Tuesday, September 30, 2014

Supreme Court blocks early voting in Ohio

As of yesterday's post, Ohio's early voting, scheduled to begin today, was awaiting decision from the U.S. Supreme Court. Late Monday evening, the high court granted a stay to state officials in a 5-4 decision split along party lines, with the Republican majority casting the deciding votes. This effectively abolishes Ohio's Golden Week, wherein voters could both register to vote and cast a ballot at the same time for one week at the beginning of the early voting period, and pushes the start of voting to October 7.

Whether or not the other extended hours that the district court had approved will take place remains unresolved at this point. According to SCOTUS Blog, the next steps in the case would be for state officials to file a petition with the Supreme Court to review the case and the Court to rule on it. If both actions do not take place with adequate time before Election Day on November 4, then the additional early voting hours ordered by the district court will not take place in this election cycle. Ohio Secretary of State Jon Husted has issued this directive with respect to the early voting schedule for the coming weeks.

Monday, September 29, 2014

Proposed bill would require first-time DUI offenders to have breathalyzer device on vehicle

Ohio H.B. 469 is set for hearing Tuesday with a possible vote scheduled. The bill, introduced in March, amends Ohio's OVI laws to require that first-time offenders of alcohol-related OVI offenses use an ignition interlock device (IID) if they are granted driving privileges. The current law allows these offenders to obtain limited driving privileges by court order, but does not require the IID. An IID is basically a breathalyzer attached to the car's ignition that will not start if too much alcohol is detected on the driver's breath. The IID would also send a report of the reading to the entity monitoring the device. Click here for the Ohio Legislative Service Commission's analysis of the bill.

Decision on Ohio early voting pending with the Supreme Court

New developments have arisen for Ohio's early voting laws, with voting currently set to begin tomorrow. Last Wednesday, a three-judge panel from the Court of Appeals for the Sixth Circuit issued a decision upholding the injunction granted by the District Court, which prevented the state from implementing voting laws that provided for less early voting time. We discussed the lower court's decision in early September, here.

In an opinion drafted by Judge Karen Nelson Moore, the Sixth Circuit found that the district court did not err in giving credit to statistical evidence presented to it and used an appropriate standard of review. It also found that the Plaintiffs were likely to succeed on claims that the laws violated both the Equal Protection Clause and Voting Rights Act, and thus affirmed the decision of the lower court, enjoining the measures that restricted early voting times.

According to SCOTUS Blog, Defendants (state officials) have now requested a hearing of the matter by the Sixth Circuit in its entirety and filed a request with the U.S. Supreme Court to postpone the lower court's order. Defendants alternatively requested that the Supreme Court hear the case itself. Defendants claim that the order of the lower court infringes on the state's right to run its own elections and that the court's underlying analysis of the law is incorrect. The Ohio legislature has also filed its own emergency application for stay.

The Plaintiffs (Ohio NAACP et al.) filed a brief in response over the weekend, urging the Court to allow the lower court's decision to stand. Plaintiffs argue, in part, that this will simply maintain the status quo and cause no harm to Defendants. Defendants filed a final response on Sunday morning, citing among other issues, Plaintiffs' alleged delay in requesting to enjoin the measures, which were established in February, as reason to grant the stay.

SCOTUS Blog reports that all requests were filed with Justice Elena Kagan, who handles emergency matters arising from the Sixth Circuit. She can now decide whether to rule on this alone, or with input from the Court in its entirety. Possible outcomes include a ruling either postponing the lower court's order or declining to postpone it, or a decision for the Court to hear the case without waiting for anything further to happen in the lower courts. If Justice Kagan or the Court postponed the lower court's order then early voting would not begin tomorrow. The request for an en banc hearing is also still pending in the Sixth Circuit.

