We commented on Nov. 28th. about Congressman Darrell Issa's postings to social media site, Reddit, and how returns there were initially "mixed, with some users confused about what point Issa was trying to make, while others saw it as a stunt."
This morning, Nov. 30, NBCNews follows up saying that "by the morning of Nov. 8th., the time Issa had set for answering questions, the queries had turned into something of a dogpile., with, by far, the most popular question posed illustrated by Reddit user The_Milkman:who asked, 'Hey Darrell, why did you vote for CISPA?'" Indeed, NBC's article said," Issa's sponsorship of CISPA — the controversial Cyber Intelligence Sharing and Protection Act that was approved by the House, but has yet to be approved or vetoed by the president — was the topic of many questions and much ire… Issa's attachment to the controversial piece of legislation — which would expand government agencies' ability to access data from sites like Facebook and Twitter — seemed to poison his attempt to solicit Reddit's help from the start."
The article concluded by saying that "there's a lesson to be learned for politicians and other public figures who are considering this kind of open discussion on a site like Reddit: It's not always going to be a love-in, as it was with President Barack Obama's having crashed servers during the election when he appeared in an impromptu ‘Ask Me Anything’ post ... You may end up like Issa, with a front-page post and 2,500 comments calling you everything from an opportunistic hypocrite to a crony of big business."
But it also conceded that "regardless of the unfriendly atmosphere, Issa answered dozens of questions, including some openly hostile, but regardless of the tone of the conversation, the goal of procuring constructive input on the proposed legislation (the 'Internet American Moratorium Act' or IAMA) seems to have been achieved. A number of comments and suggested changes have been submitted at the site set up for this purpose, and various issues have been raised in the comment threads that may help improve the bill. And the high positive vote count on the IAMA itself indicates that the community is at least interested in discussing the topic."
Friday, November 30, 2012
Thursday, November 29, 2012
Internet Regulation Bill
CNN.com is carrying an story this morning (Nov. 28) about Rep. Darrell Issa, a Republican from California proposing a two-year ban on all new federal legislation regulating the Internet.
Issa, an advocate for Internet freedoms, posted a draft of his bill, the Internet American Moratorium Act of 2012, online last Nov. 26 on Project Madison a crowd-sourcing platform that allows citizens to amend individual passages of legislation by adding or striking language. On Nov. 27th., he posted a link to the bill on Reddit, the social news site, inviting users to suggest changes to the proposed legislation, saying he would begin taking questions from users as of the morning of Nov. 28th..
CNN also reported that "it was not immediately clear whether Issa's proposed moratorium would apply to his own Online Protection and Enforcement of Digital Trade (OPEN) Act, introduced last January, which would seek to protect U.S. copyrights and trademarks from infringement by foreign websites, and that the immediate reaction on Reddit was mixed with some users confused about what point Issa was trying to make, while others saw it as a stunt." Issa's bill was referred to the House Subcommittee on Intellectual Property, Competition and the Internet.
Senate Bill 2029, by the same name, was introduced last December by Sen. Ron Wyden of Oregon, read twice and referred to the Committee on Finance.
Issa, an advocate for Internet freedoms, posted a draft of his bill, the Internet American Moratorium Act of 2012, online last Nov. 26 on Project Madison a crowd-sourcing platform that allows citizens to amend individual passages of legislation by adding or striking language. On Nov. 27th., he posted a link to the bill on Reddit, the social news site, inviting users to suggest changes to the proposed legislation, saying he would begin taking questions from users as of the morning of Nov. 28th..
CNN also reported that "it was not immediately clear whether Issa's proposed moratorium would apply to his own Online Protection and Enforcement of Digital Trade (OPEN) Act, introduced last January, which would seek to protect U.S. copyrights and trademarks from infringement by foreign websites, and that the immediate reaction on Reddit was mixed with some users confused about what point Issa was trying to make, while others saw it as a stunt." Issa's bill was referred to the House Subcommittee on Intellectual Property, Competition and the Internet.
Senate Bill 2029, by the same name, was introduced last December by Sen. Ron Wyden of Oregon, read twice and referred to the Committee on Finance.
Tuesday, November 27, 2012
Ohio CLE Changes Adopted
The Ohio Supreme Court announced yesterday that it has adopted continuing legal education (CLE) changes that will double the number of online credit hours attorneys could earn, allow attorneys to earn a portion of their CLE hour requirement by engaging in approved pro bono activities, and eliminate the requirement to file final reporting transcripts, effective January 1, 2014.
The changes to Gov. Bar R. X resulted from a year-long study by the Commission on Continuing Legal Education and incorporated feedback from a survey of the state’s judges and active attorneys about what changes they would like made to CLE requirements, according to Attorney Services Director Susan Christoff.
Text of the CLE Changes Here
The changes to Gov. Bar R. X resulted from a year-long study by the Commission on Continuing Legal Education and incorporated feedback from a survey of the state’s judges and active attorneys about what changes they would like made to CLE requirements, according to Attorney Services Director Susan Christoff.
Text of the CLE Changes Here
Wednesday, November 21, 2012
Supreme Court's copyright ownership case
The expanse & involvement of this case alone is interesting.
The morning of Oct. 29th., Lisa Shuchman at Corporate Counsel wrote, "while most federal government offices and businesses were closed in anticipation of the arrival of Hurricane Sandy, it was business as usual at the U.S. Supreme Court, which was hearing arguments in Kirtsaeng v. Wiley, a copyright case that could change a long-standing, fundamental view of property ownership in the United States.
