Top legal news of 2014

In honor of New Year's Eve and in order to reflect on events of this past year we offer you a round-up of top legal news lists from various sources on the web. Happy New Year, everyone!

Westlaw Legal Solutions Blog has published the Top 20 Legal Events of 2014 in three parts, detailing various cases and events that have shaped the legal world this past year. Some notable aspects:

• Supreme Court cases such as McCullen v. Coakley, Hall v. Florida and Abramski v. U.S dealing with such  controversial issues as buffer zones for abortion clinics, capital punishment for the intellectually disabled and buying guns on behalf of third parties, respectively,
• The Supreme Court's refusal to grant cert. to same-sex marriage cases, effectively allowing those marriages to stand in a significant number of states, 
• The 6th Circuit case that created a split among federal circuits regarding the legality of same-sex marriage bans,
• The U.S. normalizing relations with Cuba, and
• The President's executive order for immigration action.

The ABA Journal has also released their top ten list, which describes their most popular stories of 2014. Some highlights include:

• "Rare ‘Perry Mason’ moment in court wins dismissal for defendant, desk duty for 5 police officers," (in which a video introduced at a suppression hearing proved that 5 police officers lied on the stand about the search of a defendant in a drug case),
• "Lawyer is disbarred for ‘inexplicable incompetence,’" (in which an attorney argues a case in court dressed as Thomas Jefferson - complete with video), and
• "Which students belong in law school? Law prof offers an answer," (in which a law professor describes the characteristics of law students that he believes will make good lawyers and makes many commenters unhappy).

Cleveland.com has published their list of the top five bills passed by Ohio lawmakers in 2014 and synopses of a few top Ohio Supreme Court cases. These include:

• Redistricting reform,
• Confidentiality for manufacturers of Ohio's execution drugs,
• Requiring police to be present while traffic cameras are operating,
• The JobsOhio case (in which the Court found that ProgressOhio.org did not have standing to challenge the constitutionality of Governor Kasich's JobsOhio Act, but did not address whether it was constitutional), 
• A payday loans loophole case (in which the Court upheld a loophole in the law regulating payday lenders, allowing them to escape the restrictions approved by voters in 2008 by registering under the Mortgage Lending Act instead of the Short Term Loan Act), and
• A standards for appraisal case (in which the Court "established a guide for counties to use the sale price for a property when setting the appraisal value for taxes," and set a 24-month-limit as a definition of when a sale was recent.

Finally, Ohio.com has linked to the "Associated Press' top stories of 2014 from around Ohio," which describes some noteworthy moments from the past year, including:

• The U.S. Department of Justice completing their investigation of Cleveland police and issuing a report condemning the organization for excessive force, recklessness and civil rights violations,
• Governor John Kasich winning a second term and Republicans sweeping statewide political races, and
• Ohio putting executions on hold after an inmate took nearly 26 minutes to die when the state administered a new execution drug cocktail for the first time.

Ohio traffic cameras still making headlines

Traffic cameras have had a contentious time recently in Ohio, and the after-effects of court hearings and legislation about their use may continue into the new year. According to the Columbus Dispatch, the attorney for Bradley Walker, a Kentucky man who challenged Toledo's procedures for assessing penalties from traffic cameras, has filed a motion asking the Ohio Supreme Court to reconsider their December 18 decision upholding these practices. We discussed the Court's opinion in detail, here. 

Some basics about the case: Toledo had established an administrative system that provided civil penalties (fines) to vehicle owners who were caught violating traffic laws by their traffic cameras instead of having the cases heard by the municipal court. The Ohio Supreme Court upheld this practice, finding that it complemented the work of courts and did not restrict it.Walker's attorney filed the motion for reconsideration yesterday, arguing that the decision "allowed the city council to exercise a power it does not possess" when it took away Walker's day in municipal court.

Meanwhile, although the Ohio Supreme Court upheld Toledo's procedures for fining motorists caught violating traffic laws by these cameras, they may not be around in Ohio for much longer, due to legislation signed by Governor Kasich on December 19. Senate Bill 342, which was sponsored by Cincinnati-area Representative Bill Seitz, requires a police officer to be present while a camera is operating and witness traffic violations before a ticket can be issued. The new law permits the officer to issue the ticket him or herself, or allows the city to assess a civil penalty if the officer was present, but did not issue the ticket. 

WCPO-TV reports that previous legislation sponsored by Rep. Ron Maag (R-Lebanon) and Rep. Dale Mallory (D-Cincinnati) sought to ban traffic cameras outright, but stalled in the Ohio Senate, partially due to lobbying by the camera companies and police, according to attorney Mike Allen. Cincinnati and area municipalities have a lengthy history with traffic light cameras, which the WCPO article details. Cincinnati voters banned the use of traffic cameras in 2008.

The new legislation passed both the Ohio House and Senate with significant support. According to the Dispatch, however, some municipalities are considering challenging the law in Ohio courts.

Click for the Ohio Legislative Service Commission's analysis of the new law.

Employees who report abuse/neglect are protected from employment retaliation, rules SCO

The Ohio Supreme Court ruled last Tuesday that an Ohio law provides protection from employment retaliation for employees who report suspicions of abuse and neglect of residents of long term care facilities to entities other than the Ohio director of health. The case before the Court involved registered nurse team manager Patricia Hulsmeyer, who was terminated from her position with Hospice of Southwest Ohio in 2011. Hulsmeyer supervised other hospice nurses and cared for patients. In October 2011 at a patient-care meeting, one of Hulsmeyer's supervisees reported that she had seen bruises on a patient at Brookdale Senior Living and that she believed Brookdale staff had caused them. An aide, also under her supervision, indicated that she had taken pictures of the bruises and forwarded them to Hulsmeyer's phone.

A staff doctor and Hospice nurse in the meeting indicated that Hulsmeyer was required to report this to Brookdale and the patient's family. Hulsmeyer contacted Brookdale to relay this information and then spoke with Isha Abdullah, the chief clinical officer of Hospice, to report the suspected abuse or neglect. She then informed the patient's family. Abdullah disputes that Hulsmeyer contacted her at this point, claiming that she did not learn about the allegations until someone from Brookdale contacted her. At a meeting with the family in November, the aide's cell phone was passed around to show the photos of the patient's bruising.

Hulsmeyer was terminated from her position with Hospice after this. Hospice's stated reasons for firing Hulsmeyer were that she allowed photos of the patient to be taken without permission from someone with a power of attorney, she did not follow a Hospice policy requiring her to tell Hospice of suspicions of abuse or neglect before informing the family, and she shared the photos of the patient at a meeting with staff and family before informing Hospice of the suspected abuse or neglect.

Hulsmeyer filed an action seeking damages for retaliatory discharge under O.R.C. 3721.24 and a common law wrongful discharge claim. The defendants claimed that O.R.C. 3721.24 only protects employees who have reported suspicions of abuse or neglect to the Ohio director of health, and that because Hulsmeyer did not do so, she has no statutory claim for retaliation. The trial court agreed with Hospice and also dismissed the common law claims, stating that the statute provides adequate protection for employees. The First District Court of Appeals reversed the trial court, finding that O.R.C. 3721.24 does not require that an employee report the abuse to the Ohio director of health in order to be protected from retaliatory action.

In 6-1 decision, with an opinion penned by Justice Sharon Kennedy, the Ohio Supreme Court upheld the decision of the First District, finding that, "The plain language of R.C. 3721.24 protects employees... from retaliation for reporting... suspected abuse or neglect of residents of long-term care facilities or residential care facilities and does not require that the report be made to the director of health."

