Friday, March 28, 2014

Felony Enhancement Bills

   Two bills were introduced in Ohio’s House of Representatives this past week we think warrant early mention.

   Rep. Jack Cera introduced the first seeking “To increase to 10 years the mandatory prison term for a person who is convicted of a felony and who possessed a firearm while committing the felony, if the person displayed or brandished the firearm, indicated possession of it, or used it to facilitate the felony or if the firearm was an automatic firearm or was equipped with a muffler or silencer.” (HB 505)
 The penalty at present is “A prison term of six years if the specification is of the type described in section 2941.144 of the Revised Code that charges the offender with having a firearm that is an automatic firearm or that was equipped with a firearm muffler or silencer on or about the offender's person or under the offender's control while committing the felony;” and “three years if the specification is of the type described in section 2941.145 of the Revised Code that charges the offender with having a firearm on or about the offender's person or under the offender's control while committing the offense and displaying the firearm, brandishing the firearm, indicating that the offender possessed the firearm, or using it to facilitate the offense.”

  Rep. James Butler, Jr. introduced a second bill that same day that seeks “To expand the offense of murder to also prohibit causing the death of another as a proximate result of selling the person a controlled substance when the death is caused by an overdose and to provide special life sentences for a violation of the prohibition.” (HB 508)

Minimum Wage Bills

  With President Obama's call for a higher national minimum wage having failed to win the backing of the Republican-controlled U.S. House of Representatives even with the Congressional Budget Office’s saying in a report released last month that raising the minimum wage to $10.10 an hour nationally would reduce total employment by some 500,000 workers, a Reuter’s article this morning reports Connecticut’s becoming the first state to pass legislation increasing the state's minimum hourly rate to $10.10, a figure that matches what Obama has asked Congress to consider imposing nationally. ( Press Release & Bill )

 The article also relates Connecticut's minimum wage currently stands at $8.70 per hour, and the bill will be phased in to $10.10 over three years. The current highest state minimum wage in the United States is Washington's $9.32, above the $7.25 federal minimum.

 Here in Ohio, Representatives Mike Foley & Robert Hagan last Tuesday introduced a like bill seeking to increase the minimum wage to $10.10 beginning January 1, 2015

Wednesday, March 26, 2014

Ohio Supreme Court juvenile/adult determination case heard

   Along with our earlier post on Ohio juvenile cases before the Supreme court, the Cleveland Plain Dealer yesterday carried news of a third case involving a 16-year-old referred to as “D.M.”, who was charged with an act that would constitute aggravated robbery if he were an adult, with the law requiring the case be moved to adult court once probable cause was shown to support the charge.( Court's docket )

  The Plain Dealer’s article recounts that while in the process of proceedings that would would’ve enabled that determination to be made, D.M.’s attorney petitioned for materials from prosecutors and was refused.

   D.M.’s attorney then sought and won a dismissal of the charge, which prosecutors appealed to the Ohio First District Court of Appeals. That decision overturned,  D.M.’s lawyer brought the case before the Supreme Court, which heard arguments last Wednesday. March 12th..
  Arguments focused on which standards should be used to determine which materials must be provided in discovery, with D.M.’s attorney maintaining “This Court has held that a mandatory bind-over hearing is a "`critically important' stage in juvenile proceedings. Therefore, such a hearing must `measure up to the essentials of due process and fair treatment."' State v. Iacona, 93 Ohio St.3d 83, 91, 2001-Ohio-1292, 752 N.E.2d 957, quoting Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Receiving full and fair discovery is essential, especially when only a single hearing determines whether a child is tried as a juvenile or as an adult. Yet, the First District expressly extended its decision below to probable cause hearings in both mandatory and discretionary bind-over cases

