Thursday, August 29, 2013

Bill Proposing Extension of Ohio Property Tax Homestead Exemption Eligibility

 Senator Lou Gentile from Steubenville, Ohio, introduced SB 180 Tuesday morning which seeks extending eligibility for the homestead exemption to elderly or disabled homeowners who did not receive the exemption for 2013 and have $30,000 or more in Ohio adjusted gross income.
   Proposed provisions affect ORC Sections 323.151, .152, .153, and 4503.064, .065, and .066 with respect to mobile & manufactured homes, including:
The “total income” provision relating to Ohio adjusted gross income of the owner and the owner's spouse for the year preceding the year in which application for a reduction in taxes is made, as determined under division (A) of section 5747.01 of the Revised Code would be removed.

Sec. 323.152(A)(2)… Real property taxes on a homestead owned and occupied, or a homestead in a housing cooperative occupied, by a person to whom division (A) of this section applies shall be reduced for each year for which an application for the reduction has been approved…
 (a) If the person received a reduction under division(A) of this section for a tax year, the greater of the reduction for that tax year or the amount computed under division (A) (2)(b), being product of the following:

(i) Twenty-five thousand dollars of true value of the property in money;

(ii) The assessment percentage established by the tax commissioner under division (B) of section 5715.01 of the Revised Code, not to exceed thirty-five per cent;

(iii) The effective tax rate used to calculate the taxes charged against the property for the current year, where "effective tax rate" is defined as in section 323.08 of the Revised Code;

(iv) The quantity equal to one minus the sum of the percentage reductions in taxes received by the property for the current tax year under section 319.302 of the Revised Code and division (B) of section 323.152 of the Revised Code.

Monday, August 26, 2013

Revamped NLRB In-House Legal Services’s Corporate Counsel this morning relays that “the NLRB has moved a number of its related offices to the new Division of Legal Counsel at its Washington, D.C, headquarters, the labor and employment watchdog announced Thursday. Led by Associate General Counsel Margery Lieber, the division has an Ethics, Employment and Administrative Law Branch; a Contempt, Compliance and Special Litigation Branch; and a Freedom of Information Act Branch. The division also includes the NLRB's lead technology counsel, Rachel See.

 The Division of Legal Counsel is organized under the Office of General Counsel, which also includes the Operations Management, Enforcement Litigation, and Advice divisions. Acting GC Lafe Solomon leads the Office of General Counsel.

Thursday, August 22, 2013

Sentencing revision bill for fourth & fifth degree felonies

Ohio House Representative Nick Barborak yesterday introduced a bill that would eliminate the “special sentencing mechanism”  that currently applies to most felonies of the fourth and fifth degree drug offenses and  generally provide for community control sanctions in that stay

Text of HB 251 

Wednesday, August 21, 2013

Internet site Groklaw’s closing

An NPR article yesterday afternoon passed on the news that award-winning website Groklaw, which covered legal news of interest to the free and open source software community, starting out as a law blog in May 2003 by paralegal Pamela Jones ("PJ") at Radio UserLand, is closing down --- Ms Jones stating “she can't run the site without email, and that since emails' privacy can't be guaranteed, she can no longer do the site's work.”

  The Wall Street Journal yesterday reported that “the National Security Agency—which possesses only limited legal authority to spy on U.S. citizens—has built a surveillance network that covers more Americans' Internet communications than officials have publicly disclosed, current and former officials say --- That system said to have the capacity to reach roughly 75% of all U.S. Internet traffic in the hunt for foreign intelligence, including a wide array of communications by foreigners and Americans, and, in some cases,  retaining the written content of emails sent between citizens within the U.S. and also filtering  domestic phone calls made with Internet technology.”

  Wikipedia’s entry noted “Jones’ describing Groklaw [the name which derives from Robert A. Heinlein's Stranger In A Strange Land neologism, "grok", roughly meaning "to understand completely"] as ..."a place where lawyers and geeks could explain things to each other and work together, so they'd understand each other's work better. When you have an idea you hope might work, and then to implement it, tweak it, and morph it, because other people show up and have ideas that are better than yours...and then have people you care about and admire tell you that what you are doing matters – I can't think of a more satisfying feeling." It had covered issues such as the SCO-Linux lawsuits, the EU anti-trust case against Microsoft, and the standardization of Office Open XML.

