Ohio traffic camera updates

 Last June the Cleveland Plain Dealer carried an article describing “legislation that would bar communities from using traffic cameras to enforce speeding laws and red lights moving forward, but not before one key exception was added to the proposal.”

  That would’ve been HB 69, co-sponsored by Greater Cincinnati state Reps. Dale Mallory, a Democrat, and Ron Maag, a Republican, which was approved with bipartisan support by the House Transportation, Public Safety and Homeland Security Committee, as that article reported, and “aiming to curtail use of automated cameras and radar equipment that many communities use to regulate traffic. The bill was drafted as an outright ban, but before the committee sent it to the House, it approved a change suggested by Rep. Nicholas Celebrezze, a Parma Democrat.” (Celebreeze amendment)

  That article also made mention that during committee hearings “the camera systems came under heavy criticism from witnesses who complained that citizens were effectively denied due process that they would be guaranteed if their traffic ticket had been issued by a police officer, others said the appeal process often was cumbersome or ineffectual and that communities use the cameras not mainly as a tool to promote safety on the roadways, but rather as a money grab by charging a fine to owners of vehicles tagged by the cameras.

  “…Cleveland, which has used traffic cameras six years, raised $6 million in 2012 with its traffic cameras and was among the top five in the state for revenue generated by cameras. Collectively, the top five raised more than $16 million. Attorney Michael Allen, who represents clients fighting the use of cameras in tiny Elmwood Place in Southeast Ohio -- also in the top five and singled out for heavy criticism in those hearings --  described it as ‘policing for profit.’” The Elmwood camera case is still pending.

    Now there’s another twist as the Plain Dealer earlier this month reported a second dispute hitting the state’s supreme court – not challenging the validity of traffic cameras, but instead,  contending Toledo’s program is illegal because violations are handled administratively (by a hearing officer in the police department), stripping the Toledo Municipal Court of its jurisdiction over city law. (Bradley Walker v. City of Toledo et. al., case 13-1277)

  Along with the two pending supreme court cases just mentioned, Ohio State Senators Tom Patton and Shirley Smith yesterday introduced a bill perhaps more precisely zeroing in on the major issue of the whole debate --- “To prohibit the use of traffic law photo-monitoring devices by municipal corporations to detect signal light violations unless the municipal corporation is authorized to establish a mayor's court.”  (SB 196)

Expansion of Ohio same-sex decedent rights issue

 Returning to one of our earlier “same-sex” nuances, Jurist  yesterday morning related Ohio Southern District Judge Timothy Black, who, back in July & September  ruled the surviving same-sex spouses of two decedents should be listed as spouses on their death certificates because their marriages were valid under the laws of the states where they were performed, has now “granted a motion to expand the precedent to all similarly situated couples,” whereas his previous orders limited the scope of precedent to those parties there named. (Obergefell/ Arthur decision)( Michener/Ives)
 
   Attorneys have filed an amended complaint now addressing the issue as “[a] civil rights case challenge as to the unconstitutional the application of the Ohio statute and state constitutional amendment that deny legal recognition in Ohio to the marriages of same-sex couples who are married in one of the many states and numerous foreign countries where same-sex marriages are legal,” asking the judge to direct his decision to mandate compliance by the Ohio Health Department's internal policies for death certificates.

   Judge Black’s rulings in the matter have far from gone unnoticed, a Washington Post article reporting yesterday that “his ruling has sparked backlash from opponents of gay marriage, including state Rep. John Becker, a Union Township Republican who last week called for Black’s impeachment.

  “ ‘The grounds are malfeasance and abuse of power,’ Becker wrote in a letter to U.S. Rep. Brad Wenstrup in which he asked the congressman to begin impeachment proceedings. ‘Judge Black has demonstrated his incompetence by allowing his personal political bias to supersede jurisprudence.’ “

On mandatory minimum sentencing…

The U.S. Sixth Circuit Court of Appeals last week upheld the decision of its Northern District of Ohio in Toledo in sentencing a man to 5 years imprisonment, 10 years of supervised release, and a waiver of associated fines, the mandatory minimum sentence. (See USA v. Joshua Jamerson,  12-3803 on  9/16/2013 from Northern District of Ohio at Toledo)

   In trying Joshua Jamerson, the district court had determined an advisory guideline imprisonment range of 108 to 135 months, with at least 5 years of supervised release, and a fine range of $15,000 to $150,000, based on a total offense level of 30 and criminal history category II for the defendant who had plead guilty to knowingly receiving visual depictions of minors engaged in sexually explicit conduct via computer over a period of several months, violating of 18 U.S.C. § 2252(a)(2) and (b)(1), and subsequently undergoing pre-sentence psychiatric evaluation being diagnosed with several mental health issues, including schizophrenia, depression, paranoia and psychopathic deviation.

