Friday, October 31, 2014

Candidates for Juvenile Court judge offer editorials

Both candidates in Hamilton County's Juvenile Court Judge race have strong opinions about how the court has been and should be run. Candidate Jennifer Branch has recently offered her perspective on the court and changes she would make as administrative judge in an editorial to the Cincinnati Enquirer, "Opinion: Court not doing enough for kids." Candidate Judge John Williams has offered an editorial in response, "Opinion: Juvenile court a national model."

In her editorial, Branch, a local civil rights attorney, claims that the Juvenile Court can do better, citing concerns that the court has declined to participate in "evidence-based programs that improve outcomes," in the way that courts in other Ohio counties have done. Branch expresses concern that only 25 children per year are served by the Juvenile Court's mental health court and that the arrest rate for children has increased recently, despite falling juvenile crime rates statewide. She also references a 2008 consent decree from a case litigated by her firm and the Children's Law Center, stating that this has led to a significant reduction of juveniles in the prison system and critiquing the system for requiring a class action suit to make this change.

Williams, sitting administrative judge since his appointment in 2011, counters Branch's claims with his own editorial defending the Juvenile Court. Williams cites court achievements, such as forming a partnership to save Hillcrest Training School to keep locally based treatment for youth and families, achieving a 95% graduation rate for children in foster care who are enrolled in Cincinnati Public Schools as part of the Kids in School Rule! program, and the significant reduction in numbers of children sent to the Department of Youth Services from 1994 to 2014. Williams also defends the court's mental health services, stating that they provide services for thousands of adults and children every year.

Both candidates will be on the ballot in Hamilton County this Election Day, Tuesday November 4.

Thursday, October 30, 2014

Ohio Supreme Court upholds conviction and death sentence for man convicted of shooting police officer

Court News Ohio reports that the Ohio Supreme Court upheld the conviction and death sentence yesterday for a man convicted of the 2008 killing of a Twinsburg, Ohio police officer. The defendant, Ashford L. Thompson, was convicted in 2010 for the shooting death of Joshua Miktarian. In July 2008, Miktarian followed Thompson's vehicle because of loud music and pulled him over as Thompson was turning into his driveway. The Cleveland Plain Dealer summarized the next series of events as follows:

"When Miktarian was handcuffing Thompson to place him under arrest, Thompson struggled, according to court records. Thompson had a permit to carry a concealed weapon and pulled the gun during the arrest. Miktarian had radioed for help two minutes into the stop. A 9-1-1 caller reported hearing loud shouting and "pop" sounds."

A jury convicted Thompson of aggravated-murder, escape, resisting arrest, tampering with evidence, and carrying a concealed weapon. He was sentenced to death for the aggravated murder conviction. Thompson appealed this conviction and sentence to the Ohio Supreme Court, raising 18 propositions of law. These include claims that Thompson's constitutional rights were violated because a juror was excluded based on race, because the court denied a request for change of venue and because of prosecutorial misconduct, including some remarks in closing statements which the Court agreed were inappropriate, but found would not have changed the outcome of the trial.

The justices reviewed each of the 18 propositions in a lengthy opinion penned by Justice French, and unanimously ruled to uphold the conviction. The decision to uphold the death sentence was not unanimous, as Justices Pfeifer, Lanzinger and O'Neill dissented on this issue. Justice Pfeifer wrote a dissent in which Justice Lanzinger concurred, arguing that mitigating factors such as Thompson's history, character and background outweighed the aggravating factors that led to the death sentence, and that Thompson should be sentenced to life in prison without parole.

Justice O'Neill penned his own dissent, arguing that the state did not prove the aggravating factor that Thompson killed Miktarian to escape detection or punishment beyond a reasonable doubt, and that Thompson's mitigating factors, such as his college education, steady job and community involvement, outweighed the remaining aggravating factor of Miktarian's status as a police officer.