In reaching its decision, the Court analyzed the statute in tandem with O.R.C. 3721.22, which explicitly requires licensed health care professionals to report these suspicions to the director of health, and provides immunity from civil or criminal liability for individuals who do so. O.R.C. 3721.24 provides employment protection to employees who report suspected abuse or neglect, but does not specify to whom they should report it. The Court found that the language of the statute was unambiguous and no other requirement or limitation should be added by judicial fiat. The Court sent the case back to the trial court for hearing on the merits of the statutory claims. It did not address the issue of Hulsmeyer's common law claims.

Justice Pfeifer concurred with the majority, but also wrote that Hulsmeyer should be able to pursue her common law claims.  Justice French dissented, arguing that the statute is ambiguous about who an employee may report to, opening the door to protect employees who tell almost anyone about their suspicions. She asserted that since O.R.C. 3721.22 provides that certain professionals must report to the Ohio director of health, O.R.C. 3721.24 should be interpreted with that same limitation in order to rectify the ambiguity.

For more information about the case, see this article from Court News Ohio.

Happy Holidays from the Law Library!

For your holiday reading pleasure, we offer you the classic poem, "A Visit from St. Nicholas," lawyer-style.  Recently posted by the Wall Street Journal Law Blog, "The Night Before Christmas Legally Speaking" has made its rounds on the Internet for nearly two decades, although it's author is unknown. So, please enjoy this, just a few days late. And Happy Holidays to all!

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g. stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter “Claus”) would arrive at sometime thereafter.

The minor residents, i.e. the children, of the aforementioned House, were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as “I”), being the joint-owner in fee simple of the House with the parts of the second part (hereinafter “Mamma”), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g. kerchief and cap.)

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtent to said House, i.e. the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter the “Vehicle”) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus.

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donder and Blitzen (hereinafter the “Deer”). (Upon information and belief, it is further asserted that an additional co-conspirator named Rudolph may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute “gifts” to said minor pursuant to the applicable provisions of the U.S. Tax Code.) Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts.” Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: “Merry Christmas to all and to all a good night!” Or words to that effect.

Ohio redistricting resolution headed to voters in November

Just before adjourning for the year, the Ohio legislature passed a bipartisan measure to govern redistricting of Ohio's legislative districts. House Joint Resolution 12, which was passed with only 9 "no" votes between both the House and Senate, will be placed on the ballot for voters statewide to decide whether to adopt as an amendment to the Ohio Constitution in November. The resolution, sponsored by Democratic Rep. Vernon Sykes and Republican Rep. Matt Huffman, makes changes to the existing redistricting plan, first adopted in the 1960s. This plan has been widely criticized as giving too much power to the majority party and has sometimes led to strangely drawn districts, splitting cities and counties.

According to the Cincinnati Enquirer, the existing plan involves a five-member redistricting panel that meets in the"1" year of every decade (1991, 2001, 2011, etc..) and is comprised of the governor, secretary of state, auditor, a person from the majority party and a person from the minority party. Only three votes are needed to pass a redistricting plan, so the party in control ultimately makes the decisions.

The new plan expands the panel to seven members, which include the governor, secretary of state, auditor, and two members of both the majority and minority parties. Four votes are needed to pass a plan, and two of those must come from members of the minority party. If a plan passes, it is in place for ten years, until the panel reconvenes. If a plan does not get approval from the minority party then the panel may pass a plan with a simple majority vote, but it is only good for four years, and the panel must reconvene at that time to consider another plan. If there is still not approval from the majority party, then the plan will be put into place by a simple majority vote again, this time for 6 years.

The Enquirer article also offers an inside look at the negotiation process in this matter. The Ohio Legislative Service Commission provides a detailed analysis of the resolution.

Sixth Circuit strikes down ban on gun ownership for those previously committed to mental institutions

The Wall Street Journal reports that the Sixth Circuit Court of Appeals struck down a federal law yesterday that prohibits a person who has been committed to a mental institution from owning a gun. Judge Boggs, writing for the Court, found that the law violated the Second Amendment. He was joined by Judges Siler and Gibbons in his opinion.

The case originated in Michigan with Clifford Charles Tyler, a 73-year-old man who was committed to a mental institution for about a month related to a depressive episode following his divorce in 1986. According to the opinion, Tyler has no criminal record or other reported mental health issues. He attempted to purchase a gun in 2011, but was not permitted because of this 1986 incident. Tyler's administrative appeal to the FBI’s National Instant Criminal Background Check System (NICS) was denied because Michigan does not have a program in place to provide relief from disabilities for those unable to purchase firearms due to past mental health commitments.

The law provides that individuals who have been previously committed to mental institutions may apply for relief from disability so that they may purchase firearms. According to the opinion and the Wall Street Journal, the federal program governing relief from disability was defunded in 1992. In 2008 the government offered incentives to states to establish their own relief from disability programs, but not every state has done so. Michigan is a state without such a program.

In evaluating the case, the court undertook a strict scrutiny analysis of the law and found that while its purposes of protecting the community from crime and preventing suicide are compelling, the law is not sufficiently narrowly tailored to achieve them. The court found that while the part of the statute that prohibits gun ownership by those who have "been adjudicated as a mental defective" is narrowly tailored, the provision that prohibits possession by individuals who were previously committed to a mental institution was not. The court cited the fact that "relief from disability" programs exist as evidence that not everyone who was previously committed is currently dangerous, as those programs were designed to determine whether someone should be permitted to own a gun. The court thus found that provision of the statute unconstitutional under the Second Amendment.

Toledo can continue using red light cameras with existing civil penalty process, rules Ohio Supreme Court

The Supreme Court of Ohio issued an opinion today that upholds Toledo's system of penalties for traffic violations caught by the city's red light traffic cameras. According to the opinion, in 2008 Toledo enacted a municipal code provision that permitted their traffic camera system to assess civil penalties on drivers who are caught speeding or running red lights. The system consists of both a sensor and a camera that records these violations of the law. The city then sends a notice to the owner of the vehicle that he or she is liable for the traffic violation and that a fine of $120 has been assessed against him or her. This is a civil citation, not criminal, and carries no criminal penalties. The owner can either pay the penalty, or contest it in an administrative hearing with the city. The owner can then appeal the decision of the administrative hearing officer to the common pleas court under existing Ohio law.

At issue in the case is whether Toledo's civil penalty system for these traffic violations set forth in the Municipal Code violates the Ohio Constitution or Ohio laws because it divests the municipal courts of their jurisdiction to handle these issues. The Sixth District Court of Appeals found that the municipal code provisions violated Article IV, Section 1 of the Ohio Constitution, which vests judicial powers in the courts and O.R.C. 1901.20, which gives municipal courts jurisdiction over violations of municipal ordinances. Toledo appealed the decision.

The Ohio Supreme Court, in a 4-3 decision penned by Justice Sharon Kennedy, found that the provisions of Toledo's Municipal Code that set up this scheme of civil penalties for traffic violations did not violate the Constitution or laws of Ohio. The Court held that their previous decision in Mendenhall v. Akron was controlling, stating that "We have already held that municipalities act within their constitutional home-rule powers when they establish automated systems for imposing civil liability on traffic-law violators." In Mendenhall the Court had considered whether a municipality had the authority to create a similar system involving civil penalties for traffic violations under other provisions of the Ohio Constitution and found that this was permissible under home-rule authority because it served as a complementary penalty system and didn't decriminalize the behavior.

