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Legal Docket

Last updated 11.08.08

FREE SPEECH

Restrictions on Viewer Access to All Phases of Lethal Injection Executions 

Phelps-Roper v. Taft (funeral protest law)

Toledo's anti-panhandling law

Bookfriends, Inc., et al v. Ted Strickland, et al

 

ESTABLISHMENT CLAUSE

ACLU v. Ashbrook

 

VOTING RIGHTS

Summary of Cases

 

REPRODUCTIVE RIGHTS

Planned Parenthood of Cinci v. Taft, (Restrictions on Use of Mifepristone)

 

FOURTH AMENDMENT SEARCH AND SEIZURE

Warshak v. United States

Bucyrus Middle School Strip Search


CRIMINAL JUSTICE

Hasan v. Ishee

City of Toledo v. Rost (Sex Offender Residency Restrictions (SB 5))

Adam Walsh Act (SB 10) Sex Offender Registration and Notification Cases

Doe v. Dann (Ohio’s Adam Walsh Act)

State ex rel. King v. Welbaum and State v. Welbaum

State v. Bodyke

State v. Nelson

 

HABEAS PETITION

Foust v. Hauk

 

DEATH PENALTY

State of Ohio v. Ruben Rivera and State of Ohio v. Ronald McCloud

 

INTERSTATE COMMERCE

Toledo v. Eischen

 

PRISON CONDITIONS & POLICIES

Austin, et al. v. Wilkinson, et al. (Supermax)

 

SIXTH AMENDMENT

In Re Brian Jones - Amicus


BORDER DETENTIONS

Rahman v. Chertoff


PRIVACY

Roe v. Planned Parenthood of Southwest Ohio – Amicus
(Civil discovery of non-party minors’ medical records)

Medical Mutual of Ohio v. Schlotterer – Amicus


DUE PROCESS

Kindhearts for Charitable Humanitarian Development, Inc. v. Paulson

Free Speech

Restrictions on Viewer Access to All Phases of Lethal Injection Executions

FACTS:  The State of Ohio conducts the “intubation phase” of the lethal injection process outside public view. The process of inserting the catheter into the veins of the condemned, while graphic and sometime gruesome, is a necessary part of the execution.
 
LEGAL THEORY: The Ninth Circuit Court of Appeals in San Francisco recently held that the First Amendment compels a right of public viewing for all phases of a lethal injection, because the event is a matter of public concern and debate.
 
STATUS: Our case was filed in September 2003. In January 2004, after the state installed cameras to monitor the intubation phase, we believed the case was going to be favorably settled. However, the state balked on settling the case after a prisoner struggled with guards on the way to be executed & the incident was seen on camera by the witnesses. On September 15, 2004, we filed an Amended Complaint broadening the relief requested. On November 17, 2004, the case was dismissed pursuant to a motion we filed. We filed a Second Amended Complaint on November 9, 2005. The State filed a Motion to Dismiss on January 20, 2006. We filed our Response in Opposition to the Motion to Dismiss on March 6, 2006. On July 21, 2006, the Court granted Defendants’ Motion to Dismiss as it relates to our prisoner plaintiff for failure to exhaust. The Motion to Dismiss as it relates to our other plaintiffs was denied on the same date. On August 18, 2006, Defendants filed an Answer to our Complaint. On March 9, 2007, Defendants filed a Motion for Summary Judgment. A Response in Opposition to Defendants Motion for Summary Judgment was filed April 30, 2007. On March 26, 2008 that motion was denied as was a motion for leave to file a second amended complaint. We renewed the motion for leave to file on April 9. The motion was granted and our second amended complaint was filed May 19, 2008. On July 17, 2008 a status conference was held to establish a schedule. The tentative schedule is: 2/28/09 Discovery, Settlement Proposal 2/29/09, Response- 4/16/09 and Summary Judgment Motions 4/30/09. On August 26, 2008 Ohio Attorney General requested first set of Interrogatories and Request for Production. Our answers are to be served by November 8, 2008.


Phelps-Roper v. Taft (funeral protest law)

FACTS:  Ohio’s HB 484, effective September 4, 2006, makes it a criminal offense to engage in picketing or “other protest activities” within 300 feet of a funeral, burial service or funeral procession one hour before, during, and one hour after those events.
 