Wednesday, October 29, 2014

FTC files suit against AT&T for data throttling

The Washington Post reports that the Federal Trade Commission (FTC) filed suit against AT&T on Tuesday for throttling the data access of consumers with unlimited plans. The FTC has summarized aspects of their complaint in a press release published yesterday. They allege that AT&T misled customers with unlimited data plans by failing to adequately disclose that when they reached a certain percentage of usage on their plans the company would throttle their data access by reducing Internet speeds.

The complaint alleges that AT&T began throttling data speeds by as much as 80 to 90% for customers who had used as little as 2 gigabytes of data on their unlimited plans starting in 2011. The FTC charges that "AT&T violated the FTC Act by changing the terms of customers’ unlimited data plans while those customers were still under contract, and by failing to adequately disclose the nature of the throttling program to consumers who renewed their unlimited data plans," according to the October 28 press release.

AT&T claims that they did notify their customers of the throttling through emails or texts when they reached a certain limit on their data plans and defended its practices as "fully transparent and consistent with the law and our contracts," according to the Washington Post. The wireless carrier further stated that it "manages its network resources to provide the best possible service to all customers." AT&T is currently paying out a $105 million settlement of another case to the FTC, the Federal Communications Commission (FCC) and the 50 states, plus Washington DC, for unlawfully billing customers for unauthorized third party charges.

The complaint regarding data throttling was filed Tuesday in the U.S. District Court for the Northern District of California. The FTC reports that the vote authorizing the complaint was unanimous and that the organization worked closely with the FCC in its investigation of AT&T. The FTC generally "works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them," according to their website. The FCC "regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the District of Columbia and U.S. territories."

Judge Leslie Isaiah Gaines, remembered

Iconic attorney and former Hamilton County Municipal Court Judge Leslie Isaiah Gaines died Monday at the age of 69 after suffering from multiple health issues for many years. Mr. Gaines served as judge to the Hamilton County Municipal Court from 1993-1996 when he resigned from the bench to work as an evangelist and motivational speaker, according to the Cincinnati Enquirer. Mr. Gaines returned to the practice of law in 2003. He was well-respected among Cincinnati's legal community as a talented lawyer and kind man.

In an interview with the Enquirer, Cincinnati City Prosecutor described Mr. Gaines as the  "first real flamboyant lawyer," and stated that "underneath all that, he was one of the kindest, most honest men I've ever met in my life," WKRC-TV reports that Hamilton County Prosecutor Joe Deters said of Gaines, "Les was a great lawyer, a great judge and a wonderful friend. He had the most incredible presence in the courtroom that I have ever seen. I will miss him very much. God bless him.”

The Cincinnati Enquirer has republished a 2003 article detailing Mr. Gaines life and return to legal practice, here.

Tuesday, October 28, 2014

Get informed before Election Day! Several judicial races impact Hamilton County

With Election Day 2014 rapidly approaching next Tuesday, November 4, prospective voters in Ohio and Hamilton County may want to take a look at the candidates and issues up for a vote sooner rather than later. In addition to other statewide and local political races, Court News Ohio reports that there are 225 judicial races in Ohio this year, although 155 of them are uncontested. Significantly, races for both seats on the Supreme Court of Ohio are contested. Sitting Justice Sharon Kennedy is being challenged by State Rep. Thomas Letson, and Cuyahoga Court of Common Pleas Judge John O'Donnell is running against incumbent Justice Judith French.

In Hamilton County, in addition to voting for who will fill the Supreme Court seats, voters will cast ballots in thirteen judicial races, including a seat on the First District Court of Appeals, which is being sought by Russell J. Mock and Fanon A. Rucker. The remaining judicial races are all for judgeships in the Court of Common Pleas, including positions in Domestic Relations, Juvenile and Probate Court. Six of these are contested races.

The Hamilton County Board of Elections has provided a Candidates and Issues List for the county that provides a complete list of matters up for a vote and includes information such as political party for all candidates. This can be helpful to voters as a judge's party affiliation is not listed on the official ballot. The League of Women Voters has also published their 2014 Who and What of Elections Voter's Guide which contains detailed biographical and professional information for candidates in statewide, Hamilton County and some Butler and Warren County races. This guide also includes answers to questions posed to candidates about issues impacting Ohio or their own qualifications for the prospective position.