Justice Kennedy applied the Mendenhall reasoning to this case, writing, "As we made clear in Mendenhall, civil enforcement of municipal ordinances complements the work of the courts. It does not restrict it. Neither R.C. 1901.20 nor Ohio Constitution, Article IV, Section 1 undermines our analysis in Mendenhall." The Court also found that O.R.C. 1901.20 does not give municipal courts exclusive jurisdiction over violations of traffic ordinances, and that municipalities can conduct civil administrative proceedings regarding these violations under home-rule authority.

Justice O'Neill, writing for the dissent, argued that O.R.C. 1901.20 does give the municipal courts exclusive jurisdiction over city ordinances, and that Toledo's system of civil penalties impermissibly divests the courts of that jurisdiction. He asserted that this case was not about home-rule and that Mendenhall should not apply.

For more information about the case see this article from Court News Ohio.

Settlement agreement reached in rap video case against local schools, police

WCPO reports today that a settlement agreement has been reached in the federal lawsuit four African-American students filed against the Northwest Local School District and Colerain Township police earlier this year. The suit alleges that Northwest Local Schools and several officers from the Colerain Township Police Department violated the students' constitutional rights when they held, interrogated, and ultimately expelled them from school in April after an investigation undertaken by the district. The students claim that they were expelled for making rap videos off campus and during off hours from school. According to WCPO, school officials allege that it was the students' behavior, not the videos that got them expelled.

Some background for the case: After two gun-related incidents involving other Colerain High School students happened in late March and early April last year, parents allegedly complained about things they had seen on the social media sites of some African-American students. This prompted school officials to undertake "a multi-day investigation into online, outside-of-school activities of African-American students at Colerain High School," according to the lawsuit, filed by the Legal Aid Society of Southwest Ohio. The investigation resulted in the questioning and expulsion of several students, including the four plaintiffs in the case, who were alleged to have been making gang signs in videos posted online. A WCPO article posted in September, 2014 provides greater detail about these events.

The suit alleges that the actions of the police and school were racially motivated, as other white students who had engaged in similar behaviors were not disciplined in the same way. The school district claims that students of other races were also suspended and expelled. A WCPO analysis of state data for 2012-2013 revealed significant disparities in discipline rates between black and white students in large suburban school districts such as Northwest Local, which had discipline rates at least three times higher for black students than white students in every school in the district.

The students sought $25,000 in damages as well as a declaration that the actions of the school district and police were unconstitutional, expungements of the disciplinary actions from the students' records and changes to the policies and practices of the school district and police. The terms of the settlement agreement are not known, but a Legal Aid press release states that it "...seeks to create a partnership between the parties to promote diversity respect at the school." Federal judge Timothy Black will conduct a hearing over the settlement today at 11am.

Many Ohio bills still need final action as end of term nears

The Columbus Dispatch has put together a list of bills that still need attention before the end of this lame-duck session. A few of the bills have already been passed by both the House and Senate and are now being sent to Governor Kasich for signature.  These include:

Ohio Senate Bill 342, which requires that a police officer be present at any intersection where traffic cameras are in use. Click for analysis.

Ohio House Bill 10, also known as the "Fiscal Integrity Act," which provides procedures to remove a fiscal officer who acts recklessly. Click for analysis.

Ohio Senate Bill 272, which designates February 21 as "Rascal Flatts Day." It also designates March as "Maple Syrup Products Month" and September as both "School Bullying Prevention Awareness Month" and "Parkinson's Disease Awareness Month." Click for analysis.

Other bills still need a vote in the House during their last session of the year tomorrow. These include:

Ohio House Bill 663, which mandates that the identities of manufacturers of execution drugs and other parties to the execution process in Ohio be kept confidential. Click for analysis.

Ohio Senate Bill 386, which provides regulations relating to consumer grade fireworks, including eliminating an existing law that requires people who purchase these fireworks to take them out of the state within 48 hours. Click for analysis.

Ohio Senate Bill 250, which shortens the adoption process in Ohio and makes changes to laws about notifying the father when a child is put up for adoption. It also allows adoptive parents to pay living expenses for the birth mother and increases the adoption tax credit. Click for analysis.

Ohio House Bill 131, which establishes consent requirements for children 16-17 and under 16 to use tanning facilities. It also makes requirements regarding what a mammography facility must tell a patient whose scan shows dense breast tissue. Click for analysis.

Ohio House Bill 178, which sets rules for school safety drills and requires the State Board of Ed. to establish a policy and standards on behavior intervention and the use of physical restraint and seclusion on children in Ohio schools. This would also require charter schools and STEM schools to comply with these rules. Click for analysis.

Ohio House Bill 247, which changes existing law to allow anyone to use automated external defibrillation and provides civil and criminal immunity to those who do, as long as they have acted in good faith. Click for analysis.

Ohio House Bill 290, which allows courts to set up temporary facilities for courts to function during disasters or other extraordinary circumstances, and limits claims related to medical, nursing or personal care provided in a home. Click for analysis.

Supreme Court to rule on whether ban on mandatory life sentences for juveniles applies retroactively

The New York Times, the Washington Post and SCOTUS Blog report that the U.S. Supreme Court has agreed to hear a case involving the retroactivity of a ban on mandatory life sentences for juveniles. The ban came about in 2012, when the high court found these sentences for juveniles who commit murder violated the 8th Amendment's prohibition on cruel and unusual punishment. The decision in Miller v. Alabama, penned by Justice Elena Kagan, did not ban life sentences for juveniles, but held that a court had to make individualized findings about a defendant before imposing such a sentence. In June 2012 SCOTUS Blog summarized what the majority found a court must consider, as follows:

The judge must assess the specific age of that individual, examine that youth’s childhood and life experience, weigh the degree of responsibility the youth was capable of exercising, and assess that youth’s chances to become rehabilitated.  Only if the judge then concludes that life without parole is a “proportional” penalty, given all of the factors that mitigate the youth’s guilt, can he impose such a sentence.

The question the Court will address now is whether this ban on mandatory life sentences and requirement for individualized findings applies retroactively to cases that were completed before the 2012 decision. The case before the Court involves George Toca, who was convicted of murder in 1984 for accidentally shooting his friend during a botched robbery. He was seventeen at the time. Toca was sentenced to life without possibility of parole under a Louisiana sentencing scheme that required imposition of a life sentence. The Louisiana Supreme Court denied his request for a new hearing.

According to the Washington Post, state supreme courts have been split on the interpretation of this precedent, with most finding that it is a substantive rule that must be applied retroactively, but others, like Louisiana, finding that it is merely procedural and does not require revisiting life sentences for all juveniles who had been sentenced prior to the decision.

The U.S. Supreme Court will hear Toca's case on the issue of retroactivity, but will also decide a broader point that may make the question of retroactivity moot. According to SCOTUS Blog, the Court will also address "whether a federal question is raised at all when an inmate claims that a state post-conviction court had failed to apply a Supreme Court criminal-law decision retroactively." If the Court ruled that no federal question was raised in this type of proceeding, then they might not rule on the specific retroactivity issue in Toca's case.

Pets to be covered in protection orders in Ohio

The Columbus Dispatch reports that Ohio is about to pass a bill that would offer protection to pets by including them in protection orders that are already available to victims of domestic violence, sexual assault, stalking and other abuse under Ohio law. S.B. 177, which was sponsored by Sens. Jim Hughes, R-Columbus, and Michael J. Skindell, D-Lakewood, has wide bipartisan support and passed unanimously in the Senate and with only one dissenter in the House. It allows judges to include companion animals in the protection orders they were already granting to victims of abuse. Under Ohio law, companion animals include any animal that is "kept inside a residential dwelling" and any dog or cat even if it is not kept within the home. This does not include livestock or wild animals.