   “The district court judge departed downward from the sentencing guideline range of 108 to 135 months to the 60-month mandatory minimum required under § 2252(a)(2) and (b) due to Jamerson’s mental capacity. Although the district judge noted he was bound by the 60-month mandatory minimum under the statute, the judge expressed an opinion that if he were able to go below the mandatory minimum, he would do so.

   Jamerson had argued in his appeal that “ the district court below was ‘hamstrung’ in imposing a sentence it did not support and had sentenced him to the mandatory minimum which the district court ‘blatantly dispute[s] the wisdom of,’” to which the Sixth Circuit responded “that when a court disagrees with a mandatory minimum, the minimum prevails and the district court’s desire to sentence below the minimum does not render a statutory mandatory minimum sentence unreasonable. United States v. Cecil, 615 F.3d 678, 695 (6th Cir. 2010).”

   The Ohio Supreme Court’s new service, meanwhile, made note of  Judge Robert Holmes Bell’s, chair of the U.S. Judicial Conference Criminal Law Committee, writing in support of Congress’s efforts “to review and ameliorate the deleterious and unwanted consequences spawned by mandatory minimum sentencing provisions,” maintaining its long-standing policy of opposing mandatory minimum sentences.

Kentucky judge ordering woman to testify against same-sex spouse in murder trial

A University of Pittsburgh Law School Jurist report, yesterday,  reported a Kentucky Jefferson County Circuit Court judge’s ruling that the same-sex spouse of a woman charged with murder must testify against her spouse at trial because same-sex partners are not protected by the husband-wife privilege under Kentucky's state law.

   Geneva Case, Jurist reported, was married to defendant, Bobbie Jo Clary in Vermont, Case asking the Kentucky court recognize the marriage that took place, and, accordingly, apply spousal privilege to her not having to testify. Circuit Court Judge Susan Schultz Gibson denied the motion, citing the Kentucky statute which says that a marriage between members of the same sex is null and void.

  Speaking of Vermont, we note a Law.com article almost a decade ago to the day, mentioning that “ when the courts in Vermont began recognizing the legality of same-sex civil unions in 2000  it was only a matter of time before cases came along to test whether sister states would give full faith and credit to those decisions, with one of the earliest cases to raise the issue being a same-sex parental rights challenge that  provoked a jurisdictional debate between Virginia and Vermont.” There’ve been others, each with another new little twist.

  In this instance, prosecutors are claiming Case heard Clary admit the killing, the Huntington Post/AP reported, and has to testify; Clary is maintaining  she was acting in self-defense against a man who raped her -- a case of first impression in Kentucky.

  The Jurist article  notes as well the Kentucky Equality Federation filed a lawsuit [JURIST report] earlier this month to overturn Kentucky's amendment banning same-sex marriage [See JURIST's extensive "same-sex" backgrounder]; Ohio Southern District Court Judge Timothy S. Black’s issuing an order back in July allowing a Cincinnati man to be listed as "spouse" [JURIST report] on the death certificate of his late husband; and the US Treasury Department announcing in August  that the Treasury, along with the Internal Revenue Service (IRS) will now recognize the marriages of all same-sex couples for federal tax purposes [JURIST report].

Circuit Split on ObamaCare Contraceptive Coverage Headed to Supreme Court

 Last week we reported the Sixth Circuit Court of Appeals’ dismissal of Autocam Corp. v. Sebelius , a challenge to the Affordable Care Act’s mandated requirement  that employers provide insurance that includes contraception, including the morning-after pill, sterilization and reproductive counseling services., deepening a rift among the circuits as to whether for-profit corporations can be exempted from the law’s mandate to cover reproductive health services – Marcia Coyle at Law.com noting that, even back in July, “religion-based challenges to the new health care law likely will bring the controversial reforms back to the nation's high court before the end of the coming term.

  That prediction appears even closer with a Reuters article last Thursday reporting that “the Obama administration has asked the U.S. Supreme Court to review the legality of the politically volatile provision” specifically with reference to the June decision by the 10th Circuit Court of Appeals in Denver favoring arts and crafts retailer Hobby Lobby Stores Inc. stating for-profit companies can sometimes assert religious rights if they do not wish to comply with a federal regulation.”

  A second petition, filed by lawyers for Alliance Defending Freedom, postulates that their clients, the Hahn family, "object as a matter of conscience to facilitating certain contraceptives that they believe can destroy human life."

