New CLE rules in effect for Ohio attorneys

Attorneys admitted to practice in Ohio are no longer required to file a final reporting transcript for CLE credit, according to a recent article by Court News Ohio. This is one of several changes to rules for CLE requirements passed by the Supreme Court of Ohio in November 2012 that became active this year. The first group of attorneys not required to file the final transcript are those whose names begin with M through Z, whose biennial compliance period ends on December 31, 2014. Other significant changes include that attorneys are no longer required to earn separate credits for ethics, professionalism and substance abuse sessions, but must complete 2.5 hours in the area of professional conduct, and that attorneys may now earn CLE credit for pro bono work. There are also changes for judges, magistrates and new lawyers.

The Office of Attorney Services of the Ohio Supreme Court has published comparison charts highlighting the differences between the old and new rules as well as FAQs and other useful information, which is available here. The full text of the rules as well as recent amendments can be found at Attorney Services website.

Several specialized courts in Ohio obtain final certification

Court News Ohio reports that 23 specialized dockets in Ohio courts have recently received final certification by the Supreme Court of Ohio Commission on Specialized Dockets. This includes a Veterans Treatment docket in Hamilton County Municipal and Common Pleas courts and an OVI docket in Clermont County. You will find Hamilton County's participant handbook here and program information and eligibility guidelines here.

There are currently over 150 specialized dockets in Ohio courts. These dockets provide a “therapeutically oriented judicial approach to providing court supervision and appropriate treatment to individuals” (Rules of Superintendence 36.20). This is a non-adversarial approach to the justice system wherein court and treatment personnel collaborate to provide treatment instead of prison time for defendants dealing with issues such as mental health and drug and alcohol abuse. This involves a treatment team that can include prosecutors, defense counsel, probation officers, case managers and licensed treatment providers, among other community and court personnel.  The team is led by a specialized docket judge. According to Court News Ohio, "the success of specialized dockets is measured by reduced recidivism, improved treatment, and cost savings."

Specialized courts must undergo an application and certification process with the Supreme Court of Ohio Commission on Specialized Dockets before hearing cases. They must be re-certified after three years of certification or within six months of a change in judge for that court. For more information on the rules for specialized dockets see Appendix I of the Rules of Superintendence for Ohio Courts.

Same-sex marriage cases governed by 1972 SCOTUS decision?

Could a 1972 SCOTUS decision cause a divide among circuits and send same-sex marriage cases on a fast track to the U.S. Supreme Court? This is the question raised in a recent Washington Post article about the case of Baker v. Nelson (1972), in which the U.S. Supreme Court summarily dismissed a challenge to Minnesota’s ban on same-sex marriage with one line: “Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.” Baker involved Richard Baker and James Michael McConnell, who applied for a marriage license in Minnesota in 1970 and were denied based on the state’s law limiting marriage to opposite sex couples. They pursued a legal challenge to this law, asserting that it violated their fundamental right to marry under the U.S. Constitution. The Minnesota Supreme Court denied their claim and the ACLU petitioned the U.S. Supreme Court to hear their case. The high court responded with their one line dismissal.

Baker has been widely disregarded as no longer relevant by judges in the circuits that have struck down same-sex marriage bans. This is largely due to the swath of decisions that have come from the high court since Baker was decided that have been more favorable to gay rights, including Romer v. Evans (1996), Lawrence v. Texas (2003) and U.S. v. Windsor (2013). According to an article on Slate.com, although summary dismissals from the U.S. Supreme Court are generally binding on lower courts, it is possible that “doctrinal developments” from future cases could undermine such a decision’s value as legal precedent. The Supreme Court’s decisions in cases like Romer, Lawrence and Windsor did not specifically overrule Baker, but have given lower courts some latitude to disregard it when reaching decisions about the constitutionality of same-sex marriage bans.

