Tuesday, December 31, 2013

Bits & Pieces Heading to the New Year

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

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

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

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

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

Friday, December 27, 2013

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

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

  Public comments to the proposed amendments will be entertained until January 22, 2014 and should be addressed to:
Lee Ann Ward, director, Office of Bar Admissions
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
Or via e-mail to leeann.ward@sc.ohio.gov.
  Text of Amendment

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

Thursday, December 26, 2013

Ohio bills signed into law

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

SB23 ADOPTION RECORDS – Outright repealing the laws that permit post-1963 adoptees who became available or potentially available for adoption prior to September 18, 1996 to file a petition in probate court to obtain information  about the adoptee's biological family, and replaces those repealed laws with a procedure in which adopted persons who are at least 18 years of age may submit a written request to the Ohio Department of Health (ODH) for  ODH to provide the adopted person with a copy of the contents of the person's adoption file.  [ Bill & Analysis ]
 SB200 VOTER REGISTRATION DATABASE – Clarifies that the Office of the Secretary of State must administer the statewide voter registration database & prescribe by rule the format in which the boards of elections must send voter registration records to the Secretary of State; and requires state agencies,  including the Department of Health, Bureau of Motor Vehicles, Department of Job and Family Services, and the Department of Rehabilitation and  Correction, to provide any information and data to the Secretary of State that is collected in the course of normal business and is necessary to register to vote, to update an elector's registration, or to maintain the statewide voter registration database.  [ Bill & Analysis
SB206    MEDICAID – Requires the Director of Medicaid to implement a reform to the  Medicaid program that limits the growth in the per recipient per month cost of the program., so as the cost growth for a fiscal biennium be not more than the lesser of: (1) The average annual increase in the Consumer Price Index medical inflation rate for the Midwest Region for the most recent three-year period, weighted by the most recent year of the three years; and (2) The projected medical inflation rate determined by an actuary under contract with the Joint Medicaid Oversight Committee (JMOC) or, if JMOC disagrees with the actuary's rate, the projected  medical inflation rate that JMOC determines.  [Bill & Analysis ]
HB126  HEALTH CARE POWER OF ATTORNEY-LIVING WILL – Permits a durable power of attorney for health care to authorize the attorney in fact, commencing upon the instrument's execution or at any subsequent time and regardless of whether the principal has lost the capacity to make health care decisions, to obtain information concerning the principal's health; if authorized  as provided in the preceding permits the attorney in fact, commencing upon the instrument's execution or at any subsequent time specified in the instrument and regardless of whether the principal has lost the capacity to make health care decisions, to obtain information concerning the principal's health, and further authorizes a principal in a durable power of attorney for health care to and nominate a guardian of the principal's person, estate, or both for a court's consideration if proceedings for the appointment of such guardian are commenced at a later time and provides that the principal's nomination of such a guardian is revoked by the principal's subsequent nomination of a guardian of  the principal's person, estate, or both. [ Bill & Analysis ]

Tuesday, December 24, 2013

Ohio Supreme Court Traffic Rule amendments

  The Ohio Supreme Court’s news service last week posted the announcement that the Court had adopted  amendments to the Court’s Traffic Rules facilitating the use of electronic tickets by law enforcement in the state.
  Traf.R. 3(F) clarifies that a defendant’s signature isn’t necessary on an electronically produced ticket, and that the same rights, responsibilities, and liabilities apply to an officer who signs a ticket electronically as to a paper one.
“Additionally,” the post notes, “the electronic ticket ‘shall conform in all substantive respects’ to the Ohio Uniform Traffic Ticket. If a court adopts local rules allowing the use of electronic tickets, the issuing officer still must provide the defendant with a paper copy of the ticket.”
 The amendments take effect January 1, 2014.

 Text of Amendments

Friday, December 20, 2013

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

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

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

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

Consumer Finance statement

Thursday, December 19, 2013

Expanded access to Ohio adoption records

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

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

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

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

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

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

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

Friday, December 13, 2013

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

  With all of the confusion, discussion & debate about health care and insurance right now, Sabrina Pacifici’s post on LLRX.com yesterday morning, in fact, at least offer some degree of calm for many --- officials & lawmakers on both state and the federal level included.
   “The U.S. Department of the Treasury’s Federal Insurance Office (FIO) today submitted and released to Congress a report on how to modernize and improve the system of insurance regulation in the United States. Given the significance of the insurance sector in the U.S. economy, and the globally active nature of U.S. insurance firms, the report concludes that in some circumstances, policy goals of uniformity, efficiency, and consumer protection make continued federal involvement necessary to improve insurance regulation. However, the report also concludes that insurance regulation in the United States is best viewed in terms of a hybrid model, where state and federal oversight play complementary roles and where the roles are defined in terms of the strengths and opportunities that each brings to improving solvency and market conduct regulation…The report, mandated under Title V of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), makes recommendations in the areas of insurance sector solvency and marketplace regulation, outlining near-term reforms that states should undertake regarding capital adequacy, safety and soundness, reform of insurer resolution practices, and marketplace regulation, and areas for federal involvement in insurance regulation… “