  Reuters notes as well that the cases would not be heard until the Supreme Court’s next term which starts next month.

 ScotusBlog’s Lyle Denniston's article has more, including links to the 250-page Hobby Lobby petition and the 350-page  Conestoga Wood Specialties Corp. case out of the Third Circuit in Philadelphia.

Sixth Circuit Affordable Care Act challenge dismissed

 A Law.com/National Law Journal article Tuesday morning related the U.S. Sixth Circuit Court of Appeals’ dismissing a challenge to the Affordable Care Act’s mandate that employers provide insurance that covers contraception, including the morning-after pill, sterilization and reproductive counseling services -- deepening a circuit split over religious challenges to that requirement. The case was that of  Autocam Corp. v. Sebelius, 12-2673.

  In so doing, the 6th. Circuit affirmed Western District of Michigan Judge Robert Jonker’s December 2012 denial of a motion for a preliminary injunction against enforcement of the law, also instructing dismissal of individual claims brought by the Kennedy family, which owns the closely held automotive manufacturer Autocam and related medical manufacturer Autocam Medical, holding “that it is the companies—not the family, described in the opinion as devoutly Roman Catholic—that must comply with the law. Autocam itself is not a “person” capable of “religious exercise” as intended by the Religious Freedom Restoration Act.”

  Law.com profiled the circuit splits back in July, with the Sixth Circuit Tuesday noting “Our sister circuits that have considered whether for-profit corporations may be exempted from compliance with the mandate under RFRA have split on the proper answer to the question with the footnote to compare Hobby Lobby Stores, Inc. v. Sebelius, --- F.3d ----, 2013 WL 3216103 (10th Cir. June 27, 2013 (holding that plaintiffs demonstrated a likelihood of success on the merits of their RFRA claims and remanding for consideration of the remaining preliminary injunction factors by the district court) with Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., --- F.3d ----, 2013WL 3845365 (3rd Cir. July 26, 2013) (affirming district court’s judgment denying a preliminary injunction on both Free Exercise Clause and RFRA grounds).”

  Subsequent to the Sixth Circuit’s decision, the District Court issued an order to the effect in pertinence that since “the Court of Appeals affirmed this Court's decision on grounds that would seem to require immediate dismissal of the claims of the individual plaintiffs in this case on standing grounds, and to provide a basis for granting the defendants' pending Motion to Dismiss all of the remaining counts in this case asserted by the corporate plaintiff. The Court recognizes that plaintiffs may choose to seek en banc review, but in light of the likelihood of eventual Supreme Court consideration of this case, or another case like it, the Court sees little reason to delay entry of final judgment in this case when the Court of Appeals has already ruled on grounds that would appear to resolve the merits of the case. The parties may show cause not later than Sept. 27, 2013, why the Court should not implement the decision of the Court of Appeals by dismissing the claims of the individual plaintiffs in this case for lack of standing, and by granting the defendants' Motion to Dismiss all remaining claims asserted by the corporate plaintiff.” (“Brief in Support of Motion to Dismiss”)

Modernizing the Ohio Court of Claims

Earlier this month it was announced that live videos of some Ohio Court of Claims trials that may be of great public interest or of educational value would be available for public viewing online in a new pilot program launched Monday, September 9.  with the case of Darrell Houston v. State of Ohio  streamed live on www.ohiochannel.org.

  Court of Claims Clerk Mark Reed was at that point quoted by the Supreme Court’s news service that viewing Court of Claims cases online will give the public a better understanding about what happens when someone sues the state. “There’s an idea out in the public that you can’t sue the state, that you can’t fight city hall,” he said. “But the Court of Claims exists to say, ‘yes, you can,’ and you can bring those cases to one court in the state of Ohio, so we are unique. You can only sue the state here, and that to me is what makes the Court of Claims so very interesting.”

  Houston's three-day trial was recounted on September 11 with Reed's reporting that it was "the first wrongful imprisonment case to be processed for half the mandated judgment total within 60 days of the individual’s release from prison since the state statute was amended in the 128th General Assembly. Houston will receive the balance of his restitution after the Court of Claims renders judgment. A decision in the case is expected in about three months. Ohio Supreme Court Chief Justice Maureen O’Connor assigned retired Belmont County Common Pleas Court judge Jennifer L. Sargus to hear the case." [  Darrell Houston v. State of Ohio, Case No. 2012-08516 WI ]

  Online video feeds aren’t the only innovation in the air for the Court of Claims, with state representatives James Butler and Michael Stinziano, ranking Democrat member of the House Judiciary Committee, that same week saying “As the court where civil disputes against the state of Ohio are heard, it’s time that the operations of the Court of Claims of Ohio be modernized,” in their introduction of HB 261.

