The Ohio Supreme Court yesterday released a Hamilton County appellant from post-release controls because he had completed serving his sentence in prison, and, pursuant to a 2007 precedent, declared he was no longer subject to resentencing. (See State v. Bankhead, 2007-0818)
The rationale used by the Court, here, was based on its decision in State v. Bloomer, three months ago. In that case, the Court "again confronted the consequences of a trial court's failure to either notify an offender about post-release control at the time of sentencing or incorporate post-release control into its sentencing entry. The issues presented here also concern the application of R.C. 2929.191, which provides a mechanism for correcting a judgment entry if a trial court fails to notify the offender of post-release control or to impose it."
Beginning with a 1984 case, the Court in Bloomer proceeded to chronicle seven cases since, noting that "in conformity with the development of this jurisprudence, the General Assembly enacted Sub.H.B. No. 137 ('H.B. 137'), effective July 11,2006, which amended R.C. 2967.28, 2929.14, and 2929.19 and enacted R.C.2929.191 to provide a mechanism for correcting sentences in which the trial court failed either to notify the offender of post-release control or to incorporate it into the sentencing entry."
ORC §2967.28 [ Post-release Controls ]
ORC § 2929.14 [ Definite Prison Terms ]
ORC § 2929.19 [ Sentencing Hearings ]
ORC § 2929.191 [ Correction of judgment of conviction to include supervision information ]
Wednesday, September 02, 2009
Ohio school inspection rules rescinded
Ohio's 2009 budget, as has recently been reported, contained provisions recinding "Jarod's Law" rules, which had been in effect since 2007, returning the conduct of school inspections to two inspections a year with the rules in effect before 2007 to be once again used as the guideline/standards.
In December 2003, six-year-old Jarod Bennett was instantly killed when a school cafeteria table fell on him. Two years later, in 2006, the Ohio General Assembly passed Substitute House Bill 203, or "Jarod's Law," which then-Govenor. Bob Taft signed it into law. That bill required local health departments to conduct annual inspections of school buildings and grounds to identify health and safety hazards. ( Legislative Service’s analysis )
Portions of HB 1, signed by now-Gov. Ted Strickland on July 17th., “repeals the laws establishing School Health and Safety Network and corresponding provisions of law… It requires school districts, community schools, STEM schools, and chartered nonpublic schools to periodically review their policies and procedures to ensure the safety of students, employees, and other persons using a school building from any known hazards in the building or on building grounds that, in the judgment of the board or governing authority pose an immediate risk to health or safety. Those boards or governing authorities must also further ensure that its policies and procedures comply with all federal laws and regulations regarding health and safety applicable to school buildings. ( Complete Legislative analysis here )
"The act requires boards of health to inspect the sanitary condition of schools semi-annually rather than annually, as in prior law. However, the act repeals the authorization for boards of health to close a school for an imminent public health threat other than an epidemic or a high prevalence of communicable disease. The act also repeals the requirement that the Director of Health adopt rules establishing minimum standards for school sanitary inspections."
Early last month, the Ohio Department of Health issued a memo indicating that it would begin the process of rescinding Ohio Administrative Code rules 3701-54-01 through 3701-54-09 by October 16, 2009. "Although, schools are required to be inspected twice per year ," the memo says, "there are no rules or standards to which those inspections must adhere. Historically, ODH Bureau of Environmental Health provided guidance for the conduct of these inspections. ODH will continue to recommend the use of the school inspection manual (what was Jarod's Law) for conducting sanitary school inspections."
Ohio Department of Health website
Current (rescinded) OAC rules
In December 2003, six-year-old Jarod Bennett was instantly killed when a school cafeteria table fell on him. Two years later, in 2006, the Ohio General Assembly passed Substitute House Bill 203, or "Jarod's Law," which then-Govenor. Bob Taft signed it into law. That bill required local health departments to conduct annual inspections of school buildings and grounds to identify health and safety hazards. ( Legislative Service’s analysis )
Portions of HB 1, signed by now-Gov. Ted Strickland on July 17th., “repeals the laws establishing School Health and Safety Network and corresponding provisions of law… It requires school districts, community schools, STEM schools, and chartered nonpublic schools to periodically review their policies and procedures to ensure the safety of students, employees, and other persons using a school building from any known hazards in the building or on building grounds that, in the judgment of the board or governing authority pose an immediate risk to health or safety. Those boards or governing authorities must also further ensure that its policies and procedures comply with all federal laws and regulations regarding health and safety applicable to school buildings. ( Complete Legislative analysis here )
"The act requires boards of health to inspect the sanitary condition of schools semi-annually rather than annually, as in prior law. However, the act repeals the authorization for boards of health to close a school for an imminent public health threat other than an epidemic or a high prevalence of communicable disease. The act also repeals the requirement that the Director of Health adopt rules establishing minimum standards for school sanitary inspections."
