Contention of Drilling Rights vs. Home Rule Jurisdiction

 In its hearing  State ex rel. Munroe Falls v. Beck Energy Corporation last Wednesday, a Cleveland Plain Dealer article professes the Ohio Supreme Court not only decides oil and gas drilling rights in the Summit County community of Munroe Falls, but larger consequences for the rest of the state.

  “At issue,” the Plain Dealer relates, “is whether zoning rules and other laws enacted by communities are trumped by an Ohio law that gives the state exclusive rights to regulate oil and gas drilling to ensure uniform regulation. (But) a half dozen other communities, including Broadview Heights, Euclid and North Royalton, have filed briefs with the court in support of Munroe Falls and its assertion of home-rule rights under the state constitution." ( See Court’s docket )

  “It’s not about fracking and it’s not about gas wells. It’s about home rule,” Munroe Falls Mayor Frank Larson told an interview Tuesday. “It’s not about oil and gas. It’d be simple if it was.”

  Munroe Falls sued in Summit County Common Pleas Court after the state issued Beck Energy Corp. a drilling permit, the city contending that Beck was violating local laws -- a zoning ordinance and four drilling provisions – that conflicted with the state statute. The Summit County court sided with the city in 2011, the article reported,  but Beck Energy got that ruling overturned on appeal -- The Ohio Ninth District Court of Appeals holding that the local zoning rules conflicted with the state statute, which gives the state “sole and exclusive authority” over oil and gas drilling across Ohio. ( District Court's ruling ) Munroe Falls appealed that ruling. (Memorandum in support of jurisdiction )

  On the other side of the case are Beck Energy and a local property owner who leased drilling rights to Beck. Joining them, are the state of Ohio, a host of oil and gas related organizations and business groups, including the Ohio Chamber of Commerce. (Memorandum in response )

 See also Court News Ohio’s recording of oral arguments here. 

Public Comment Sought on Amended Rules & Forms Concerning Judicial Consent to Minor’s Abortion

 The Ohio Supreme Court’s new service last Friday announced that “amendments are being proposed to rules and forms concerning judicial consent to an abortion by a minor without notification of a parent, guardian, or custodian.

   The changes will bring the rules in line with recent legislative changes, more specifically:

• Am. H.B. 63, passed Nov. 4, 2011, becoming effective Feb. 3, 2012, and requiring courts to find by “clear and convincing evidence” whether a minor is sufficiently mature and well enough informed to decide intelligently whether to have an abortion and whether the abortion is in the best interests of the minor. The new evidentiary standard being added to Sup.R. 23.1, Form 23.1-A, and Form 23.1-B. (See Legislative Service’s final analysis)

• Sub. H.B. 247, passed Dec. 12, 2012, and becoming effective Mar. 22, 2013, eliminating a juvenile’s ability to file a petition or application for an abortion in the juvenile court in the county where the abortion will be performed, the option being deleted from the instructions for Sup.R. 23 and Form 23-A, Sup.R. 23.1  and Form 23.1-A, and Sup.R. 24 and Forms 24-A and 24-B.  (See Legislative Service’s final analysis)

  Amendments to the Rules of Superintendence for the Courts of Ohio cover Sup.R. 23-25 and Forms 23-A through 25-A and can be viewed here.

  The Court will accept public comments until April 2, 2014, submitted in writing to:

                         John VanNorman, Senior Policy & Research                         Counsel
Supreme Court of Ohio
65 South Front Street, 7th Floor
                       Columbus, Ohio  43215-3431
or john.vannorman@sc.ohio.gov 
(include your full name and mailing                                       address in any comments submitted by                                  e-mail.

Ohio Supreme Court seeking comments on amendments to disciplinary rules & regulations

  The Supreme Court’s news service, Court News Ohio, Tuesday posted that “following a year-long review of disciplinary procedure rules and regulations of the Board of Commissioners on Grievances & Discipline, the board submitted proposed amendments to the Ohio Supreme Court for consideration. After reviewing the changes and voting to publish them, the Supreme Court will accept public comment on amendments to Gov.Bar R. V and the regulations until May 5.”

  In addition to clarifying and modernizing case-related procedures, several significant changes to the Supreme Court Rules for the Government of the Bar of Ohio have been proposed, including:

•  Updating the terminology relative to mental illness, mental disorders, and substance use disorders to reflect current, accepted medical standards;

• Allowing for the imposition of an interim suspension where a lawyer or judge is suffering from a medically recognized disorder that substantially impairs the performance of professional duties;

•Adopting a single standard of “confidential” as that term applies to the investigation of grievances and applying to disciplinary case documents the standards of public access that are applicable to trial and appellate courts

 A complete list of all amendments is available here.

 Comments should be submitted in writing by May 5, 2014 to:

Richard A. Dove,                                                                                     Secretary Board of Commissioners on Grievances and Discipline Ohio Supreme Court 65 South Front Street, Fifth Floor Columbus, OH 43215

or  rick.dove@sc.ohio.gov


The CNO also earlier reported that “The Court’s Board of Commissioners on Grievances & Discipline, which investigates and prosecutes complaints of misconduct by Ohio’s attorneys and judges, substantially reduced its active pending caseload for the second consecutive year according to a 2013 annual report released on Feb. 13th.”  Copies of that report are available here.