The Dispatch reports that the bill has support from advocates for victims of domestic violence and other crimes as well as animal-rights groups. Supporters cite statistics about how frequently animals are harmed in domestic violence situations and the hesitation many victims have expressed about leaving abusive situations when they feel their pets are at risk. According to the Ohio Domestic Violence Network, in a 2012 study, "40 percent of domestic violence victims reported that their pets were killed, harmed or threatened." The bill is designed to provide greater security to victims and encourage them to seek help.

The bill has been sent to Governor Kasich, who is expected to sign it.

For more information about this, see the Ohio Legislative Service Commission's analysis of the bill.

Ohio bill protecting elderly and other wards unlikely to pass this year

Ohio House Bill 624, which we discussed back in October, has hit a stumbling block in the Ohio legislature, the Columbus Dispatch reports. The bill, proposed by Rep. Dorothy Pelanda (R) in September, would establish a bill of rights for wards in guardianship situations in Ohio and require that probate courts provide a guardianship guide to guardians that includes the enumeration of those rights. The bill was designed to protect the elderly, individuals suffering from mental illness and other wards from abuse and neglect by guardians. It was set to go to a floor vote last Friday, but was referred back to committee by House leadership when legislators received a letter from anti-abortion group Ohio ProLife Action in opposition to the bill.

The group takes issue with the language in the bill of rights of wards that provides the rights to “privacy of the body,” to “procreate” and to services “suited to the ward’s needs and conditions,” alleging that it may allow underage wards to request an abortion and prevent the guardian from refusing. According to the Dispatch, Ohio law does not differentiate between wards that are minors and those over 18, so legislators wanted to craft language in this bill that would apply across the board, including the many adults in guardianship situations who are elderly or have mental health issues.

At this point it seems unlikely that a modified bill would pass this year, as the legislature is set to finish working on legislation this week, and there is likely to be some debate about whether and how the bill should be amended. The Dispatch reports that the executive director of the Ohio Disability Rights Law and Policy Center has expressed "grave concerns" about changes to the bill at this late time and has said that "the bill represents the consensus of a wide variety of groups that testified in favor of it, and it should not be rewritten without their input."

Rep. Pelanda states that she will introduce a bill next year if this one is not passed. Attorney General Mike DeWine, whose office would create the guardianship guidebook the bill requires, has expressed continuing support for the legislation.

Immigrant children in Ohio courts

The December 2014 issue of CNO Review features an article about unaccompanied minors in the U.S. and how they interact with the Ohio court system. According to the article, with the recent arrivals of significant numbers of unaccompanied minors at the border, Ohio has seen over 500 placed within the state between January and September 2014. Even before the influx of children at the border and President Obama's executive order for immigration action last month, however, immigrant children were present in Ohio and interacting with Ohio courts through a special immigration remedy called Special Immigrant Juvenile Status (SIJS).

Designed to help children who have been abused, neglected or abandoned, SIJS is somewhat unique in that it requires state courts to be involved in the process of a child obtaining immigration status. According to the USCIS, a family or juvenile (or similar) court must find that the child cannot be reunited with a parent due to abuse, neglect or abandonment and that it is not in the child's best interest to be returned to the home country. The court must also find the child dependent, or legally order him or her to be placed with a state agency, a private agency or a private person. The child then may be able to apply for SIJ status, as long he is under 21, still within the jurisdiction of the court (unless he aged out through no fault of his own), is unmarried and is still living in the U.S. Children who obtain SIJS may then be eligible to apply for a green card.

The article quotes several family, juvenile and probate court judges who have seen many immigrant children in their courtrooms and expressed concern for their well-being and best interest. Judge Terri Jamison of Franklin County Domestic Relations and Juvenile Court divisions stated, “We must use the standard that it is not in the child’s best interest to be returned to their country, and in the cases I’ve seen it is in their best interest to stay here in order to keep them from being taken advantage of." Lorain County Domestic Relations/Juvenile Court Judge Debra Boros also raised the issue of notifying the absent parent of proceedings, which can be challenging when that parent is in another country.

According to the article, with increasing numbers of immigrant children in the state, awareness initiatives and education about issues surrounding immigrant children and immigration remedies are becoming increasingly in-demand. The Ohio Judicial College has already addressed some of the related custody issues in a webinar in November, and will likely present more on this topic in the future.

Ohio drones in the news

The Columbus Dispatch reports that the defense bill passed last week by the U.S. House of Representatives contained provisions that would facilitate Ohio's plans to "become a hub for unmanned aerial vehicles." According to the Ohio Department of Transportation, Ohio Governor John Kasich and Indiana Governor Mike Pence created the joint Unmanned Aircraft Systems Center (UASC) in 2013 by joining together several existing facilities across the two states in order to accomplish research goals related to unmanned aircraft, or drones.

Per the Dispatch, the provisions in the defense bill will aid in the work of the UASC by clarifying how special-use airspace, such as that above Indiana's Camp Atterbury, can be used. This measure is a small part of a large defense bill which is expected to pass in the Senate this week.

On a smaller scale, drones are making local headlines, as the Hamilton County Sheriff's Department will be purchasing a small Phantom 2 drone to aid in police work. According to the Cincinnati Enquirer, sheriff's spokesperson Mike Robison has stated that the drone will only be used "to take aerial photos of crime scenes and traffic accidents," and that it would not fly above 400 feet or in heavily populated areas. The Sheriff's Department would have to obtain a waiver from the FAA if it were to exceed this altitude limitation or fly in more populated spaces. According to the article, County Commissioners Todd Portune and Greg Hartmann support the decision to acquire a drone, which would cost about $800, as long as it is used properly.

Privacy rights advocates have expressed concerns about drones and whether police will overstep boundaries in using them. The article quotes Bill Gallagher, a Cincinnati attorney and past president of the Greater Cincinnati Criminal Defense Lawyers Association, who says that the use of drones is a "slippery slope" and that he fears that "the use is going to be expanded the same way every other tool they’ve asked for has been expanded." Gallagher draws parallels with the debate over the National Security Agency collecting emails without warrants as a cautionary statement about law enforcement and the potential abuse of technology. County officials state that they will monitor the use of the drone to ensure that the department does not expand its operation without discussion.

Ohio does not currently have any laws regulating the use of drones. Ohio House Bill 207 was introduced in June 2013 to address some of these issues. The bill was amended in committee in May 2014, but no further action has been taken at this point.

Greenpeace protesters to take plea deal

Activists with Greenpeace who staged a protest at Procter and Gamble's headquarters in Cincinnati last March will accept a plea deal that reduces their felony charges to criminal trespassing, the Cincinnati Enquirer reports. The reduced charge is a fourth degree misdemeanor and carries a maximum jail sentence of 30 days and maximum fine of $250. 

All eight of the defendants had originally been charged with vandalism and burglary, both felonies. Seven of them are now scheduled to enter pleas on December 12 before Judge Robert C. Winkler in the Hamilton County Court of Common Pleas. One of the defendants had already pleaded guilty to the lesser charge of breaking and entering, but had not yet been sentenced. He will also appear in court on December 12, and the court's docket indicates he may withdraw his plea at that time, presumably to accept the same plea deal as the other defendants. Initially there were nine defendants involved in this case, but one of the activists allegedly involved in the act died in October. 

According to a report in USA Today from March 2014, the activists allegedly entered the P&G facility working in two teams. One team went into the north tower and the other to the east. They broke locks to open windows and ziplined down the buildings, unfurling large banners protesting P&G's environmental practices. They also ran a zipline between the buildings where one of the activists dangled, dressed in a tiger costume. They were arrested within two hours of the demonstration. 