  The NPR article made note of the fact that “last year, the American Bar Association named Groklaw one of the top 100 legal blogs. Its articles and interviews were selected by the Library of Congress to be preserved in its Web Archiving project, and noted that when the library contacted Jones, she asked Groklaw's community to decide whether the materials should be archived.

Ms. Jones’ farewell post

Tuesday, August 20, 2013

Ohio “Stand Your Ground” law

 An article in this morning’s Columbus Dispatch is mentioning “members of the Ohio Legislative Black Caucus  hosting rallies and circulating petitions at churches and businesses, looking to create grassroots opposition to House Bill 203 -- a gun bill that includes a “stand your ground” provision, with county prosecutors and a variety of law-enforcement groups also oppose the provision, which eliminates an Ohio law requiring a person to retreat before using deadly force in self-defense, so long as the person is carrying a firearm lawfully and is in a place where he or she has the right to be.”
  Ohio Senate Bill 184, passed back in 2008, laying the basis for the state’s “castle doctrine” law, provided that “for purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, with "vehicle" and  "residence" having the same meanings. [SB 184 analysis ]
  House Bill 203, introduced on June 11th., with regards to its self-defense provision, simply states “for purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence.”

  With the Trayvon Martin shooting & George Zimmerman still fresh in their minds, the Dispatch’s article relates  Rep. Alicia Reece, president of the Ohio Legislative Black Caucus’s saying “We do not oppose the Second Amendment and the right to defend yourself, but at the same time, we certainly have concerns with ‘stand your ground’ provisions that would allow something like what happened in Florida.”

  “Chief Robert Oppenheimer of Perry Township Police in Franklin County, who is chairman of the Ohio Association of Chiefs of Police legislative committee, said there is no need for a change.

 “It’s sometimes more prudent to back away than charge forward,” the Chief said. “If you have (stand your ground), you are more apt to challenge each other. Nobody backs down, and it ends up with somebody getting hurt,” he said. “What happened in Florida shouldn’t have happened. ... The jury got it right, but I don’t think we want that in Ohio.”

  Ohio's self-defense statute is ORC 2901.09

Federal public defender pay rates cut

Todd Ruger over at The National Law Journal/ this morning has a report that “the U.S. Judicial Conference has announced plans to reduce compensation rates to the private Criminal Justice Act panel attorneys by $15 per hour starting September 1—and continuing for the next 13 months—if Congress does not increase funding for the courts in the 2014 budget, saving around $50 million for the defender services budget, which funds the federal public defender offices as well as CJA panel attorneys, according to the Administrative Office of the U.S. Courts. Panel attorneys handle about 30 to 40 percent of indigent cases when the public defender has a conflict or otherwise can’t represent a defendant.

  “The savings would allow the federal courts to prevent further staffing layoffs at federal public defender offices, which took the brunt of $350 million budget cuts to the courts this year as part of sequestration,” Ruger writes, referencing a letter from conference chairman William Traxler, chief judge of the U.S. Court of Appeals for the Fourth Circuit. “Under the new plan, payment to panel attorneys would drop from $125 per hour to $110 per hour in non-capital cases, and from a maximum of $179 to $164 per hour for capital cases. The Judicial Conference already had planned to delay September’s payments to panel attorneys for four weeks so they could be paid out of the new budget year starting October 1.”

Friday, August 16, 2013

Bill extending domestic violence protection orders to cover pets

At first glance it might seem a bit superfluous to include a person’s pets or companion animal in a protection order, but it becomes much more understandable in the context of domestic violence cases or issues such as stalking, harassment, or other activities where the motive is one more of intimidation. Then they may well become targets as surely as their human counterparts as assailants attempt to assert their influence over the human subject.

  So we now have near companion Senate Bill 177, introduced last Monday by Michael Skindell and House Bill 243, introduced just yesterday by Marilyn Slaby and Michael Stinziano seeking just such amendments to Ohio’s protective order procedure
   An article in this morning’s Plain Dealer more specifically discuses SB 177 saying, “twenty-four other states already have similar measures on the books, according to Lesley Ashworth, a consultant for the Ohio Domestic Violence Network. And research in Ohio that included surveys of domestic violence programs and the victims who use them found large support for pet protection in Ohio.”