  Among its other points, HB 261 would include abolishing the office of Court of Claims commissioner, appointed by the Justices of the Supreme Court but adding a layer of unnecessary bureaucracy to the Court of Claims process, according to Stinziano. Cases would initially be handled by magistrates on staff at the Court of Claims in a more cost effective and efficient manner, a measure he says is supported by the Supreme Court of Ohio as well as the Court of Claims. (Press Release)

Court of Claims’ website
Text of HB 261

Ohio Supreme Court enhancements to interpreter access

 Ohio Supreme Court Chief Justice Maureen O’Connor announced a major new program to ensure that those who need a foreign or sign language interpreter in court are provided with one, in her annual State of the Judiciary Address at the Ohio Judicial Conference in Columbus last Thursday, Sept. 12th.

  “Ohio courts accommodate approximately 80 languages and handle more than 25,000 cases a year that require interpreters,” the Chief Justice was quotes as saying by the Court’s news service in her address to state judges. “State and federal law require that courts ensure the people in these cases can understand the proceedings, and  I’m very excited about these tools that we have been able to bring together for Ohio to ensure equal access to our courtrooms, and thank you for your continued help as we work together to address this important issue.”

   Elements of that new program being “embarked on as a major effort to assist you in this area as well as to educate and inform courts and the general public about the issues surrounding court interpretation include:

• Production  a bench card that will be distributed to all judges to provide additional guidance in handling these cases. In fact, copies of the bench card are available here today at a table in the lobby.

• The making of a training video for judges and court personnel that explains Rule 88 and how to achieve compliance. Look for a notice about the availability of the video online in the coming weeks.

• The  preparing of a Web site, brochures, posters and other material that will be made available to you for display in your courthouses to inform litigants and others about rights and responsibilities in the area of language proficiency in the courts.

• And finally, perhaps the most effective tool to assist in this area -- a language telephone line that you will be able to connect with live interpreters when needed and appropriate.

o free, round-the-clock, over-the-phone interpreting service offers interpreting in more than 200 languages.
o The remote interpretation service is intended to operate just as though the interpreter is standing in the courtroom by communicating with the litigant about the judge’s instructions or relaying questions from and answers to the prosecution or defense.
o The right to a fair trial requires that all participants are fully involved and fully aware of what’s occurring. By providing this service, we are ensuring that every citizen – including those who are limited English proficient – understand fully the court proceedings in which they are involved and truly have their day in court.
o Support in your job to fulfill this important obligation and in complying with the Title VI of the Civil Rights Act of 1964, Rule 88, and other statutory requirements.

Cincinnati City Council’s opposition to Ohio House gun control bill

 Local Fox News Channel  19 (WXIX, Cincinnati) was the only outlet we saw posting Cincinnati City Council member Yvette Simpson’s leading a charge against the passage Ohio House Bill 203 this morning, legislation introduced back in June by State Representative John Becker of Union Township which seeks amending some of the state gun laws, most significantly here, some of the guidelines when it comes to defending yourself with deadly force. [ HB 203 analysis ]

  That point specifically expands the circumstances under which a person has no duty to retreat before using force in self-defense, defense of another, or defense of the person's residence.

   Other poignant points of the bill include:

• Eliminating the requirement that a person be a resident of Ohio in order to receive or renew a concealed handgun license, and instead requires that the person reside in the United States.

• Making several changes to the criminal offenses that disqualify an applicant for a concealed handgun license, including:

                o Permitting certain low-level drug offenders to                            obtain a concealed handgun license;
                o Allowing a person convicted of an offense relating                      to the regulation of business practices to obtain a                       concealed handgun license;
                o Explicitly prohibiting a misdemeanor domestic                           violence offender from receiving a concealed                               handgun license, and specifying that offenses                               punishable by certain terms of incarceration in                           other states disqualify the offender from                                         receiving a concealed handgun license.

• Specifies that if a court in another state has sealed or expunged an applicant's disqualifying offense, the offense does not disqualify the applicant.

• Adds a search of the National Instant Criminal Background Check System to the required criminal records check to determine the eligibility of an applicant to receive or renew a concealed handgun license.

• Requires the Ohio Peace Officer Training Commission to make printable, downloadable versions of the application forms to receive or renew a concealed handgun license available online.