"But, even after oral arguments had been heard, it was impossible to predict how the justices might rule in the high-stakes case, with lawyers on both sides saying some issues would likely remain unresolved no matter what -- So a diverse coalition which includes library associations, museums, bookstores, and online retailers established the Owners' Rights Initiative (ORI) -- a group created to educate members of Congress about how changes to copyright law might affect them."
Shuchman further relates "the case, considered one of the most important intellectual property matters to come before the high court, concerns the 'first sale' doctrine in copyright law -- a concept that leaves owners free to resell, lend, or give away copyrighted items without permission from the copyright holder --- a doctrine long interpreted as one that applies to all goods, regardless of where they originated. But book publishers, software companies, and the movie and music industries, looking to protect their practice of setting different prices for different markets, argue that the doctrine should apply only to goods produced in the U.S."
The case stems from textbook publisher John Wiley & Sons pitted against Supap Kirtsaeng, a student who came from Thailand to study at Cornell and later the University of Southern California. Discovering that textbooks almost identical to those in the U.S. were considerably less expensive in Asia, he had friends and family members send multiple copies of needed books to him, which he then resold to students in the U.S. at a profit. Wiley sued Kirtsaeng for infringing its copyrights; the Court of Appeals for the Second Circuit ruled in Wiley's favor. ( Here )
Brandon Butler and Jonathan Band in their article at LLRX.com and in the Library Journal, noted that "since 1978, the law has protected publishers who sell products at different prices abroad than they do in the US by barring the unauthorized importation of copies purchased abroad (with exceptions for ordinary people bringing home books and the such in their luggage, and, importantly, for libraries importing works for their collections). This importation right is part of a broader distribution right, which allows the copyright owner to control the distribution of copies to the public by sale or lease. Wiley invoked this law in its suit against Kirtsaeng.
"In his defense, Kirtsaeng invoked the principle of what copyright law calls the 'first sale doctrine,' but what normal people might call owner's rights: a lawful owner of a lawful copy of a copyrighted work can generally do whatever he/she wants with that copy--resell, lend, donate, or even destroy it--without permission from the copyright holder. To put it another way, the author's right to control a particular copy of her work ends after the first sale. Otherwise, copyright would be inconsistent with all the ordinary expectations of owners. The first sale doctrine is especially important to libraries, whose primary activity throughout history has been to buy copies of works and make them available to their communities by lending."
Butler and Band continued in their article by writing "Wiley argues that this principle cannot apply to copies printed outside the U.S., or else they could not block grey market books from U.S. markets. Because first sale protects all distributions (including domestic resale and lending), not just importation, Wiley's argument could radically change the way foreign-made copies are treated by U.S. law. Nevertheless, so far the courts have agreed with Wiley. Even the U.S. government has filed a brief siding with the publisher. Wiley argues that copyright law should protect U.S. companies from having to compete with their own foreign editions, even if this means owners' rights in the U.S. have to be sacrificed."
ScotusBlog's Ronald Mann, in his recap of oral arguments on Oct. 31st., characterized the case as "the latest chapter in a seemingly intractable problem of copyright law: whether a U.S. copyright holder can prevent the importation of 'gray-market' products manufactured for overseas markets. When the Court tried to address this question two terms ago -- in Costco Wholesale Corp. v. Omega, S.A. -- the Court was equally divided (with Justice Kagan recused).
He, too, was reluctant to predict an outcome, writing "It's obviously risky to predict results in cases this close based on oral argument. Clearly the Justices will be mulling the case carefully before the opinions ultimately are released. But one thing is certainly clear: the publishers did not win over any new votes with the argument today, and the government's concession that it could not accept the publisher's position well might have sealed their defeat."
ScotusBlog's case docket
The morning of Oct. 29th., Lisa Shuchman at Corporate Counsel wrote, "while most federal government offices and businesses were closed in anticipation of the arrival of Hurricane Sandy, it was business as usual at the U.S. Supreme Court, which was hearing arguments in Kirtsaeng v. Wiley, a copyright case that could change a long-standing, fundamental view of property ownership in the United States.
"But, even after oral arguments had been heard, it was impossible to predict how the justices might rule in the high-stakes case, with lawyers on both sides saying some issues would likely remain unresolved no matter what -- So a diverse coalition which includes library associations, museums, bookstores, and online retailers established the Owners' Rights Initiative (ORI) -- a group created to educate members of Congress about how changes to copyright law might affect them."
Shuchman further relates "the case, considered one of the most important intellectual property matters to come before the high court, concerns the 'first sale' doctrine in copyright law -- a concept that leaves owners free to resell, lend, or give away copyrighted items without permission from the copyright holder --- a doctrine long interpreted as one that applies to all goods, regardless of where they originated. But book publishers, software companies, and the movie and music industries, looking to protect their practice of setting different prices for different markets, argue that the doctrine should apply only to goods produced in the U.S."