Ohio Supreme Court Taking Steps in Dealing with Judicial Emergencies

  Court News Ohio, the Supreme Court’s news service, announced yesterday that the Court was proposing changes to deal with judicial emergencies and the temporary relocation of courts in the state after questions arose from emergency-related events, such as the 2012 wind storm that closed the Logan County Courthouse, and whether current Ohio law and court rules adequately address such emergencies.

  Committee Chair Judge Scott Gwin said they were “looking at language that has essentially remained unchanged since Rule 14 was originally enacted in 1971 and the new rules would provide greater clarity for the powers and responsibilities of the Chief Justice during a judicial emergency.”

  CNO further reported that “as part of updating the rules, the Supreme Court will also be submitting proposed amendments to R.C. 1901.0211, 1907.0111, 2301.011, and 2501.04 to the Ohio General Assembly, providing courts specific authority and direction for temporarily relocating outside of the court’s territorial jurisdiction during a disaster, civil disorder, or any extraordinary circumstance that interrupts orderly operation of the court or division of the court within its territorial jurisdiction. Among the provisions in the proposed amendments:

• Allow the administrative judge of the court or division to issue an order authorizing
the court or division to operate at a temporary location either inside or outside its
territorial jurisdiction.

• Provide that while the court or division operates at the temporary location, it continues
 to have its normal territorial jurisdiction and has jurisdiction to hear actions and conduct
proceedings the same as if it were operating within its territorial jurisdiction.

 
   Complete text of the proposed rule amendments and statutory changes are available here.
   Written comments on Rule 14 will be accepted until March 19 and should be submitted to:
John VanNorman, Policy and Research Counsel
Supreme Court of Ohio
65 South Front Street, Seventh Floor
Columbus, OH 43215
or
john.vannorman@sc.ohio.gov 

Ohio Supreme Court finds offense classifications can be applied retroactively

   The Ohio Supreme Court last week found in answering a certified conflict between two of the state’s appellate courts that "a defendant may benefit from the decrease in a classification and penalty of an offense enacted by the General Assembly that becomes effective after the commission of the offense but before sentencing on that offense, concluding that the legislature in passing HB 86, which became effective September 30, 2011, intended to afford the benefit of a decreased theft offense classification to offenders." [State v. Taylor (Slip Opinion) Case 2012-2136, 2014-Ohio-460 on 2/13/2014]

  At issue in the case was ORC. 1.58(B), which specifies that if the penalty or punishment for an offense has been reduced by amendment of a statute, the reduced penalty or punishment shall be imposed unless sentence had been previously imposed.

  The Ninth District Court of Appeals in Summit certified a conflict between its decision in this case and decisions of the Fifth District Court of Appeals in Licking County in State v. Gillespie, 2012-Ohio-3485, 975 N.E.2d 492 (5th Dist.) and State v. David, 5th. Dist. No. 11-CA-110, 2012-Ohio-3984.

Capital Punishment Hurdles Update

  An NBC News article this morning says, referring to The Apothecary Shoppe of Tulsa, Oklahoma’s agreeing not to provide the state of Missouri with  made-to-order pentobarbital or any other drug for use in Michael Taylor's execution,  “represents a new roadblock to lethal injections — one that has some death penalty advocates saying states must come up with another method a squeamish public can stomach… Missouri insists it will still be able to impose the ultimate punishment on child-killer Michael Taylor next week, but the latest litigation underscores the growing difficulty states face in obtaining chemicals to use on death-row inmates.”

  “Until about 2010, most death-penalty states used a three-drug cocktail that was upheld as constitutional by the U.S. Supreme Court: the anesthetic sodium thiopental, the paralytic pancuronium bromide, and heart-stopping potassium chloride to stop the heart, causing death,” NBC recounts. “(But) in 2011, Hospira, the sole U.S. producer of sodium thiopental, stopped making the drug, and the European manufacturer balked at exporting it to the U.S. if it were to be used in executions… Manufacturers of substitute drugs like pentobarbital have also refused to supply it for executions, forcing states to turn to compounders, who mix specialty drugs from their basic components – which defense lawyers argue is illegal, claiming the lack of oversight prevents jailers from guaranteeing an execution won't be agonizing enough to violate the constitutional protection against cruel and unusual punishment…. They have attacked states' attempts to keep the names of the pharmacies secret — Georgia's highest court is set to decide soon whether it's legal.”

  In the case mentioned above, compounding pharmacy Apothecary Shoppe Monday settled a lawsuit against it by Taylor's attorneys, agreeing not to provide any drugs for Taylor's Feb. 26 execution. (CBS News has more here)

  Houston-based victim rights advocate who supports capital punishment Dudley Sharpe was quoted by NBC as saying, "I have been telling folks for years that this cat-and-mouse thing (in trying to obtain lethal solutions for executions) is going to become too exhausting for the states… They’re going to have to not just switch drugs, they’re going to have to switch methods.” He adds that while some lawmakers have already raised the spectre of a return to firing squads or electric chairs,  those methods are going to be seen as too "gruesome" for modern American sensibilities and will never come back.

    Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment, prophecised that “despite the problems, states are still figuring out a way to execute inmates…. They're creative " he said, suggesting that prisons may eventually create their own compounding pharmacies to ensure they're always stocked.

 "My sense is that as long as the death penalty is constitutional, there will be a way to carry it out. It won't be stopped because we just can't figure out a way to kill people."

Ohio’s execution quandary

  The Columbus Dispatch last Friday explored some rather "'unique circumstances' it says Ohio prison officials are facing for the first time in the 15 years since the state reinstated the death penalty, dealing simultaneously with legal issues from a past execution, one scheduled next month and one being held up over organ transplants – with the outcome of each case potentially being critical to the future of capital punishment in the state."

  The Dispatch reviewed that while “reports by Warden Donald R. Morgan at the Southern Ohio Correctional Facility, who observed the execution of Dennis McGuire on Jan. 16, and Joseph Andrews, a former prisons official now with the Department of Public Safety, concluded that the ‘process went very well’ and found ‘no reasons for revision of policy for future executions,’ those reports are not the final word on the execution, and the final report is still pending.

  “…the organ-transplant controversy, also a first in the U.S., involves inmate Ronald Phillips, 40, whose scheduled execution last Nov. 4 was postponed by Gov. John Kasich to allow time for Phillips to donate non-vital organs to his ailing mother. Kasich postponed his lethal injection until July 2 to allow time for the complicated surgery.

  “The third contested case involves Gregory Lott, 51, scheduled to be executed on March 16. A hearing opposing use of the same drugs for Lott that were used to kill McGuire will be held in U.S. District Court in Columbus on Feb. 19.  (Order)

  Additionally, the family of Dennis McGuire announced at a news conference last Jan. 17, 2014, in Dayton, Ohio, they had filed their planned lawsuit against the state over the unusually slow execution. That lawsuit also alleges the manufacturer of the drug used in McGuire’s execution, Lake Forest, Illinois-based Hospira Inc., produced the medications illegally allowed them to be used for an execution and should be prohibited from making them available for capital punishment, according to the Associated Press. 

  --- Ohio House Bill 385, introduced by Nickie Antonio & Dan Ramos on 12/10/2013, if passed would abolish the death penalty altogether.

   And to round things out, Ohio Representative Robert Hagan Tuesday introduced a bill which would require the Governor and  Director of Rehabilitation and Correction to be present at all executions, while, in a meeting with editors and reporters from Northeast Ohio Media Group and Plain Dealer yesterday, Gov. John Kasich touched on  a wide range of topics including the death penalty, wherein, despite the controversy over the state’s last execution, he remained steadfast about Ohio keeping the death penalty, but also said executions must be done with thought and care. “When there’s been any doubt on this, we don’t execute,” he said. “I’m not in a hurry to do this, but it’s part of my job.”

Cleveland Traffic Cameras Update

   Recent Plain Dealer articles are relating that the city of Cleveland said Wednesday that it was continuing its traffic camera enforcement, despite a court decision that said the appeals process in the program was unconstitutional, and drivers who get traffic camera tickets for speeding or running a red light and appeal the citation will continue to have hearings before an administrative officer.
 
   A ruling by the Eighth District Court of Appeals, arising from a complaint filed by a Columbus resident ticketed for speeding in Cleveland, questioned the legitimacy of the city's system for vetting complaints about traffic camera tickets which resulted in the city’s temporarily suspending hearings on traffic camera ticket appeals. But, the article related, “although the District Court’s decision said the appeals process was unconstitutional, it didn't bar Cleveland from operating its traffic cameras and proceeding with its existing appeals system, the city said in a prepared statement.” (See Jodka v. Cleveland, case 99951, 2014-Ohio-208).

   That statement further elaborated “The recent Eighth District Appeals Court decision in Jodka v. Cleveland established the Plaintiff had no standing to proceed with the claims in his lawsuit. It also included language that discussed the Court’s view of the constitutionality of the appeals process, but it does not bar the City from operating its traffic camera program and proceeding with the established appeal process in the Municipal Clerk’s office. Civil traffic camera appeal hearings under Cleveland Codified Ordinance 413.031 will again be scheduled.

  “The City continues to evaluate its appeal process to determine whether another process may be implemented to address the concerns expressed by the Appeals Court.

  “Finally, the City of Cleveland will continue to monitor court action on this matter, as the Plaintiff (Jodka) has asked the Appeals Court to reconsider its opinion.”

   A second article, this morning, though, reports “Cleveland's traffic camera system lost another court test, with a ruling yesterday in favor of a man spotted speeding by one of the automated cameras.”

  “It was another panel of judges who sit on the Eighth District that delivered the latest blow,” the second article said. “The judges reversing a trial court decision that had upheld a traffic ticket and fine against driver Darrell Dawson of Reynoldsburg, Ohio, who was ticketed at 71st Street and Chester in Cleveland… The opinion did not address all of Dawson's contentions, simply referenced the Jodka ruling that called the appeals process unconstitutional.” ( Dawson v. Cleveland, case CV-792131, 2014-Ohio-500 )

  Cleveland spokeswoman Maureen Harper said of the second ruling: "Given that it was based on the Jodka case, which is still pending before the court, we will continue to monitor the court's action on the matter closely. At this time, our traffic camera program will continue."