LEGAL THEORY:  The restrictions required by this law are so sweeping they outlaw numerous constitutionally protected speech activities.  And because the law applies to such events as funeral processions by utilizing a “floating bubble zone” where speech is not permitted, the law can’t help but turn entire cities and towns into no-free-speech areas.
 
STATUS:  Our Complaint and Motion for Preliminary Injunction were filed on August 24, 2006 in U.S. District Court in Cleveland. Motions in Opposition to Preliminary Injunction were filed by Defendants on September 11, 2006. Our Response to those motions was filed on September 20, 2006. Answers to the Complaint were filed by Defendants on October 20, 2006. Cross Motions for Summary Judgment were filed on December 1, 2006. Cross Motions Opposing each other’s Motions for Summary Judgment were filed on January 1, 2007. Both sides filed a Reply to Response to Motion for Summary Judgment on January 10, 2007. On March 23, 2007, the court issued its ruling. The court held that the floating bubble zones around funeral processions were unconstitutional but that the fixed bubbles around funeral homes and funerals were constitutional. Our Notice of Appeal was filed on May 10, 2007. All final briefs were filed as of September 27, 2007. Oral argument was held on February 5, 2008. On August 22, 2008, the Sixth U.S. Circuit Court of Appeals affirmed the district court’s decision. We are negotiating attorney’s fees.


Toledo's anti-panhandling law

FACTS:  The City of Toledo has had, for decades, a law prohibiting virtually any sort of solicitation anywhere in the City unless it is (1) by a good deeds membership organization, of its members, for the benefit of the organization, or (2) done with a license, which may be obtained only on a showing that, among other things, it is done on behalf of a good deeds organization, that other solicitation for that organization is not occurring, and that the solicitation will benefit the people of Toledo. Levaughn Harris panhandles to make ends meet. He has been repeatedly prosecuted, and in some cases incarcerated for doing so.
 
LEGAL THEORY:  The law violates the First Amendment. Panhandling is protected First Amendment activity and while some regulation may be allowed, the sort of blanket prohibition the City of Toledo has enacted violates decisions of the US Supreme Court going back at least to 1940.
 
STATUS:  On March 10th 2008 the Law Director for the City of Toledo has directed the Chief of Police to stop enforcing Toledo’s unconstitutional Solicitation Ordinance. The City intends to revise the ordinance.


Bookfriends, Inc., et al v. Ted Strickland, et al

FACTS:  Ohio Revised Code 2907.3 (D) is the Ohio version of the Computer Decency Act and the Online Child Protection Act rolled into one, the two federal statutes which sought to regulate content on the internet and criminalize the online publication of “inappropriate” material.
 
LEGAL THEORY:  Similar state laws restricting online content have been struck down in half-a-dozen other jurisdictions. Ohio Revised Code 2907.3(D), originating from House Bill 8, shares the same flaws as those state laws already invalidated: it is vague in its definition of what sort of content is prohibited; it is overbroad, in that it prohibits a wide variety of material from being displayed online, including material depicting cruelty and excessive violence, which would allow authorities to criminalize much of both pop culture and classical literature, and; it purports to regulate a wealth of online material that is produced and published out of state. The bill became effective May 6, 2002.
 
STATUS:  Together with the Media Coalition, a broad coalition of publishers and media industry groups, we filed suit in federal district court in Dayton, in May 2002, seeking to enjoin the eighty-eight county prosecutors in Ohio from enforcing the provisions of House Bill 8. In June 2002, we filed a Motion for a Preliminary Injunction seeking to block enforcement of the new law pending the final resolution of the case. That motion was granted by the court as a temporary restraining order in late August and as a preliminary injunction in early September 2002, and the state-wide application of the ordinance was enjoined pending the final resolution of the case. The state appealed, and the General Assembly later amended substantial portion of the law in question. The case has now been remanded to district court, where an amended complaint contesting the amended law was filed in August 2003. Cross motions for summary judgment regarding the amended provisions of the revised code were filed in late September and Early October 2003. Responses to those motions were filed in December 2003. On Sept. 27, 2004, an opinion was issued granting in part, and denying in part Plaintiffs’ motion for summary judgment and granting in part and denying in part Defendants’ motion for summary judgment. The defendants appealed and we cross-appealed. Briefing was completed in the Sixth Circuit on May 6, 2008. We now await a date for oral argument. Plaintiffs submitted copy of decision of ACLU v. Mukasey (Third U.S. Circuit Court of Appeals decision) to Court on August 1, 2008 as relevant information.