The case stems from textbook publisher John Wiley & Sons pitted against Supap Kirtsaeng, a student who came from Thailand to study at Cornell and later the University of Southern California. Discovering that textbooks almost identical to those in the U.S. were considerably less expensive in Asia, he had friends and family members send multiple copies of needed books to him, which he then resold to students in the U.S. at a profit. Wiley sued Kirtsaeng for infringing its copyrights; the Court of Appeals for the Second Circuit ruled in Wiley's favor. ( Here )
Brandon Butler and Jonathan Band in their article at LLRX.com and in the Library Journal, noted that "since 1978, the law has protected publishers who sell products at different prices abroad than they do in the US by barring the unauthorized importation of copies purchased abroad (with exceptions for ordinary people bringing home books and the such in their luggage, and, importantly, for libraries importing works for their collections). This importation right is part of a broader distribution right, which allows the copyright owner to control the distribution of copies to the public by sale or lease. Wiley invoked this law in its suit against Kirtsaeng.
"In his defense, Kirtsaeng invoked the principle of what copyright law calls the 'first sale doctrine,' but what normal people might call owner's rights: a lawful owner of a lawful copy of a copyrighted work can generally do whatever he/she wants with that copy--resell, lend, donate, or even destroy it--without permission from the copyright holder. To put it another way, the author's right to control a particular copy of her work ends after the first sale. Otherwise, copyright would be inconsistent with all the ordinary expectations of owners. The first sale doctrine is especially important to libraries, whose primary activity throughout history has been to buy copies of works and make them available to their communities by lending."
Butler and Band continued in their article by writing "Wiley argues that this principle cannot apply to copies printed outside the U.S., or else they could not block grey market books from U.S. markets. Because first sale protects all distributions (including domestic resale and lending), not just importation, Wiley's argument could radically change the way foreign-made copies are treated by U.S. law. Nevertheless, so far the courts have agreed with Wiley. Even the U.S. government has filed a brief siding with the publisher. Wiley argues that copyright law should protect U.S. companies from having to compete with their own foreign editions, even if this means owners' rights in the U.S. have to be sacrificed."
ScotusBlog's Ronald Mann, in his recap of oral arguments on Oct. 31st., characterized the case as "the latest chapter in a seemingly intractable problem of copyright law: whether a U.S. copyright holder can prevent the importation of 'gray-market' products manufactured for overseas markets. When the Court tried to address this question two terms ago -- in Costco Wholesale Corp. v. Omega, S.A. -- the Court was equally divided (with Justice Kagan recused).
He, too, was reluctant to predict an outcome, writing "It's obviously risky to predict results in cases this close based on oral argument. Clearly the Justices will be mulling the case carefully before the opinions ultimately are released. But one thing is certainly clear: the publishers did not win over any new votes with the argument today, and the government's concession that it could not accept the publisher's position well might have sealed their defeat."
ScotusBlog's case docket
Tuesday, November 20, 2012
New Ohio Supreme Court rule for early departure judges
The Ohio Supreme Court has issued amendments to Rules III and VII of the state's Judiciary Government Rules requiring judges leaving the bench prior to completing their term to submit a resignation letter to the governor and notification letter to the chief justice at least three days before leaving office. The new rule also instructs departing judges to hand over books, papers, records & other documents,alone with all other property of the court upon their departure.There is no duty to provide prior notification under current rules.
The rule goes into effect January 1, 2013.
Text of Rule Here
The rule goes into effect January 1, 2013.
Text of Rule Here
Monday, November 19, 2012
Hamilton County e-filing notification system
The Hamilton County Clerk of Courts reminds attorneys practicing in both civil & criminal divisions of the Court of Common Pleas that, effective December 3, 2012, the Clerk's new e-filing notification system will be implemented.
Beginning December 3rd, if you are a registered, active attorney of record on any Common Pleas case, the e-filing system will send you a courtesy e-mail notification that a document has been filed with the Clerk's Office. The electronic communication will be sent to any e-mail address associated with your attorney id in the court system. Only electronically filed documents will generate this notification.
In order to take advantage of this new service, attorneys practicing in the Hamilton County Court of Common Pleas should ascertain that they have a current, accurate e-mail address on file with the Clerk of Courts. Further information is available here.
Beginning December 3rd, if you are a registered, active attorney of record on any Common Pleas case, the e-filing system will send you a courtesy e-mail notification that a document has been filed with the Clerk's Office. The electronic communication will be sent to any e-mail address associated with your attorney id in the court system. Only electronically filed documents will generate this notification.
In order to take advantage of this new service, attorneys practicing in the Hamilton County Court of Common Pleas should ascertain that they have a current, accurate e-mail address on file with the Clerk of Courts. Further information is available here.
Ohio Standardized Domestic Relations Forms
The Supreme Court's news service this morning announced the Court was extending the public comment period on 23 proposed standardized forms designed to help pro se litigants meaningfully participate in many family-law related proceedings in domestic relations and juvenile courts such as divorces, dissolutions, legal separations, and parenting plans, and court personnel who are legally limited in the assistance they can provide, along with, indeed, the individual lawyer him/herself, by making practices in all courts more uniform.
Public comment will now close December 14, 2012.
Forms can be viewed here.
Comments on the proposed forms should be submitted in writing to:
Public comment will now close December 14, 2012.
Forms can be viewed here.
Comments on the proposed forms should be submitted in writing to:
Stephanie Graubner Nelson,
Policy and Research Counsel, Children, Families, and the Courts Section,
Supreme Court of Ohio,
65 South Front Street, Sixth Floor,
Columbus, OH 43215,
Or via e-mail to stephanie.nelson@sc.ohio.gov .
Friday, November 16, 2012
Totality of facts & circumstances support OVI probable cause
The 5th. District Ohio Court of Appeals last Nov. 5th. held that "when evaluating probable cause to arrest a suspect for OVI, the totality of the facts and circumstances can support a finding of probable cause to arrest even when no field sobriety tests are administered."