  “… as evidenced by the fact that both the Eighth and Sixth District Courts of Appeals have addressed similar issues, this case also is of great public and general interest, as questions concerning juveniles' rights to discovery are relevant throughout the State of Ohio. See In re A.M, 139 Ohio App.3d 303, 743 N.E.2d 937 (8th Dist. 2000); State v. Gilbert, 6th Dist. No. L-03-1273, 2005-Ohio-2350. Moreover, the First District has restricted discovery in bind-over matters much more than the Eighth and Sixth Districts. While perhaps not stark enough to certify a conflict, the First District's departure from the Eighth and Sixth Districts is enough to lead to substantially different treatment of children in different districts…”

Friday, March 21, 2014

Federal Register and Code of Federal Regulations Indexes

   Emily Feltren, Director of Government Relations at the American Association of Law Libraries, and our own director, Mary Jenkins, who is also chair of the Ohio Regional Association of Law Libraries’  government relations committee, are bringing their shared concern to the House Oversight and Government Reform Committee’s reporting out the Federal Register Modernization Act (HR 4195), introduced the night before the mark up by Rep Darrell E. Issa on March 11th..

  The bill, Feltren informs, “changes the requirement to print the Federal Register and Code of Federal Regulations to ‘publish’ them, eliminates the statutory requirement that the CFR be printed and bound, and eliminates the requirement to produce an index to the Federal Register and CFR. The Administrative Committee of the Federal Register governs how the FR and CFR are published and distributed to the public, and will continue to do so.

 “Interestingly, the Office of the Federal Register itself touted the usefulness of its index when it announced the retooled index last year.”

  Jenkins adds that “It's critically important that governments at all levels retain print resources unless they come up with an online alternative that's permanent, official, public, and authenticated.”

  Comments about the utility of the FR or CFR indexes in your practice and/or organization are being requested by Feltren and/or Jenkins a.s.a.p.

Wednesday, March 19, 2014

Psychologist’s Testimony that the Defendant Faked Mental Condition Prompts Supreme Court Appeal

   “Is a psychologist’s trial testimony about a defendant’s allegedly feigned mental illness admissible during the state’s case-in-chief (the part of a trial where the party with the burden of proof presents its evidence) to show the defendant’s intent to mislead and defraud authorities to escape prosecution?”

  That was the issue facing the Ohio Supreme Court last Tuesday in hearing the case of Joseph Harris, charged in a four-count indictment on October 29, 2010 of aggravated murder, murder, aggravated  robbery, and having a weapon while  under disability, to which he plead not guilty by reason of insanity but was found  competent to stand trial.

  A jury found him guilty as charged and the trial court sentenced him to concurrent terms  on the aggravated Murder (life without the possibility of parole), murder (merged with Count 1), eight years for aggravated robbery’ and five years on the  weapon under disability count, along with the consecutive, mandatory three-year term on a gun specification.

  Appealing the case, the First District Court of Appeals in a Per Curiam  decision reversed his conviction due to the testimony of a court psychologist during the court's case-in-chief, which the state here appealed, stating:
  “R.C. 2945.371(J) provides in part: "No statement that a defendant makes in an evaluation* * * relating to * * * the defendant's mental condition at the time of the offense charged shall be used against the defendant on the issue of guilt in any criminal action or proceeding, but, in a criminal action or proceeding, the prosecutor or defense counsel may call as a witness any person who evaluated the defendant or prepared a report pursuant to a referral under this section." The latter sentence was not included in a prior version of the statute, R.C. 2945.39(D).
    “…the psychologist who interviewed Harris during a competency and sanity evaluation, testified during the state's case-in-chief. She did not ever reveal any statement made by Harris, and made no reference to any of the facts of the case. She testified solely about the fact that Harris feigned mental illness during the examination. This testimony corroborated the testimony of two inmates who were incarcerated at the same time as Harris prior to his trial. The court held that the state was prohibited from using Dr. Dreyer's testimony to bolster other witnesses' testimony in any fashion, solely because the psychologist's opinion resulted from her discussions with Harris…” (Memorandum in support of jurisdiction filed by State of Ohio on March 15, 2013) 

Case docket of State of Ohio v. Joseph Harris, 2013-0414 

New Ohio jail standards

 Ohio’s  Joint Committee on Agency Rule Review (JCARR) accepted a set of 180 revised standards proposed by the Department of Corrections for the operation of Ohio jails yesterday --- the first time they’ve been updated since 2003 -- covering everything from meals to emails, according to

  A Fox 19 article adds that the proposed changes are a result from a 2012 statewide jail survey and assessment. The new standards are expected to go into effect sometime next month, but won’t be enforced until 2015 and each of the state’s 88 sheriff's offices can decide for themselves if they want to enforce the new standards.