Establishment Clause

ACLU  v. Ashbrook

FACTS:  James DeWeese, a common pleas court judge in Mansfield (Richland County), had a homemade poster of the 10 Commandments framed and on display on a wall of his courtroom. Eventually, it seems, he took it down. There is now a new poster in the courtroom contrasting the 10 Commandments, described as “Moral Absolutes,” with “Moral Relatives: Humanist Precepts.” The poster offers this analysis and perspective: “The cases passing through this courtroom demonstrate we are paying a high cost in increased crime and other ills from moving from moral absolutism to moral relativism since the middle of the 20th century. Our founders saw the necessity of moral absolutes. President John Adams said, “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Our Constitution was made for a moral and religious people. It is wholly inadequate for the government of any other.” The Declaration of Independence acknowledges God as Creator, Lawgiver, “Supreme Judge of the World,” and the One who providentially superintends the affairs of men. Ohio’s Constitution acknowledges Almighty God as the source of our freedom. I join the founders in personally acknowledging the importance of Almighty God’s fixed moral standards for restoring the moral fabric of this nation.
 
LEGAL THEORY:  The old poster constituted an endorsement of religion in violation of the First Amendment. The new one does, too, and violates the underlying orders.
 
STATUS:  We sued in federal court, asserting that the poster was an unconstitutional endorsement of religion. The court agreed and ordered the judge to remove the poster. He appealed the decision to the Sixth U.S. Circuit Court of Appeals which affirmed the decision by 2-1 vote in July 2004. DeWeese appealed to the Supreme Court which refused to hear the case. On May 29, 2008, we filed a motion to show cause why the judge should not be held in contempt, with the Northern District federal court. On June 11, 2008 DeWeese renewed his Motion for judicial disqualification of Judge Kathleen M. O’Malley. Also on June 11, DeWeese filed his response to our motion. On August 6, 2008 the request for judicial disqualification was denied. On August 8, 2008, our motion to show cause why defendant should not be held in contempt was denied. We filed a new complaint on October 7, 2008.

Voting Rights

 As in 2004, election issues have come fast and furiously in the waning days of the Presidential campaign. Our indefatigable team of voting rights volunteer attorneys – (in alphabetical order) Paul Moke, Richard Saphire, and Dan Tokaji – along with Carrie Davis and National’s Voting Rights Project, especially Meredith Bell-Platts, have kept on top of  these issues and fought vigorously and successfully to ensure that all Ohioans may cast their ballots and have their votes counted.
 
Because so much has happened recently, rather than the full docket details here, we’re including a summary.  By the next docket, when things have really shaken out (we hope) we’ll organize this section in the traditional manner.
 
State ex rel. Myles v. Brunner (Ohio Supreme Court) – The McCain presidential campaign sent absentee ballot request forms to roughly a million Ohio voters. Secretary of State Brunner instructed boards of elections to reject any forms where the voter failed to check a box next to a statement that they are in an eligible elector. Voters who received the McCain mailers and had their absentee ballot requests rejected filed suit in the Ohio Supreme Court. Ohio law requires the request to contain to contain certain information but does not require that it be in any specific form. Failing to check the McCain campaign form’s unnecessary check box should not invalidate the request. The Ohio Supreme Court ruled in favor of Miles.
 
State ex rel. Colvin v. Brunner (Ohio Supreme Court) – Two registered voters filed suit against Secretary of State Brunner asking the Supreme Court to reject same –day registration and voting. ACLU of Ohio filed an amicus brief in support Brunner. The Court denied Colvin’s claims and upheld the right of voters to register and vote on the same day during the overlap period.
 
 Project Vote v. Madison County Board of Elections ( Northern District Ohio federal court) – The ACLU , representing voters and voter outreach groups, filed suit against Madison County and Secretary of State Brunner, asking the Court to declare that new voters should not be subjected to “waiting periods” or threats of prosecution for voting early. Judge Gwinn granted our motion TRO Motion, thus protecting thousands of same-day voters.
 
Ohio Republican Party v. Brunner (Southern District Ohio federal court) – After the ACLU filed the Project Vote suit in the Northern District of Ohio, the Republican Party (ORP) filed suit against Secretary Brunner in the Southern District alleging that her directives violate various federal laws.