Monday, October 27, 2014

Cincinnati's potential plan for $300 parking permits in OTR may violate Ohio law

The Cincinnati Business Courier reports that city officials' potential plan to raise fees for residential parking permits in Over-the-Rhine in order to provide funding for the streetcar may be unlawful under a 2012 Ohio Supreme Court case. According to the Cincinnati Enquirer, streetcar operations are expected to cost the city about $3.8 million a year, and city officials are seeking ways to secure funding for this, including a revamped parking plan. Some aspects of this could include a $300 annual residential parking permit for OTR residents and parking meters that would be enforced until 9pm and cost a dollar an hour, instead of the current rate of 50 cents. The $300 cost for a parking permit would likely be the highest in the country, including cities such as San Francisco, where an annual pass is $100 and Columbus, where it is $25, the Enquirer reports.

The case that may prove troublesome for aspects of this parking plan is Drees v. Hamilton Township, which originated in Warren County. In this case, Hamilton Township created impact fees to be charged to applicants for zoning certificates for new construction and redevelopment. The Township's stated purpose for the fees was, essentially, to provide funds for the Township so that it would be able to provide services (such as police, fire and parking) to the new properties to the same extent that it provided services to existing properties, acting as an offset to the additional services that would be required because of the new development.

As reported by the Business Courier, the Ohio Supreme Court found that these impact fees were an unconstitutional tax and as such were not permissible. In reaching this decision the Court focused largely on the use of the revenue raised, citing a Sixth Circuit case that held, "When the ultimate use is to provide a general public benefit, the assessment is likely a tax, while an assessment that provides a more narrow benefit to the regulated companies is likely a fee." The Court found that the impact fees were revenue-generating measures that benefited the entire township and thus a tax, and held that, "When the amount of the fee exceeds exceeds the cost and expense of the service, the fee constitutes a tax."

According to former Cincinnati City Solicitor John Curp, in an interview with the Business Courier, the city's potential plan to raise the cost of residential parking permits could run afoul of the Court's decision in this case. The Courier reports that "courts are likely to look at the streetcar as a part of the city's public transportation system, one that has been funded, in part, by taxes levied on everyone," and that Curp has stated, "You can't tax a narrow group of people for a general public program," because of the equal protection issues it raises.

Although the city is likely to argue that the streetcar will primarily benefit downtown and OTR residents and business owners, the increased cost for parking permits could still be problematic, as Curp explained, "You're trying to say that one segment of a regional transportation project can be segregated from the rest of the network. That's going to be a difficult argument to make. We don't divide the bus routes up and assess their cost to the neighborhoods through which they run." Curp did suggest that the other aspect of the potential parking plan, raising meter rates and enforcement times, would likely be permissible, as it does not target one group of people, but would apply to the general public.

Thursday, October 23, 2014

Blackwater contractors guilty in 2007 Iraq shooting deaths

The New York Times reported yesterday that four defendants who were employed by Blackwater Worldwide Security were convicted of crimes related to the 2007 shooting in Iraq's Nissour Square. Defendant Nicholas Slatten was convicted of murder, while defendants Dustin Heard, Evan Liberty and Paul Slough were convicted of voluntary manslaughter and using a machine gun to carry out a violent crime. Blackwater was a private security firm that contracted with the U.S. government to provide services in Iraq, such as loading bombs onto Predator drones and serving as security guards to diplomats. These contractors were providing security for State Department employees.

The case originated in Nissour Square in Iraq on September 16, 2007, when, according to the Wall Street Journal, a car bomb exploded nearby and Blackwater contractors opened fire, killing Iraqi civilians. The case was marked by conflicting accounts of what happened on that day. The contractors claimed that insurgents fired on them and, according to their lawyers, the civilian deaths that occurred when they returned fire were a "tragic and unavoidable consequence of urban warfare." Iraqi witnesses who traveled to Washington to testify described a scenario of violence and brutality perpetrated by the contractors. A former Blackwater contractor who was in the convoy testified that the defendants were "firing recklessly on innocent people," according to the Times.