  Fox News quoted Clermont County Sheriff A.J. Rodenberg as saying, "You have to meet the minimum standard, you have to come up to the bar, but you can go more than that.” Clermont County is in good shape financially, so they don't need to make a whole lot of changes, he said, (but) "Some of the smaller counties are really hurt and by cutting back on some of this they might be able to trim enough off to keep them out of the hole so to speak.”

  Butler County Sheriff Richard Jones told FOX19 they plan on supporting nearly all of the changes, saying “if you combine the different departments and multiply the savings from multiple cutbacks, the state will save millions, something that benefits taxpayers..”

  While the final version of the rule changes won’t be available for another couple of weeks, draft versions can be accessed on the Ohio Registry here.

Tuesday, March 18, 2014

Susan B Anthony List / Steve Driehaus to U.S. Supreme Court yesterday morning had an article asking “…What could bring together the American Civil Liberties Union, the Cincinnati anti-tax group COAST and one-time National Lampoon editor P.J. O'Rourke?

  “How about a four-year-old Cincinnati political brawl turned Supreme Court case that touches on everything from abortion to Obamacare to the First Amendment?

  “At its heart, the case is a constitutional challenge to an Ohio law that bars lying about candidates during an election, (but) in arguments set for next month, the Supreme Court will consider a narrower question, where the legal tussle has already generated some surprising twists and turns... how many Pinocchios does the Ohio law allow?”

  ScotusBlog’s Marty Lederman’s contribution is maybe a bit less colorful. He asks “When the constitutionality of a statute is challenged in court, and the attorney general – the state’s chief litigating officer – agrees that the statute is unconstitutional, what should (or can, or must) he do?

  "In the usual case, the attorney general defers to the presumed view of the legislature and the chief executive who signed the legislation, and defends the law without mentioning any constitutional doubts.  When the chief executive himself weighs in, however, and agrees that the law is unconstitutional, the practice is typically different.  Sometimes the executive stops enforcing the statute, especially in cases where a constitutional defense is untenable.  Increasingly, however, the federal executive branch does what President Obama and Attorney General Holder decided to do in 2011 regarding Section 3 of the Defense of Marriage Act – namely, to cease defending, or even to argue against, the constitutionality of the law, but to continue to enforce it and take the necessary steps, including appeal, to ensure that the Supreme Court has the final word on the constitutional question.  In the wake of the Court’s landmark decision in United States v. Windsor last Term, several state attorneys general have adopted such an “enforce-and-appeal-but-don’t-defend” posture in litigation challenging the constitutionality of state laws limiting marriage to opposite-sex couples.

  “Other strategies are less common... There is at least one case in which the acting U.S. solicitor general (John Roberts) attacked the constitutionality of federal statutes before the Supreme Court even though the President had recently signed the laws and had not publicly questioned their constitutionality….

  “Even less well known is yet another strategy, which was first employed by then-Solicitor General Robert Bork in Buckley v. Valeo in 1975.  Bork and Attorney General Edward Levi filed two briefs in Buckley, on opposite sides of the First Amendment questions raised in that case.  As far as I know, no one has emulated the Bork dual briefing in the four decades since Buckley . . . until now, in a remarkable recent filing by Ohio Attorney General Michael DeWine in Susan B. Anthony List v. Driehaus…..  (See ScotusBlog docket)

  “In Buckley, SG Bork and AG Levi filed an eighty-five-page brief in the Supreme Court on behalf of the Attorney General and the Federal Election Commission as parties.  That brief advanced a robust defense of the contribution, expenditure, and disclosure limitations of the Federal Election Campaign Act of 1974.