The case involved a seventy-one year old male stopped for committing a marked lanes violation. On approaching suspect's car, the arresting officer noticed an odor of alcohol and, when asked, suspect/appellant admitted to having consumed two glasses of wine prior to driving. Officer also noticed suspect/ appellant's having blood shot eyes, and had difficulty retrieving his identification and insurance documentation. Having a recent hip injury, suspect/appellant asked to perform a non-standardized procedure attempting to touch his fingers to his thumb one way and then the other, which he couldn’t do to the officer's satisfaction. Officer asked suspect/appellant if he would agree to a breath test and was transported him to the Hebron Police Department, where he tested a .126 on the BAC DataMaster. At trial defendant/appellant filed motion to suppress the field sobriety tests, his arrest for lack of probable cause, and the BAC DataMaster results. The trial court excluded the field sobriety tests because the State failed to establish the testing standard and because the officer had not administered the tests in substantial compliance with the NHTSA manual.
State v. Nethers, 2012-Ohio-5198
The case involved a seventy-one year old male stopped for committing a marked lanes violation. On approaching suspect's car, the arresting officer noticed an odor of alcohol and, when asked, suspect/appellant admitted to having consumed two glasses of wine prior to driving. Officer also noticed suspect/ appellant's having blood shot eyes, and had difficulty retrieving his identification and insurance documentation. Having a recent hip injury, suspect/appellant asked to perform a non-standardized procedure attempting to touch his fingers to his thumb one way and then the other, which he couldn’t do to the officer's satisfaction. Officer asked suspect/appellant if he would agree to a breath test and was transported him to the Hebron Police Department, where he tested a .126 on the BAC DataMaster. At trial defendant/appellant filed motion to suppress the field sobriety tests, his arrest for lack of probable cause, and the BAC DataMaster results. The trial court excluded the field sobriety tests because the State failed to establish the testing standard and because the officer had not administered the tests in substantial compliance with the NHTSA manual.
State v. Nethers, 2012-Ohio-5198
Wednesday, November 14, 2012
Echoing thunder .....
In the wake of last week's elections we have a couple related items of some interest...
The Blog of Legal Times, just a few days before the Election, posted an entry about Representative John Conyers (D-Mich.), the top Democrat on the House Judiciary Committee, along with six other Democratic congressmen saying in a written statement back then that the Department of Justice has "expended substantial federal resources" to delay or overturn state laws that could have a disproportionate impact on minorities, and that he was going to continue to investigate states that have enacted election procedures that could create discriminatory barriers to the ballot box….. 37 states have introduced voting changes that have been cited to negatively impact the right to vote for over five million Americans, according to Conyers. ( Press Release )
Meanwhile, MSNBCnews reported days after that the Supreme Court had announced it would take up a battle over a key part of the landmark Voting Rights Act that civil rights groups fear will be used to “gut that law.” That case is Shelby County, Alabama v. Holder.
Shelby County's petition "puts at issue Congress' decision in 2006 to reauthorize until 2031 the preclearance obligation of Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) of the VRA (which go) far 'beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been pre-cleared by federal authorities in Washington, D.C.' Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202 (2009) (“Nw.Austin”).
"This Court has twice upheld the preclearance regime against facial constitutional challenge under then prevailing conditions in covered jurisdictions. South Carolina v. Katzenbach, 383 U.S. 301, 303(1966); City of Rome v. United States, 446 U.S. 156 (1980).
(But)" More recently, addressing the 2006 reauthorization, the Court recognized that '[s]ome of the conditions' that it 'relied upon in upholding this statutory scheme in Katzenbach and City of Rome have unquestionably improved. Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.' Nw. Austin, 557 U.S. at 202. Moreover, the 'evil that Sec. 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.' Id. at 203 Because Congress has not since acted to rectify these problems, the constitutional validity of Sections 5 and 4(b) must now be resolved."
The Blog of Legal Times, just a few days before the Election, posted an entry about Representative John Conyers (D-Mich.), the top Democrat on the House Judiciary Committee, along with six other Democratic congressmen saying in a written statement back then that the Department of Justice has "expended substantial federal resources" to delay or overturn state laws that could have a disproportionate impact on minorities, and that he was going to continue to investigate states that have enacted election procedures that could create discriminatory barriers to the ballot box….. 37 states have introduced voting changes that have been cited to negatively impact the right to vote for over five million Americans, according to Conyers. ( Press Release )
Meanwhile, MSNBCnews reported days after that the Supreme Court had announced it would take up a battle over a key part of the landmark Voting Rights Act that civil rights groups fear will be used to “gut that law.” That case is Shelby County, Alabama v. Holder.
Shelby County's petition "puts at issue Congress' decision in 2006 to reauthorize until 2031 the preclearance obligation of Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) of the VRA (which go) far 'beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been pre-cleared by federal authorities in Washington, D.C.' Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202 (2009) (“Nw.Austin”).
"This Court has twice upheld the preclearance regime against facial constitutional challenge under then prevailing conditions in covered jurisdictions. South Carolina v. Katzenbach, 383 U.S. 301, 303(1966); City of Rome v. United States, 446 U.S. 156 (1980).
(But)" More recently, addressing the 2006 reauthorization, the Court recognized that '[s]ome of the conditions' that it 'relied upon in upholding this statutory scheme in Katzenbach and City of Rome have unquestionably improved. Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.' Nw. Austin, 557 U.S. at 202. Moreover, the 'evil that Sec. 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.' Id. at 203 Because Congress has not since acted to rectify these problems, the constitutional validity of Sections 5 and 4(b) must now be resolved."