• Expands the category of offenders who are prohibited from knowingly acquiring, having, carrying, or using any firearm or dangerous ordnance, & specifies that a person may not possess a firearm or dangerous ordnance if doing so would be unlawful under federal law.

  Simpson introduced a resolution to oppose passing the bill that was brought before council yesterday, it passing and being supported by a 9-0 vote.

Rule Proposed for Ohio Courts' Notifying Police Of Offender Mental Illness

 With the passage of Ohio Senate Bill 7 back June “To require that a court report certain information to  local law enforcement agencies for entry into the appropriate National Crime Information Center file when it approves the conditional release of a person found incompetent to stand trial or not guilty by reason of insanity, or orders a person convicted of an offense of violence to receive mental health treatment ,“  the Ohio Supreme Court now has a set of rule proposals specific to allowing consistent reporting to law enforcement about convictions that involve violent mentally ill offenders. The bill became effective last Wednesday, Sept. 4th..

  SB 7 was named in honor of Clark County Sheriff’s Deputy Suzanne Hopper on January 1, 2011, who was shot and killed after responding to a gunfire call at a trailer park in which the suspect, Michael Ferryman, was also killed. Hopper was the mother of two. In the ensuing investigation it was learned that after a similar standoff with authorities 10 years earlier, Ferryman had been found not guilty by reason of insanity, committed to a mental health facility, and conditionally released. Proposed Rule and Form 95 to the Court’s  Rules of Superintendence was recommended by a workgroup of representatives from law enforcement and the judicial system convened by the Court to address those provisions.

  The text of the proposed rule and the form are available on the Supreme Court’s website.

  Written comments will be accepted until October 16 and should be submitted to:

Diana Ramos-Reardon, Manager
Supreme Court of Ohio Domestic Violence Program
65 S. Front St.
Columbus, Ohio 43215

or via e-mail to diana.ramos-reardon@sc.ohio.gov.

 We might also inject here SB 133, introduced back in May by Senators Eric Kearney & Edna Brown and still pending, seeks requiring “notice provided to prosecuting attorneys by the Parole Board of the time and place of full board hearings or the pendency of a pardon, commutation, or parole, be provided by certified mail, return receipt requested.” Current law requires prosecuting attorneys be notified of parole board hearings, but it does not stipulate the manner  which has on occasion has resulted in their not received notices sent to them. The added  requirement would ensure that the prosecuting attorney receive the notice.

Bill Against Sexual Orientation Change Efforts Counseling

 Ohio Senator Charleta Tarvares yesterday introduced a bill prohibiting psychiatrists and counselors from engaging in sexual orientation change efforts with a person under eighteen years of age -- "Sexual orientation change efforts," being defined as “the practice of seeking to change a person's sexual orientation, including efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender. ‘Sexual orientation change efforts’ does not mean counseling for a person seeking to transition from one gender to another, counseling that provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, or counseling that does not seek to change sexual orientation.”
 [Text of Introduced SB 188]

   Wikipedia states “no major mental health professional organization has sanctioned efforts to change sexual orientation and virtually all of them have adopted policy statements cautioning the profession and the public about treatments that purport to change sexual orientation. The Royal College of Psychiatrists shares the concern of both the American Psychiatric Association and the American Psychological Association that positions espoused by bodies like the National Association for Research & Therapy of Homosexuality (NARTH) in the United States are not supported by science and that so-called treatments of homosexuality as recommended by NARTH create a setting in which prejudice and discrimination can flourish.

  In August 2012, the California State Legislature approved                  SB 1172 prohibiting mental health providers from engaging in sexual orientation change efforts with minors, which Governor Jerry Brown signed into law, on September 29, 2012. Opponents challenged the law in federal court, and on December 21, 2012, hearing Pickup v. Brown, the Ninth Circuit issued an emergency injunction barring enforcement, upholding it on August 29, 2013.[ Our post back in April found it noteworthy at that time "Due to the level of interest in this case, the Ninth Circuit created a separate page on its website to notify the media and public of procedures and rules for admission to proceedings, as well as access to case information in these proceedings." That page has been kept up to date]

In June 2013, the New Jersey Legislature passed Bill A3371, which was signed into law by Governor Chris Christie in August 2013, making it illegal to engage in sexual orientation change efforts with minors.

And as of July 2013, the Massachusetts General Court was considering a similar bill protecting minors from sexual orientation and/or gender identity change efforts.”

Domestic Violence notes -- Ohio

   The Cleveland Plain Dealer last Friday, and Cincinnati’s CityBeat back on August 28th., referenced the Ohio Supreme Court’s decision in State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698 back in April “that prevents criminal punishment in cases where protection orders haven't officially been served, prompting confusion and additional warnings from victim advocates in cases of stalking and domestic violence.”