Thursday, September 25, 2014

Ban on lies in judicial campaigns constitutional, ban on misleading statements not, rules Ohio Supreme Court

In a decision that provides an interesting contrast to the recent federal court opinion striking down the Ohio law banning false statements in political campaigns, the Supreme Court of Ohio has recently ruled on Ohio's ban on lies and misleading statements in judicial campaigns as found in the Code of Judicial Conduct. The Court found Jud.Cond.R. 4.3(A)'s ban on misleading statements that are true to be unconstitutionally overbroad, but the ban on knowing or reckless false statements to be acceptable under strict scrutiny.

This appears to differ from the ruling in Susan B. Anthony List v. Ohio Elections Commission, in the U.S. District Court for the Southern District of Ohio, wherein Judge Black ruled that the Ohio law banning false statement in political campaigns was not narrowly tailored to a compelling government interest and stated that "the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is."

The case before the Ohio Supreme Court involves a judge on the 11th District Court of Appeals who ran for election in 2012. Colleen Mary O'Toole was first elected to this judgeship in 2004 and served until 2011, after she was defeated in the primaries. She then ran for (and won) the position again in 2012. Although she had not been on the bench since 2011, during her election campaign in 2012 O'Toole used certain campaign materials showing her in judicial robes and referring to her as "Judge O'Toole." A five-judge commission appointed by the Ohio Supreme Court sanctioned O'Toole, finding that she had violated Jud.Cond.R. 4.3(A)'s bans on false statements and true, but misleading statements. She appealed this decision, alleging that these portions of the Code violated the First and Fourteenth Amendments.

Writing for the majority, Justice Lanzinger held that the state has a "compelling interest in promoting and maintaining an independent judiciary, ensuring public confidence in the independence, impartiality, integrity, and competence of judges, and ensuring that the conduct of judicial candidates furthers, rather than impairs, these interests." She ruled that the portion of the Code of Judicial Conduct banning false statements made recklessly or knowingly was sufficiently narrowly tailored to fulfill this compelling government interest, but that the portion banning true, but misleading statements was not. The Court held that this section of the Code had a dramatic chilling effect on speech, stating that, "this portion of the rule does not leave room for innocent misstatements or for honest, truthful statements made in good faith but that could deceive some listeners."

In reaching this decision, Justice Lanzinger distinguished the case from U.S. v. Alvarez, which was a key case cited by Judge Black in SBA List. Lanzinger wrote, "Alvarez does not consider whether the state can ever have a compelling interest in restricting false speech solely on the basis that it is false so that such prohibition could withstand strict scrutiny." She went on to hold that the state does have a compelling interest in maintaining the integrity of the judiciary, and that Alvarez does not require it to reject that interest.

The Court ordered that the second part of Jud.Cond.R. 4.3(A) which reads,"or, if true, that would be deceiving or misleading to a reasonable person," must be severed from the rule, and dismissed the sanctions against O'Toole for violating this portion of the Code.  The Court upheld the sanctions against O'Toole for violating the ban on false statements, relating to her act of calling herself "judge" when she was not.

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

Monday, September 22, 2014

New prostitution court in development in Hamilton County

A recent editorial in the Cincinnati Enquirer describes a bipartisan effort to curb prostitution by addressing some of its underlying causes, currently in development in Hamilton County courts. County and city officials such as Hamilton County Municipal Court Judge Heather Russell, Hamilton County Sheriff Jim Neil, the Cincinnati Police Department and other elected officials are working on a joint endeavor to create a court specifically for handling prostitution cases, with a focus on providing substance abuse treatment for offenders. The court would provide a robust approach to dealing with these individuals, offering addiction treatment, mental health services and parenting services as needed, administered by a team of individuals from multiple agencies, such as social workers, court officials and medical professionals.

Major Charmaine McGuffey, a Hamilton County jailer, recently stated to WKRC-TV that many women arrested for prostitution are also heroin users, and that this spurs them to engage in this illegal activity to help feed the addiction. Because of overcrowding in the jail, however, these individuals are immediately released, leaving no time for detox from harmful substances. An important aspect of the prostitution court would be the time devoted to detox, which could potentially happen immediately upon arrest, before the offender would go before Judge Russell to begin work on treatment. Although these services can be costly, WKRC-TV reports that some initial funding may be available for a few participants to access inpatient services at Cincinnati's Center for Chemical Addictions Treatment (CCAT) House, which is a "medically monitored detox center."