The activists were protesting P&G's practice of purchasing palm oil from certain suppliers that they alleged were destroying the rainforest and thus harming the animals who live there. The Enquirer reports that since the protest P&G has stated that it will strengthen its policies with respect to palm oil suppliers and the environment. P&G also urged prosecutors in the case to offer lesser charges to the defendants after discussions with Greenpeace.

For court docket information in this case, see this summary from the Hamilton County Clerk of Courts. 

Cincinnati must pay Duke Energy's relocation costs for streetcar project, rules Ohio court

A Hamilton County Common Pleas judge ruled on Tuesday that the City of Cincinnati must pay the costs for moving Duke energy's lines when building the infrastructure for the streetcar, according to an article in the Cincinnati Business Courier. In his decision granting summary judgment to Duke Energy, Judge Stich found that in order for Duke to be responsible for the costs of moving the lines the project would need to "bear a substantial relation to the public health, safety, morals or general welfare." The judge found that the streetcar project served the proprietary function of economic development and did not meet these requirements, which would have forced Duke to absorb the costs.

The Business Courier reports that Stich relied on precedent from a 1955 Ohio Supreme Court case, Speeth v. Carney, which held that transit systems owned by the government, such as the streetcar, serve a proprietary function and not a government one. Judge Stich wrote, "If the government is obligated to pay utility relocation costs resulting from construction of a proprietary public utility, and if a public transit system is a proprietary utility, then the City is obligated to pay Duke's relocation expenses resulting from construction of the streetcar."

The Judge also rejected the City's argument that expired franchise agreements with Duke Energy's predecessors made Duke responsible for relocation costs, holding that if the parties had wished to continue with franchise agreements to govern their relationship they could have entered new ones or extended existing ones when they expired. Additionally, the Judge found that the expired agreements did not contain language about relocation costs and thus wouldn't have impacted the case.

The City plans to appeal the decision. Former City Solicitor John Curp supported the City's position in a later interview with the Business Courier, stating that the Speeth case was "an anachronism to a bygone era where private companies ran public transportation," and that, "No one mistakes public transportation as a proprietary, money-making venture." Curp cautioned that continued reliance on the case could be problematic for many government endeavors, stating, "Nearly every government project is justified as an economic development project. If applied more broadly, this decision could add significant costs to local government infrastructure projects."

The Business Courier reports that the additional costs for the project will be $15 million, which the City already has in an escrow account set aside for this issue.

For more information about the case, see the case history from the Clerk's office, here.

SCOTUS hears Facebook threats case; Chief Justice quotes Eminem

The U.S. Supreme Court heard arguments on Monday about a relatively novel topic: threats on Facebook.  SCOTUS Blog reports that the case involved posts by Anthony Elonis, a Pennsylvania man whose wife left him in 2010, taking their two children. Elonis began posting on Facebook, making threatening and violent statements in the form of rap lyrics. These often referred to his ex-wife. Elonis also made statements about shooting up a kindergarten class and detonating a bomb strapped to his body. He made the latter post after the FBI had visited him about his prior threatening statements. The FBI then arrested him and charged him with violating 18 U.S.C. § 875(c), which makes it a crime to threaten to injure another using avenues of interstate commerce.

Elonis was convicted of violating this statute and appealed. Elonis argues that the standard the trial court applied when evaluating his conduct under this statute was incorrect. The lower court had instructed the jury to use a reasonable person standard, which meant that if a reasonable person reading Elonis' posts would believe that they were intended as threats he must be convicted. Elonis claims that the correct standard would have been a subjective one and that the court should have determined whether he personally had the intent to threaten when he made those posts.

According to the New York Times, the Supreme Court has held that "true threats" are not protected speech under the First Amendment, but there has not been significant guidance about what this means. At issue on appeal is Elonis' claim that the First Amendment requires the subjective intent test be applied to his posts to analyze whether they amount to true threats. The Court will also analyze the meaning of the statute, and whether it requires subjective intent. According to another SCOTUS Blog post, if the Court were to find that the statute itself required intent, then they would likely sidestep the First Amendment issue, because Elonis would most likely have a new trial on remand.

The case could potentially have a wide-ranging impact on a broad spectrum of internet users. This ranges from domestic violence victims, who could benefit from greater protections offered by the standard employed by the government in this case, to artists and musicians, whose ability to freely post materials and song lyrics may be limited if the government were to prevail. The New York Times reported that Chief Justice John Roberts emphasized the impact that this might have on musicians during oral arguments on Monday by quoting lyrics to Eminem's "'97 Bonnie and Clyde" from the bench and inquiring whether the rap artist could be prosecuted for that song, which includes violent imagery that appears to be about his ex-wife.

WestlawNext will replace Westlaw Classic in January

Westlaw Classic is currently being phased out by Thomson Reuters and will be replaced by WestlawNext at the Hamilton County Law Library in January. We are excited to continue to offer Westlaw services to our subscribers with the same coverage as our existing subscription in a new and updated format. In order to ease the transition for you we will be offering a CLE on WestlawNext on January 16 at 12pm at the law library. As usual, the CLE will be offered free to subscribers and for a fee to members of the public.

Some resources that may help with the transition to WestlawNext include the following written guides published by law libraries:

• University of Memphis Humphreys School of Law WestlawNext Patron Access Guide
• Indiana University Maurer School of Law WestlawNext Guide
• Hamilton County Law Library WestlawNext Tech Tips

And the Thomson Reuters site, where both videos and written user guides are available:

• WestlawNext tutorials and user guides

If you are interested in registering for the CLE or have questions for the librarians please feel free to call us at 513-946-5300 or email us at reference@cms.hamilton-co.org.

Legal Aid of Western Ohio launches new chat service

Legal Aid of Western Ohio (LAWO) has launched a new interactive chat service that connects eligible low-income clients with volunteer attorneys in an online platform, according to Court News Ohio. Residents of the northwest and west central counties served by LAWO who are otherwise eligible for legal services can now chat with attorneys online to receive brief  advice and counsel about their particular civil legal problems at no cost. Court News Ohio reports that the legal issues covered by the LiveChat service currently include "eviction from private housing, assistance with housing conditions, return of a security deposit, debt collection, or car repossession."

In order to use the LiveChat services an individual must reside in one of the 32 county area covered by LAWO, meet income guidelines, and have access to a computer with internet access. Potential users must fill out an application at www.legalaidline.org or by calling 888.534.1432 before accessing the service.

According to the article, the new program will help ameliorate some of the need for legal services in Ohio by connecting people to volunteer attorneys for brief advice and counsel. It will also provide volunteer opportunities for attorneys interested in pro bono work.

Attorneys who would like to provide volunteer hours on the LiveChat service should contact LAWO Pro Bono Director, Melissa LaRocco at 877.894.4599 or 419.390.2479 or by email at probono@lawolaw.org

LAWO serves residents of Allen, Ashland, Auglaize, Champaign, Clark, Crawford, Darke, Defiance, Erie, Fulton, Greene, Hancock, Hardin, Henry, Huron, Logan, Lucas, Mercer, Miami, Montgomery, Ottawa, Paulding, Preble, Putnam, Richland, Sandusky, Seneca, Shelby, Van Wert, Williams, Wood, and Wyandot counties.