   Toledo’s traffic camera case at the Ohio Supreme Court is still pending.
 

Cluster of bills seek to curb Ohio infantile mortality rate

 A Cincinnati.com article this past Tuesday began, “In Ohio, nearly eight of every 1,000 babies die before their first birthday -- nearly the highest rate among any state, and far higher than the U.S. rate of six deaths for every 1,000 births -- And Cincinnati’s ranking is no better: A 2008 March of Dimes analysis showed Cincinnati had the fourth-highest infant mortality rate of major cities nationally.”

   Sen. Shannon Jones, R-Springboro, and Sen. Charleta Tavares, D-Columbus took special notice, being quoted as saying, “We were sick and tired of hearing how abysmal Ohio’s numbers were… Ohio, for all intents and purposes, is dead last in our infant mortality rate. Those numbers are not a reflection on Ohioans. We have to do better.”

  And so the duo filed no less than five bills on the Senate’s floor this week:

• SB276 INTERNAL INFANT SAFE SLEEP POLICY -- to require the Department of Health to establish the Safe Sleep Education Program, hospitals and freestanding birthing centers to implement an infant safe sleep screening policy, and certain persons and entities to adopt an internal infant safe sleep policy.

• SB277 COMMISSION ON INFANT MORTALITY -- create a commission on infant mortality

• SB278 SUDDEN INFANT DEATH -- to require the completion of a sudden unexplained infant death investigation reporting form (SUIDI reporting form) developed by the United States Centers for Disease Control and Prevention, or an alternative reporting form developed by the Director of Health, whenever a child one year of age or younger dies suddenly when in apparent good health and to require that the appropriate child fatality review board receive a copy of each completed form

• SB279 PRENATAL GROUP HEALTH CARE PILOT PROGRAM -- to require the Director of Health to establish and operate a prenatal group health care pilot program that is based on the centering pregnancy model of care

• SB280 MEDICAID-POSTPARTUM CARE -- requiring that case management services for postpartum care be included in the Medicaid managed care system, to require the Director of Health to award grants for community-based services that are not covered by Medicaid and are intended to reduce infant mortality rates among at-risk populations

Ohio Public Employees’ Whistle-blower Protection Venue

 The Columbus Dispatch this morning relays “Joseph Sommer pictures corruption in state government gaining a foothold unless Ohio law is changed to protect workers who blow the whistle on misconduct,” following his receiving  a letter of reprimand from the Ohio Bureau of Workers’ Compensation, where he was formerly a lawyer,  in 2009 for reporting to the inspector general a failure to follow state law in nominating candidates to serve on the Industrial Commission. The Dispatch says he maintained the reprimand violated whistle-blower protections and appealed to the State Personnel Board of Review and then Franklin County Common Pleas Court, losing in both venues.

  Taking his case to Franklin County’s 10th. District Court of Appeals, the Dispatch relates “led to a ruling denounced as failing to protect state employees from job retaliation for reporting wrongdoing… The appellate court ruling on Dec. 30 that while state law protects the jobs of whistle-blowers who report criminal conduct to the Ohio inspector general, state workers have no protection when filing reports involving noncriminal matters."

  Sommer is now asking Ohio's high court that that decision be reversed, claiming that the appeals court ruling “deprived him of equal protection under the law because those who report criminal conduct cannot face job retaliation while those who turn in reports of noncriminal conduct are not protected.” [Case Docket]

 The Dispatch's article also reported that both House Republicans and Democrats have introduced bills to extend whistle-blower protections to those reporting noncriminal conduct to the inspector general; Reps. Nick Barborak of Lisbon, and Connie Pillich of Montgomery introducing HB 426 on Feb. 4th., and Reps. Mike Dovilla of Berea, and Bill Hayes of Granville, HB 439, Tuesday.

Kentucky bill setting minimum life without parole penalty in officer murder

Cincinnati.com this morning carries a story about Kentucky Rep. David Floyd’s announcing at a news release that he has filed a bill that would set the minimum penalty of life without parole in cases involving the intentional murder of a local or state police officer, sheriff or deputy sheriff who was on duty at the time of death.

  The bill, entitled The Officer Jason Ellis Memorial Act (HB 368), honors the Bardstown, Ky. police officer shot to death last May after getting out of his cruiser to pick up tree limbs on a highway ramp while on his way home.

  Cincinnati.com relates no arrests have been made in Ellis’ death. An article in the Courier Journal Monday added Kentucky investigators were working with Pennsylvania authorities to determine whether a highway slaying there was related to the Ellis shooting, and that with money offered by the Bardstown Police Department, private donations, and the FBI’s adding of $50,000,  the reward for Ellis’ killer topped $200,000  within a month or two.