Baker may be a pivotal issue in the 6th Circuit’s forthcoming decision about the six cases it heard on August 6 involving various issues related to same-sex marriage from all four states in its jurisdiction. According to the Post, during oral arguments in those cases Justice Sutton “repeatedly asked lawyers challenging the bans why his court should not feel bound by Baker, since the Supreme Court has never found reason to overturn it.” Slate, however, reports that Justice Sutton then “walk(ed) back his statement, musing that “the legal reasoning in other cases”—Romer, Lawrence, and especially Windsor—were “totally inconsistent with Baker.” ” According to Slate, Sutton is known as a swing vote, as he was appointed by George W. Bush and served as law clerk to Supreme Court Justice Antonin Scalia, but recently upheld the Affordable Care Act when it was challenged in the 6th Circuit.

A decision to uphold the states’ gay marriage bans couched in the precedent of Baker would avoid dealing with difficult constitutional questions surrounding these issues, and would almost certainly send the issue swiftly to the Supreme Court for decision.

Tribute to our colleague

It’s with sorrow that we inform our readers of the passing of our long-time colleague Charles Kallendorf on August 19, following a period of declining health.  Chuck had worked for Hamilton County for nearly forty years, in the Law Library as public services assistant since late 1999 and, earlier, for the Auditor's office.  He authored most of our blog posts over the past decade and provided research guidance to countless legal professionals and members of the general public.  Chuck had the lights on, coffee brewed, and computers booted up every day before some of us were awake.  We will miss Chuck's research, service to library users, and his wit.

Mary Jenkins
Law Librarian & Director

Mineral rights cases to be heard by Supreme Court of Ohio

Court News Ohio reports that the Supreme Court of Ohio is set to hear two cases involving mineral rights on Wednesday. The cases have arisen largely due to the use of fracking and horizontal drilling in Ohio and have potential multi-million dollar consequences. Both cases out of eastern Ohio involve questions as to the ownership of the natural resources located below the surface of property. Rights to those resources are often divorced from surface ownership, but it is sometimes unclear who actually has ownership of them. The Ohio Dormant Mineral Act (passed in 1989 and found in O.R.C. 5301.56) generally governs this issue. Columbus Business First describes this act as offering a “use it or lose it” rule. This essentially means that if certain actions are not taken with respect to the natural resources after 20 years have elapsed then ownership transfers to the surface landowner.  Prior to 2006 the mineral rights automatically transferred to the surface owners if those actions weren’t taken. In 2006, however, the law was amended to state that the 20 year look-back period does not begin until the landowners tell the holders of the mineral rights that they intend to declare their interests abandoned.

The specific cases before the court this week are Dodd v. Croskey and Chesapeake Exploration v. Buell. In Dodd, the landowners assert that although the deed to their property excludes the mineral rights below, the owners of those rights abandoned them by not acting in accordance with the Dormant Mineral Act in the past 20 years. The holders of the mineral rights argue that they did not need to perform this act, as another part of the statute preserved their interests. Specifically, they assert that because they filed a claim to their mineral rights within 60 days of the landowners serving an abandonment notice that this preserves their rights and they did not need to have taken specific actions within the preceding 20 years.

In Chesapeake, the owners of the mineral rights argue that creating a lease on their rights and ending the lease both acted as title transactions which each started a new 20 year time frame within which they had to act to preserve their rights. They argue that because ending the lease was a “savings event” that started a new time frame in 1989, the 20 year period ended in 2009, after the 2006 amendment to the law. They assert that this means the 2006 amendment applies and that the landowners had to give them notice before they could begin the 20 year look back period. Since no notice was given they claim that rights cannot have transferred. The landowners claim that the expiration of the lease was not a “savings event” and that the 20 year period began with the creation of the lease in 1984, and ended in 2004, before the 2006 amendment. As such, they claim that the property rights automatically transferred to them at that point, even though they did not give notice, because the 2006 amendment had not yet been passed.

The arguments will be streamed live online at sc.ohio.gov and broadcast live on The Ohio Channel.