Suit alleges juvenile detentions without probable cause in Hamilton County violate constitutional rights

The Children's Law Center of Covington filed a complaint against Hamilton County Juvenile Court officials in federal court this week, alleging that the court's practice of detaining children without first finding probable cause violates their constitutional rights. The Cincinnati Enquirer reports that the suit was filed in the U.S. District Court for the Southern District of Ohio on Sunday on behalf of two minor plaintiffs who were detained in separate cases for multiple days without any finding of probable cause. One plaintiff, S.W.,was held in the detention center for 30 days without a probable cause hearing before ultimately having the case dismissed on the merits after a trial. The other, L.D., suffers from developmental delays and was held for 15 days before adjudication with no finding of probable cause. He was ultimately found delinquent on a lesser charge and sentenced to 6 months of house arrest.

According to the complaint, the Chief Deputy Clerk at the Juvenile Court issues arrest warrants for juveniles without making a finding of probable cause. The Enquirer explains subsequent practices of the County in these cases. After arrest, detention center officials assess and determine whether the child should be detained using factors such as "previous history, current emotional state, statements or interviews or whether there is a risk of self-harm or harm to others." They do not make a finding of probable cause. Ohio law requires that the juvenile have a hearing before a judge or magistrate within 72 hours of detention to determine whether they should remain in detention. This also does not involve a determination of probable cause. The case is then scheduled for another hearing, which must be held within 10 days of detention, or up to 14 for good cause, according to the complaint.

The suit specifically names as defendants Judge John Williams, Administrative Judge to the Hamilton County Juvenile Court; Dwayne Bowman, Superintendent of the Hamilton County Juvenile Court Youth Center; and the Hamilton County Board of Commissioners. The complaint acknowledges that the Ohio Rules of Juvenile Procedure do not specifically require a probable cause determination before an arrest or detention, but asserts that Ohio law requires that detention of a juvenile must be "constitutionally valid." The complaint alleges that the practice of arresting and detaining juveniles without a probable cause determination does not meet this requirement, as it violates both due process rights under the 14th Amendment and the Ohio Constitution, and the 4th Amendment's ban on warrantless searches and seizures.

Plaintiffs further allege that this practice disproportionately impacts African-American children, citing statistics from the Ohio Department of Youth Services and the U.S. Department of Justice that indicate that African-American children were both arrested and detained significantly more than white children in Hamilton County for the years of 2011-2013.

Plaintiffs are seeking to certify the case as a class action, with the class defined as "all children who have or will in the future be arrested on the basis of warrants and those who are or who have been detained at the Detention Center without a probable cause determination." They are requesting injunctive relief to change the practices of the Hamilton County Juvenile Court and are not seeking monetary damages.

The Enquirer reports that Plaintiffs' attorney, Rickell Howard, stated that these protections are provided for adults and should also be extended to children in the justice system. The Juvenile Court administrator stated that they were still reviewing the case and had no comment at this time.

Proposed Ohio bill would require BB guns, air guns to be brightly colored

According to Cleveland.com, Ohio State Rep. Alicia Reese (D-Cincinnati) will be introducing a bill to require certain toy and imitation firearms sold in Ohio to be "brightly colored or have prominent fluorescent strips." This would apply to all BB guns, air rifles and airsoft guns. The proposed legislation is being offered in response to two shooting deaths in Ohio this year where police officers shot individuals who were holding these types of toy guns, mistakenly assuming that they were brandishing weapons.

The first case involved 22-year-old John Crawford who was shot by Beavercreek police while holding an air rifle in a Walmart store in August. The Cincinnati Enquirer published a story with the details of the case in September. Crawford later died from his injuries. The second case involved the fatal shooting of 12-year-old Tamir Rice by Cleveland police on Saturday. Rice had pulled an airsoft gun from his waistband outside a recreation center and a Cleveland police officer shot him. The gun's orange tip indicating that it was a toy had been removed. According to an article on Cleveland.com, Cleveland police confirmed that Rice had not threatened police or anyone else with the gun. Another article from the site describes the shooting and investigation in greater detail, here.

A few other states already have laws that place limitations on the sale of toy guns. According to the Cleveland.com article first referenced above, California has recently passed a bill requiring that all toy and replica guns be brightly colored. Arkansas also has a law prohibiting the sale of certain types of imitation firearms, and Atlantic City New Jersey's city council has instituted a ban on the sale of "realistic toy guns." While federal law requires that toy and imitation firearms be sold with orange tips in the barrel, these can be easily removed or painted after purchase, and Ohio does not currently have any additional restrictions on these type of firearms to make them more identifiable.

The legislation will be introduced in the coming weeks and then reintroduced in the 131st General Assembly in January.The president of Cleveland's police union expressed concerns about the proposed legislation, claiming that criminals may try to mask real weapons by painting them to look like toys. He asserted that the police would still treat even the brightly colored guns as a serious threat.

Rape convictions overturned based on improperly admitted evidence

The Supreme Court of Ohio ruled last week that when evidence of other bad acts is improperly admitted at trial an appeals court must evaluate both the impact that the evidence had on the outcome of the case, and the strength of the remaining evidence in determining whether to uphold a conviction. The case before the court involved defendant Carl Morris who was convicted on two counts of raping his minor stepdaughter in 2009. At trial, in addition to testimony by the stepdaughter (S.K.), the court admitted testimony from her sister that Morris had made advances on the sister as well, and testimony from S.K.'s mother that Morris would kick the family dog if the mother refused his sexual advances.

Morris was convicted and appealed to the Ninth District Court of Appeals, which found that this evidence was not properly admitted under Ohio Evid. R. 404(B) as it could not be admitted to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The state appealed to the Ohio Supreme Court, which overturned the decision of the Ninth District, holding that the appellate court should have applied an abuse of discretion standard instead of reviewing the evidence de novo. On remand the Ninth District again reversed Morris' conviction, finding that the trial court abused its discretion in admitting the evidence and that the court could only find that the evidence admitted was harmless if it could do so beyond a reasonable doubt. The state appealed again to the Ohio Supreme Court.

The Court examined the language of Ohio Crim. R. 52(A) (the harmless error rule) and found that when evidence is improperly admitted, a court must determine whether the evidence impacted a substantial right of the defendant. The Court held, "And so the real issue when Evid.R. 404(B) evidence is improperly admitted at trial is whether a defendant has suffered any prejudice as a result. If  not, the error may be disregarded as harmless error." Justice Lanzinger, writing for the majority, laid out a three factor analysis for cases where this type of evidence is improperly admitted:

"First, there must be prejudice to the defendant as a result of the admission of the improper evidence at trial... Second, an appellate court must declare a belief that the error was not harmless beyond a reasonable doubt... Third, in determining whether a new trial is required or the error is harmless beyond a reasonable doubt, the court must excise the improper evidence from the record and then look to the remaining evidence."

The Court deferred to the opinion of the Ninth District, which found that the erroneously admitted evidence was inflammatory and the remainder of the case was weak, and affirmed the decision to vacate the conviction and order a new trial.

Justices O'Connor, Pfeifer and O'Neill concurred with the majority. Justice Kennedy penned a dissent, joined by Justice French. Justice O'Donnell also presented a dissenting opinion in the case.

For more information about the case see this article from Court News Ohio and the Ohio Supreme Court docket for the case.

Updates: Planned Parenthood to stay open and H.B. 663 passes House

Some updates from previous posts for you on this Monday morning:

Planned Parenthood
The Cincinnati Enquirer reports that the Ohio Department of Health has granted a variance to Planned Parenthood of Southwest Ohio, allowing their Mt. Auburn clinic to remain open. As we discussed on November 14, Planned Parenthood does not have a transfer agreement with a local hospital to transfer patients in the event of an emergency situation. While the clinic formerly had an agreement with U.C. Medical Center, a law passed in 2013 outlawed transfer agreements with public hospitals.