   SB 177 more generally adds “the protection of companion animals in temporary protection orders, domestic violence protection orders, anti-stalking protection orders, and related protection orders; while HB 243 additionally would provide “requiring a child who is adjudicated a delinquent for cruelty to a companion animal to undergo a psychological evaluation and, if recommended, counseling, and sentence other offenders who commit that offense to probationary supervision, along with including the protection of companion animals in temporary protection orders, domestic violence protection orders, anti-stalking protection orders, and related protection orders.”

   Both bills specifically cite Ohio Revised Code 959.131 as the basis for a definition of companion animal as “any animal that is kept inside a residential dwelling and any dog or cat regardless of where it is kept, but not including livestock or any wild animal,” and already holds “No person shall knowingly torture, torment, needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or commit an act of cruelty against a companion animal.”

Wednesday, August 14, 2013

Ohio Illegal Immigrant Workers’ Comp. adjustments proposed

 Ohio Senator Bill Seitz last Monday introduced a bill that seeks to prohibit illegal and unauthorized aliens from receiving compensation and certain benefits under Ohio's Workers' Compensation Law. [ Text ]

  Among the bill's more substantial points enacting are:
Sec. 2307.82 (B) Except as provided in division (C) of this section, no court in this state has jurisdiction over a claim for damages suffered by an illegal alien or an unauthorized alien by reason of personal injury sustained or occupational disease contracted by the illegal alien or unauthorized alien in the course of employment caused by the wrongful act or omission or neglect of the employer. Except as provided in division (C) of this section, an illegal alien or unauthorized alien assumes the risk of incurring such injury or contracting an occupational disease, and that assumption is a complete bar to a recovery of damages for such injury or occupational disease.

(C) A court in this state has jurisdiction over a claim brought by an illegal alien or unauthorized alien against an employer for damages suffered by reason of personal injury sustained or occupational disease contracted in the course of employment caused by the wrongful act or omission or neglect of the employer if the employer employed the illegal alien or unauthorized alien knowing that the illegal alien or unauthorized alien was not authorized to work under section 101(a) of the "Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a.

   Nothing in this section shall be construed to prevent an illegal alien or an unauthorized alien from bringing a claim under section 2745.01 of the Revised Code against an employer in a court of competent jurisdiction for an intentional tort allegedly committed by the employer against the illegal alien or unauthorized alien.

Sec. 4123.513. (A) Except as otherwise provided in divisions (B) and (C) of this section, if a claim is denied because the claimant is, or if the claimant is a dependent of an individual who died as a result of suffering an injury or contracting an occupational disease, that individual was an unauthorized alien, the claimant's employer or the individual's employer is not liable to that claimant for damages suffered by reason of personal injury sustained or occupational disease contracted in the course of employment caused by the wrongful act or omission or neglect of
the employer. For such a claimant, filing a claim under Chapter 4121., 4123., 4127., or 4131. of the Revised Code is the exclusive remedy against the employer on account of injury, disease, or death in the course of and arising out of the claimant's or deceased employee's employment. Notwithstanding section 4123.77 of the Revised Code and except as provided in division (B) of this section, an irrebuttable presumption exists that the individual assumed the risk of incurring an injury or contracting an occupational disease at the workplace, or dying as a result of such an injury or occupational disease, when performing services or providing labor for that employer.

(B) An employer is liable to a claimant whose claim is denied because the claimant is or the deceased individual who is the subject of the claim was an unauthorized alien for damages suffered by reason of personal injury sustained or occupational disease contracted in the course of employment caused by the wrongful act or omission or neglect of the employer if the claimant establishes, by clear and convincing evidence, that the employer employed the claimant or the deceased individual knowing that the claimant or deceased individual was not authorized to work under section 101(a) of the "Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a, on the date the claimant or deceased individual suffered the injury or contracted the occupational disease and that such knowledge was not solely the result of communications made by the claimant or the deceased individual to the employer. An employer may not assert any of the common law defenses listed in section 4123.77 of the Revised Code in an action brought against the employer pursuant to this section.