Wednesday, November 07, 2012
Social media election news
NBCnews.com, this morning, blended "election law" with possible social media aspects in maybe a slightly different way with an article about" tweeting a photo of your ballot, showing it on Instagram, Facebook ,or on other sites being illegal & potentially leading to your being prosecuted... Although that apparently hasn't stopped scads of voters from doing it anyway..."
The article has NBC News Justice Department correspondent, Pete Williams, reporting "that the laws banning and restricting photography are 'from a bygone era before the ubiquity of cellphone cameras and social media,' and that they were passed 'to prevent employers or union bosses from pressuring people to vote in a certain way and demanding proof of it,' but also noted that "secretaries of state in several states around the country Tuesday issued statements warning voters to knock off the social media photos of ballots."
"Kay Stimson, communications and special projects director of the National Association of Secretaries of State, a professional organization for secretaries of states around the country, told NBC News, it's not just about photographing ballots; it's about displaying them."
"The Citizen Media Law Project at Harvard University's Berkman Center for Internet & Society posted a chart showing how all 50 states handle this kind of activity, as outdated as it may seem in the age of social media and oversharing."
"Note that the (Citizen Media Law Project) chart documenting one's vote," Stimson further commented, "shows that while most states do not expressly prohibit recording/photography inside of polling sites, the majority of states do prohibit the public display of marked ballots," she said. "The states that do have such laws have adopted them to prevent vote buying and voter coercion."
"Additionally, Stimson added, 'it is important to respect the integrity of the voting process. States generally prohibit any form of conduct that serves to intimidate voters, interferes with their right to exercise their vote, or disrupts voting.'"
The article has NBC News Justice Department correspondent, Pete Williams, reporting "that the laws banning and restricting photography are 'from a bygone era before the ubiquity of cellphone cameras and social media,' and that they were passed 'to prevent employers or union bosses from pressuring people to vote in a certain way and demanding proof of it,' but also noted that "secretaries of state in several states around the country Tuesday issued statements warning voters to knock off the social media photos of ballots."
"Kay Stimson, communications and special projects director of the National Association of Secretaries of State, a professional organization for secretaries of states around the country, told NBC News, it's not just about photographing ballots; it's about displaying them."
"The Citizen Media Law Project at Harvard University's Berkman Center for Internet & Society posted a chart showing how all 50 states handle this kind of activity, as outdated as it may seem in the age of social media and oversharing."
"Note that the (Citizen Media Law Project) chart documenting one's vote," Stimson further commented, "shows that while most states do not expressly prohibit recording/photography inside of polling sites, the majority of states do prohibit the public display of marked ballots," she said. "The states that do have such laws have adopted them to prevent vote buying and voter coercion."
"Additionally, Stimson added, 'it is important to respect the integrity of the voting process. States generally prohibit any form of conduct that serves to intimidate voters, interferes with their right to exercise their vote, or disrupts voting.'"
Monday, November 05, 2012
More Ohio election law ongoings
New York Times reporters Mark Landler and Michael Shear yesterday wrote, "President Obama and Mitt Romney hunted for last-minute support on Sunday in a frenetic sprint across battleground states, even as their parties faced off in the first of what could be a growing number of legal disputes over presidential ballots and how they are counted."
Among those players they noted "Republican election officials here in Ohio going to court this morning to defend an 11th-hour directive to local election officials that critics say could invalidate thousands of provisional ballots by forcing voters to attest to the type of identification they provide."
Last week, the 6th Circuit Court of Appeals stayed District Court Judge Algenon Marbley's recent decision that would have required Ohio to count provisional ballots cast in the wrong polling location so long as they were cast in the correct county, agreeing with Ohio Secretary of State Jon Husted and Attorney General Mike DeWine in saying that District Court Algenon Marbley's expanded ruling improperly 'absolves voters of all responsibility' not only for voting in the correct precinct, but even for finding the right building.
Also last week, U.S. District Judge Susan Dlott refused to change an Ohio law that could prevent some prisoners from voting on Election Day, saying she will consider claims that the law is unconstitutional, but that she so far has not seen enough evidence to convince her that that is the case. "The court appreciates the importance of an individual's right to vote," Dlott was quoted by Cincinnati.com, "However, at this late date, so near in time to a presidential election, the court also is mindful of the importance of avoiding a rash decision, and overturning the law now could cause further confusion and violations of voters’ rights."
While dening a temporary restraining order to block enforcement of the law, she decided to allow the case to go forward after the election. No date has been set for the next hearing.
Hamilton County Democratic Party chairman Tim Burke meanwhile recently joked in yet another Cincinnati.com article that the possibility that Ohio could keep the nation waiting for weeks to learn who won Tuesday's presidential election was "really a plot to fill Ohio's hotels with lawyers." That, the article noted, "as with many jokes, has some basis in fact, as as Election Day approaches, the first wave of lawyers are already swarming over Ohio to prepare for the possibility that the election may be decided not just at the polls, but in court."
The Blog of Legal Times, finally, had a posting Friday saying "that Representative John Conyers (D-Mich.), along with six other Democratic congressmen on the House Judiciary Committee had announced they would be continuing to investigate states that have enacted election procedures that could create discriminatory barriers to the ballot box, of which there are currently 37 states which have introduced voting changes that have been cited to negatively impact the right to vote for over five million Americans."