Ohio Supreme Court rules establishing limits on tracking device warrants

 The Columbus Dispatch yesterday observed “Ohio law is playing catch-up with the increasing police practice of secretly installing GPS devices on suspects’ vehicles to track their travels and potentially crack crimes,” noting that Fairfield County Prosecutor Gregg Marx and Franklin County Prosecutor Ron O’Brien wanting the Ohio Supreme Court to overturn an appeals court ruling that suppressed evidence against two home-invasion robbers because GPS units were used and clarify state law on law-enforcement use of the devices to remotely follow criminal suspects, and that changes were being proposed to Ohio court rules directly addressing search warrants being needed to install tracking devices. The rules currently make no distinction between warrants to search property or track vehicles.”

  The cases described are those of Montie E. Sullivan and David L. White, whose cases began judges in Franklin and Fairfield counties having suppressed some of the evidence against two men accused of robbery because deputies placed a GPS device on one of their cars without obtaining a warrant. Prosecutors in both counties appealed the trial court’s rulings which had been based on the Supreme Court’s 2012 holding in United States v. Jones, that installing a Global Positioning System (GPS) tracking devices on vehicles and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment, with the Fifth Circuit Court of Appeals upholding the trial courts in both cases. [ See State v. Sullivan, 13-CA-10, 2013-Ohio-5276  and State v. White, 13-CA-11,2013- 5221 ].

  The Courts’ news service last week announced the Court was “proposing amendments to the Rules of Practice and Procedure to specifically address search warrants for tracking devices,” noting specifically that “the current Criminal Rule 41  does not make a distinction between searching property and installing a tracking device, and the new rules would establish important limits in this area.”

  Public comment on the proposed amendments will be accepted until March 5, with the Supreme Court being able to revise and file them with the General Assembly before May 1st.  Comments should be directed in writing to Jo Ellen Cline, Government Relations Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215-3431 or j.cline@sc.ohio.gov  and include your full name and regular mailing address in any comment submitted by e-mail. Copies of all comments submitted will be provided to each member of the Commission on the Rules of Practice and Procedure and each Justice of the Supreme Court.

Language of all Proposed Amendments

Ohio Supreme Court Adopts Rule Revision, Amends 30 Protection Order Forms

The Ohio Supreme Court’s news service announced last Friday that the Court had adopted changes to Rule of Superintendence Rule 10.03 and 30 protection order forms, taking effect March 1st..

Diana Ramos-Reardon, domestic violence counsel for the Supreme Court, said Civil Rule of Procedure 65.1 necessitated some of the changes to the standardized forms, which clarifies magistrates’ involvement in civil protection order proceedings and discovery related to protection order cases.

Language of the Revised Rule and Forms.

Ohio courts needing to report violent offenders with mental illness

The Akron Legal News last Friday reported that “while acknowledging the need to protect law enforcement and the public, officials with local mental health courts also advise caution in the implementation of newly adopted Rule of Superintendence  95 and its accompanying form --  effective Jan. 1, 2014, named in memory of Deputy Suzanne Hooper who was killed in action on January 1, 2011, and seeking notification of law enforcement officers of potential trouble from people with a history of both violent crime and adjudged mental illness, saying that while the new rule applies to all courts, mental health courts have already been dealing with these issues for some time.”

  The article quotes Anthony Ingram, chief probation officer for the Akron Municipal Court and one of the founding team members of that institution’s mental health court as saying “There are some significant issues and concerns that I have with the Hooper Act… still some questions to work out.”

“Magistrate Dennis Serisky, of the felony mental health court division of the Mahoning County Common Pleas Court, also had questions about the law, particularly in issues of privacy and the stigma that can be attached to someone adjudged mentally ill, saying ‘the releasing any type of medical information may infringe upon the defendant’s constitutional privacy rights, as well as HIPPA rules… The defendant becomes labeled as mentally ill. What happens if the defendant is later evaluated as not mentally ill? I do have concern about their medical evaluations.”

  Rule 95 and its accompanying form followed the passage of Ohio Senate Bill 7 in June 2013.

Ohio’s execution quandary

 The Columbus Dispatch last Friday explored some rather " 'unique circumstances' it says Ohio prison officials are facing for the first time in the 15 years since the state reinstated the death penalty, dealing simultaneously with legal issues from a past execution, one scheduled next month and one being held up over organ transplants – with the outcome of each case potentially being critical to the future of capital punishment in the state."

  The Dispatch overviewed that while “reports by Warden Donald R. Morgan at the Southern Ohio Correctional Facility, who observed the execution of Dennis McGuire on Jan. 16, and Joseph Andrews, a former prisons official now with the Department of Public Safety, concluded that the ‘process went very well’ and found ‘no reasons for revision of policy for future executions,’ those reports are not the final word on the execution, and the final report is still pending.

  “…the organ-transplant controversy, also a first in the U.S., involves inmate Ronald Phillips, 40, whose scheduled execution last Nov. 4 was postponed by Gov. John Kasich to allow time for Phillips to donate non-vital organs to his ailing mother. Kasich postponed his lethal injection until July 2 to allow time for the complicated surgery.

  “The third contested case involves Gregory Lott, 51, scheduled to be executed on March 16. A hearing opposing use of the same drugs for Lott that were used to kill McGuire will be held in U.S. District Court in Columbus on Feb. 19."  (Order)

  Additionally, the family of Dennis McGuire announced at a news conference last Jan. 17, 2014, in Dayton, Ohio, they had filed their planned lawsuit against the state over the unusually slow execution. That lawsuit also alleges the manufacturer of the drug used in McGuire’s execution, Lake Forest, Illinois-based Hospira Inc., produced the medications illegally allowed them to be used for an execution and should be prohibited from making them available for capital punishment, according to the Associated Press.