  “Before the decision,” the Plain Dealer’s article said, “the accepted standard in many courts was whether the person knew about the order and recklessly disregarded it. ‘At the very least it is confusing, ‘ Alexandria Ruden, an attorney with the Legal Aid Society of Cleveland and an expert in domestic violence law said, then asking whether protection orders that aren't served, of any value? ‘How do we tell clients, 'Yes, you have this protection order but while he is avoiding service it isn't effective?' It could be a very scary situation for many survivors of domestic violence."

   The Plain Dealer article recalled the earlier CityBeat’s mention of a Hamilton County woman whose case was dropped in July where a case for violating a protection order against her husband was dropped because he was in another state and hadn't been served, though his attorney knew about the order.

  There, a woman said her husband of six months without warning, suddenly  became abusive one day in January 2013 —“that’s when she left without her car or belongings and reported him to the police. But, in the months following, he evaded being officially served with the protection order issued against him by fleeing the state, though continuing to threaten her through emails, calls and texts. She assumed this would be pursued as a violation of his protection order, which she says he clearly knew about. The Hamilton County judge, though, dismissed the violation case, citing State v. Smith, stating that to sustain a conviction for violation of a protection order under Ohio law, the state is required to establish beyond a reasonable doubt that the defendant was officially “served” with the order before the violation.

  The Plain Dealer article has Nancy Neylon, executive director of the Ohio Domestic Violence Network, saying she’d like the state to respond to the Smith ruling by allowing for oral notice of a protection order, stating domestic abusers frequently do everything they can to avoid official service of a civil protection order. "It is simply not feasible for deputies to track down every respondent who leaves the jurisdiction," she said recently. The CityBeat  article relates that Neylon “believes that although the state has done a pretty good job of amending its laws, domestic violence is an issue that requires a constantly evolving approach from the legal system, victims and advocates. ‘When original protection order legislation was drafted, people just weren’t precise enough… The language talks about delivery, but it does not define what delivery means. The statute specifically says, ‘the protection order shall be delivered to the respondent.’ And what does delivered mean? If you look at the definition of delivery and define that as service, service is a word that is hard to define under that statute.”  She says ODVN is working on drafting a proposal that would allow offenders to be officially “served” protection orders with a paper notice if deputies’ attempts to notify defendants in person are unsuccessful.

  Service of protective orders is but one factor of concern in the domestic violence venue, CityBeat relating Neylon’s says that ODVN is also currently working on introducing legislation that would increase the penalties for attempted strangulation in domestic violence incidences, which she says they’ve found to commonly precede domestic violence homicides.

  CityBeat’s article mentions Ohio House Bill 160, introduced back in May, which would “require a person who is subject to a civil or criminal domestic violence temporary protection order to surrender all firearms in the person's immediate possession or control to a law enforcement agency or to a federally licensed firearms dealer.,” and HB 243 and companion SB 177  “including the protection of companion animals in temporary protection orders, domestic violence protection orders, anti-stalking protection orders, and related protection orders.”

  Akin to these protective order measures, the Ohio legislature has menacing bills introduced that seek  “To expand the offenses of menacing by stalking and telecommunications harassment and to prohibit a person from knowingly causing another person to believe that the offender will cause physical harm or mental or emotional distress to a member of the other person's immediate family” (HB 74), and “specify that aggravated menacing, menacing by stalking, and menacing include words or conduct that are directed at, or identify, a corporation, association, or other organization that employs the victim, or to which the victim belongs, authorizing  the corporation, association, or other organization to seek protection orders on behalf of two or more victims in certain cases, and to increase the penalty for aggravated menacing or menacing by stalking if there are four or more victims.” (HB 129)

Disavowing Parental Rights of Sex Offenders

  Ohio Representatives Nickie Antonio and Kirk Schuring, and 21 co-sponsors,  have introduced a bill in the Ohio House that would provide substantially that “the father declared to be the parent of a child conceived as a result of rape or sexual battery pursuant to section 3109.501 of the Revised Code, or a relative of the father, shall not inherit the real property, personal property, or inheritance of the child or the child's lineal descendants as provided under Section 2105.06 of the Revised Code."

  The bill also contains the following provisions:

•   Sec. 3107.07. Consent to adoption is not required of any of ….  (M) The father of a minor declared, with respect to the minor, to be the parent of a child conceived as a result of rape or sexual battery pursuant to an action brought under section 3109.501 of the Revised Code.