According to the Enquirer editorial, Russell and the Sheriff's Department want to begin a pilot program from October through December of this year, but may not have access to all the required funding. A similar program is already in place in Franklin County and has been successful in that area. Montgomery County has also recently launched a women's drug court, dealing with related issues.

Friday, September 19, 2014

Voters jailed immediately before elections must be permitted to vote, rules federal court

A federal judge in Cincinnati ruled Tuesday that voters who are jailed the weekend before an election still have the right to vote and must be accommodated with absentee ballots, the Cincinnati Enquirer reports. The circumstances affect a specific group of people: potential voters who have been arrested after 6 pm the Friday before the election and not yet released by 3 pm on Election Day. This is because under the current framework of Ohio election law the deadline to request and cast an absentee ballot in person is 6 pm on the Friday before an election.  Voters who are incarcerated after 6 pm the Friday before an election are not able to cast an absentee ballot, and, if those individuals are not released by Election Day, they will not be able to cast votes in person. The current timeline created by Ohio law essentially bars this group of incarcerated individuals from voting at all in that election.

Judge Arthur Spiegel of the U.S. District Court for the Southern District of Ohio found that this violates several aspects of the U.S. Constitution and federal law, including the Equal Protection and Due Process Clauses of the Fourteenth Amendment, voting rights under the Seventeenth Amendment and the Voting Rights Act. In his opinion, Judge Spiegel took into account statutory procedures for voting by other confined voters. Under Ohio law, many confined individuals, including inmates arrested before the 6 pm Friday deadline, fall into special circumstances exceptions, allowing them to obtain and cast absentee ballots before an election. In order to effectuate this, boards of elections must send two-member teams comprised of individuals from both major political parties to jails and other places of confinement, such as hospitals and nursing homes, to pick up the ballots.

Because of the 6 pm deadline to obtain absentee ballots, however, the small group of inmates arrested after this time are unable to vote in that election, unless they are released in time on Election Day. Citing the fact that the board of elections teams are already going to jails and prisons, and the fact that this affects a small number of individuals, Judge Spiegel found that the actions required to allow voting in these circumstances are not so burdensome as to merit stripping away the fundamental right to vote. In his opinion, Spiegel also stressed that there are procedures in place to allow people that are confined in hospitals during this same time period to vote, yet there are not similar provisions for those confined in jails, despite the fact that they are "similarly-situated."

The Court concluded: "if an elector is taken into state custody after 6:00 P.M. on the Friday before Election Day, such an elector should be entitled to absentee voting assistance until 3:00 P.M. on Election Day if  '[t]he elector is confined in a county jail as a result of an unforeseeable arrest or misdemeanor sentence of incarceration occurring before the election.'"

For more information about this case see this article from the Columbus Dispatch.

Thursday, September 18, 2014

Strip mining may be permissible in Ohio wildlife areas, rules Ohio Supreme Court

The Ohio Supreme Court ruled yesterday that strip mining may be permissible in Ohio's state parks and other wildlife areas, according to an article in the Columbus Dispatch. The case before it, Snyder v. Ohio Dept. of Natural Resources, involved a split in rights for the Brush Creek Wildlife Area. The Ohio Department of Natural Resources (ODNR) owns the surface rights for this area and Ronald Snyder and Steven Neeley own the mineral rights to a 651 acre portion of it.

The Dispatch reports that Snyder and Neeley wanted to engage in strip-mining of their parcel, but ODNR claimed that it would destroy the land above and was not permissible unless it was specifically allowed by the mineral-rights deed. The language of the contract read that the mineral rights owners had "all mineral rights, including rights of ingress and egress and reasonable surface right privileges." ODNR asserted that this did not specifically permit strip-mining, so it was not permissible. The trial court agreed and granted summary judgment to ODNR, which the Seventh District affirmed.