Planned Parenthood was unable to secure a new agreement with a private hospital, largely because most local private hospitals are religiously affiliated. In lieu of this agreement, Planned Parenthood has partnered with four doctors who have agreed to see patients at local hospitals should an emergency arise. The law permits the ODH to grant an exception to the transfer agreement requirement if alternative arrangements such as this are made. Planned Parenthood had requested this variance, but when ODH failed to act and threatened to revoke their license, they filed suit in federal district court in Ohio. ODH subsequently granted the variance, and Planned Parenthood has dismissed their suit.

H.B. 663
The Columbus Dispatch reports that Ohio House Bill 663, the bill that would grant anonymity to manufacturers of execution drugs and other individuals involved in Ohio's execution process, passed the Ohio House on Thursday. We discussed this bill in detail last week. Opponents of the bill cite concerns with its constitutionality, particularly the limits it imposes on courts, as even a court order cannot override the anonymity the bill confers. The bill will now be taken up in the Ohio Senate.

Details of the President's immigration action plan

Last night, President Barack Obama announced that the White House would be taking executive action to attempt to overhaul the immigration system in the United States. The New York Times reports that this immigration action plan would potentially offer protection from deportation to up to 5 million undocumented immigrants. The action is controversial, as Obama is acting unilaterally in this matter, in response to Congress' failure to pass comprehensive immigration reform. President Obama urged those in Congress who opposed him to "pass a bill."

The New York Times offers a concise description of the President's plan, which does not include a way to obtain full legal status or eligibility for ACA benefits. The Times article describes who would be impacted, why the President is taking this action now and how Americans feel about the issue. The Department of Homeland Security lays out each aspect of the plan, here. Some details include:

Strengthening Border Security: The DHS will commission three task forces comprised of individuals from different law enforcement agencies to provide border security. One will focus on the southern ocean-based border, another the southern land border and the third on providing support and investigations for the other two. DHS will also continue providing the additional resources that it began supplying in response to the influx of children at the border this summer, such as additional ICE and Border Patrol agents.

Revising Removal Priorities: The DHS will now prioritize removal of illegal immigrants in the following order:
(1) Individuals who are threats to national security, convicted felons, gang members, and individuals caught at the border while entering the U.S. illegally.
(2) Individuals convicted of "significant or multiple misdemeanors" and individuals who entered or reentered this country illegally after January 1, 2014, but were not caught at the border.
(3) Individuals who have not been convicted of a crime, but who have disobeyed a removal order issued on or after January 1, 2014.
*People who entered the U.S. illegally before January 1, 2014, who have never disobeyed a removal order and have never been convicted of a "serious offense" will not be priorities for removal.*

Expanding Deferred Action for Childhood Arrivals (DACA): Previously, individuals who were born after June 15, 1981,who entered the U.S. before June 15, 2007 and were under 16 when they entered were eligible to obtain deferred action. This has now been expanded. Now to qualify for deferred action under this program an individual must have entered the U.S. before they turned 16 and before January 1, 2010. Deferred action (deferrals of deportation) will now be granted for three years instead of two. This will continue to include work authorization.

and,

Extending Deferred Action to parents of U.S. Citizens and Lawful Permanent Residents: Individuals who meet all of the following criteria will be eligible for deferred action and work authorization:
1. Individuals who are not a removal priority (see above),
2. Who have been in the U.S. for at least 5 years,
3. Who have children who are currently U.S. citizens or lawful permanent residents, and
4. Who do not have other factors that make deferred action inappropriate.
These individuals must also pass a background check. There will be a fee to apply for work authorization.

This is not a complete list of all provisions, but a summary of some. For a complete list, visit dhs.gov.

Man wrongfully convicted of murder freed after 39 years in prison

Ricky Jackson, who was convicted of murder in 1975, will be leaving the Cuyahoga County Justice Center as a free man today, the Cleveland Plain Dealer reports. Jackson spent 39 years in jail for the crime, which involved the robbery and murder of a money order salesman. His conviction was largely based on the eyewitness testimony of Eddie Vernon, who was 12 years old at the time the crime took place. Vernon, now 53, recently recanted his testimony, stating that he had lied about everything he had told police at the time.

Vernon had told police that Jackson and two other men, Wiley and Ronnie Bridgeman, were responsible for the crime. In coming forward, Vernon claims that all of the descriptive information he gave to police was fed to him, and that detectives had told him that if he disclosed what he had done, they would imprison his parents for perjury, according to the Plain Dealer. Vernon testified at a hearing on Monday that he was on a bus with other children when he heard the gun shots. The bus was near the location of the shooting, but not in a place where Vernon could see anything. Others on the bus corroborated this.

Vernon had gone to police on a friend's word with the intent to help authorities and things spun out of control, the Plain Dealer reports. Jackson and the Bridgemans were convicted for the murder based on Vernon's testimony. No other evidence tied them to the crime. After Vernon recanted his testimony on Monday, the Cuyahoga County Prosecutor conceded that they no longer had a case against Jackson and dismissed the case. 

Jackson was represented by Mark Godsey and Brian Howe of the Ohio Innocence Project. The case was formally dismissed by Judge McGonagle of the Cuyahoga Common Pleas Court this morning. The case against Wiley Bridgeman was dismissed two hours later, NewsNet5 of Cleveland reports.

Ohio's ignition-breathalyzer bill fails

An Ohio bill that would have required first time DUI offenders to have an ignition interlock device installed in their vehicles has failed in committee in the Ohio legislature, the Cincinnati Enquirer reports. H.B. 469, which we discussed in September, would have required the installation of a breathalyzer device on an offender's ignition. A driver would have to blow into the the device to start the car, which would prevent the engine from starting if too much alcohol was detected on his or her breath.

According to the Enquirer the bill faced opposition from the Ohio Judicial Conference and the Ohio State Bar Association. Chief worries about the bill included issues of restricting judicial sentencing discretion and a concern that the mandatory penalty would cause more cases to go to trial, creating a burden on Ohio courts. Ohio DUI laws currently allow a judge to order an ignition interlock device for a first-time offender, but do not require it. The devices do become mandatory if an offender is convicted a second time in six years. H.B. 469, or "Annie's Law," so-named for an attorney who was killed by a drunk driver in 2013, would have removed a judge's discretion in sentencing first-time offenders, requiring them to impose the ignition interlock penalty for any case in which they granted driving privileges.

According to the Enquirer, although the bill was expected to come up for a vote in September, opposition by the Judicial Conference caused it to be pulled from the agenda of the House Judiciary Committee. Rep. Gary Scherer, R-Circleville, one of the bill's co-sponsors has now confirmed that the bill is dead, stating that despite "major concessions," the Ohio Judicial Conference still objects to the bill.

Ohio bill shields identities of execution drug manufacturers, others involved with executions

The Columbus Dispatch reports that a bill was introduced in the Ohio House last week to shield the identities of anyone who makes or sells Ohio's execution drugs, as well as anyone who participates in executions performed by lethal injection. HB 663 also offers protection to doctors who provide expert testimony about the death penalty, prohibiting the medical licensing authority from revoking medical licenses of doctors who offer this testimony. It also voids contracts that prohibit the sale of lethal injection drugs to the state, according to the Cleveland Plain Dealer.

The General Assembly found that these measures were necessary to protect these parties to the execution process from "harassment and potential physical harm," and that the department of rehabilitation and correction could not carry out death by lethal injection without providing these protections. According to the Plain Dealer, Ohio ran out of its usual lethal injection drug, pentobarbital, last year and has had trouble securing more since European manufacturers have started refusing to sell it to the U.S. for use in executions. Since then, Ohio has been using a controversial drug cocktail of midazolam and hydromorphone, which has potentially caused significant problems with executions in both Ohio and Arizona, and is currently being challenged in federal court. We discussed some issues related to this in August.