Ohio's moratorium on execution drugs extended

Controversy surrounding Ohio’s use of new execution drugs continues to mount, as U.S. District Judge Gregory L. Frost has now extended a moratorium on executions in Ohio until January 15, 2015. This order postpones the execution of Ronald Phillips, set for September 18, for the beating, rape and murder of the 3-year-old daughter of his girlfriend in 1993. Also postponed are the executions of Raymond Tibbets, set for October 15 and Gregory Lott, set for November 19. The Ohio Supreme Court is responsible for rescheduling these executions.

Frost’s order was prompted by on-going issues surrounding the use of new execution drug protocols. Dennis McGuire was the last person executed in Ohio. His execution for the murder of 22-year-old Joy Stewart took place on January 16, 2014, using the same combination of drugs the state was set to use in the upcoming cases. McGuire reportedly struggled for well over ten minutes after he was administered midazolam, a sedative, and hydromorphone, a painkiller. McGuire’s family filed the case in federal court requesting an injunction against the use of the death penalty as cruel and unusual punishment. A California anesthesiologist serving as an expert for the family has recently signed an affidavit asserting that the execution was not performed humanely.

The drugs used in McGuire’s case are the same controversial drugs used in several other states, including Arizona, where the July 23 execution of Joseph Rudolph Wood III took nearly two hours and required 15 doses before Wood was pronounced dead. Midazolam was also used in the April, 2014 execution of Clayton Lockett in Oklahoma, in which Lockett died of a heart attack 43 minutes after the execution began. 

Ohio had announced in April that it would continue to use midazolam and hydomorphone for future executions, but would up the dosages to prevent further problems. In the past, Ohio used other cocktails of lethal injection medications, and then switched to a single-drug injection called pentobarbital, but the drug manufacturers stopping selling them for use in executions, citing ethics reasons. 

Barmageddon: Law graduates sue ExamSoft over bar exam glitches

The ABA Journal reports that law graduates in multiple states have now filed suit against bar exam software company, ExamSoft, related to software glitches that prevented them from uploading their answers on time while taking the bar exam last month. State bar examiners extended the deadline for submission in all states where test-takers were affected by the software issues, but several law grads are seeking redress in court for problems related to the delays in uploading, complaining of added stress to an already emotionally-fraught experience. Test-takers paid between $100 and $150 to use the software and are seeking refunds for these fees as well as compensation for their wasted time and anxiety. Bar exam results in many states are not released until later in the fall (even October or November in some states), so test-takers do not yet know whether they have passed or failed and are not able to determine whether their results may be attributable to the software problems.

ABC News reports that five students have filed suit against the software company to date. This includes cases originating in state and federal courts in Chicago, one in federal court in Spokane, Washington and one filed in federal court in California. All are either certified, or seeking to be certified as class-actions. The case in Illinois state court is seeking both compensatory and punitive damages for fraud, breach of contract and unjust enrichment. The complaint states that ExamSoft is refusing to issue refunds to affected test-takers and specifically alleges that, "A representative message sent to one test taker from ExamSoft's customer service team stated the following: 'Thank you for contacting ExamSoft. We deeply apologize for the inconvenience had happened Tuesday night. However, when paying and registering Softest on your computer you agreed to a disclaimer which indicated that there are no refunds. Again, I am really sorry. Please let me know if you have any further questions,'"

According to ABC News, ExamSoft claims that the upload problems originated with server configuration issues and not the software itself or the number of students using the program.

For more information about this, please see:

Above the Law: "ExamSoft Sued in Illinois"
Courthouse News Service "Disaster Strikes Multistate Bar Exam"

Debtor's prisons in Ohio? Educating the judiciary to prevent illegal incarcerations

The Plain Dealer out of Cleveland reports that across Ohio, individuals are sometimes jailed for failure to pay court fines and costs in violation of the Ohio Constitution. This often impacts poor Ohioans who may not have the resources to pay the fines or to fight the illegal incarceration. Plaintiffs out of Northern Ohio, including Joshua Ward and Jeremiah Stover, have attempted to sue Norwalk County Municipal Court and the city of Norwalk for repeatedly jailing them for failing to pay court costs and fines. The plaintiffs have not been successful so far, as the federal court has found the defendants immune from suit, but the case is on-going.