  --- and Ohio House Bill 385, introduced by Nickie Antonio & Dan Ramos on 12/10/2013, if passed would abolish the death penalty in Ohio altogether.

U.S. Supreme Court defining “Mental Retardation in Capital Cases this March

  Law.com Wednesday morning announced that ”twelve years after the U.S. Supreme Court held in Atkins v. Virginia that execution of mentally retarded persons violates the Eighth Amendment,  justices will use the case of  Freddie Lee Hall to bring before the Court how states determine who is "intellectually disabled" (now the preferred term for mentally retarded) and whether Florida's test is too narrow. The Court will hear arguments in Hall v. Florida on March 3.

  “Most states,” the article says, “have developed appropriate standards, according to death penalty scholars and some national psychological and disability organizations. However, they and Hall argue the justices need to tell Florida and some other states that their tests ignore generally accepted clinical definitions of mental retardation… Florida, ironically, was one of the states to which the Supreme Court looked in finding a national consensus against capital punishment of intellectually disabled persons. In 2001, a year before the Atkins decision, Florida enacted a law prohibiting their execution.”

  Florida solicitor general Allen Winsor was quoted as having written that “(the) case turns on whether Atkins truly left any determination to the states or whether, as Hall contends, states are constitutionally bound to vague, constantly evolving—and sometimes contradictory—diagnostic criteria established by organizations committed to expanding Atkins’s reach,"

  Hall's lawyer, Eric Pinkard of the Capital Collateral Regional Counsel in Tampa position was reported as being that nothing in Atkins "authorizes the states to narrow the substantive scope of the constitutional right itself by defining mental retardation in a way that excludes defendants who qualify for a diagnosis of mental retardation under accepted clinical standards… Yet that is precisely what Florida has done here."

Hall v. Florida, case 12-10882 @ ScotusBlog.com

Sixth Circuit decision on Juvenile Strip Searches

     The National Law Journal was yesterday reporting the Sixth Circuit Court of Appeals in Cincinnati's holding that, despite the fact the Hazard County, Ky. youths were arrested on the relatively minor charge of underage drinking, Breathitt Regional Juvenile Detention Center jailers acted within the law to enforce a general strip-search policy for all detainees, reversing in part the earlier decision by U.S. District Judge Karl Forester of the Eastern District of Kentucky in T.S, et al. v. John Doe, et al., which  had sided with the youths’ parents, who claimed that a strip search conducted without specific suspicion for juveniles arrested on nonviolent and minor charges violated the Fourth Amendment. The drinking charges against the youths, a male and a female, ultimately were dropped.

  “The case was complicated by the U.S. Supreme Court’s later ruling in the 2012 case, Florence v. Board of Chosen Freeholders of the County of Burlington, that strip searches of adult pretrial detainees, regardless of the severity of the alleged offense or the absence of suspicions, are permitted,” the Journal reported, (but), writing for the Sixth Circuit, Judge Danny Boggs said the Florence decision leaves open the question of its applicability to juvenile detainees. Even so, Boggs wrote, the plaintiffs failed to show any evidence of constitutional harm.”

Ohio Supreme Court on debtors’ prisons

  Responding to recent issues & allegations of the return of “debtors’ prisons” to the state and elsewhere in the nation, the Ohio Supreme Court has published a reference guide for judges and court personnel about the collection of fines and court costs.

   The Court’s news service Tuesday related that Supreme Court staff developed the  "bench card" in consultation with a workgroup that included Ohio Public Defender Tim Young and three experienced Ohio trial court judges: Lakewood Municipal Court Judge Patrick J. Carroll, Defiance Municipal Court Judge John T. Rohrs III, and Fairborn Municipal Court Judge Beth W. Root; and briefly explains the differences between court costs and fines, when enforcing fines by incarceration is appropriate, and the process for a court to substitute community service as payment for court costs. It also includes citations to state statutes and court cases.

View Bench Card

Traffic light rulings worry cities

  The red light/traffic camera issue is well & very much alive in the state of Ohio with the Columbus Dispatch yesterday morning noting that “while appeals courts in Toledo and Cleveland have ruled that city ordinances making red-light and speed-camera violations in-house administrative matters illegally deprive municipal courts of jurisdiction to handle moving traffic violations, Columbus and other cities say that a legal fight over photo traffic enforcement is about more — much more — than money and traffic safety.

  “Unlike with parking violations,” the Dispatch said, “Ohio lawmakers have not empowered cities to determine guilt or innocence in administrative hearings involving civil violations of traffic laws, depriving those cited of due process.