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

Thursday, December 12, 2013

Ky. announces plan to ensure DNA taken from felons

Kentucky corrections officials announced plans Wednesday to fix a faulty system to ensure DNA samples are in f act taken from every Kentucky felon as required by law, acknowledging the failure to collect samples was more widespread than first reported,” NKy.comreported this morning --- stating that “at the time, the state said DNA had been collected from 75,600 felons since a 2009 change in Kentucky law required DNA samples from every felon, the state disclosing back in July it had failed to collect DNA samples from about 6,300 felons over that four-year period. The Department of Corrections Wednesday reported that an investigation found the number of missing samples actually totaled about 16,000.”
  The article continued by reporting that “the investigative report cited a number of factors that led to the missing DNA samples, including a lack of accountability and follow-up measures. It said there was no disciplinary action for not collecting DNA, and employee performance evaluations didn’t take into account DNA collections… While the implementation plan was thorough, there was a lack of sufficient controls, accountability measures or a reliable database to ensure compliance,” according to the report.
  Ky. Gov. Beshear said “(Their) Department of Corrections has implemented an aggressive action plan to retrieve DNA from these offenders in an expedited and efficient manner…. DNA collection is mandated by law, and I fully expect all our agencies not only to collect the samples, but also to maintain accurate records of such, so that our DNA databases are up-to-date for law enforcement use.”  [ KRS 17.170 and  KRS 17.175 ]
 “Some of those felons who owe DNA samples are still in custody; others will have to report to probation and parole offices to provide samples, and nearly 85 percent of the missed DNA samples are for people convicted of property and drug-related crimes,” according to the corrections department, which is also reporting its plan includes a multi-level review already put in place to ensure a sample is taken from every offender prior to release from custody or supervision. Also, every probation and parole supervisor receives a daily list with names of offenders who haven’t given samples.
  “… samples are being collected immediately after the arrest of felons who avoided giving samples during their prior time in custody.”
 Copies of the Kentucky Department of Corrections action plan encompasses many of the recommendations made in an investigative report by the Office of the Inspector General requested by Governor Steve Beshear, is complete and is available here.

Is Supreme Court Ruling Closing Door on Public Records Access?

  The Supreme Court’s new service this morning is carrying an editorial by the Hudson Hub Times saying “The Ohio Supreme Court closed the door on public records access to JobsOhio yesterday in affirming its exemption as the non-profit entity created by Gov. John Kasich to oversee state economic development efforts,” noting the Court’s having heard arguments in a challenge to JobsOhio brought by an advocacy group that contended it was unconstitutional because the state is prohibited from establishing private enterprises. [ See State Ex Rel. Ullmann v. JobsOhio Et.Al ]
  Realtor Victoria Ullman’s complaint back in August contended “JobsOhio performed a government function and is funded by a lease of a government asset. JobsOhio exists only due to its creation pursuant to R.C. 187 and the liquor revenue granted to it in R. C. 4313. It was designed specifically to avoid public documents production obligations or any other public scrutiny…  R.C. 149.011(B) states: "State agency" does not include the nonprofit corporation formed under section 187.01 of the Revised Code." However, Ohio Constitution 13.01 forbids the General Assembly from creating a corporate entity of any kind. This renders this exemption void ab initio … (therefore)  JobsOhio is unconstitutional and was from its inception pursuant to Ohio Constit. 13.01 and 1302. This court can declare it unconstitutional in toto once it determines that this section of R.C. 149.011 is void pursuant to Ohio Const. 13.  [See also realtor’s Memorandum in support of writ ]
  The State in its motion to dismiss, which the Court granted, responded that “The legislation enabling the creation of JobsOhio, a private not-for-profit entity, could not be clearer in pronouncing that JobsOhio is not a "public office" (and, therefore, not property subject to a public records request) and that documents requested from JobsOhio are not "public records." See R.C. 187.03(A) (JobsOliio shall not constitute a "public office" for purposes of R.C. Chapter 149); R.C. 187.04(C)(1) (records created by JobsOhio are not public records); see also R.C. 149.43(A)(1)(cc) (providing that "public record" does not mean records described in R.C. 187.04(C) that are not designated to be made available to the public); R.C. 149.011(A) ("`Public office' does not include the nonprofit corporation formed under section 187.01 of the Revised Code.");” noting also that “Relator's efforts began in 2011 in her former capacity as the attorney for ProgressOhio.org, Inc. ("ProgressOhio"), and then continued as an amicus curiae in the case of ProgressOhio v. JobsOhio, Case No.2012-1272, pending before this Court. Relator has been unsuccessful in having those claims heard, however, because ProgressOhio lacks standing under Ohio law.”