  “The Solicitor General’s own views about the constitutionality of the statute, however, were very different.  Frank Easterbrook, then an Assistant to the SG, would later recount that Bork considered FECA ‘unconstitutional root and branch,’ and referred to it as the ‘fecal matter.’  Both Bork and Attorney General Levi then appeared on a second brief, styled as a brief on behalf of the United States as amicus curiae, which included a ninety-five-page discussion of the First Amendment issues.  The brief’s stated purpose was to “attempt to assist [the Court] in analysis without pointing the way to particular conclusions”; but in fact the brief pressed a much more skeptical view of the constitutionality of FECA’s contribution and expenditure provisions.”’s article notes even further that the case's origins lie with a nonexistent billboard… “during the 2010 First  District U.S. House race between then-Democratic Rep. Steven Driehaus and his GOP challenger, Steve Chabot of Westwood. An anti-abortion group called the Susan B. Anthony List wanted to launch a billboard campaign accusing Driehaus of supporting taxpayer-funded abortions by voting in favor of the federal health-reform law. Driehaus sought a ruling from the Ohio Elections Commission to block the ads, saying they violated a provision in Ohio election law that bars knowingly or recklessly making false statements about a candidate. The billboards never went up after Driehaus' lawyer threatened legal action.”

  In any event, we're now looking at the Supreme Court listening to arguments on the whole thing next month. The ABA even has a preview posted.

  The SUSAN B. ANTHONY LIST and COALITION OPPOSED TO ADDITIONAL SPENDING AND TAXES in bringing the case to the Court present two issues: (1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree…..

 With respect to the second, maintaining “this Court held that even false statements are protected by the First Amendment. United States v. Alvarez, 132 S. Ct. 2537, 2547 (2012). Even the dissenters agreed that laws proscribing false statements about “matters of public concern” would create a “potential for abuse of power” “simply too great” for the First Amendment to tolerate. Id. at 2564 (Alito, J., dissenting).

  “…Yet nearly one-third of the states still have statutes prohibiting “false” statements made during political campaigns—often, as in Ohio, with criminal sanctions attached. These laws do exactly what Alvarez warned against, inserting state bureaucrats and judges into political debates and charging them with separating truth from oft-alleged campaign “lies.” Such statutes are almost certainly unconstitutional, yet they play a troubling, harassing role in every political campaign in those states.

  “… The contrary opinion below is, however, in line with the Sixth Circuit’s uniquely restrictive approach to justiciability in pre-enforcement First Amendment cases.

  “In addition to departing from its sister Circuits on the more general “credible threat of prosecution” standard, the decision below squarely contradicts the Eighth Circuit’s resolution of a virtually identical challenge to a virtually identical law in 2011. Reversing a district court, the Eighth Circuit allowed a speaker to challenge Minnesota’s false-statement  law: The statute was not in 'disuse' and the state had not promised not to enforce it, and that was—per the usual presumption adopted by the Eighth and most Circuits—sufficient for standing and ripeness. Moreover, despite maintaining the truth of its statements, the plaintiff had a reasonable fear of prosecution, according to the Eighth Circuit, given that past complaints had been filed against it. The decision below, by contrast, held exactly the opposite on indistinguishable facts…. “

  “In 281 Care Committee v. Arneson, 638 F.3d 621 (8th  Cir.  2011),  the  Eighth  Circuit  addressed  a challenge  to Minnesota’s  false-statement  law,  which  (like  Ohio’s)  forbids  dissemination  of  knowingly  or recklessly false statements in campaigns.  Under the Minnesota  law,  like  the  Ohio  law,  any  person  may file  a  complaint  alleging  violation  of  the  provision; county   attorneys   may   choose   to   bring   criminal charges  after  administrative  proceedings  end….”