The Supreme Court of Ohio, in a 6-1 decision penned by Justice Pfeifer, held that the rights of each party must be balanced, stating that "Each has rights that are subject to the rights of the other. Thus, the owner of the surface interest cannot reasonably claim that no minerals can be mined, just as the owner of the mineral interest cannot reasonably expect to have unfettered access to the minerals." The Court also stated that they were "disinclined to believe that strip-mining is always inconsistent with the surface owner’s rights." The Court ultimately ruled that the contract language was ambiguous enough that the case should be remanded to the trial court to make a determination as to whether strip-mining was reasonable and thus permissible in this case.

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

Professionalism Commission releases "Dos and Don'ts" of legal writing

The Supreme Court of Ohio Commission on Professionalism released the most recent publication in its Professionalism Dos and Don'ts series last week. The newest guide is Professionalism Dos and Don'ts: Legal Writing, which focuses on providing best practices in written communication for legal professionals. The publications do not provide mandatory rules, but offer guidelines to enhance the professionalism of individuals working in the legal field. Court News Ohio highlights some of the Dos and Don'ts tips for legal writing, including:

Provide a consistent and coherent argument.
Present an honest and accurate position.
Provide appropriate signposts.

Make a reader’s job more difficult.
Make inappropriate comments.
Mischaracterize a lawyer’s position.

The full text of Professionalism Dos and Don'ts: Legal Writing can be found here.

Tuesday, September 16, 2014

Federal judge strikes down Ohio's ban on lying in political campaigns

A judge for the U.S. District Court for the Southern District of Ohio struck down Ohio laws that ban lying in political campaigns last Thursday. Judge Timothy Black found that the laws were "more burdensome than necessary to accomplish their alleged objectives and do not satisfy strict scrutiny under the Constitution of the United States" and permanently enjoined their enforcement.

The case before Judge Black began with former U.S. Representative Steve Driehaus' re-election campaign in 2010. According to an article by the Wall Street Journal, the antiabortion group Susan B. Anthony List (SBA List) had planned to put up billboards accusing Driehaus of "voting for 'taxpayer-funded abortion,'" because he had voted for passage of the Affordable Care Act. Driehaus filed a complaint with the Ohio Election Commission (OEC), alleging that the group had violated Ohio's laws against political lies by making these allegations. The OEC found probable cause that SBA List violated those laws.

Driehaus later dropped the complaint when he lost the election, but SBA List continued to pursue legal action in the case. The organization was joined by the anti-tax group Coalition Opposed to Additional Spending and Taxes (COAST), which claimed that they had intended to make similar statements about Driehaus, but did not do so out of fear of adverse actions like those taken against SBA List. The parties pursued the case in federal court in southern Ohio. Initially, Judge Black dismissed the case, ruling that neither party met requirements of standing or ripeness, as there was no longer a complaint pending with the OEC. The case went all the way to the U.S. Supreme Court, which ruled, in a unanimous opinion drafted by Justice Clarence Thomas, that the parties could pursue their claims in the district court.

After a subsequent hearing, Judge Black found Ohio's laws unconstitutional, stating that "the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is. Ohio’s false-statements laws do not accomplish this." His decision focused on recent Supreme Court case U.S. v. Alvarez, which found that false statements were protected speech under the  First Amendment, and an 8th Circuit case, which struck down a Minnesota statute similar to Ohio's just a few days prior. The Cincinnati Enquirer reports that Black also took inspiration from popular media, as he quoted the Netflix program House of Cards in his decision, stating "There's no better way to overpower a trickle of doubt than with a flood of naked truth." According to the Enquirer, the Ohio Elections Commission is currently determining whether to appeal the decision.

Public comment sought on rule changes in Ohio

The Supreme Court of Ohio has proposed several changes to both the Rules of Professional Conduct (RPC) and the Rules of Practice and Procedure. The changes to the latter set of rules involve amendments to Ohio's Rules of Appellate Procedure, Rules of Civil Procedure and Rules of Juvenile Procedure. Public comments will be accepted until October 15.