Because there was little physical evidence available the case consisted mostly of testimony by witnesses. The Times reports that there were allegations that the State Department gathered shell casings in an attempt to protect the contractors. Additionally, the State Department gave the contractors limited immunity after the incident, making it more difficult for the Justice Department to build a case. A federal judge initially threw out all charges, citing concerns of tainted evidence, according to the Wall Street Journal, but an appeals court ultimately permitted the case to proceed.

The jury deliberated for 28 days before delivering the guilty verdict, which will likely face multiple appeals in the coming months. The Times reports that a key issue may be whether the Justice Department had the jurisdiction to bring the case, as federal law gives the U.S. government jurisdiction over defense contractors and those working on behalf of the Pentagon, while the Blackwater defendants were working for the State Department.

Wednesday, October 22, 2014

Trial court loses jurisdiction to enforce plea agreements after sentencing, rules Ohio Supreme Court

The Ohio Supreme Court ruled on Tuesday that a trial court cannot rescind a sentence ordered under a plea agreement when the defendant fails to comply with that agreement after the defendant has already been sentenced. As reported by Court News Ohio, the case before the court, State v. Gilbert, involves a defendant who entered into a plea agreement where he would plead to a number of counts of manslaughter, weapons charges and intimidation of a witness, while other counts were reduced or dismissed, in exchange for testifying against his father in a murder case. The defendant, Kareem Gilbert accepted the deal and was sentenced to 18 years in prison.

After beginning his prison term Gilbert refused to testify against his father, and the State accused him of breaching his plea agreement. He was brought back to court and the original plea deal was thrown out. Gilbert then entered another plea and was resentenced, this time for 18 years to life. He appealed to the First District, who reversed the lower court, finding that it did not have the authority to revisit the final judgment after sentencing the defendant, irrespective of whether the plea agreement had been breached.

The Supreme Court of Ohio upheld the decision of the First District, finding "Once the final judgment was entered and Gilbert was sentenced to prison, the trial court lost jurisdiction to vacate its judgment of conviction and to resentence Gilbert. There must be finality to a court’s judgment. There is no authority for a court to revisit a sentence that has already been imposed based on a defendant’s failure to fulfill his obligations under a plea agreement."

In a decision penned by Justice O'Neill, the court acknowledged that while contract rules do generally apply to plea agreements, the trial court loses jurisdiction to enforce them after sentencing occurs. The Court stressed that if the trial court wishes to keep jurisdiction of the case, it should postpone sentencing until after the terms of the agreement are completed, stating "As every teacher knows, you reward the student after the desired behavior occurs, not before. Much like teaching, plea negotiations are driven by the fact that the incentive to do the act in question disappears once the reward has been given."

Chief Justice Maureen O'Connor and Justices Lanzinger, Pfeifer and French joined in the majority decision. Justice O'Donnell drafted a dissent which was joined by Justice Kennedy.

Tuesday, October 21, 2014

Voter ID laws stand in Texas as Supreme Court declines to intervene

SCOTUS Blog reports that the U.S. Supreme Court declined to intervene Saturday morning in a Texas case challenging restrictive voter identification laws, which are in place in the state for the first time in a federal election. This effectively upholds a ruling by the 5th Circuit permitting the laws to remain in place for the upcoming November election, despite findings by the district court that the measures violate civil rights.

A federal district judge in Corpus Christi granted a permanent injunction of the voter ID laws, holding that they violated the Voting Rights Act because they had a racially discriminatory purpose and would yield discriminatory results. The judge also found the laws to be an unconstitutional poll tax because of the costs associated with obtaining the specific forms of ID required by the laws. The 5th Circuit granted a stay of the district court's injunction, citing concerns that the election was imminent, and effectively allowing the restrictive measures to remain in place. Because the Supreme Court chose not to intervene, this ruling will stand until further order of the 5th Circuit, which still has to hear a full appeal of the case. The laws, passed in 2011, have been in effect since 2013, but never during a federal election.