Sixth Circuit holding in Susan B. Anthony List, et al v. Driehaus, Nos. 11-3894/3925, May 13, 2013
Eighth Circuit in 281 Care Committee v. Arneson, No. 10-1558, April 28, 2011

Monday, March 17, 2014

Ohio juvenile law issues & cases

  The Ohio Supreme Court decided two juvenile offender issues this past week.

  The first instance, State v. Long, Case 2012-1410 (Slip Opinion) 2014-Ohio-849 on March 12th., evolved from a joint jury trial in which defendant Eric Long and two adult codefendants were found guilty of aggravated murder, felonious assault, and multiple firearms charges following separate shootings in a Cincinnati neighborhood and on Interstate 75 north of the city, the Court’s summary states. All three were sentenced to consecutive terms of life imprisonment without parole for the two aggravated murders, with Long receiving an additional 19 years on the remaining charges. He was 17 years at the time.

  Appealing his conviction, Long argued in the First District that the trial court did not specifically consider his youth as a mitigating factor and that life without parole for a teenager was cruel and unusual punishment. The appellate court upheld the trial court’s decision. (Opinion here)

  The Supreme Court, last Wednesday, reversed & remanded the case back to the trial court for resentencing, concluding in pertinence, “…The United States Supreme Court has indicated in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010),and Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L.Ed.2d 407 (2012)  that juveniles who commit criminal offenses are not as culpable for their acts as adults are and are more amenable to reform. We agreed with this sentiment in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729. Miller did not go so far as to bar courts from imposing the sentence of life without the possibility of parole on a juvenile. Yet because of the severity of that penalty, and because youth and its attendant circumstances are strong mitigating factors, that sentence should rarely be imposed on juveniles. Miller, 567 U.S. ___, 132 S. Ct. at 2469, 183 L.Ed.2d 407. In this case, the trial court must consider Long’s youth as mitigating before determining whether aggravating factors outweigh it.” (See Court News Ohio for additional information)

  The second case, In re H.V., Case 2012-1688 (Slip Opinion) 2014-Ohio-812, delivered the following day, March 13th., ran the route of starting back in December 2010, the Court’s summary recalls, when the Lorain County Juvenile Court found a juvenile identified as  H.V. to be delinquent of attempted domestic violence, a fourth-degree felony if committed by an adult. The court committed H.V. to the Ohio Department of Youth Services (ODYS) for a minimum period of six months, and put on supervised release.

  “Six months after being released, the then 16-year-old was charged with felonious assault and not adhering to the conditions of his supervised release. The juvenile court revoked H.V.’s supervised release and committed him to ODYS for a minimum period of 90 days, then finding H.V. delinquent of felonious assault, in this case a second-degree felony if committed by an adult, and imposing a one-year term for the assault, to be served consecutively to the 90-day term… H.V. appealed to the Ninth District, which here again agreed with the trial court. (9th. District's holding)

   In approaching the Supreme Court, H.V. argued the Revised Code does not authorize a juvenile court to commit a delinquent juvenile to the ODYS for a specific minimum period for a violation of supervised release, and that R.C. 5139.52(F) authorizes the juvenile court to return a delinquent juvenile to the ODYS but does not authorize the court to determine the length of the commitment, suggesting that following a revocation of supervised release, only the ODYS has the authority to impose a new period of incarceration beyond 30 days.

   The Court disagreed, stating R.C. 5139.52(F) clearly authorizes juvenile courts to return juveniles who have committed serious violations of the terms of their supervised release to the ODYS for a minimum period of 30 days

  “This provision,” the Court said, “clearly means that the ODYS is prohibited from releasing a returning violator for 30 days. The statute speaks only to the minimum period of institutionalization. It clearly vests the ODYS with the authority to increase the judge’s original sentence—presumably for juveniles who simply cannot be rehabilitated within that time—but there is no indication in this section that the juvenile court is limited in the amount of time that it may impose under this provision. Nothing in the statute, or common sense, supports the proposition that the judge is limited to ordering a maximum 30-day commitment to the ODYS. Our reading of the statute is further supported by the final clause that specifically prohibits the granting of judicial release or early release “during the minimum thirty-day period of institutionalization or any period of institutionalization in excess of the minimum thirty-day period.” (Emphasis added.) R.C. 5139.52(F).”