Court News Ohio reports that some notable changes to the RPC could include:
  • "Requiring lawyers to maintain competency regarding the risks and benefits of technology (Rule 1.1), including making reasonable efforts to prevent the unauthorized disclosure of or access to confidential client information (Rule 1.6)," and
  • "Modifying Rules 7.1, 7.2, and 7.3 (Lawyer Advertising) to reflect advertising and solicitations that may be made via the Internet and in electronic format."

The same publication also reports some significant potential changes to the Rules of Practice and Procedure, including:
  • "New rules (Civ.R. 43 and Juv.R. 41) would allow live open court testimony from a location outside the courtroom," relating to two 2011 amendments to the revised code, and
  • "Proposed amendments to App.R. 3, App.R. 9, and App.R. 11.2 address expedited appeals. App.R. 3 provides notification currently lacking in some appellate districts to alert the court that there needs to be a priority disposition in a case. App.R. 9 recognizes that in an expedited judicial bypass appeal from the juvenile court, there is no requirement of a written transcript if an audio recording is available. App.R. 11.2 adds prosecutorial appeals from suppression orders under criminal and juvenile rules to the list of expedited appeals."

For comments on the proposed amendments to the Rules of Professional Conduct contact:
Richard A. Dove, Secretary, Board of Commissioners on Grievances & Discipline
Ohio Supreme Court
65 S. Front St., Fifth Floor
Columbus, OH 43215

For comments on the proposed amendments to the Rules of Practice and Procedure contact:
Jo Ellen Cline, Government Relations Counsel
65 S. Front St., Seventh Floor
Columbus, Ohio 43215

Thursday, September 11, 2014

Ohio Supreme Court on the move

Court News Ohio reports that the Supreme Court of Ohio is once again on the move - this time hearing cases from Ravenna High School in Portage County on September 24. During this session the Court will hear three appeals which students from eleven local high schools will have the opportunity to watch.

The Court holds these off-site sessions twice a year, giving Ohio students an opportunity to learn about the justice system. Directly prior to the hearings the students will be able to meet the justices and ask them questions. After the arguments are completed they will be able to discuss the cases with the attorneys and learn more about the legal issues presented.

The cases to be heard in this session are:

Johnson v. State - The appellant is challenging his drug conviction because he asserts that evidence used against him at trial was improperly obtained. Specifically, he alleges that police placing a GPS unit on his vehicle without a warrant amounted to an unlawful search under the 4th Amendment. The State asserts that the officer acted in good faith,so the evidence collected as a result of this search did not need to be excluded.  The appellant argues that the good faith exception only applies in circumstances where binding precedent from an appellate court dictates, and that no such precedent exists here.

Ganley Chevrolet v. Felix - The appellant (a car dealership) is challenging the lower court's decision to certify the case against it as a class action. The case involves the legality of an arbitration clause in a contract to purchase a vehicle, and the class is all customers who have signed agreements with that clause. The appellant argues that the case should not have been certified as a class action because individuals who did not suffer harm or damages cannot be part of the class, and very few others took issue with the arbitration clause.

Chen v. Smith - The appellant (medical practice) in a medical malpractice claim is challenging the lower court's order that a surveillance video must be disclosed to the appellee (patient) before trial. The video in question shows the patient who is suing the practice for injuries related to a back surgery. The appellant argues that the video amounts to attorney work product and the appellee has not shown good cause as to why it is discoverable.

New family drug court to open in Clermont County this month

The Cincinnati Enquirer reports that the Family Dependency Treatment Court is set to open in late September in Clermont County. The court was initiated by Juvenile Court Judge James Shriver and developed in conjunction with many agencies and parties in the Clermont County legal community, including Children's Services, the Clermont County Health and Recovery Board, the prosecutor's office and Clermont Recovery Center, which will provide treatment programs for participants. The court is designed to treat parents facing drug addiction and ultimately reunite families that have been separated due to drug abuse.

