland v. King, 12-207, was the topic of a four-page ruling last July in which Chief Justice John G. Roberts referenced conflict with decisions of other appeals & state supreme courts.

The Congressional Research Service published a report entitled “Compulsory DNA Collection:A Fourth Amendment Analysis “ in February 2010. (Here)

Wednesday, February 13, 2013

Introduced Ohio legislation

The Ohio legislature has a couple bills introduced the passed few days which may be of some interest to our readers. They include:

Senate Bill 5 would provide that "On request, a wireless service provider would provide call location information to a law enforcement officer or agency regarding a user in an emergency situation to enable the officer or agency to respond to a call for emergency service by a subscriber, customer, or user of wireless service, or in an emergency situation that involves danger of death or serious physical injury to any person, where disclosure of communications relating to the emergency is required without delay.

It would allow service providers to establish protocols for the voluntary disclosure of call location information, and provide a measure of civil & criminal immunity to “ a wireless service provider, or its officers, employees, agents, or other specified persons, for providing any information, facilities, or assistance to a law enforcement officer or agency in accordance with sections 4927.25 to 4927.28 of the Revised Code.

Senate Bill 7, dubbed the “Deputy Suzanne Hopper Act,” in honor & memory of the Springfield, Ohio sheriff's deputy shot to death two years ago while investigating a report of gunfire at an Ohio trailer park,  is going to amend Revised Code section 2945.402 to require that “if a court approves a conditional release, it shall report the approval and information pertaining to the release to the local law enforcement agency, which shall enter the approval and information into the National Crime Information Center supervised release file through the law enforcement automated data system

It will also require that information entered into the national crime information center supervised release file pursuant to this section shall remain in the file until the termination of the conditional release or commitment, and that if a defendant or person about whom information is entered into the national crime information center supervised release filepursuant to this section has contact with a law enforcement agency after the information is entered, the agency shall report the contact to the court that approved the conditional release, to the department of mental health, and if the terms of the release require the defendant or person to receive mental health treatment, to the person, office, or agency providing the treatment.

Senate Bill 7 would also enact section 2929.44 to require that “If a court orders a person who pleads guilty to or who is convicted of an offense of violence to receive mental health treatment, the court shall report the conviction and required treatment to the local law enforcement agency. The local law enforcement agency shall enter the conviction and required treatment into the national crime information center supervised release file through the law enforcement automated data system.

Senate Bill 18s intent is to amend section 109.52 pursuant to the maintenance of a firearm andammunition transactions database, and to enact sections 109.5731 and 2923.171 of the Revised Code to prohibit a person from knowingly acquiring, possessing, carrying, or using an assault weapon and to require the Attorney General to prepare for the establishment of a firearm and ammunition transactions database.

Friday, February 08, 2013

Ohio Gun-lock Safety Bill Introduced

Ohio Representative Bill Patmon, last Tuesday, Feb. 5th., introduced a bill in the state's House "prohibiting any person from storing or leaving a firearm in the person's residence unless that firearm is secured in safe storage or rendered inoperable by a tamper-resistant lock or other safety device if the person knows, or reasonably should know, that a minor is able to gain access to the firearm and provide criminal penalties if a minor does gain unauthorized access to a firearm not so stored or rendered inoperable.”

Violation would constitute a misdemeanor of the third degree unless "a minor who gains access to the firearm as a result of such violation and without the lawful permission of the minor's parent, guardian, or custodian uses the firearm to cause personal injury or death, other than in self-defense," in which case it would then be a felony of the first degree."

Thursday, February 07, 2013

Second Round of Comments on Rules of Practice and Procedure Sought by Ohio Supreme Court

The Ohio Supreme Court Monday announced it was going to be entertaining a second public comment period through March 6 on amendments to its annual update to the Rules of Practice and Procedure following an initial session in the fall last year.

The proposed amendments concern changes to the rules of appellate procedure, civil procedure, criminal procedure, juvenile procedure and the Ohio Rules of Evidence, the announcement reiterated, many of which target inconsistencies, remove outdated concepts, and clarify the rules. Proposed amendments to Civ. R. 4.4 and Juv. R. 16 make clear that service by posting can be used in initial actions and expanded to post-decree matters. In addition to the traditional “posting” of a notice on the courthouse bulletin board, service would use the county clerk of court’s website if one existed, although the amendments don’t require electronic posting.

Comments should be submitted in writing to:
Jo Ellen Cline, Government Relations Counsel
Ohio Supreme Court
65 South Front Street, Seventh Floor
Columbus, Ohio 43215

Or via e-mail to j.cline@sc.ohio.gov

Text of Proposed Amendments

Friday, February 01, 2013

New Ohio Legislation Begins Its Paths

The first batch of Ohio legislation for the term was introduced this week with maybe a couple more notable:

In the Campaigns & Elections category House Journal Resolution 2 (HJR 2), seeks "To set forth in the Constitution of the State of Ohio a specific right to vote and requirements attendant thereto," while HB 13 would "require a provisional ballot to be remade and counted for the offices, questions, and issues for which the provisional voter was eligible to vote, if the election official assisting that provisional voter failed to direct the provisional voter to the correct precinct, and to revise the portion of the provisional ballot affirmation required to be completed by the election official." HB 21 would "establish a process to permit an elector who is confined to a health care facility under isolation to vote with the assistance of bipartisan board of elections employees, and to permit the elector's facsimile signature, provided by the hospital, to be used for signature verification purposes."

HB 14 deals with "a school district's withholding or transfer to another district or school of the records of a child who was alleged or adjudicated an abused, neglected, or dependent child," while HB 18 would provide an avenue by which "the director of public safety, in consultation with the superintendent of public instructions, shall develop a process through which the board of education of a school district, the governing authority of a community school, or the board of trustees of a college-preparatory boarding school may submit an application for federal or other financial assistance in the installation of metal detectors at the entrances to one or more classroom buildings of the district or school should the district or school decide, at its own discretion, to install metal detectors."

House Bills 1 and 2, respectively, would require a local workforce investment area to use OhioMeansJobs as the local workforce investment area's job placement system, to rename county one-stop systems, and to make other changes to Ohio's Workforce Development Provisions, while HB 2 amends Section 4141.29 of the Ohio Revised Code to require an unemployment compensation claimant to register with OhioMeansJobs to be eligible for unemployment compensation benefits and to require a claimant to contact a local one-stop office beginning with the eighth week of filing for unemployment compensation benefits.

OhioMeansJobs is the electronic job placement system operated by the state's department of job and family service which the Kasich administration has announced it intended to be improving as part of its work-force development system, including a rebranding of the one-stop employment centers scattered around the state. The Ohio Department of Job and Family Services used a $12 million grant from the U.S. Department of Labor to expand and enhance the OhioMeansJobs website last summer and create a new, online career counseling system. Only Los Angeles received a grant as large as the $12 million the Ohio Department of Job and Family Services was awarded.