  “Cities fear, too, that a ruling by the Ohio Supreme Court overturning cities’ handling of red-light camera ticket appeals in local hearings could trash their ability to handle other violations in-house, from zoning to housing to health matters., arguing that upholding the ruling in the Toledo case and rejecting city hearings on civil traffic violations ‘could lead to immense disruptions in city administrations throughout Ohio’ and pack courts with costly cases. They contend that municipal courts hold no jurisdiction over civil matters.” (See Bradley L. Walker v. City of Toledo, et al.,2013-1277)

  Here in Hamilton County, plaintiffs last year sued the Village of Elmwood over its traffic cameras. Common Pleas Judge Robert Ruehlman in March 2013 ruled against the Village, terming the system  a “scam.” The Supreme Court declined jurisdiction over appeals by Elmwood Place and Optotraffic, LLC, the company providing cameras & services for Elmwood, and against Judge Ruehlman for a writ of prohibition in October 2013. Plaintiffs in the case had subsequently re-filed their case seeking class-action status from the trial court, which Judge Ruehlman had presumably sought to resolve by the end of the year. While that decision hasn’t been made as of yet, a Cincinnati.com article two weeks ago indicated his saying the village should refund speeding tickets from traffic cameras -- totaling nearly $1.8 million – while still staying execution of the holding pending resolution of the class action status of the appeal.

  The Dispatch, meanwhile, further notes two addirional lawsuits in Franklin County Common Pleas Court seek the return of more than $16 million in Columbus fines.

  Additionally, the article alludes to Ohio House Bill 69, introduced back in June by Representatives Ron Maag and Dale Mallory, from Cincinnati, which would allow operation of such cameras only in school zones during arrival and dismissal of students – and only when a law enforcement officer is already at the scene monitoring the device – was approved by the House of Representatives in June. It is now sitting in the Senate.

  Sponsors of House Bill 69, are convinced the programs are unconstitutional money grabs by law enforcement and local governments, while, as a Cincinnati.com article back in October reported, “operators of camera programs throughout the state – including every major city in Ohio except Cincinnati – are pleading with politicians instead to consider regulating the technology instead of banning it altogether, arguing there are responsible programs in Ohio – including in the Butler County cities of Hamilton and Middletown – that accurately and fairly promote public safety and allow police departments to optimize their manpower in the face of dwindling staffing and shrinking budgets.”

Capital Punishment News & Update

 The Boston Globe last week reported that the Department of Justice has decided that it will seek the death penalty for Dzhokhar Tsarnaev, the alleged Boston Marathon bomber, citing the “heinous, cruel and depraved manner” of the attack that killed three people, injured more than 260, and sent a wave of shock and fear into the region.

  “Noting that Tsarnaev has shown no remorse,” the Globe’s article continued, “federal prosecutors said they would seek the death penalty because of his ‘betrayal of the United States’’ and his decision to target the Boston Marathon, ‘an iconic event that draws large crowds of men, women, and children to its final stretch, making it especially susceptible to the act and effects of terrorism.’”

   Wikpedia’s article on the death penalty notes that “lethal injection is currently the method used or allowed in all of the 32 states which allow the death penalty; some states also still allowing electrocution, firing squad, hanging, and/or  lethal gas. From 1976 to January 16, 2014, there were 1,362 executions, of which 1,187 were by lethal injection, 158 by electrocution, 11 by gas chamber, 3 by hanging, and 3 by firing squad… The method of execution of federal prisoners for offenses under the Violent Crime Control and Law Enforcement Act of 1994 is that of the state in which the conviction took place.”

  Here's the nuance -- Massachusetts doesn’t have the death penalty.

  Under the Violent Crime Control and Law Enforcement Act the method of execution of federal prisoners is that of the state in which the conviction took place. If the state has no death penalty, the judge must choose a state with the death penalty for carrying out the execution.

  Into the capital punishment maelstrom once again….   The trend in the United States has long been to move toward less painful, or more humane, executions as opposed to outright abolition. The electric chair and gas chamber were introduced as more humane alternatives to hanging, but have been almost entirely superseded by lethal injection, which, in turn, are now being criticized as still being too painful.

  The Washington Post, also last week,  observed, “many states moved away from methods of execution like the electric chair and gas chambers in the 1980s, toward what death penalty supporters said was a more humane way of taking a life. Lethal injections typically followed a three-step process using drugs that would render a recipient unconscious, cause paralysis and finally stop the heart… (but now) a shortage of the lethal chemicals needed to execute prisoners has some states with pending executions considering new methods of killing condemned prisoners — including ones that haven’t been used for more than half a century."

  Being unable to procure pentobarbital, specified in the one-drug protocol currently employed by many of the states still having the death penalty, CNN last Tuesday reported , the Louisiana Department of Corrections’ having switched to the same controversial two-drug combination used earlier this month  in Ohio in the execution of Dennis McGuire, whose family, NBCNews.com then reported, was going to be  pursuing a lawsuit “to assure that other death row inmates do not experience the same unusual execution circumstances he did” --- this coming ahead of next week's scheduled execution of convicted killer Christopher Sepulvado.

  Sepulvado's legal team said an appeal has been filed, Gary Clements, part that team saying, "We're not challenging capital punishment in his case ...just how it's going to be done.” Jon Paul Rion, McGuire’s family lawyer, following that execution had  told NBC News he plans to file a lawsuit against the Ohio Department of Rehabilitation and Corrections “to make sure that this procedure is not utilized on anyone else ever.” Cincinnati.com at that point said of Rion’s appeal that “It was unclear what the nature of the lawsuit would be, but it would be different from current challenges to Ohio’s previously untried lethal injection method now in federal court.