  • First, ORP alleged that same –day registration and voting during the Sept.30 through Oct. 6overlap period violated federal law.
  • ACLU filed an amicus brief in the southern district federal court. After the northern district and Ohio Supreme Court ruled, the southern district judge abstained from ruling on the same-day voting issue.
  • Next, ORP alleged that Brunner had not properly verified registrations dating back to Jan. 1, 2008, against BMV and SSA databases and asked the court to require re-verification of all these voters and transmit database mismatches to the local boards of elections.
  • ACLU filed amicus opposing ORP’s request in the federal district court. The court granted the request and ordered Brunner to provide the mismatch information.
  • Brunner appealed to the 6th Circuit. We filed amicus brief in support. The three-judge panel to which the case was assigned ruled for Brunner.
  • ORP asked for review by the entire 6th Circuit, and the full court restored the district’s court’s order.
  • Brunner then filed an emergency motion asking the US Supreme Court to stay or vacate the order. We filed an amicus in support of Brunner. The US Supreme Court vacated the district court’s order.

Reproductive Rights

Planned Parenthood of Cinci v. Taft (Restrictions on Use of Mifepristone)

FACTS:  Ohio’s HB 126 was passed into law in June 2004 and became effective on September 23, 2004. The law regulates and restricts the use of mifepristone, an abortion-inducing medication.
 
LEGAL THEORY:  Our suit argues that the law is unconstitutionally vague; that the law will violate women’s right to bodily integrity; that the law is unconstitutional because it lacks an exception to its restrictions where necessary to protect women’s life or health; and that the law imposes an undue burden on women’s right to choose abortion.
 
STATUS:  The lawsuit seeking a preliminary injunction on behalf of three Planned Parenthood affiliates in Ohio and Preterm (in Cleveland), was filed on August 2, 2004. On September 22, 2004, U.S. District Court Judge Susan Dlott issued a preliminary injunction preventing the law from going into effect, as it otherwise would have the next day. In October 22, 2004, defendants filed an appeal in the U.S. Court of Appeals for the Sixth Circuit with respect to the District Court’s order granting the preliminary injunction. Oral argument took place on December 7, 2005. On February 24, 2006, the Sixth Circuit affirmed in part, vacated in part the District Court’s ruling, and remanded it back to that court for further proceedings. This decision applied only to the scope of the injunction by the District Court and had nothing to do with the merits of the case. On April 20, 2006, we filed a Motion for Summary Judgment and Permanent Injunction or, in the Alternative, Renewed Motion for Preliminary Injunction and Memorandum in Support Thereof. On September 27, 2006, the Court granted our Motion for Summary Judgment and Permanent Injunction. Defendants filed their Notice of Appeal to the Sixth Circuit on October 26, 2006. The issue of attorneys’ fees is currently before the District Court. On February 22, 2007, Governor Strickland was removed as a Defendant in the lawsuit after he filed a brief on February 20, 2007 asking for such, citing his lack of opposition to the use of mifepristone that HB 126 seeks to restrict. Oral Argument was held on April 23 2008, in Cincinnati in the Sixth U.S. Circuit Court of Appeals. The issue is whether the trial court correctly granted the “Motion for Summary Judgment.” On June 23, 2008 the Sixth U.S. Circuit Court of Appeals issued an order of certification to Supreme Court of Ohio to address Ohio state law questions regarding off-label use of mifepristone in O.R.C. 2919.123. On July 15, 2008, the Ohio Attorney General filed memorandum in support of Ohio Supreme Court answering the certified questions. On September 10, 2008, the Ohio Supreme Court agreed to answer the certified questions asked by the Sixth U.S. Circuit Court of Appeals. The Attorney General’s brief was filed in the Ohio Supreme Court (where the case is called Rogers v. Planned Parenthood of Cincinnati Region) on October 20, 2008. Our brief is due November 19, 2008.

Fourth Amendment Search and Seizure

Warshak v. United States

FACTS:  Pursuant to a federal investigation of a company owned by Steven Warshak, the U.S. Postal Inspection Service and FBI sought and secured numerous orders under the Stored Communications Act. Those orders led to the federal government obtaining numerous e-mails of Warshak’s from several ISPs.
 