The Supreme Court of Ohio has addressed this issue by attempting to educate the judiciary about when jail time is and isn't an appropriate remedy for failure to pay fines. To accomplish this the Court has developed a benchcard that explains the law with respect to this issue and has engaged in training for judges, probation officers and court employees.

Franklin County CSEA begins child support diversion program

The Franklin County Child Support Enforcement Agency (CSEA) has recently started a pilot program that helps non-custodial parents who have repeatedly been in court for failure to pay child support access resources which may give them better tools to provide for their children. According to the Columbus Dispatch, the program, called Compass, connects the parent with community resources that provide services such as food, clothing and housing assistance, as well as job training and placement. Judge Terri Jamison of the Franklin County Domestic Relations and Juvenile Courts implemented the program in her courtroom last week on a trial basis, evaluating whether to create a specialized child support docket.

The program is designed to divert offenders from potential sentences involving jail time in an effort to provide life skills and resources for parents to support their children. Susan Brown, the Franklin County CSEA's executive director, reports that sending people to jail does not truly help the agency achieve its goal of obtaining financial assistance for children, but that it is often the only tool the agency has to enforce compliance with child support orders. The Compass program is unique in that it attempts to break the cycle of non-payment through proactive means by providing skills and resources to the non-custodial parent. Brown reports that under Ohio law the CSEA is not permitted to use state and federal funds to help these parents find employment. The Compass program is possible, however, because Franklin County Department of Job and Family Services is providing $300,000 in funds set aside to help low-income county residents.

Forum held on extending foster care age in Ohio

WLWT reports that a public forum on extending the foster care age in Ohio was held on Wednesday, July 30 at the United Way's Cincinnati headquarters. The forum, entitled "Ohio, Fostering Connections” was the second in a series of five taking place across the state where legislators and individuals from community agencies who work with at-risk juveniles come together to discuss this issue. The Cincinnati forum focused on the difficult transition out of foster care for children when they turn eighteen and featured statements from former foster children and the director of Hamilton County Job and Family Services, Moira Weir.

Advocates of this change assert that it will improve outcomes for children as they age out, resulting in better numbers of high school graduates, more enrollment in college and fewer incidences of homelessness. Representatives in the Ohio House introduced a bill regarding this issue in January 2014. House Bill 423 would amend the Ohio Revised Code to extend the foster care age from 18 to 21. The Ohio Legislative Service Commission has provided analysis of this bill. Per WLWT, the bill's supporters hope that it will pass the Ohio legislature this year and be implemented by 2016.

Task Force on Access to Justice convenes in Columbus

Court News Ohio reports that the Task Force on Access to Justice convened its first meeting on August 1, 2014 in Columbus. The task force was established by the Supreme Court of Ohio and is charged with identifying barriers faced by disadvantaged individuals in the Ohio civil justice system. It has eleven members, comprised of Justice French of the Supreme Court of Ohio, judges from the Cuyahoga Domestic Relations Court, representatives from legal aid organizations in Columbus and Toledo, private practice attorneys, an advocate from the Office of the Ohio Public Defender and a representative from the Ohio State Bar Association. The task force is chaired by former Ohio Supreme Court Justice Yvette McGee Brown.

According to Court News Ohio, Chief Justice O'Connor reported that there are currently 32 other states with these commissions. She urged the task force to review their work to evaluate whether there are any similarly-situated states from which Ohio's task force could gain information and helpful models. She encouraged the group not to limit its work to low income individuals, but to also consider people facing additional barriers to the legal system, such as language issues, when making its findings.