  In conclusion, affirming the judgment of the Ninth District Court of Appeals, the Court “held that the juvenile court did not abuse its discretion when it ordered  H.V.  to  serve  a  minimum  90-day  term  for  a  serious  violation  of supervised release.  This order was made in accordance with the plain language of R.C.  5139.52(F).   We  also  hold  that  it  was  not  an  abuse  of  discretion  for  the juvenile  court  to  order  the  term  of  commitment  imposed  for  the  supervised-release violation to be served consecutively to the term of commitment imposed for  the  underlying  offense  and  that  this  order  was  made  in  accordance  with  the plain language of R.C. 2152.19(A)(8) and 2152.01(A).”

Friday, March 14, 2014

Proposed bill to increase penalty for hit-skip drivers clears Ohio House

  The Columbus Dispatch had an article yesterday about Zanesville Rep. Brian Hill’s having introduced HB 397 last December in response to a hit-and-run accident in Guernsey County back in April of last year in which a 14-year old teenager was killed and another 15-year old critically injured. The suspect, who had an extensive criminal history that included previous driving and drug-related offenses, was later apprehended and sentenced to the maximum sentences ---- a 36 month sentence for Tampering with Evidence, a 36 month sentence for Leaving the Scene of an Accident. Both sentences are to be served consecutively. Nugent was also given a 180 day jail sentence for Vehicular Homicide, together with a fine of $150.00 for the Assured Clear Distance violation, according to the Guernsey County Prosecutor's Office press release.

  Ohio averages 473 hit & run accidents a year in which people are killed or seriously injured, but few offenders are now sentenced for leaving the scene because they’re typically convicted of more serious charges such as aggravated vehicular homicide or assault, the article quoted the Highway Patrol and Legislative Service Commission as saying. Members of the House Judiciary Committee unanimously approved the recommendation Wednesday.

   Under current law, failure to stop after an accident is normally a misdemeanor of the first degree. If the accident results in serious physical harm to a person, the offense is a felony of the fifth degree. If the accident results in death, the offense is a felony of the third degree. The bill would increase the penalty to a felony of the second degree in cases of serious physical harm to a person or death. (See ORC 4549.02 Stopping after accident on public roads or highways)

  The bill would also increase the penalty for not stopping after an accident on any public or private property other than a public road in cases in which serious physical harm to a person or death results, increasing that penalty to a felony of the second degree in case of serious physical harm to a person or death where failing to stop where currently it is typically a misdemeanor of the first degree, unless the accident results in serious physical harm to a person which makes it a felony of the fifth degree or third degree if the accident results in death. (ORC 4549.021 Stopping after accident on other than public roads or highways)  

Text of House Bill 397

Tuesday, March 11, 2014

New Internet Access to Ohio Supreme Court Case Information

 The Ohio Supreme Court’s news service, CourtNews Ohio announced a new search feature being added to the Court website last week to help the public track issues accepted by the justices  for review.

   The new service is accessible via the Clerk of Court/ Case Information tab, six down along the left margin of the website’s home page under Issues Accepted for Review. on the drop-down menu.  All accepted jurisdictional appeals, accepted certified conflict cases, and accepted certified question of state law cases are viewable while open and for 180 days after they are closed. A search can be done using the issue, case caption, or case number.

   Archived case summaries from 2002-2012 & more recent case summaries from 2012 on when Court News Ohio was born, along with  previews of oral arguments for the week are also available on the site.