Neither the 5th Circuit or the Supreme Court has ruled on the constitutionality of the laws at this point, and SCOTUS Blog reports that it is likely that the case will return to the Supreme Court after the 5th Circuit hears the full appeal. The Supreme Court's decision in this case was entered without explanation, although there is a lengthy dissent penned by Justice Ginsburg and joined by Justices Sotomayor and Kagan, in which Justice Ginsburg states, "the greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters."

This case is one in a number of cases regarding voting and electoral issues that have been brought to the Supreme Court in recent weeks. In September the Court granted a stay in Ohio, eliminating some additional early voting time ordered by a federal district court. In early October the Court blocked restrictive voter identification measures in Wisconsin, but upheld some restrictive measures in North Carolina.

Monday, October 20, 2014

Ebola lawsuits? Liability concerns are not limited to hospitals

The National Law Journal (sub. req.) reports that there is potential for a broad net of liability to be cast in Ebola cases. Concerns about Ebola in the U.S. have increased since news broke that Liberian national Thomas Duncan was infected with the disease and was initially misdiagnosed and sent home by Texas Presbyterian Hospital in Dallas in September.  Duncan later returned to the hospital where he was treated by a team of doctors and nurses. He died there on October 8. Since then two nurses who treated Duncan have also come down with the virus. This caused heightened concern about the spread of the disease, as one of the nurses traveled by commercial airline when she had an elevated temperature.

The Wall Street Journal reports that lawsuits against the hospital itself by either Duncan's family or the nursing staff would face difficulties. Texas law provides medical malpractice caps at $250,000 for pain and suffering and punitive damages are rarely awarded in these cases. Before the case could even proceed, plaintiffs would have to demonstrate the merit of their claims with expert testimony that the bad care by the hospital caused the injuries. Additionally, while employees could file worker's compensation claims, they would have to show the hospital was grossly negligent in order to sue for damages.

The National Law Journal suggests that there is significant potential for liability among multiple sources in Ebola cases, however. Hospitals would be an obvious target for lawsuits from patients and employees were the disease to spread, with many states not having laws limiting malpractice to the same extent as Texas. Because of the nature of the disease, liability may also expand to other entities, such as airlines, mortuaries and other businesses with which Ebola patients have had contact. Both members of the public and workers in these industries may have claims against these entities if they were to become infected. For example, passengers who contracted Ebola might have a case against an airline who allowed an infected passenger to board, and workers might have a case if they did not have sufficient training or preparation to deal with passengers with the disease. Similarly, workers in mortuary services may have cases against their employers for failing to provide appropriate training or protective gear for dealing with the infected.

Attorneys interviewed for the National Law Journal piece stressed the importance of preparation, including having protocols in place to protect employees, patients and the general public as a means to create safer environments and limit liability. For example, if a hospital or medical practice failed to inquire about whether a patient had traveled to countries in West Africa, that lack of protocol might create public health problems and serve as a "red flag for lawyers who bring medical malpractice cases," says Judith Livingston, a partner at New York's Kramer, Dillof, Livingston & Moore. According to the article, educating employees about the disease and providing CDC guidance may be important steps in promoting public safety and reducing potential liability.

Friday, October 17, 2014

Parents whose parental rights have been terminated not entitled to delayed appeal, rules Ohio Supreme Court

Court News Ohio reports that the Supreme Court of Ohio ruled yesterday that a parent whose parental rights have been terminated in court proceedings are not entitled to a delayed appeal pursuant to Ohio Appellate Rule 5(A). Generally, under Ohio Appellate Rule 3, appeals must be made within 30 days of an order of the court. Ohio Appellate Rule 5(A), however, provides circumstances in which certain parties may file an appeal after this 30 day period has elapsed. Covered by this rule are defendants in criminal proceedings, delinquency proceedings and serious youthful offender proceedings.