LEGAL THEORY:  The Stored Communications Act violates the Fourth Amendment by allowing seizure of certain e-mails without probable cause and a warrant and the SCA was applied wrongly with respect to Warshak.
 
STATUS:  On July 21, 2006, the U.S. District Court for the Southern District of Ohio enjoined the United States, pending final judgment on the merits of Plaintiffs’ claims, from seizing, pursuant to court order, the contents of any personal email account maintained by an Internet Service Provider in the name of any resident of the Southern District of Ohio without providing the relevant account holder or subscriber prior notice and an opportunity to be heard on any complaint, motion, or other pleading seeking issuance of such an order. This case is currently in the U.S. Court of Appeals for the Sixth Circuit. Our amicus brief was filed on November 27, 2006. Oral argument proceeded on April 18, 2007. On June 18, 2007, the Sixth Circuit largely affirmed the District Court’s July 21, 2006 ruling. On August 2, 2007, Defendants filed a Petition for Rehearing En Banc. We joined an amicus brief in opposition to an en banc review that was filed on September 5, 2007. An Order was filed on October 19, 2007 granting the Petition for En Banc Hearing. Oral argument was held on December 5, 2007. We now await a decision. On March 5, 2008 there was an Order Lifting Stay of proceedings pursuant to the verdict entered in the criminal matter. A status conference was held on May 15, 2008. We await the results of that conference. On July 11, 2008 the U.S. Sixth Circuit Court of Appeals ruled en banc, vacating the preliminary injunction and remanding the case to the District Court to be dismissed because the constitutional claim was not ripe.


Bucyrus Middle School Strip Search

FACTS:  After 4 Bucyrus middle school students were seen across the street from the school smoking cigarettes just before the start of classes, they and some 5 others amid whom they tried to hide themselves were strip searched by the school in an attempt to find cigarettes. None were found.
 
LEGAL THEORY:  The students’ Fourth Amendment right to be free of unreasonable searches and seizures was violated by school officials who had no individualized suspicion that any of the searched students were in possession of contraband and no concern sufficient to justify such an invasion of privacy.
 
STATUS:  Our Complaint was filed September 17, 2008.

Criminal Justice

Hasan v. Ishee

FACTS:  Siddique Hasan was convicted for his alleged role in the murder of prison guard William Vallandingham during the Lucasville prison riot in 1993. In April 2003, Hasan filed for a Writ of Habeas Corpus in U.S. District Court. As part of that litigation, his attorneys filed a Motion to Conduct Discovery and a Motion for Evidentiary Hearing on January 8, 2004. On June 14, 2004, U.S. District Court Magistrate Merz issued a Decision and Order Granting in Part and Denying in Part the Motion for Discovery and Denying Without Prejudice the Motion for Evidentiary Hearing.
 
LEGAL THEORY:  Hasan, in fact, was not the killer, a contention supported by testimony in trials of other Lucasville defendants, by at least eight witnesses, and various affidavits. In addition, the sole evidence linking Hasan to the murder is testimony by another inmate who has since recanted.
 
STATUS:  Our Motion for Leave to File an Amicus Brief in Support of Hasan’s Objections to Magistrate’s Recommendations was filed on October 11, 2006. On October 24, 2006, that Motion was granted. On March 28, 2007 we filed an additional motion alleging error for failure to give effect to mitigation, and to weigh new mitigation excluded from being presented. On April 02, 2007, the Ohio Attorney General was granted leave to respond to the additional authority and on April 10, 2007 filed their response.


City of Toledo v. Rost (Sex Offender Residency Restrictions (SB 5))

FACTS:  Persons adjudicated Sexually Oriented Offenders, Habitual Sexual Offenders, and Sexual Predators are forbidden from residing within 1000 feet of a school. They are also required to register their address with the county sheriff. Effective April 29, 2005, a prosecutor may file an action to evict a sex offender from a residence within 1,000 feet of a school.
 
LEGAL THEORY:  The case raises issues of substantive and procedural due process and of the right against self-incrimination.
 
STATUS:  The judge heard arguments on a motion to dismiss on August 8, 2007 and later denied that motion. After the judge denied the motion to dismiss because the law was unconstitutional, Rost entered a no contest plea and was found guilty. On June 3, 2008, Rost was placed on probation and ordered to pay court costs. Notice of Appeal was filed on June 3, 2008. Our brief is due on November 13, 2008.