Among those players they noted "Republican election officials here in Ohio going to court this morning to defend an 11th-hour directive to local election officials that critics say could invalidate thousands of provisional ballots by forcing voters to attest to the type of identification they provide."
Last week, the 6th Circuit Court of Appeals stayed District Court Judge Algenon Marbley's recent decision that would have required Ohio to count provisional ballots cast in the wrong polling location so long as they were cast in the correct county, agreeing with Ohio Secretary of State Jon Husted and Attorney General Mike DeWine in saying that District Court Algenon Marbley's expanded ruling improperly 'absolves voters of all responsibility' not only for voting in the correct precinct, but even for finding the right building.
Also last week, U.S. District Judge Susan Dlott refused to change an Ohio law that could prevent some prisoners from voting on Election Day, saying she will consider claims that the law is unconstitutional, but that she so far has not seen enough evidence to convince her that that is the case. "The court appreciates the importance of an individual's right to vote," Dlott was quoted by Cincinnati.com, "However, at this late date, so near in time to a presidential election, the court also is mindful of the importance of avoiding a rash decision, and overturning the law now could cause further confusion and violations of voters’ rights."
While dening a temporary restraining order to block enforcement of the law, she decided to allow the case to go forward after the election. No date has been set for the next hearing.
Hamilton County Democratic Party chairman Tim Burke meanwhile recently joked in yet another Cincinnati.com article that the possibility that Ohio could keep the nation waiting for weeks to learn who won Tuesday's presidential election was "really a plot to fill Ohio's hotels with lawyers." That, the article noted, "as with many jokes, has some basis in fact, as as Election Day approaches, the first wave of lawyers are already swarming over Ohio to prepare for the possibility that the election may be decided not just at the polls, but in court."
The Blog of Legal Times, finally, had a posting Friday saying "that Representative John Conyers (D-Mich.), along with six other Democratic congressmen on the House Judiciary Committee had announced they would be continuing to investigate states that have enacted election procedures that could create discriminatory barriers to the ballot box, of which there are currently 37 states which have introduced voting changes that have been cited to negatively impact the right to vote for over five million Americans."
Friday, November 02, 2012
Foreclosure action void if filed before becoming actual party in interest
A Columbus Dispatch article hailed the Ohio Supreme Court's decision in Fed. Home Loan Mtge. Corp. v. Schwartzwald, last Wednesday, an important safeguard for homeowners.
In the unanimous ruling, the justices said that a foreclosure action is invalid unless the lender actually holding the promissory note and assignment of mortgage is a party to the case when it is first filed in court. That reversed a Second District Court of Appeals decision in Greene County that, in turn, conflicted with rulings from two other districts on the need for the "real party of interest" to be part of foreclosure filings -- Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 (1st Dist.), ¶ 15-16; Bank of New York v. Gindele, 1st Dist. No. C 090251, 2010-Ohio-542, ¶ 3-4; and Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675, 2009-Ohio-1092, ¶ 21 -- cases holding that a lack of standing cannot be cured by substituting the real party in interest for an original party pursuant to Civ.R. 17(A).
The Court's news service wrote that in writing for the unanimous court, Justice Terrence O'Donnell "explained that in order to invoke the jurisdiction of a trial court, a party initiating a lawsuit must have 'in an individual or representative capacity, some real interest in the subject matter of the action.'"
"'We recognized that standing is a 'jurisdictional requirement' in State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, (1973)," Justice O’Donnell wrote, "and stated: 'It is an elementary concept of law that a party lacks standing to invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the subject matter of the action.' ... And recently, in Kincaid v. Erie Ins. Co., (2010), we affirmed the dismissal of a complaint for lack of standing when it had been filed before the claimant had suffered any injury."
"Citing the U.S. Supreme Court's 1992 holding in Lujan v. Defenders of Wildlife that 'standing is to be determined as of the commencement of suit,' and state court decisions supporting that same conclusion from Oklahoma, Vermont, Maine, Connecticut, Florida, Mississippi, and Nebraska, Justice O’Donnell pointed out that in this case 'Federal Home Loan concedes that there is no evidence that it had suffered any injury at the time it commenced this foreclosure action. Thus, because it failed to establish an interest in the note or mortgage at the time it filed suit, it had no standing to invoke the jurisdiction of the common pleas court.'"
In its specific reference, Justice O’Donnell wrote that "Ohio Civil Rule 17(A) allows an authorized representative of a real party in interest, such as the executor or administrator of an estate, the trustee of a trust, or a party with a shared contractual interest in disputed property to initiate a lawsuit on behalf of the real party in interest, but does not 'allow a party with no personal stake in a controversy to file a claim on behalf of a third party, obtain the cause of action by assignment, and then have the assignment relate back to commencement of the action.'"
In the unanimous ruling, the justices said that a foreclosure action is invalid unless the lender actually holding the promissory note and assignment of mortgage is a party to the case when it is first filed in court. That reversed a Second District Court of Appeals decision in Greene County that, in turn, conflicted with rulings from two other districts on the need for the "real party of interest" to be part of foreclosure filings -- Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 (1st Dist.), ¶ 15-16; Bank of New York v. Gindele, 1st Dist. No. C 090251, 2010-Ohio-542, ¶ 3-4; and Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675, 2009-Ohio-1092, ¶ 21 -- cases holding that a lack of standing cannot be cured by substituting the real party in interest for an original party pursuant to Civ.R. 17(A).