Wednesday, March 05, 2014

Whistleblower protection extends to company contractors

  NPR yesterday morning related “the U.S. Supreme Court’s ruling that a federal whistleblower law, enacted after the collapse of Enron Corporation, protects not just the employees of a public company, but also company contractors like lawyers, accountants, and investment funds.”

  The case was  Lawson. Etal v. FMR LLC, Etal , Case 12–3.

   Justice  Ginsburg in delivering the opinion of the Court, concluded that §1514A’s whistleblower protection includes employees of a public company’s private contractors and subcontractors, writing in the syllabus that “to  safeguard  investors  in  public  companies  and  restore  trust  in  the financial  markets  following  the  collapse  of  Enron  Corporation,  Congress passed the Sarbanes-Oxley Act of 2002.  One of the Act’s provisions  protects  whistleblowers;  at  the  time  relevant  here,  that  provision  instructed:  “No  [public]  company  . . .,  or  any . . . contractor  [or] subcontractor . . . of such company, may discharge, demote, suspend, threaten,  harass,  or  . . .  discriminate  against  an  employee  in  the terms and conditions of employment because of [whistleblowing activity].”  18 U. S. C. §1514A(a).

  The  Court  looked  first  to  the  ordinary  meaning  of  the  provision’s language, Ginsburg further explained, referring to Moskal v. United States, 498 U. S. 103, 108 (1990) “As relevant here, §1514A(a) provides that “no . . . contractor . . . may discharge . . . an employee.”  The ordinary meaning of “an employee” in this proscription is the contractor’s own employee.  FMR’s “narrower construction” requires inserting “of a public company” after “an employee,” but where Congress meant “an employee of a public company,” it said so.”

  ScotusBlog’s Geoffrey Rapp posted an argument recapitulation and analysis of the case, and The Wall Street Journal, Forbes, the ABA Journal  and Reuters  were among them having articles.

Tuesday, March 04, 2014

Supreme Court allows disputed home searches without warrants

  In 1974 the Supreme Court in United States v. Matlock held Fourth Amendment prohibitions on unreasonable searches and seizures were not violated when the police obtained voluntary consent from a third party who possessed common authority over the premises sought to be searched. Wikipedia’s article on that case says that ruling “established the ‘co-occupant consent rule,’ which was later explained by Illinois v. Rodriguez, 497 U.S. 177 (1990) and distinguished by Georgia v. Randolph,  547 U.S. 103 (2006), in which the court held that a third party could not consent over the objections of a present co-occupant.”

  Its article on that case notes “Randolph held that without a search warrant, police had no constitutional right to search a house where one resident consents to the search while another resident objects. The Court distinguished this case from the "co-occupant consent rule" established in United States v. Matlock, 415 U.S. 164 (1974), which permitted one resident to consent in absence of the co-occupant. Georgia v. Randolph was a battle in the continuing contest between proponents of the "Originalist" and the "Living Constitution" philosophies on the Supreme Court, and in U.S. jurisprudence – the latter maintaining “the Constitution has a dynamic meaning and associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases” according to Adam Winkler’s A Revolution Too Soon: Woman Suffragists and The "Living Constitution". 76 NYULR 1456, 1463 ("Based on the idea that society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Justice Oliver Wendell Holmes Jr., "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.")

   And now that’s been extended a bit, too, with the Court’s examination of the circumstance of the police’s right to enter and search a premise when an objecting occupant was no longer present….. finding that they could in the 6-3 decision last week highlighting Americans’ Fourth Amendment protections against unreasonable searches and seizures stemming from the 2009 Los Angeles case, Fernandez v. California.

   The Los Angeles Times’ coverage of the case details that “the case began with LAPD officers responding to reports of a street robbery and pursuing a suspect to an apartment building where they heard shouting inside one of the units. Upon their knocking on the door, Roxanne Rojas opened the door, but her boyfriend, Walter Fernandez, told officers they could not enter without a warrant. Fernandez was arrested in connection with the street robbery and taken away. An hour later, police returned and searched his apartment with Rojas' consent., finding a shotgun and gang-related material… He was later convicted for his role in the street robbery and sentenced to 14 years in prison. The California Supreme Court upheld his conviction, which he appealed to the Supreme Court challenging the search of his apartment.