ProgressOhio v. JobsOhio, Case No. 2012-1272 was heard on November 6th.
House Bill 1 creating JobsOhio in 2011
[Legislative Service's analysis of HB 1 (2011)]
[See also Jurisdictionalmemorandum of amicus curiae 1851 Center for Constitutional Law in support of appellant filed July 30, 2012 with respect to ProgressOhio v. JobsOhio ]


Wednesday, December 11, 2013

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

   Ohio’s Supreme Court news service this morning reported the Sixth District Court of Appeals' reversing a defendant’s three-year prison sentence on Fourth Amendment constitutional grounds, remanding the case back down to Wood County Court of Common Pleas. [ State v. Brown, 2013-Ohio-5351  ]
 Terrence Brown was sentenced to three years in prison after pleading no contest to charges he illegally had oxycodone when he was stopped on March 16, 2011, by a Lake Township Police Department officer on I-280 in Wood County. He appealed the sentence contending the township police officer did not have authority to stop him on the highway, and  his right to be free from unlawful search and seizure under the Fourth Amendment of the United States Constitution and Article 1, Section 14 of the Ohio Constitution were violated when the trial judge denied his motion to suppress the evidence that was seized during the traffic stop.
  Appeals Court Judge Arlene Singer examined the difference in protection under the state and federal constitutions spelled out in separate case law from U.S. and Ohio Supreme Court cases, concluded that while Brown’s Fourth Amendment rights were not violated because the officer had probable cause to stop him, there was a violation of his state rights, the Court’s news service said.
  “[In Atwaterv. Lago Vista, 532 U.S. 318 (2001)],” the Court reported, “a stop, even if in violation of state law, is not unreasonable under the Fourth Amendment to the United States Constitution if the stop was based on probable cause,” Judge Singer wrote. “[In State v. Brown] a stop made in violation of state law is reasonable under Article I, Section 14, of the Ohio Constitution only when probable cause to make the stop exists and the government’s interests in allowing unauthorized officers to make this type of stop outweighs the intrusion upon individual privacy."
  Reviewing state & federal case history fromover the years, the Sixth Circuit summarized “It is undisputed that the township officer violated R.C. 4513.39 by making the extraterritorial stop on an interstate highway for a marked lane violation, which is specified in R.C. 4513.39(A) as being within the exclusive jurisdiction of the state highway patrol, sheriffs, and sheriff deputies. Further, no extenuating circumstances were presented to justify an extraterritorial stop by township police officers for this type of traffic violation. Therefore, we find the extraterritorial stop was unreasonable under the Ohio Constitution.”


Monday, December 09, 2013

Ohio Supreme Court hearing traffic light controversy

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

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

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

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

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

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

Friday, December 06, 2013

Conduct Guidelines for Ohio Prosecutors and Defense Attorneys Issued

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

Ohio guidelines for reissuing cancelled health plans

Cincinnati.com this morning has an article relating that “The Ohio Department of Insurance  issued new guidance last  Wednesday for insurance companies considering reissuing plans  they had cancelled because they weren’t compliant with new Obamacare rules that go into place next month.
  Details about the process and rules for insurers to follow as to the reissuance of cancelled plans – which is optional for all insurers and became effective on Tuesday, December 3rd. – were linked to in Cincinnati.com’s article, and contain additional links to a letter to state insurance commissioners from the Centerfor Consumer Information and Insurance Oversight (CCIIO) on November 14, 2013 recommending the adoption of the CCIIO’s transitional policy for non-grandfathered health insurance plans in the individual and small group markets that would otherwise terminate or require modification as a result of the federal health insurance market reforms required under the Patient Protection and Affordable Care Act (ACA), which further states:
“In light of CCIIO’s transitional policy, insurers in Ohio may offer their insureds the ability to renew, at the insured’s option, plans that were in effect on October 1, 2013, for a policy year starting between January 1, 2014, and October 1, 2014. Issuers wishing to extend coverage shall follow CCIIO’s transitional policy, including federal notice requirements, offering reenrollment or extended coverage to impacted policyholders in the individual and/or small group market in a uniform and non-discriminatory manner in accordance with Ohio law (ORC §3924.03 and §3923.57).”

Wednesday, December 04, 2013

1st Circuit GPS Tracking Cases

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

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

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

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

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

Tuesday, December 03, 2013

New York Lawsuit Arguing Chimpanzees Have Human Rights

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

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

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

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

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