The Court's news service wrote that in writing for the unanimous court, Justice Terrence O'Donnell "explained that in order to invoke the jurisdiction of a trial court, a party initiating a lawsuit must have 'in an individual or representative capacity, some real interest in the subject matter of the action.'"
"'We recognized that standing is a 'jurisdictional requirement' in State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, (1973)," Justice O’Donnell wrote, "and stated: 'It is an elementary concept of law that a party lacks standing to invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the subject matter of the action.' ... And recently, in Kincaid v. Erie Ins. Co., (2010), we affirmed the dismissal of a complaint for lack of standing when it had been filed before the claimant had suffered any injury."
"Citing the U.S. Supreme Court's 1992 holding in Lujan v. Defenders of Wildlife that 'standing is to be determined as of the commencement of suit,' and state court decisions supporting that same conclusion from Oklahoma, Vermont, Maine, Connecticut, Florida, Mississippi, and Nebraska, Justice O’Donnell pointed out that in this case 'Federal Home Loan concedes that there is no evidence that it had suffered any injury at the time it commenced this foreclosure action. Thus, because it failed to establish an interest in the note or mortgage at the time it filed suit, it had no standing to invoke the jurisdiction of the common pleas court.'"
In its specific reference, Justice O’Donnell wrote that "Ohio Civil Rule 17(A) allows an authorized representative of a real party in interest, such as the executor or administrator of an estate, the trustee of a trust, or a party with a shared contractual interest in disputed property to initiate a lawsuit on behalf of the real party in interest, but does not 'allow a party with no personal stake in a controversy to file a claim on behalf of a third party, obtain the cause of action by assignment, and then have the assignment relate back to commencement of the action.'"
Criminal DNA profiles may be retained indefinitely
The Ohio Supreme Court yesterday ruled that when the state has lawfully obtained a sample of a person's DNA in the course of a criminal investigation, and has used that sample to establish a DNA profile of the subject, that person does not have standing to object to the state's retention of that profile, and the state is authorized to retain and use it in a subsequent criminal investigation even when the subject is subsequently acquitted on charges that were the basis for obtaining the DNA sample. (State v. Emerson, Slip Opinion No. 2012-Ohio-5047)
The Court news reporter stated that the case involved a criminal defendant accused of rape in 2005, in the course which investigation a search warrant was executed to obtain a DNA sample, which was processed, a profile there obtained, and placed into the law enforcement Combined DNA Index System (CODIS) at the local level and, eventually, was entered in a "suspect" database at the state level. The suspect was subsequently acquitted of the rape charge, though after his acquittal his profile remained in the CODIS database and he had not sought to have it expunged.
In July 2007, Cleveland police investigating a murder found blood that was not the victim’s on a door handle at the crime scene, submitting the sample to the Cuyahoga County Coroner's Office which in turn did a DNA analysis of the blood sample, entering that resulting DNA profile into the CODIS database at the local level as a forensic unknown, and subsequently to the state. In August 2008, a report generated at the state level determined that the DNA profile obtained from the homicide scene matched the profile on file with that that had been obtained in connection with the 2005 rape prosecution and retained in CODIS after the suspect’s acquittal in that case.
Obtaining a search warrant and new DNA sample from the suspect that matched the current crime scene material and investigation, the suspect was indicted on one count each of aggravated murder, aggravated burglary, and tampering with evidence.
A motion to suppress was filed, but an evidentiary hearing led the trial court to deny that motion. The matter proceeded to trial, and a jury found the suspect guilty of aggravated murder and tampering with evidence. On appeal, the Eighth District Court of Appeals affirmed the judgment of the trial court. (Here )
The state's supreme court here upheld the Eighth District,the Court's news service relaying Justice Robert Cupp's writing, "Appellant (Emerson) argues that he has a reasonable expectation of privacy in the DNA profile obtained from his sample. ... Specifically, that the state was permitted to use the DNA profile only for the 2005 rape investigation and its retention and subsequent use subjected him to a new Fourth Amendment search and seizure."
"A DNA sample and a DNA profile are not one and the same. Instead, a DNA sample is processed by a specialist to obtain the DNA profile. ... Once the sample is processed, a record is made of the profile. Accordingly, this scientific process results in a record separate and distinct from the DNA sample. Because a scientific process must be performed on a DNA sample by an agent of the government to obtain the DNA profile, and the DNA profile is separate and distinct from the DNA sample, we conclude that the DNA profile obtained from appellant’s DNA sample was the work product of the government. Therefore, appellant had no possessory or ownership interest in the DNA profile."
"(R)etention by the state of a DNA profile for possible future comparison with profiles obtained from unknown samples taken from a victim or a crime scene does not differ from the retention by the state of fingerprints for use in subsequent investigations. ... We note that numerous courts around the country have examined this issue and have reached the same conclusion that we do here—a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample. A defendant lacks standing to object to its use by the state in a subsequent criminal investigation."
The Court news reporter stated that the case involved a criminal defendant accused of rape in 2005, in the course which investigation a search warrant was executed to obtain a DNA sample, which was processed, a profile there obtained, and placed into the law enforcement Combined DNA Index System (CODIS) at the local level and, eventually, was entered in a "suspect" database at the state level. The suspect was subsequently acquitted of the rape charge, though after his acquittal his profile remained in the CODIS database and he had not sought to have it expunged.