The case before the Court involved a mother (appellant) whose parental rights were terminated after ongoing problems with child neglect, including failure to provide appropriate medical care for her child with a cleft palate. The juvenile court awarded temporary custody of the child to Family and Children Services of Clark County (FCSCC) in December 2011. In a hearing in December 2012 the mother surrendered her parental rights. The foster family caring for the child gained permanent custody of him in February 2013 and the adoption was completed in August 2013. Days after the adoption was finalized the appellant filed a notice of appeal and motion for leave to file a delayed appeal. She argued that she was entitled to a delayed appeal to protect her due process rights because of the important civil right to care for her children and because terminating parental rights was a severe legal intrusion into the sanctity of the family. The Second District denied her motion, and she appealed.

In a 6-1 decision penned by Justice Lanzinger, the Ohio Supreme Court ruled that the appellant was not entitled to file a delayed appeal pursuant to Ohio Appellate Rule 5(A). In reaching its decision, the Court applied a test prescribed by the U.S. Supreme Court in the case of Mathews v. Eldrige (1976), weighing the private interest affected, the risk of erroneous deprivation of that interest through the procedures used and probable value of any additional safeguards added, and the government interest in continuing the same procedure. The Court found that while the mother had a "significant private interest" in the care, custody and control of her child, the child's interest in being placed in a "stable, secure and nurturing home without undue delay" had to be weighed as well, and that the uncertainty that delayed appeals could cause could be detrimental to the child.

The Court also found a minimal risk of erroneous deprivation under Matthews in light of the facts that the mother had been represented by counsel throughout the proceedings, had voluntarily surrendered her rights and had participated in a hearing where all the required statutory findings were made. Finally, the Court considered the government's interest in the welfare of the child, finding that "to allow delayed appeals for a parent whose parental rights have been terminated would inject further uncertainty into the process of placing the child in a permanent home and postpone resolution of custody, contrary to the child’s best interest." The Court upheld the ruling of the Second District.

The full-text of the decision can be found here. Docket information about this case is available here and here.

Thursday, October 16, 2014

Rules for guardians in Ohio likely ready in 2015

The Ohio Supreme Court has stated that rules for standardized policies in adult guardianship cases will likely not be finalized until sometime in 2015, the Columbus Dispatch reports. In May 2014, the Court published proposed rules, which have been in development since 2007 when a subcommittee of the Court's Advisory Committee on Children and Families convened to begin drafting them. The Dispatch reports that during a period of public comment on the rules from May-June 2014 the Ohio Supreme Court received over 120 pages of comments from lawyers, judges, advocates and guardians. The comments have been sent to a subcommittee to review and incorporate into the final rules, which will then go through two more committees for approval before going before the justices again.

The proposed rules published in May would apply only in cases where a professional or attorney is appointed as guardian for an adult requiring these services, not when the guardian is a family member. According to the Dispatch, however, Julia Nack, a certified master guardian working on the committee redrafting the rules reported that a surprising number of the public comments requested that the rules apply to all individuals serving as guardians. If these changes are incorporated into the rules, it could impact the content of training that is currently in development for guardians, which is expected to be ready for testing by spring.

The Dispatch reports that original subcommittee member Michael Kirkman of Disability Rights Ohio is concerned that the delay in publishing the rules and the repeated trips to subcommittee for review will be detrimental to the finished product, diluting the original intent of the drafters. The Court has said the rules will be ready in 2015.

In addition to the forthcoming finalized rules, there is also legislation pending in the Ohio legislature which offers protections for adult wards in guardianship situations. H.B. 624, proposed by Rep. Dorothy Pelanda (R) in September, provides a bill of rights for wards and requires that probate courts furnish guardians a guide developed by the Ohio Attorney General at certain specified times. If passed, the legislation and rules would serve to complement each other.

Monday, October 13, 2014

Attorney-client privilege concerns when using Gmail: Is client consent required?

Does using Gmail or Google Apps for Business raise ethical problems for lawyers? The ABA Journal and Texas Lawyer (sub. req.) have recently reported on this issue, and conclude that the answer is unclear. The central problem arises from Google's ability to scan emails (possibly even emailed attachments, as suggested by Google's patent) for data mining and analysis purposes. Texas Lawyer cites specific concerns with respect to Texas Disciplinary Rule of Professional Conduct 1.05, which prohibits lawyers from "[using] privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation." The idea is that Google's data mining creates an advantage for the lawyer, in that allowing Google to access the content of emails for Google's commercial purposes gives the lawyer access to free email services. If the client does not consent to this "advantage" then a Texas attorney may have an ethical problem.