Participants face certain requirements. They must have had their children removed from their care by Children's Services due to a moderate to severe drug problem, be willing to participate in a 12-step program and complete program requirements, such as weekly drug-screenings. In addition to helping with family reunification, the program also provides additional incentives for sobriety such as gift certificates and public recognition.

Clermont County created the program in response to the increasing need for Children's Services involvement with families due in part to a growing heroin epidemic in the county. The Enquirer reports that Clermont County had the highest number of opiate-related deaths in Ohio in 2013 and "the state's largest increase in deaths from opiate overdoses between 2000 and 2010." The program will help to combat this trend and keep children out of foster care by helping families impacted by drug abuse through treatment and support.

Angela Livesay is the program coordinator for the new court docket. She can be reached at 513-732-7685 or by email at alivesay@clermontcountyohio.gov.

Wednesday, September 10, 2014

More appeals to SCOTUS filed in same-sex marriage cases

EDIT 9/11/14 - All 7 petitions will be considered by the Justices when they meet on 9/29 for a private conference.

SCOTUSblog reports that two additional appeals on the issue of same-sex marriage bans have been filed in the U.S. Supreme Court, bringing the total number of pending requests for the high court to hear this issue to seven at the time of filing. Lawyers for the states of Wisconsin and Indiana separately petitioned the Court to hear the cases recently decided by the Court of Appeals for the 7th Circuit, which struck down same-sex marriage bans in both states on September 4th. Other requests are pending from cases out of Oklahoma and Utah (10th Circuit) as well as three cases out of Virginia (4th Circuit).  All of the cases deal with two constitutional issues: the constitutionality of states' bans on same sex-marriage and states' refusal to recognize same-sex marriages performed in other states.

The 7th Circuit case, with an opinion at times witty, scathing and sarcastic, penned by Reagan-appointee Judge Richard Posner, found same-sex marriage bans in Wisconsin and Indiana unlawful discrimination in violation of the Equal Protection Clause of the 14th Amendment, holding, "the discrimination against same-sex couples is irrational, and therefore unconstitutional." As SCOTUSblog discusses, in finding that the laws amounted to discrimination, Posner avoided dealing with a thornier and more complex analysis of marriage as a fundamental right under the Due Process clause. Posner wrote, "Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously."

The appeals are not mandatory, meaning that the U.S. Supreme Court has discretion as to whether to hear the cases, but SCOTUSblog reports that parties on all sides are urging the Court to act. There is not currently a split among circuits courts with respect to these issues, which would almost certainly prompt faster action by the high court. This could change, however, as there are cases awaiting decision in both the 6th and 9th Circuits.

Monday, September 08, 2014

Federal judge rules early voting days must be reinstated

Cleveland.com reports that a federal judge for the U.S. District Court for the Southern District of Ohio ruled last Thursday that early voting days in Ohio that were eliminated by the Ohio legislature and Ohio Secretary of State John Husted must be reinstated. Plaintiffs, including the Ohio NAACP, League of Women Voters and several African-American churches had challenged changes made in the last year to Ohio election law and procedure by the state legislature and Secretary Husted. Judge Peter Economus granted preliminary injunctive relief to plaintiffs, reinstating voting days and ordering Husted to order local boards of election to set uniform voting hours on days and at times that had been excluded from the voting calendar.

Election laws in Ohio had previously allowed a greater number of days of early in-person voting, with ballots to be made available for those choosing to use them on the 35th day before an election was to take place. Current Ohio law also permits citizens to register to vote until up to 30 days before an election. With these laws in place, there existed a period of time referred to as the "Golden Week" where voters could register to vote and cast their ballots on the same day. In February 2014 Ohio passed a law (SB 238) amending existing voting laws to make the absentee ballots available the day after voter registration closes for a given election. This law effectively eliminated the Golden Week and reduced early voting from 35 days to 28. Husted had also issued a directive setting uniform voting hours and a voting schedule that excluded certain holidays, Sundays and evening hours. 