In July 2007, Cleveland police investigating a murder found blood that was not the victim’s on a door handle at the crime scene, submitting the sample to the Cuyahoga County Coroner's Office which in turn did a DNA analysis of the blood sample, entering that resulting DNA profile into the CODIS database at the local level as a forensic unknown, and subsequently to the state. In August 2008, a report generated at the state level determined that the DNA profile obtained from the homicide scene matched the profile on file with that that had been obtained in connection with the 2005 rape prosecution and retained in CODIS after the suspect’s acquittal in that case.
Obtaining a search warrant and new DNA sample from the suspect that matched the current crime scene material and investigation, the suspect was indicted on one count each of aggravated murder, aggravated burglary, and tampering with evidence.
A motion to suppress was filed, but an evidentiary hearing led the trial court to deny that motion. The matter proceeded to trial, and a jury found the suspect guilty of aggravated murder and tampering with evidence. On appeal, the Eighth District Court of Appeals affirmed the judgment of the trial court. (Here )
The state's supreme court here upheld the Eighth District,the Court's news service relaying Justice Robert Cupp's writing, "Appellant (Emerson) argues that he has a reasonable expectation of privacy in the DNA profile obtained from his sample. ... Specifically, that the state was permitted to use the DNA profile only for the 2005 rape investigation and its retention and subsequent use subjected him to a new Fourth Amendment search and seizure."
"A DNA sample and a DNA profile are not one and the same. Instead, a DNA sample is processed by a specialist to obtain the DNA profile. ... Once the sample is processed, a record is made of the profile. Accordingly, this scientific process results in a record separate and distinct from the DNA sample. Because a scientific process must be performed on a DNA sample by an agent of the government to obtain the DNA profile, and the DNA profile is separate and distinct from the DNA sample, we conclude that the DNA profile obtained from appellant’s DNA sample was the work product of the government. Therefore, appellant had no possessory or ownership interest in the DNA profile."
"(R)etention by the state of a DNA profile for possible future comparison with profiles obtained from unknown samples taken from a victim or a crime scene does not differ from the retention by the state of fingerprints for use in subsequent investigations. ... We note that numerous courts around the country have examined this issue and have reached the same conclusion that we do here—a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample. A defendant lacks standing to object to its use by the state in a subsequent criminal investigation."
Thursday, November 01, 2012
Ohio Election Law Updated
The Cincinnati-based U.S. 6th Circuit Court of Appeals, in what could be the final major court ruling dealing with Ohio's electoral procedures prior to next Tuesday's presidential election, yesterday put a hold on a judge's recent decision that would have required Ohio to count provisional ballots cast in the wrong polling location so long as they were cast in the correct county, Cincinnati.com this morning reported.
"The 6th Circuit agreed with Ohio Secretary of State Jon Husted and Attorney General Mike DeWine in saying that District Court Algenon Marbley's expanded ruling improperly 'absolves voters of all responsibility' not only for voting in the correct precinct, but even for finding the right building.
"Though voters must rely heavily on poll workers to direct them to the proper precinct in a multi-precinct voting place, they are not as dependent on poll workers to identify their correct polling place," the appeals court wrote in its 10-page PER CURIAM decision.
"... the harm to Ohio, the Secretary, and the general public caused by issuance of this injunction easily outweighs any potential harm to the plaintiffs if their view of the law is eventually determined to be correct. The injunction, it should be noted, both requires the expedited issuance of new instructions to poll workers less than two weeks before the election and refuses enforcement of a presumptively constitutional policy regarding voter eligibility. Ne. Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1012 (6th Cir. 2006) ("There is . . . a strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote."). Moreover, the inevitable result of the injunction's dramatic changes to Ohio's precinct voting system will be interference with orderly election administration and greater confusion among poll workers and voters. Early voting is already underway in Ohio. See "Voting Early in Person," Ohio Sec'y of State, http://www.sos.state.oh.us/SOS/elections/Voters/absentee/inperson.aspx . Changing election rules in this manner while voting is occurring disrupts the electoral process and threatens its fairness. These harms to the public and its elected government are significant ones..."
"The 6th Circuit agreed with Ohio Secretary of State Jon Husted and Attorney General Mike DeWine in saying that District Court Algenon Marbley's expanded ruling improperly 'absolves voters of all responsibility' not only for voting in the correct precinct, but even for finding the right building.
"Though voters must rely heavily on poll workers to direct them to the proper precinct in a multi-precinct voting place, they are not as dependent on poll workers to identify their correct polling place," the appeals court wrote in its 10-page PER CURIAM decision.
"... the harm to Ohio, the Secretary, and the general public caused by issuance of this injunction easily outweighs any potential harm to the plaintiffs if their view of the law is eventually determined to be correct. The injunction, it should be noted, both requires the expedited issuance of new instructions to poll workers less than two weeks before the election and refuses enforcement of a presumptively constitutional policy regarding voter eligibility. Ne. Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1012 (6th Cir. 2006) ("There is . . . a strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote."). Moreover, the inevitable result of the injunction's dramatic changes to Ohio's precinct voting system will be interference with orderly election administration and greater confusion among poll workers and voters. Early voting is already underway in Ohio. See "Voting Early in Person," Ohio Sec'y of State, http://www.sos.state.oh.us/SOS/elections/Voters/absentee/inperson.aspx . Changing election rules in this manner while voting is occurring disrupts the electoral process and threatens its fairness. These harms to the public and its elected government are significant ones..."
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