The next task force meeting is September 12, 2014 and will be open to the public, per the operating guidelines.

Sixth Circuit to hear arguments in same-sex marriage case on August 6

The U.S. Court of Appeals for the Sixth Circuit is set to hear arguments regarding same-sex marriage from the four states within its jurisdiction on Wednesday, August 6. The cases include:

• A Michigan case involving the constitutionality of the state's constitutional amendment banning same-sex marriage. The district court ruled that this ban violated the Equal Protection Clause of the U.S. Constitution in March 2014.
• Ohio consolidated cases involving the constitutionality of the state's ban on recognizing same-sex marriages from other states. The district court ruled that Ohio must recognize valid same-sex marriages from other states on birth and death certificates and enjoined the state from enforcing Ohio's ban on recognizing same-sex marriages from other states in December 2013 and April 2014.  
• Kentucky consolidated cases involving the constitutionality of the state's ban on recognizing same-sex marriages from other states and the state's prohibition on same-sex marriage. The district court ruled these unconstitutional in February 2014 and July 2014, respectively, and
• A Tennessee case involving the constitutionality of the state's statute banning same-sex marriages from other states. The district court ruled this was unconstitutional in March 2014. 

These cases will be heard before the three-judge panel of Justices Daughtrey, Sutton and Cook at 1pm on August 6. Both the 10th and 4th Circuits have recently struck down state same-sex marriage bans within their respective jurisdictions. 

For more information about these cases please see the following from SCOTUSBlog, The Plain Dealer. and Sixth Circuit Appellate Blog. 

Consecutive sentences: Judicial findings, but not reasons, required to impose

On July 24, 2014 the Supreme Court of Ohio ruled that in order to impose consecutive sentences a trial court must make findings pursuant to O.R.C. 2929.14(C) at the sentencing hearing and incorporate the findings into a sentencing entry, but that it is not required to provide reasons in support of its findings (State v. Bonnell, Slip Opinion No. 2014-Ohio-3177).  This decision was the latest development in a complicated legislative and judicial  history involving this issue.

In 1996 the Ohio legislature passed a law that created a statutory presumption for concurrent sentences and required trial courts to make specific findings with reasons to support those findings in order to impose consecutive sentences. In State v. Foster, 109 Ohio St.3d 1 (2006), as a result of decisions made by the U.S. Supreme Court in other cases, the Ohio Supreme Court found those portions of the statute violated the 6th Amendment and severed them from the revised code. The U.S. Supreme Court then found that state statutes requiring judicial fact-finding before imposing consecutive sentences did not violate the 6th Amendment in Oregon v. Ice, 555 U.S. 160 (2009). Subsequently, the Ohio Supreme Court ruled that the U.S. Supreme Court’s decision in Ice did not automatically reinstate the severed provisions of the revised code, and that the Ohio legislature would have to pass a new law to reenact them (State v. Hodge, 128 Ohio St.3d 1 (2010)).

As a response to the Court’s decision in Hodge, the Ohio legislature passed H.B. 86 in September, 2011, which amended O.R.C. 2929.14 and O.R.C. 2929.41 to make concurrent sentences the presumption unless the trial court makes factual findings pursuant to O.R.C. 2929.14(C)(4). In the majority decision in Bonnell, the Court noted that in passing the new law the Ohio legislature did not require trial courts to provide reasons for their findings of fact when imposing consecutive sentences. As such, the Court found that pursuant to these laws, while judicial findings are required before imposing consecutive sentences, reasons are not. The majority decision was written by Justice O'Donnell and joined by Justices O’Connor, Pfeifer, Lanzinger, and O’Neill. Justices French and Kennedy concurred in part and dissented in part. In the concurrence/dissent, Justice French stated that trial courts should be permitted to make the findings in a sentencing hearing, a sentencing entry or a combination of the two, but should not be required to make the findings in both.

For more information about this case see the Ohio Supreme Court docket page for 2013-0167 and this link from Court News Ohio.