(C) Nothing in this section shall be construed to prevent a claimant whose claim is denied because the claimant is or the deceased individual who is the subject of the claim was an unauthorized alien from bringing a claim under section 2745.01 of the Revised Code against an employer in a court of competent jurisdiction for an intentional tort allegedly committed by the employer against the claimant or deceased individual who was the subject of the claim.

Juvenile Stand Your Ground case

 An NBCMiami article this morning is following up on an incident revolving around an altercation between two Florida teenagers – boy & girl -- on a school bus last month which led to boy’s being convicted of battery and sentenced as a juvenile after not being allowed to use the state’s “Stand Your Ground” law in defending his actions.

  At the time, July 17th.., the Sun Sentinel and Miami Herald were among those carrying the story, and had reported the incident as starting when T.P. and a girl, identified as A.F., were on the same bus headed home from middle school when a fight broke out. Testimony from the bus driver stated the girl had grabbed the boy's jacket, punched him and pulled him down on a seat before he fought back; the girl testified that the boy's attack on her was unprovoked and that she fought him onto his seat.

  Broward Circuit Judge Elijah Williams would not allow T.P’s use of the  “Stand Your Ground” defense, saying it did not apply because the boy was not protecting his home or vehicle. 4th District Appeals Court Judge Martha Warner not only disagreed, but criticized Williams’ decision, stating that the self-defense law did apply because the boy had the right to be on the school bus… "[T.P.] was not engaged in an unlawful activity, and he had the right to be on the bus going home from school," Warner wrote. "Whether he was faced with 'force' from A.F. and whether he reasonably believed that such force was necessary to prevent harm to himself were factual matters for the trial court to determine." [ 4th. District Ruling ]

  The Sentinel article had stated that “the appeals court overturned the conviction and remanded the case, ordering Williams to consider the boy was within his rights under the ‘Stand Your Ground.’ It didn’t rule on who was telling the truth either, and the boy still faced a count of battery, the Palm Beach assistant public defender whose office handled the appeal said.”

  This morning’s NBCMiami article quotes Broward defense attorney Richard Della Fera as commenting that “with so much controversy over the Florida law and some protesters calling for the law to be repealed, what happened on the school bus and the court's response to it indicates ‘Stand Your Ground’ is pretty much everywhere even when no weapons are involved, and I think it shows us that it does have broad application throughout many, many instances of everyday life… Regardless of the age of the participants, regardless of the environment that the persons are in, if it indeed is a situation where that person has a lawful right to be -- such as a child on a school bus -- that child has the right to defend him or herself.”

  The article concludes by noting “Broward prosecutors said at this point they do not plan on dropping the case, and when it goes back to court, there's no guarantee the student would win using the ‘Stand Your Ground’ defense. The judge would have to take a look at the facts and see if the immunity applies, but the student now gets to put that on the table – which wasn't the case before. That’s something for every parent to think about right before school starts.”

Monday, August 12, 2013

Tennessee Child Support Magistrate orders name change citing religious reasons

The Christian Science Monitor and a number of other newspapers  around the country this morning are carrying the story of Cocke County Tennessee Child Support Magistrate Lu Ann Ballew ordering the name change last week of a  7-month old boy's from Messiah to Martin, saying the religious name was earned by one person and "that one person is Jesus Christ."

  The boy's parents had been in court because they could not agree on the child's last name, but when the judge heard the boy's first name, she ordered it changed, too. The Monitor quoted Magistrate Ballew as saying “the name Messiah could cause problems if the child grows up in Cocke County, which has a large Christian population… it’s a title and it's a title that has only been earned by one person and that one person is Jesus Christ,"

  The boy's mother, Jaleesa Martin, of Newport, said she will appeal the order, saying Messiah is unique and she liked how it sounded alongside the boy's two siblings — Micah and Mason. It’s also the 4th.among the fastest-rising baby names in 2012, according to the Social Security Administration's annual list of popular baby names, according to the paper.

  The case goes before the Cocke County Chancellor on Sept. 17.