Plaintiffs challenged this law and the schedule of early in-person voting hours as unconstitutional under the Equal Protection Clause and a violation of Section 2 of the Voting Rights Act of 1965, alleging that these restrictive measures "impermissibly burden the right to vote of various groups including African Americans, lower income individuals, and the homeless."  The defendants cited concerns over voter fraud and waste of tax-payer resources in defense of the changes to the law and new uniform schedule.

Judge Economus found that both the amended law and the limited schedule of early voting days and times were unconstitutional and violated the Voting Rights Act, stating that these measures "arbitrarily make it harder for certain groups of citizens to vote." With respect to the amended law, he specifically found that, "the Plaintiffs’evidence paints a portrait illustrating the importance of Golden Week to those struggling on the margins of society. Such individuals are more likely to move frequently and lack access to transportation. Day to day life for such individuals can be chaotic and merely focused on survival... For these reasons, the opportunity to register and vote at the same time during Golden Week is more than a mere convenience to poorer individuals and the homeless, it can make the difference between being able to exercise the fundamental right to vote and not being able to do so." 

According to Cleveland.com, Husted stated that the judge's ruling with respect to the voting schedule "'kicks the door open' to having different hours in each of Ohio's 88 counties, which is not fair and uniform." His office has since filed an appeal of the injunction.

The full text of the order can be found here.

Thursday, September 04, 2014

State not required to prove mental state for use of force in third-degree robbery

The Supreme Court of Ohio ruled on Tuesday that the state does not have to prove a culpable mental state (mens rea) for certain elements of a third-degree robbery charge under O.R.C. 2911.02, according to Court News Ohio. Specifically, the Court found that no criminal intent is required on the elements of using or threatening to use force. The Court held that because there is already a mental state expressly required to prove the theft elements of the offense, the state is not required to prove a mental state for the other elements in the statute.

The case out of Montgomery County involved Kevin Tolliver, who shoplifted at a Dollar General Store. Employee Jasmine Jordan attempted to stop him. She testified at trial that he pushed her and she pushed him back and, then he raised his fist as if to hit her. Tolliver testified that he stole the items and raised his fist, but did not admit to pushing Ms. Jordan, although surveillance footage showed his actions. At trial, the jury instructions did not require the jury to make any findings about Tolliver’s intention to use force against Jordan. The jury convicted Tolliver, and he appealed, arguing that the court committed plain error by not requiring the state to prove that he had recklessly used force during the theft. The Court of Appeals reversed the decision.

Justice French, writing for the majority, held that because the robbery statute includes a required mental state for the theft portions of the statute, but remains silent on any required mental state for the use of force element, the Court would not impute a mental state to that second element. She wrote, “the state need prove culpability only for the elements for which a mental state is specified in the section defining the offense, and courts should not fill any gaps by inserting culpability requirements that the text and ordinary rules of construction cannot bear.”

She went on to distinguish O.R.C. 2901.21(B), which provides that for statutes which do not prescribe a required mental state or set a strict liability standard, the state must prove that the offender's actions were reckless. The Court held that this provision did not apply to the statute at issue, stating “because R.C. 2911.02 defines every robbery to include the culpable mental states of the predicate theft offense,  R.C. 2901.21(B) … does not apply, and the state need not prove a culpable mental state with respect to the force element in R.C. 2911.02(A)(3).” With this decision the Court found that O.R.C. 2901.21(B) does not apply to statutes when there is a section within that statute that provides a required mental state, holding that "there must be 'a complete absence of culpability in the section defining the offense.'"

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy joined in the majority opinion. Justice Lanzinger drafted a dissent, which was joined by Justices Pfeifer and O’Neill.

See 2013-0351 for more information about the case.

Tuesday, September 02, 2014

Sixth Circuit overturns Amish beard- and hair-cutting convictions

The U.S. Court of Appeals for the Sixth Circuit has recently overturned multiple convictions in a case involving forcible beard- and hair-cutting in the Amish community. Amish bishop Samuel Mullet and a group of 15 followers were convicted of hate crimes related to these actions by the U.S. District Court for the Northern District of Ohio in 2012. 