•  Sec. 3109.501. (A) The mother of a child alleging that the child was conceived as a result of rape or sexual battery may bring an action to declare the father to be the parent of a child conceived as a result of rape or sexual battery.
        (B) A court shall issue an order declaring that the father is the parent of a child conceived as a result of rape or sexual battery if the mother proves the following by a preponderance of the evidence:

(1) The father was convicted of or pleaded guilty to the rape or sexual battery.
(2) The mother was the victim of the rape or sexual battery.
(3) The child was conceived as a result of the rape or sexual battery.
(4) Both the mother and father are established pursuant to genetic testing or as provided in
Chapter 3111. of the Revised Code to be the child's parents.

• Sec. 3109.502. In an action under section 3109.501 of the Revised Code, the mother may meet the requirements of division (B)(1) of that section by clear and convincing evidence that the father committed the rape or sexual battery that is the basis of the action even if the father was not convicted of or did not plead guilty to, the violation.

• Sec. 3109.503. A mother to whom the following apply may seek a declaration described in section 3109.501 of the Revised Code pursuant to a proceeding for divorce, dissolution, legal separation, or annulment:

 (A) She is the victim of a rape or sexual battery for which a child was conceived as a result.
 (B) She is married to the father who was convicted of, or pleaded guilty to, the rape or sexual   battery.

•   Sec. 3109.504. A court that issues an order declaring a father to be the parent of a child conceived as a result of rape or sexual battery under section 3109.501 of the Revised Code shall notify any court that has issued an order granting parental rights with respect to such child to the father.

• Sec. 3109.505. (A) No court shall issue an order granting parental rights with respect to a child to a father declared, regarding that child, to be the parent of a child conceived as a result of rape or sexual battery in an action or proceeding under section 3109.501, 3109.503, or 3109.506 of the Revised Code.
(B) On receipt of a notice under section 3109.504 of the Revised Code, a court that has issued an ordergranting parental rights regarding the father and child addressed in the notice shall terminate the order.

• Sec. 3109.506. Any action described d in section 3109.501 of the Revised Code may be consolidated with any action or proceeding for parental rights regarding a child conceived as a result of rape or sexual battery.

• Sec. 3109.507. A relative of a father whose parental rights with the father's child have been terminated, denied, or limited pursuant to sections 3109.50 to 3109.506 of the Revised Code may be granted only those rights consented to by the mother of the child.

Text of Complete Bill

-Prohibition Against Race-based Death Penalty sentences

 Ohio Senator Charleta Taverson yesterday introduced a bill that would provide that a defendant could not be executed if his/her race was the basis of the decision to seek or impose the death penalty for a crime.

Further provisions include:

•  Permitting a defendant to file a motion alleging the defendant's race was the basis of the decision to seek or impose the death penalty and  that the death penalty was sought or imposed on the basis of race in the defendant's case by showing that race was a significant factor in decisions to seek or impose a sentence of death in the state, the county, or the prosecutor's office at the time that a sentence of death was sought or imposed in the defendant's case

•  Require that a court that finds race was such a significant factor in the defendant's case to order that the death penalty not be sought or to vacate the sentence of death and resentence the defendant to life imprisonment without parole, and require a defendant to waive any objection to a sentence to life imprisonment without parole as a condition of filing the motion for relief.

Text of Senate Bill 183

Ohio Works First drug testing program

Also yesterday, Ohio Senator Tim Schaffer introduced a bill that in part would:

• (B). …..Direct the Director of Job and Family Services to establish an Ohio Works First drug testing pilot program, to be operated for two years in three counties selected by that Director. Counties selected may only be done so if the county's board of county commissioners volunteers to have that county included in the program, and in selecting said counties, the Director shall strive to have one rural, one suburban, and one urban county included in the program.

• The county department of job and family services of each county included in the program shall conduct an assessment of each adult member of an assistance group that applies to participate in Ohio Works First to determine whether there is reasonable cause to suspect that any of the adults have a chemical dependency. The assessment shall be conducted in accordance with rules adoptedunder this section and as part of the process of determining under section 5107.12 of the Revised Code whether the assistance group is initially eligible to participate in Ohio Works First. The assessment shall not be conducted as part of an eligibility redetermination. If pursuant to an assessment conducted under the pilot program there is reasonable cause to suspect that an adult has a chemical dependency, the e county department shall require the adult to undergo a drug test.