Friday, August 09, 2013

Elmwood Place traffic cameras

The Village of Elmwood Place’s battle to use traffic cameras in enforcing speed limits within its less than one square-mile jurisdiction hit another pot-hole Tuesday with the Ohio Supreme Court’s unceremoniously  denying its motion for a “Stay of Judgment and Injunction” without bond throughout its appeal of Common Pleas Court Judge Robert  Ruehhman’s  finding that the Village's traffic camera enforcement system violated the due process clause of the Ohio Constitution and issuance of permanent injunction is granted to the Plaintiffs prohibiting further enforcement of their ordinance.

  Elmwood’s complaint in part contested Judge Ruehlman’s ruling with the statement that the Court “has previously determined that municipalities possess the constitutional authority to enact civil traffic camera enforcement ordinances. Mendenhall  v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, and that  Due process challenges to such enactments have also been rejected. Mendenhall v. Akron, 374 Fed. Appx. 598, 2010 W.L. 1172474 (6th Cir. 2010); Gardner v. Cleveland, 656 F. Supp. 2d 751 (N.D. Ohio 2009);Balaban v. Cleveland, U.S. Dist., N.D. Ohio, Case No. 1:07-CV-1366, 2010 W.L. 481283 (Feb. 5, 2010).

  On its initial appeal of Ruehlman’s decision, the First District summarily denied Elmwood’s request for a stay and subsequently dismissed both its appeal and a motion for reconsideration this past May.

  Among its contentions in appealing to the Supreme Court, Elmwood professes “as a political subdivision, Relator Village was and is entitled to a stay of the judgment and injunction without bond throughout the appeal as a matter of right. State ex rel. Ocasek v. Riley, 54 Ohio St.2d 488, 490, 377 N.E.2d 792, 793 (1978); State ex rel. Geauga Cty. .Bd. of Commrs. v. Milligan, 100 Ohio St.3d 366, 369, 2003-Ohio-6608, 800 N.E.2d 361, ¶ 15; State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 36, 2011-Ohio-626, 950 N.E.2d 149, 155.

Thursday, August 08, 2013

2013 Conference of Court Public Information Officers New Media Survey

The Ohio Supreme Court’s news service this morning is promoting the Conference of Court Public Information Officers’ New Media Survey, released last Monday.

   The 2013 CCPIO New Media Survey asked judges and court personnel in all 50 states questions about what they were experiencing with new media such as Facebook and Twitter, what their perceptions were of the changing media environment, and how it affects the administration of justice, according to the report’s introduction. This was the fourth consecutive year that the Conference of Court Public Information Officers has partnered with the E.W. Scripps School of Journalism at Ohio University and the National Center for State Courts to conduct the survey, and by far the one having the highest response rate. It paints a picture of judges who see the potential good that tools like video sharing and blogs can do by increasing public understanding of the courts, but who are also very cautious about the potential problems that ubiquitous use of Facebook and Twitter can pose for ethical conduct and fair trials. Twitter and Facebook are now the most popular tools among courts; Twitter most used.

Among the survey’s key findings are:
Courts are attempting to control communication from the courtroom by developing formal social media policies. (Forty-five states, as well as the District of Columbia, Guam, and Puerto Rico, reported that they have a courtroom policy regulating at least one social-media tool).

Most survey respondents agree that mobile devices should be prohibited from courtrooms, and a large percentage believe the general public and litigants should not be permitted to silently communicate in any way from the courtroom.

On a similar note, a consistent majority believes the traditional news media should be given no preferred status to use social media in the courtroom, including tweeting, texting, sending e-mails, or making audio recordings.

However, when asked whether the traditional news media should be allowed to make video recordings or take photos in the courtroom, the number increased for those who approve. It is likely that taking photos or video from the courtroom is considered more of a mainstream occurrence by the media, and, thus, there must be a clearer understanding of how the photos or video may be used.

A considerable majority believe judges and court personnel should be educated about new media technologies in order to take advantage of the use of the tools to serve the courts. Further, an overwhelming majority (more than 90 percent) believe judges and court staff should be educated about new media to ensure such technologies do not inappropriately impact court proceedings. The results show a contradiction, however, because a greater number of participants also indicated that social media are not necessary tools for public outreach.