Mullet is the leader of an Amish community in Bergholz, a community in northern Ohio, which, the Plain Dealer reported, some refer to as a cult. His actions as leader have caused strife among neighboring Amish communities, as evidenced by witnesses in the 2012 court case, who alleged that he engaged in bizarre practices and implemented strict and strange discipline on his followers. According to the Plain Dealer, witnesses asserted that Mullet "read and censored all incoming and outgoing mail, punished wrongdoers with spankings and confinement in chicken coops, and engaged in sexual relations with several of the young married women under the guise of marital counseling and absolution."

Mullet is alleged to have orchestrated a series of forcible beard- and hair-cuttings as punishment for those who may have opposed him or been considered his enemies. Long beards for men and long hair for women are considered sacred among the Amish, who generally do not cut them once they are married; a practice they believe is prescribed by the Bible. A jury for the U.S. District Court of Northern Ohio found that the actions by Mullet and his followers amounted to a hate crime under federal law, significantly motivated by the victims' religious faith. Mullet was sentenced to 15 years in prison. 

On appeal, the 6th Circuit overturned the convictions, finding that Judge Polster used inappropriate jury instructions, thus adopting an incorrect standard for conviction under the hate crime laws. Polster's jury instructions included language that the victim's faith must be a "significant factor" motivating the crimes against them. In an opinion written by Justice Sutton, the 6th Circuit concluded that the district court should have used the standard proposed by defendants, that "the faith of the victims must be a “but for” cause of the assaults." According to the court this means that "the prosecution had to show that the defendants... assaulted the victims “because of” their religious beliefs." The court also concluded that this was not harmless error, as there could be question as to whether the attacks were motivated by religion or a confluence of factors based on the facts of the case.

Although the convictions have been overturned, the cases are likely far from over, as the 6th Circuit ruled that the double-jeopardy clause did not prevent prosecutors from pursuing new trials.

Dayton police officer immune from liability in sex discrimination case

Court News Ohio reports that the Supreme Court of Ohio reached a decision in the sex discrimination case involving the Dayton Police Department on August 28, finding that accused supervisor, Major E. Mitchell Davis, is immune from liability. The Court ruled that an individual employee cannot be held liable for employment discrimination under R.C. 4112.01(A)(2) and 4112.02(A), as those statutes only provide for vicarious liability for the employer based on the actions of their employees, not individual liability for the employees themselves.

The case involves accusations by police officer Anita Hauser against the Dayton Police Department and Davis, who was her supervisor. Hauser asserts that she was treated differently in her position as K-9 officer because of her age and gender. She specifically alleges that the DPD and Davis imposed certain working conditions, withheld her wages, subjected her to frivolous investigations and denied her opportunities for career advancement during her employment. The trial court granted summary judgment on all claims except for Hauser’s sex discrimination claims and Davis’s claims to immunity. Hauser voluntarily dismissed her claims and Davis appealed the issue of his immunity to the 2nd District Court of Appeals. The appellate court affirmed the trial court’s ruling regarding Davis’s immunity and certified that this constituted a conflict with the 8th District Court of Appeals. The case proceeded to the Ohio Supreme Court.

Justice French, writing for the majority, stated that R.C. 4112.01(A)(2) and 4112.02(A) do not provide for individual liability, but that other portions of R.C. 4112 which expressly provide for individual liability still apply to individual political subdivision employees. In reaching this decision, the court distinguished its holding in Genaro v. Cent. Transport, Inc., stating that although they had found that an employee could be jointly and severally liable with the employer under R.C. 4112 in that case, the facts differed from the instant case, as the employer in Genaro was private, not public, and the Court did not address the specific issue of express liability and immunity in the Genaro decision.

The opinion was joined by Justices O’Connor and Lanzinger. Justice O’Donnell concurred in judgment only and Justices Pfeifer and O’Neill dissented in an opinion written by Justice Pfeifer. Justice Kennedy dissented separately. The full text of the decision can be found here.

For more information, see the dockets for cases 2013-0493 and 2013-0291.