• (D). …..The county department of job and family services of each county included in the pilot program shall refer an adult who fails a drug test conducted pursuant to division (B) of this section to the board of alcohol, drug addiction, and mental health services that serves the same county as the county department. If the adult, acting on the referral, requests services from the board to which the adult is referred, the board shall refer the adult to an alcohol and drug addiction program certified by the Department of Alcohol and Drug Addiction Services under section 3793.06 of the Revised Code.

Text of Introduced SB 182

Ohio Works First 

Ohio Supreme Court accepting public comments on amendments to Rules of Practice & Procedure and Ohio Traffic Rules

 The Ohio Supreme Court this morning announced its accepting public comments until October 16 on amendments to the annual update to the Rules of Practice and Procedure and to the Ohio Traffic Rules.

   The announcement stated that many of the proposed changes would make simple clarifications, target inconsistencies, or account for renumbering of rules, although there are several substantive changes to existing rules including:

• Proposed amendments to Civ.R. 10 and Evid.R. 601 seek to enhance the affidavit of merit requirement and clarify who qualifies as an expert in a medical claim. The amendments distinguish between medical malpractice cases and other medical, dental, optometric or chiropractic claims. An amendment to Evid.R. 601 would require experts to have devoted three-quarters of their professional time to active clinical practice at the time of the event giving rise to the claim. (These proposed amendments were part of the Rules of Practice and Procedure package last year, but interested parties made clear that their support hinged on simultaneous adoption of legislation to curtail naming numerous defendants initially in a lawsuit but dismissing them later.)

• Proposed amendments to Crim.R. 41 address issuing and executing tracking-device search warrants. According to Jo Ellen Cline, Supreme Court government relations counsel, law enforcement officers currently have three days to complete a search with no differentiation made between a search warrant for property and the installation of a tracking device. The ability to install the tracking device within the time limit proved difficult if no opportunities arose for law enforcement to do it safely and secretly. The proposed amendments are designed to give law enforcement greater flexibility while protecting individuals’ rights.

• Proposed amendments to Civ.R. 53 respond to concerns raised in two appeals court cases about magistrates conducting civil jury trials. Under the proposed amendment, orders, decisions, and objections during magistrate jury trials would be exempt from current rule requirements and new procedures put into place.

The traffic rule amendment would clarify that a defendant’s signature isn’t necessary on an electronically produced ticket.

  Comments should be submitted in writing before Oct. 16, 2013 to: 

Jo Ellen Cline, 65 S. Front St., Seventh Floor, Columbus, Ohio, 43215                                                               Or via e-mail to j.cline@sc.ohio.gov 

Text of Proposed Rules of Practice and Procedure amendments. 

Text of the Proposed Ohio Traffic Rules amendment.

Custodian of Public Records has Burden to Show Why Materials are Exempt from Disclosure

  The Ohio Supreme Court this morning held that the custodian of  public records has burden to show why requested material is exempt from disclosure under the state’s public records law.

  Case in point was a public records request to the Ohio State Highway Patrol in 2011 seeking records related to traffic incidents involving a particular trooper, and plaintiff’s allegation that, while the Patrol had provided some of the materials requested, it didn’t release others believed to be public record. In a March 2012 letter, the Patrol confirmed that it refused to provide certain records because they were “investigatory work product” for an ongoing criminal investigation so they weren’t subject to disclosure under the public records law. Specifically, the Patrol did not release impaired-driver reports and the Patrol cruiser’s video/ audio recordings related to a traffic stop, detention, arrest, and transport of a particular person on July 15 or 16, 2011, with the Patrol holding that  “information regarding open/pending criminal cases is being withheld” because of the investigatory-work-product exception to the Public Records Act, R.C. 149.43(A)(1)(h) and (2)

  The Court’s summary reported the Twelfth District Court of Appeals was petitioned for a writ of mandamus to force the release of these records and had detailed numerous problems in the case, including procedural mistakes, contradictory and unsupported claims, and a faulty timeline, but it agreed to consider his affidavit and evidence; concluding there hadn’t been  a clear legal right established, by clear and convincing evidence, to the records. [ Twelfth District's holding ]

  While the Supreme Court notes in today’s ruling that the evidence was incomplete and presented in a confusing way, it also states that the Patrol’s letter refusing to release some public records is clear and convincing evidence that the plaintiff  had stated a sufficient reason to be given the records and the patrol did not provide them.

“Once the patrol refused to provide the requested records, it must show that they were exempt from disclosure based on one of the public records statute’s exceptions,” the court said. “Exceptions to disclosure under the Public Records Act are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception.”

State ex rel. Miller v. Ohio State Highway Patrol, Slip Opinion No. 2013-Ohio-3720