  The entire  33-page survey report is available for download Here

Wednesday, August 07, 2013

Ohio parental rights termination bill

 Ohio senators Nina Turner from Cleveland, and Charleta Tavares from Columbus, on Monday introduced legislation which would restrict the parental rights of rapists and permit a survivor of rape or sexual battery to file a claim to terminate the attacker’s parental rights—including custody, parenting time, and consents to adoption  over a minor child conceived as a result of a sexual offense.

   Ohio is one of 31 states in the country that does not provide protection for rape survivors from being sued by their attacker for parental rights, their press release stated, Sen. Turner adding “This legislation addresses an extreme oversight and severe injustice in our legal system. State law should be on the side of the survivor instead of inflicting additional trauma on them and their children. Current law would cause a continuation of the nightmare that these survivors already face.”

Text of Proposed Bill

Tuesday, August 06, 2013

Proposed Ohio Supreme Court Parenting Coordination Rules

The Ohio Supreme Court has announced that it will be entertaining public comment on new parenting coordination rules until September 4, 2013.

 The Court’s news service said “the proposed Rules of Superintendence for the Courts of Ohio would apply to those courts that wish to use parenting coordination, a child-focused alternative dispute resolution process that can be ordered by a court in which a parenting coordinator assists families in implementing parental rights and responsibilities or companionship time orders.

"They set forth definitions, the role and qualifications of a parenting coordinator, and the responsibilities of the court to adopt local rules governing the use of parenting coordination, confidentiality, privilege, and public access. They also include factors necessary for ordering parenting coordination; required conditions when domestic abuse or domestic violence is alleged, suspected, or present; and inappropriate uses of parenting coordination.”

Comments on the proposed rules should be submitted in writing to:
Hagerott at the Supreme Court,
65 South Front Street, Sixth Floor,
Columbus, OH 43215

Or via e-mail to .

Text of Proposed Coordination Rules

Supreme Court ethics bill introduced

The Blog of LegalTimes yesterday wrote that “As promised a month ago, a group of Democratic members of Congress have reintroduced a bill to require U.S. Supreme Court justices to follow the same ethical rules as other federal judges, spawned by some of the same criticisms of Republican-appointed justices that have been batted around for years.”

 “The National Law Journal detailed the same criticisms of Supreme Court justices two years ago in the light of when they should recuse from certain cases.,” the article reported, with "the upshot being the justices decide whether or not to bow out individually, with no requirement to explain, no resort to other justices or the full court, and no precedent to guide them.”

Now there's legislation in the works.

 Nan Aaron, President of Alliance for Justice, was quoted in Representative Louise Slaughter’s press release as saying, "Every single federal judge in America is subject to a code of conduct—with the glaring exception of the nine justices of the United States Supreme Court. Supreme Court justices should be able to resist the temptation to lend the prestige of their office to partisan political causes, or fraternize with and fundraise on behalf of those who could have a financial stake in Court decisions. Unfortunately, some of the justices sitting on the Supreme Court today have been unable to resist that temptation. That's why we need a code of conduct for the Supreme Court—and why we wholeheartedly support this legislation."

 "We are a nation defined by the rule of law, and our government is defined by our comprehensive system of checks and balances,” Slaughter said. “Recent reports of dubious ethical behavior by Supreme Court justices have undermined these two fundamental principles, and have eroded the American people's faith in the Supreme Court as an institution. In order to restore the people's trust, the Supreme Court needs to adopt a Code of Conduct –just as every other federal judge is required by law. As the highest court in the land and the ultimate arbiter of justice in America, the integrity of our justices should be beyond reproach, and this law will ensure that we hold true to the standards on which this country was founded,"

 Slaughter, who championed similar legislation last Congress and whose record of holding government accountable includes the landmark "America For Sale" report on government corruption from 2000-2006 and passing the STOCK Act in 2012, which banned insider trading by members of Congress.

 Naturally, there’s even more. The ABA Journal asks the interesting question as to whether Congress impose ethics rules on the US Supreme Court, and in its article notes “It isn't clear, however, how the standards would be enforced, if they were adopted, and a post on Josh Blackman's Blog questions how the legislative branch can constitutionally regulate the conduct of the judiciary.”