Early last month, the Ohio Department of Health issued a memo indicating that it would begin the process of rescinding Ohio Administrative Code rules 3701-54-01 through 3701-54-09 by October 16, 2009. "Although, schools are required to be inspected twice per year ," the memo says, "there are no rules or standards to which those inspections must adhere. Historically, ODH Bureau of Environmental Health provided guidance for the conduct of these inspections. ODH will continue to recommend the use of the school inspection manual (what was Jarod's Law) for conducting sanitary school inspections."
Ohio Department of Health website
Current (rescinded) OAC rules
Tuesday, September 01, 2009
Ohio breastfeeding case
In a case originally accepted to seek a review of whether Ohio law prohibits an employer from discriminating against a female employee because, or on the basis of , a new mother's lactation, the Ohio Supreme Court last Thursday none-the-less upheld its appeals court decision that the woman "was simply and plainly terminated as an employee at will for taking an unauthorized, extra break."
"The record as it was developed in the trial court," the per curiam decision said, "fails to provide a basis from which a jury could conclude that the woman’s employer's articulated legitimate, nondiscriminatory reason for her termination—failure to follow directions—was a pretext for discrimination based on her pregnancy or a condition related to her pregnancy. This determination defeats a sex-discrimination claim under R.C. 4112.02 as a matter of law… Consequently, this court does not reach the issue of whether alleged discrimination due to lactation is included within the scope of Ohio's employment-discrimination statute, R.C. 4112.02, as sex discrimination under R.C. 4112.01(B)," Judge Terrence O’Donnell adding in concurrence that "it is the long-standing practice of courts to decide only issues presented by the facts and to refrain from deciding issues that the facts do not place directly in issue."
The decision wasn't that "cut-and-dry," however, with two of the panel's judges concurring "in judgment only," and a third dissenting.
Judge Maureen O'Connor wrote, "I agree that appellee failed to develop a record from which a jury could find in her favor. But because the trial and appellate courts erroneously applied inapposite federal precedent in their analysis of her claims, I believe that this court should reach the merits to clarify the law… (and) write separately to set forth why I would hold that lactation falls within the scope of R.C. 4112.01(B) and that the statute prohibits employment discrimination against lactating women. R.C. 4112.02… The lead opinion's failure to address the legal framework in which this case arises is disappointing, and it is even more troubling that we fail to address the scope of Ohio law under the guise that reaching the merits would result in an advisory opinion."
Similarly, Judge Paul Pfeifer, dissenting, wrote "This is the Supreme Court, and when the opportunity arises, we should answer the questions that Ohioans need answered. In this case, we are asked whether breastfeeding mothers can be fired from their jobs for pumping their breasts in the workplace. That is, in its protection of pregnant workers in R.C. 4112.01(B), did the General Assembly include protection of women who are dealing with the aftereffects of their pregnancy? The lead opinion dodges the opportunity to provide an answer."
"The record as it was developed in the trial court," the per curiam decision said, "fails to provide a basis from which a jury could conclude that the woman’s employer's articulated legitimate, nondiscriminatory reason for her termination—failure to follow directions—was a pretext for discrimination based on her pregnancy or a condition related to her pregnancy. This determination defeats a sex-discrimination claim under R.C. 4112.02 as a matter of law… Consequently, this court does not reach the issue of whether alleged discrimination due to lactation is included within the scope of Ohio's employment-discrimination statute, R.C. 4112.02, as sex discrimination under R.C. 4112.01(B)," Judge Terrence O’Donnell adding in concurrence that "it is the long-standing practice of courts to decide only issues presented by the facts and to refrain from deciding issues that the facts do not place directly in issue."
The decision wasn't that "cut-and-dry," however, with two of the panel's judges concurring "in judgment only," and a third dissenting.
Judge Maureen O'Connor wrote, "I agree that appellee failed to develop a record from which a jury could find in her favor. But because the trial and appellate courts erroneously applied inapposite federal precedent in their analysis of her claims, I believe that this court should reach the merits to clarify the law… (and) write separately to set forth why I would hold that lactation falls within the scope of R.C. 4112.01(B) and that the statute prohibits employment discrimination against lactating women. R.C. 4112.02… The lead opinion's failure to address the legal framework in which this case arises is disappointing, and it is even more troubling that we fail to address the scope of Ohio law under the guise that reaching the merits would result in an advisory opinion."
Similarly, Judge Paul Pfeifer, dissenting, wrote "This is the Supreme Court, and when the opportunity arises, we should answer the questions that Ohioans need answered. In this case, we are asked whether breastfeeding mothers can be fired from their jobs for pumping their breasts in the workplace. That is, in its protection of pregnant workers in R.C. 4112.01(B), did the General Assembly include protection of women who are dealing with the aftereffects of their pregnancy? The lead opinion dodges the opportunity to provide an answer."
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