Even without viewing this in light of the Texas disciplinary rule, however, ABA Journal indicates that Google's data harvesting may present issues relating to attorney-client privilege and confidentiality. Both articles suggest that attorneys may be taking a risk when using these services for legal purposes, particularly if doing so without express client consent.

E-filing to come to Ohio Supreme Court

Court News Ohio reports that the Supreme Court of Ohio is beginning a pilot program for electronic filing of case documents. At this time the Court is seeking 75 attorneys who are lawfully registered in Ohio to participate in the program and test the filing system. If successful, the plan is to open e-filing to all attorneys licensed in Ohio in early 2015 and to pro se litigants by later that year. Chief Justice Maureen O'Connor issued the following administrative order to provide guidance for the program. Attorneys interested in participating should contact the Supreme Court's clerk of the court, Sandra Grosko, at by 5 p.m. on Friday, October 17, 2014

Thursday, October 09, 2014

SCOTUS hears arguments about inmate's religious right to have a beard

The Supreme Court heard arguments yesterday in a case involving a prison inmate's religious right to grow facial hair. The case, Holt v. Hobbs, originated in Arkansas and involves inmate Gregory Holt, who states that his Muslim faith requires that he not cut his beard. Holt was convicted of stabbing his girlfriend in the neck and chest and is currently serving a life sentence. The prison where Holt is incarcerated has a policy that prohibits inmates from growing facial hair for security reasons. Holt alleges that this violates his right to the free exercise of religion under the First Amendment as administered by the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. § 2000cc et seq. This law generally requires that prison officials accommodate inmates' religious practices.

Holt had proposed a compromise to the prison, requesting that he be permitted to grow and wear a half-inch beard. The prison system denied his request and the lower courts affirmed this decision. In a handwritten petition for writ of certiorari, Holt explained the tenets of his faith and argued that the prison's grooming policy did not constitute the least restrictive means to further the compelling interest in maintaining security.

According to NPR, the justices seemed skeptical of the policy during oral arguments, poking holes in the state's arguments that the rule was necessary to prevent inmates from from quickly changing their appearance to disguise themselves and commit other crimes, and that the rule was required to prevent inmates from hiding contraband. In response to the state's argument about appearance changes, Justice Ginsburg questioned the fact that there was not a comparable rule about hair on inmates' heads, which the state said posed less of a risk. Justice Alito questioned whether shaving a half inch beard really represented a bigger difference than shaving a head full of hair. The Columbus Dispatch reports that Justice Alito also elicited laughs from the room with his response to the contraband argument, when he stated that the prison could develop a comb to put through inmates' beards and that “If there’s anything in there ... a tiny revolver, it’ll fall out,”

SCOTUS Blog provides a full history of the case, complete with links to documents filed, here. The blog also offers a thorough plain English description of the case, here.

Monday, October 06, 2014

Supreme Court declines to hear same-sex marriage cases, clears way for same-sex marriage in multiple states

In a decision that has surprised many, the Supreme Court of the United States has declined to hear any of the seven petitions for review of same-sex marriage cases that were pending before it. According to the New York Times, the decision was issued without explanation, and has the practical impact of clearing the way for same-sex marriages in those states where federal appellate courts have overturned same-sex marriage bans. These include Virginia (Fourth Circuit), Indiana (Seventh Circuit), Wisconsin (Seventh Circuit), Oklahoma (Tenth Circuit) and Utah (Tenth Circuit). 

This brings the total number of states allowing same-sex marriage to 24. This refusal effectively eliminates the stays the Court had previously granted which had blocked marriages from taking place in these states. As of early this afternoon, SCOTUS Blog reports that both the Fourth and Tenth Circuits have put their rulings into immediate effect for Virginia, Oklahoma and Utah, but no action has yet been taken in the Seventh Circuit.