  Citing the McGuire execution in Ohio around this same time as evidence that alternative methods were needed after manufacturers of pentobarbitol, the drug most commonly used in lethal injections, began withdrawing it from use in executions on ethical grounds, NBCNews also reported lawmakers in at least two other states already having begun to call for returns to older methods such as firing squads to carry out death penalty executions.

  Missouri state Rep. Rick Brattin,  introduced legislation that would add five-person firing squads as a third alternative to that state's current methods of capital punishment – currently either gas and lethal injection -- and Wyoming State Sen. Bruce Burns filed a similar bill providing that same alternative, saying the state would have to do something soon before it runs out of approved drugs for lethal injections.

  “Firing squads have all but disappeared from in the United States,” NBCNews reported., “(and) while Oklahoma law provides for them if lethal injection is ever ruled unconstitutional, only Utah actually continues to use them, and then only for inmates convicted before 2004 as it seeks to phase them out.”

  Ohio’s followed the essential “humanitarian trend” described above, having had capital punishment since its early history. The Ohio Department of Rehabilitation and Corrections chronicles “from 1803, when Ohio became a state, until 1885, executions were carried out by public hanging in the county where the crime was committed. In 1885, the legislature enacted a law that required executions to be carried out at the Ohio Penitentiary in Columbus… In 1897, the electric chair, considered to be a more technologically advanced and humane form of execution, replaced the gallows…. Following the reinstatement of the death penalty, a bill, in 1993, granting prisoners the option to choose between death by electrocution or lethal injection was passed wherein the inmate would be asked to choose between the two methods seven days before the scheduled execution, and not choosing, the default method of execution would be death by electrocution. On November 15, 2001, Governor Bob Taft signed House Bill 362 eliminating the electric chair as a form of execution and leaving lethal injection as the only method of execution.”

  The stance remains today as a Supreme Court task force studies the issue. House Bill 385 was introduced by Nickie Antonio & Dan Ramos on 12/10/2013  to abolish the death penalty entirely, while Senate Bill 183 is introduced by Charleta Tavares on 09/03/2013  - To provide that a defendant cannot be executed if the defendant's race was the basis of the decision to seek or impose the death penalty, to permit a defendant to file a motion alleging that the defendant's race was the basis of the decision to seek or impose the death penalty.

  HB 244, meanwhile, introduced by John Becker on 8/15/2013  would extend the death penalty to include rape, sexual battery, and unlawful sexual conduct with a minor when the offense is committed by an offender who previously has been convicted of, pleaded guilty to, or been adjudicated a delinquent child for committing any of those offenses or the former offense of felonious sexual penetration.

Ohio Supreme Court’s Adopting New Parenting Coordination Rules

  Back on Jan. 24th., the Court’s news service reported the Ohio Supreme Court’s having adopted new rules governing local courts’ use of parenting coordination taking effect on April 1.

  “The new Rules of Superintendence for the Courts of Ohio would apply to those courts wanting to use parenting coordination --- a child-focused alternative dispute resolution process that can be ordered by a court in which a parenting coordinator assists families in implementing parental rights and responsibilities or companionship time orders --- and set forth definitions, the role and qualifications of a parenting coordinator, and the responsibilities of the court to adopt local rules governing the use of parenting coordination, confidentiality, privilege, and public access; and  also include factors necessary for ordering parenting coordination; required conditions when domestic abuse or domestic violence is alleged, suspected, or present; and inappropriate uses of parenting coordination.”

  Courts needing assistance with their current programs or wanting to set up a new program consistent with the new rules are instructed to contact Jacqueline Hagerott, manager of the Dispute Resolution Section at the Supreme Court at jacqueline.hagerott@sc.ohio.gov

Wording of the rules can be accessed here.

On Clarifying the State’s Use of Electronic Traffic Citations

  The Akron Legal News last Friday had article on clarifying the state’s use of electronic traffic citations which the Ohio Supreme Court issued in two amendments to Traffic Rule 3, effective Jan. 1, 2014. (Text of Amendments)

 “Electronic traffic citations, while allowable under Ohio law, are only available to a very small number of police departments,” the Legal News’ article stated, and, centering its discussion around Summit County, which has those capabilities, that “to understand electronic ticketing is to understand its history.

 “Ohio law enforcement agencies have been allowed by rule and law to issue citations electronically since Division F was added to the traffic rules, back in February 2002. Since then, several amendments have been added to the traffic rules to clarify the process of electronic ticketing.

 “That original addition to the law as generated from a study by the Digital Signatures Committee of the Ohio Judicial Conference, and authorized, ‘the use of traffic tickets that are produced by computer or other electronic means and the adoption of local rules relative to the electronic filing of traffic tickets.’

 “The section was further refined by amendments in 2006 and now in 2014, with the latest amendments doing  two things to the current law: eliminate the need for the defendant to sign the e-ticket, but, at the same time, require the citing officer to sign the citation as a means of certifying it.”

  Google.com has additional background & history.