  “The Court’s majority,” the Times reported, “led by Justice Samuel A. Alito Jr., said police need not take the time to get a magistrate's approval before entering a home in such cases. But dissenters, led by Justice Ruth Bader Ginsburg, warned that the decision would erode protections against warrantless home searches. The court had previously held that such protections were at the "very core" of the 4th Amendment and its ban on unreasonable searches and seizures.”

  ScotusBlog’s  Rory Little posted an argument recap & analysis, with Orin Kerr offering “Five thoughts on Fernandez v. California.” [ScotusBlog's docket on the case is here]

  The New York Times also discussed the case along with that of Kaley v. United States, decided the same day.

Monday, March 03, 2014

High court looks at death row inmate mental disability claims

 The U.S. Supreme Court this morning heard an appeal from Florida death row inmate Freddie Lee Hall, who’s scored above 70 on most of the IQ tests he’s taken since 1968, but says ample evidence shows he is mentally disabled and therefore cannot be executed because of that, according to an Associated Press article last Friday.

 We previewed this case last month.

  AP says Hall’s case centers on how authorities determine who is eligible to be put to death, 12 years after justices prohibited the execution of the mentally disabled. [ Hall v. Florida, 12-10882 ScotusBlog docket ]

  As long ago as the 1950s, Hall was considered "mentally retarded" — then the commonly accepted term for mental disability — according to school records submitted to the Supreme Court, and a judge in an earlier phase of the case concluded Hall "had been mentally retarded his entire life." Psychiatrists and other medical professionals who examined him also said he is mentally disabled.

  The Florida Supreme Court has ruled that the state law regarding executions and mental disability has no wiggle room if an inmate tests above 70. In Florida and some other states, an intelligence test score higher than 70 means an inmate is not mentally disabled, even if other evidence indicates he is, and the Court in Penry v.  Lynaugh  held that executing a mentally retarded person did not automatically violate the U. S.  Constitution… adding that juries must be allowed to consider and give effect to mitigating evidence of mental retardation when considering whether to impose the death penalty.

  Ohio, Indiana, and Kentucky have similar statutes.

  ScotusBlog’s Lyle Denniston in his blog post last Friday chronicled the case & background, writing, “In the beginning twenty-eight years ago, in the Court’s decision in Ford v. Wainwright, capital punishment was ruled out for individuals who were found to be insane at the time the sentence was to be carried out, with states allowed to define that condition.

  “In 2002, the Court reached the claim of mental incapacity that is less severe than insanity, and it ruled that this condition (“mental retardation”), too, makes a convicted individual ineligible for execution.  But, in its decision in Atkins v. Virginia, the Court said explicitly that not every person who claims such an impairment would “fall within the range of mentally retarded offenders about whom there is a national consensus” against subjecting them to a death sentence.  “We leave to the states the task of developing ways” to define the protected category, the Court said. (emphasis ours)

  “A year after the Atkins decision, the Florida Supreme Court interpreted an existing state law defining mental retardation to mean that the individual’s IQ score had to be seventy or below.  Although Freddie Lee Hall at one time had an IQ test score of sixty, the state court would rule later in his case that a more recent test showed a score of seventy-one, thus making him eligible for the death penalty.  Hall, who is now sixty-nine years old, has long been on death row for a 1978 murder, and has repeatedly attempted to avoid execution by claiming mental incapacity.”

  ScotusBlog this morning adds additional coverage coming  from NPR’s Nina Totenberg and Jess Bravin of The Wall Street Journal, while in his column for The Atlantic Andrew Cohen argues that, “[i]f the Supreme Court meant what it said in Atkins [v. Virginia], the justices must loudly declare that the execution of the mentally retarded in America will not be tolerated, either as a nod to states’ rights or for any other hoary justification.”