These federal circuits also have jurisdiction over six other states with same-sex marriage bans, namely Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming. While the Supreme Court's action does not automatically eliminate these bans, the appellate court decisions finding same-sex marriage bans unconstitutional are binding precedent in the states within the jurisdiction of those courts, so it is widely assumed that they will be struck down in short order. 

The Supreme Court's action is viewed as a surprise, as most thought that the high court would be taking action on this issue in this session. SCOTUS Blog offers a full analysis of why this was such a surprising move, including the relatively unprecedented demand from parties on both sides of the issue requesting the Court to weigh in, and the Court's previous action granting stays that prevented same-sex marriages from taking place in the states where appellate courts had struck down bans.

The Fifth, Sixth, Ninth and Eleventh Circuits all currently have cases or decisions pending on this same issue. The action of the Supreme Court provides no binding precedent for these courts.

Defendants now permitted to challenge breathalyzer test results, says Ohio Supreme Court

The Supreme Court of Ohio ruled last week that defendants may challenge the reliability of the specific results obtained from a breathalyzer used to analyze blood-alcohol content in DUI cases. In a unanimous opinion penned by Justice O'Donnell, the Court held that a defendant is not precluded "from challenging the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific test results or whether the specific machine used to test the accused operated properly at the time of the test."

The case before the Court is based out of Cincinnati. The defendant, Daniel Ilg, was arrested for driving under the influence of alcohol and subjected to a breathalyzer test using the Intoxilyzer 8000. Ilg moved to suppress the breathalyzer results and made a discovery request for evidence about the machine that had been used to test him, including information about his specific test and the machine's data from three years before his arrest and three months after. Ilg also subpoenaed the Ohio Department of Health for information and records related to this machine. When this was not produced, the trial court ordered that his breathalyzer results should be suppressed, finding that Ilg had a right to challenge the reliability of the test and could not do so without this information. The First District affirmed this order and the city of Cincinnati appealed.

In affirming the lower courts, the Ohio Supreme Court distinguished this case from the long-held precedent set in State v. Vega, which held that defendants in DUI cases cannot challenge the reliability of breath testing devices. The Court found that while Vega prohibited a defendant from challenging the general reliability of the test procedure, it did not preclude the defendant from challenging "the accuracy of his specific test results." The Court affirmed the decision of the lower courts, holding that the defendant "is entitled to discovery of relevant evidence to support his claim that the Intoxilyzer 8000 machine used to test him failed to operate properly."

For more information about this case, see this link from Court News Ohio and this article from the Columbus Dispatch.

Thursday, October 02, 2014

Amended laws change responsibility for protection order costs and interpreter's fees

The Ohio Poverty Law Journal reports that changes to Ohio's protection order laws took effect on September 17, 2014. These laws generally offer protection to victims of domestic violence, sexual assault, stalking or juvenile violence by allowing them to obtain court orders that typically require the perpetrators to have no contact with them, among other possible restrictions. The amendments to the laws, which came about pursuant to Ohio H.B. 309, involve changes related to the payment of fees and costs associated with all types of protection orders, including domestic violence civil protection orders, civil stalking protection orders, civil sexually oriented offense protection orders, juvenile protection orders, criminal protection orders and temporary protection orders.

Specifically, the changes to the law prohibit charging the petitioner on the protection order any fees or costs related to enforcing, modifying, dismissing or withdrawing the order. Also newly prohibited are charges related to witness subpoenas. Prior to passage of H.B. 309 petitioners were not charged with costs or fees for filing protection orders, but could be charged with the other costs that are now prohibited by the amended laws. Courts are now also permitted to charge the respondent or defendant in these matters with the costs and fees associated with the case, whereas under the old law they were not permitted to charge any of the parties with certain costs.

Additionally, H.B. 309 provides that when a party is classified as indigent by the courts the party cannot be charged with costs for interpreter fees. This is a change that applies to parties in all court cases, and is not limited to the protection order cases described above. Click here for analysis of the final bill.