Adam Walsh Act (SB 10) Sex Offender Registration and Notification Cases

FACTS:  Ohio’s old system of sex offender classification, determining whether or not and how often convicted sex offenders must report to local law enforcement, was far from perfect but did rely in large part on how likely an offender was to re-offend. Such laws were challenged in the past because of their punitive nature and their retroactivity. However, those challenges have been largely unsuccessful. Ohio, as many other states soon will, adopted a state version of the federal Adam Walsh Act at the urging of the federal government. The new law scrapped Ohio’s old classification system and replaced it with a stricter system that does not take into account offenders’ likelihood to re-offend and applies even to offenders whose reporting requirements ended before passage of the new law. We are litigating a number of cases arising under the act.

While courts found the old sex offender registration and notification system constitutional, the legal landscape around that law has changed, and there is reason to believe that the new law, which is more egregiously problematic than the old, will not pass constitutional muster. We are litigating a number of cases arising under Ohio’s Adam Walsh Act.


Doe v. Dann (Ohio’s Adam Walsh Act)

LEGAL THEORY: A class action arguing that the requirement that challenges to reclassification must be made within 60 days of notification of reclassification is arbitrary and unreasonable and that community notification based on new classifications before they can be appealed violates due process.
 
STATUS: Our Complaint and Motion for Preliminary Injunction and Temporary Restraining Order were filed on January 25, 2008. The Ohio Attorney General filed a Motion in Opposition to Motion for Preliminary Injunction and TRO on January 29, 2008. On February 13, 2008, the Court issued a briefing schedule on the issue of additional briefing for our motion. An agreed order staying community notification and the 60-day filing deadline is in place until the court rules on the merits of our claims. Our reply brief on the motion for preliminary injunction is due May 27. The defendants have now been filing motions for judgment on the pleadings. On June 9, 2008, plaintiffs’ motion for temporary injunction is denied. On August, 11, 2008, Ohio Attorney General’s motions for judgment on the pleadings are granted. Also on August 11, 2008 the court ordered plaintiffs to show cause why the complaint should not be dismissed. On August 21, 2008 the court dismissed the action.


State ex rel. King v. Welbaum and State v. Welbaum

LEGAL THEORY: In a mandamus action and direct appeal consolidated by the Second District Court of Appeals, we are arguing that because the new classification system is punitive and violates vested rights, indigent persons being reclassified are entitled to appointed counsel.
 
STATUS: The cases were placed on an expedited schedule. Oral Argument was held March 6, 2008. On March 19, 2008, the court determined that the issue was properly a direct appeal, dismissed the mandamus action, and ordered further briefing. On April 21, we filed our notice of appeal to the Ohio Supreme Court from the dismissal of the mandamus. On May 5, we filed a motion to stay the briefing in the Supreme Court pending resolution of the direct appeal in the court of appeals. On May 30, 2008, the court of appeals affirmed the trial court judgment in the direct appeal. On June 12, 2008, we filed a motion to consolidate Briefing and Argument and oral argument to the Ohio Supreme Court due to a conflicting decision from the Court of Appeals Twelfth Appellate District. On October 1, the Ohio Supreme Court agreed to hear the direct appeal and consolidated it with the appeal from the mandamus. The court also consolidated those cases, for oral argument, with related cases from the Twelfth Appellate District.


State v. Bodyke

LEGAL THEORY: This comprehensive challenge to Ohio’s Adam Walsh Act is direct appeal in the Sixth District Court of Appeals of three cases, consolidated by the court of appeals.
 
STATUS: Our brief was filed March 17 2008; the State’s brief was filed April 21; our reply brief was filed May 2. On August 25, 2008 oral arguments were held in the Court of Appeals Sixth Appellate District. We now await a decision.


State v. Nelson

LEGAL THEORY: The Common Pleas Court in Stark County consolidated a large number of cases raising among them comprehensive challenges to the Adam Walsh Act.
 
STATUS: We are amicus in this case. Our brief was filed January 31, 2008.

HABEAS PETITION

State of Ohio v. Foust

FACTS:  Kelly Foust is on death row in Ohio after being found guilty in 2002 of committing Aggravated Murder, Attempted Murder, Rape, Aggravated Arson, and other offenses.  His case went through the available paths in Ohio courts to no avail.
 