 That article also notes that “In his 2011 end-of-year report, Chief Justice John G. Roberts Jr., who has declined to voluntarily adopt the Code of Conduct for United States Judges, set forth his apparent position, that blog notes:
"The Code of Conduct, by its express terms, applies only to lower federal court judges," Roberts wrote. "That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body."

Text of Supreme Court Ethics Act of 2013 

Monday, August 05, 2013

Ohio 1st. District Court of Appeals self-defense case

   Ohio’s 1st. District Court of Appeals in Cincinnati (Hamilton County) last Wednesday upheld the judgment & conviction of one Charles Carmen to a total sentence of 14 years in prison to be served consecutively, rejecting claims of  self-defense in an attempted murder case. [State v. Carmen, C-120692 on 7/31/2013, 2013-Ohio-3325 ]

  The case evolved from an incident involving Carmen owing another  man money and the second man’s being unable to “catch up” with Carmen until the time of the incident. The second man had confronted Carmen, asking him for the money, but beginning to curse and threatening to “kick Carmen’s ass,” when Carmen refused to pay, at which point Carmen pulled a gun from his coat and told the man that he was “going to die today,” and shot him  at close range multiple times in the face and body. The man fell to the ground after the first or second shot, but Carmen continued shooting before running off.

  Carmen told police the man had confronted him two times and  that he had tried to walk away, but the man  had continued to pursue him,  that the other man often carried a gun, and had kept his hands in his pockets during their altercation, claiming  he had shot the other man with a semi-automatic pistol because he was afraid the second man  was going to shoot him. Witnesses testified that the second man  had, in fact, initiated the incident by running across the street to confront Carmen, and had yelled and threatened to harm Carmen, but  had never actually raised his hand to strike Carmen or pull a weapon. They further said Carmen had stepped forward, pulled his own gun from his pocket, and shot the second man  multiple times, making no attempt to walk away before or during firing.

“Under Ohio law,” the 1st. District explained, “self-defense is an affirmative defense that legally excuses admitted criminal conduct.” State v. Edwards, 1st Dist. Hamilton No. C-110773, 2013-Ohio-239, ¶ 5, citing State v. Poole, 33 Ohio St.2d 18, 19, 294 N.E.2d 888 (1973)

  “To establish self-defense, Carmen had to prove by a preponderance of the evidence (1) that he was not at fault in creating the situation giving rise to the affray, (2) had a bona fide belief that he was in imminent danger of death or great bodily harm, and that his only means of escape from such danger was in the use of such force, and (3) that he did not violate any duty to retreat or avoid the danger. State v. Robbins, 58 Ohio St.2d 74, 79-80, 388 N.E.2d 755 (1979); see R.C. 2901.05(A). The elements of the defense are cumulative. Thus, Carmen’s failure to prove any one of the three elements by a preponderance of the evidence would negate the defense. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 73; see Edwards at ¶ 9.

“…The trial court concluded that Carmen had failed to prove the second element of the defense―that he had acted upon a bona fide belief that he was in imminent danger of death or great bodily harm―and that Carmen had used excessive force in pulling out a gun to shoot Sanders, who had been unarmed and incapable of inflicting death or great bodily harm upon Carmen. See In re Maupin, 1st Dist. Hamilton No. C-980094, 1998 Ohio App. LEXIS 5907, *5-6 (Dec. 11, 1998). Based upon our review of the record, we cannot say that the trial court lost its way in concluding that Carmen had failed to carry his burden to establish that he had acted in self-defense. Edwards at ¶ 10. The trial evidence established that Sanders had approached Carmen, cussing at him and threatening to“kick his ass,” but that he had never actually raised his hand to hit Carmen. Carmen then responded by shooting the man multiple times in the face and body”

Thursday, August 01, 2013

Transparency in contracts between State of Ohio & private attorneys

 Ohio House Representative James Butler of Dayton, introduced a bill yesterday “to provide transparency in contracts between the state and private attorneys,” in pertinent part reading that “the state shall not enter into a contract with a private attorney unless the attorney general or the attorney general's designee makes a written determination prior to entering into that contract, or within a reasonable time after entering into that contract, that private representation is both cost-effective and in the public interest.”

HB 238