As an alternative to this drug combination Ohio may be able to obtain pentobarbital from smaller compounding pharmacies that could make it to the state's specifications. The bill is designed to protect these pharmacies, along with other parties to the execution process, from public reprisals.

According to the Dispatch, critics of the bill include "the Ohio Public Defender, the American Civil Liberties Union of Ohio, the Ohio Newspaper Association (and) Statehouse Democrats..." Opponents cite constitutional concerns with several aspects of the bill, particularly the language that prohibits the disclosure of execution drug information to courts, which, as First Amendment attorney John Greiner claims, may abrogate the powers afforded to courts under the Ohio Constitution. The Plain Dealer also notes that the Ohio Legislative Services Commission raises the issue of whether the bill's ban on contracts prohibiting the sale of the execution drugs violates the Contract Clauses of both the U.S. and Ohio Constitutions.

The bill is still in the Ohio house, where it is expected to be amended in committee proceedings today. For more information about this, see the full text of the bill and the Ohio Legislative Service Commission's analysis.

Opposing viewpoints on Ohio judicial selection: Should the system change?

In light of the recent elections in Ohio where only 70 out of 225 judicial races were contested, debate has resumed on a topic that frequently comes up post-election: How should Ohio select its judges? Cleveland.com has offered opposing viewpoints on this issue in the form of editorials from the community.

David Owsiany, President of the Ohio Dental Association argues that Ohio should continue its current scheme of electing judges, wherein judges are selected by voters in partisan primaries and then elected in nonpartisan general elections. Owsiany points to the will of the people of Ohio, citing times throughout the years when the state has considered changing the system of selecting judges to no avail. Owsiany criticizes a merit-selection form of selecting judges, claiming that politics still influences who is selected, and that decisions about judgeships are often made without public scrutiny. He concludes that because judges are frequently deciding significant issues related to Ohio law, that a large majority of Ohioans favor continuing to elect their judges under the current scheme.

Nancy Brown, President of the League of Women Voters of Ohio, advocates for a change in the process of selecting judges. Brown suggests an appointment-retention election system, wherein candidates would be appointed and then run in retention elections after a year or two in office so voters could decided whether or not they could remain in this role. Under this plan a nonpartisan commission would vet judicial candidates before appointment by the governor in a public process designed to determine whether the candidates are qualified for office. Before retention elections, a public body would conduct judicial performance reviews to inform the electorate about how the judge has performed his duties since appointment. Brown argues that this system would help give the public more of a voice in the process of electing judges because so many judicial races are currently unopposed and voters have no choice as to whether those judges will be reelected.

Reading the tea leaves: The interesting practice of predicting Supreme Court opinions

Fivethirtyeight.com has recently taken a look at the various methods of predicting Supreme Court opinions. Because there are no polls to consult and Supreme Court opinions are complex, making a prediction about how the Court will rule is much more complicated than simply calling an election. There are currently several different models for making these predictions, including complex computer algorithms, high-level statistical analysis, a crowd-sourced prediction machine called FantasySCOTUS and plain-old human predictions by people with varying degrees of legal knowledge.

Most of the methods the article references have had a success rate that hovers somewhere between 70-80%. Statistical analysis using a "classification tree" method, which pulled data from ten years of prior cases had about a 75% success rate for the 2002-2003 SCOTUS term, while a poll of expert law professors was about 59% accurate for that same time period. These predictions were compiled and analyzed in a 2004 study, undertaken by academics in the legal and political science fields.

Josh Blackman, a law professor at South Texas College of Law has participated in the creation of two Supreme Court predictor models. Blackman, along with two colleagues, created a computer model called {Marshall}+ that makes predictions based on over 60 years of precedent data. This model has been about 70% accurate. Blackman is also the force behind FantasySCOTUS.com, which is a website designed in the vein of fantasy sports. Players choose which justices will decide which way in certain cases and earn points for their accuracy, providing incentive for them to get it right (especially this year, when Thomson Reuters has put up a $10,000 prize). This model has also had about a 70% accuracy rate among serious players.

Interestingly, one of the more successful predictors is Jacob Berlove, a Cincinnati native currently residing in Queens, NY, who has no formal legal training. Berlove became interested in the SCOTUS while reading the Cincinnati Enquirer as a child. He has studied past Supreme Court decisions and closely follows oral arguments, analyzing both the style and content of the justices questions and comments to make his predictions, and has had about an 80% success rate in predicting the outcomes of cases. Berlove has also won the FantasySCOTUS three years in a row.

Fivethirtyeight.com offers a breakdown of predictions from various sources for both the October and November sessions of the Court. Although many of the sources have similar levels of demonstrated accuracy, there is not necessarily much agreement about which cases will turn which way, at least for the October session.

Casino employee who took a can of Red Bull without paying should not have had gaming license revoked, rules Eighth District

The Eighth District Court of Appeals found recently that an employee of Cleveland's Horseshoe Casino who took a can of Red Bull without paying for it while on a break from work should not have had his gaming license revoked as a result. The case involves Anthony Zingale, who was a dealer at a high-limit table at the casino. While on a break he visited the employee dining room where he used his employee card to purchase a can of Red Bull and then voided the sale. When confronted by his supervisors Zingale stated that he must have inadvertently voided the sale and offered to pay for the beverage. The supervisors refused to accept payment and assured Zingale that this would likely not be a problem. Zingale was subsequently fired from the Horseshoe Casino.

The Casino Control Commission then sent Zingale a notice that they intended to revoke his gaming license because he had taken the Red Bull and had not notified the Commission that he had been fired. The notice gave him an opportunity for a hearing. After the hearing, the examiner recommended that the Commission take administrative action against Zingale, and the Commission decided to revoke his license. Zingale appealed to the Court of Common Pleas, which affirmed the decision without written opinion. Zingale then appealed to the 8th District.

The 8th District reversed the decision of the lower court, finding that the examiner had incorrectly shifted the burden of proof to Zingale and improperly applied a statute to him that was meant for new applicants for gaming licenses. The examiner had found that Zingale's actions were "a failure of good behavior," and that he did not show by clear and convincing evidence that he should be permitted to keep his license. In order to be able to revoke his license, the Commission modified the finding (which they were allowed to do under the law) to indicate that Zingale had engaged in unsuitable conduct, stating that “Zingale failed to establish by clear and convincing evidence that he remains suitable for licensure as a casino gaming employee, as required by R.C. 3772.10.”

The 8th District found that shifting the burden of proof to Zingale done by both the examiner in the original case and the Commission in the modified opinion was incorrect and that it was up to the Commission to prove that he was no longer suitable to hold his existing gaming license by a preponderance of the evidence. Zingale only would have been responsible for proving that he was suitable for the license if he was a new applicant, not simply for keeping his license. The Court found that this was not harmless error, as the Commission contended, because Zingale lost both his job and his ability to find casino gaming employment anywhere else in Ohio.

In the original opinion, the examiner had recommended that the Commission take "administrative action" against Zingale for his actions. The Commission modified this and ordered that Zingale's license be revoked. While O.R.C. 119.09 allows the Commission to modify the decision, the language of the statute also requires that they provide reasons for the modification. The Court found that no reasons for the modification were given and so it was improper.

The Court reversed the decision of the trial court and ordered the case to be set for a new administrative hearing.

For more information about this case see this article from Court News Ohio and this from the Cleveland Plain Dealer.