LEGAL THEORY:  Foust is entitled to a full round of review in the federal courts of all federal constitutional issues properly raised in the Ohio courts.  The process is by petition for writ of habeas corpus.
 
STATUS:  The petition was filed March 22, 2007. The State of Ohio filed its response on May 21, 2007. Our traverse was filed October 5, 2007. Discovery will be underway soon if the court grants permission. We filed a motion to conduct discovery on November 12, 2007. The State filed a memo-opposing discovery on November 19, 2007. On January 15, 2008, the U.S. District Court for the Northern District of Ohio issued an Opinion and Order denying our motions to conduct discovery and for allocation of funds for experts. On August 15, 2008 the U.S. District Court for the Northern District of Ohio issued an Opinion and Order denying our petition for habeas corpus and dismissed the case also issuing a blanket denial of a Certificate of Appealability. Our notice of appeal was timely filed. Our motion for a Certificate of Appealability was filed in the Sixth U.S. Circuit Court of Appeals on October 29, 2008.

DEATH PENALTY

State of Ohio v. Ruben Rivera and State of Ohio v. Ronald McCloud

FACTS:  As part of his legal defense, in a case carrying the possible penalty of capital punishment, Rivera’ current attorneys argue Ohio’s method of killing via lethal injection is unconstitutional.
 
LEGAL THEORY:  Lethal injection as administered in Ohio constitutes cruel and unusual punishment in violation of the condemned’s Eight Amendment rights.
 
STATUS: On March 1, 2007, Rivera filed a motion in Lorain County Common Pleas Court to declare the death penalty in Ohio unconstitutional because of Ohio’s reliance on lethal injection as the sole means to execute condemned prisoners. On March 29, 2007, a hearing on that motion took place where the Judge James Burge agreed to wait on a ruling until after a May 24, 2007 evidentiary hearing is held. At the May 24, 2007, Judge Burge granted Defendant’s motion to continue the hearing and appointed Jeff Gamso as counsel for the lethal injection aspect of the case. On June 6, 2007, the Defendant filed a motion regarding ripeness. On the same date, Plaintiff filed a motion to preclude imposition of a death sentence. On July 24, 2007, the Court held that whether to preclude death as a sentence because of lethal injection concerns was properly raised and the Court will conduct a hearing on the issue. The Court also ordered the Ohio Department of Rehabilitation and Correction to produce various documents. On July 26, the Court allowed Ronald McCloud, also facing capital charges, to participate in the same hearings and appointed Jeff Gamso to represent him, also. On July 30, 2007, a hearing was set for November 5, 2007 in order to take evidence on Rivera’s motion to declare Ohio’s death penalty unconstitutional. On August 27, 2007, the ODRC filed a motion seeking to stay the Court’s orders of June 20, 2007 and July 24, 2007 to produce documents. That motion was denied on the same day. On August 22, 2007, the ODRC filed for a Writ of Prohibition against Judge Burge in the Ohio Supreme Court arguing that Burge does not have the judicial power or jurisdiction to order documents to be produced related to lethal injection or to consider the issue in the context of a criminal prosecution.

On August 27, 2007, Judge Burge denied a request by ODRC to stay the discovery order until the Ohio Supreme Court rules on whether it was proper. On August 30, 2007, ODRC asked the Ohio Supreme Court to expedite its determination of the prohibition action in light of the Judge’s ruling on the August 27. On October 31, 2007, the Ohio Supreme Court dismissed the Motion for Writ of Prohibition without citing a reason. On November 1, 2007, Judge Burge ordered the ODRC and its Director to appear before him on December 12, 2007, with various documents demonstrating how lethal injection is carried out in Ohio.

After Defendants turned over documents for the December 12, 2007 hearing, Judge Burge issued an order on the same day ordering all parties to not disseminate the materials except to their experts. Eventually, Judge Burge issued an order on January 7, 2008 ruling that the records turned over on December 12, 2007 can be obtained only from the Lorain County Prosecutors Office through the court. An evidentiary hearing was held on April 7 and 8, 2008 followed by 5 hours of oral argument on May 6. On May 20, we filed a post-hearing memorandum. On June 10, 2008 Judge Burge ordered that the words ‘or combination of drugs’ be severed from O.R.C. 2949.22, and ordering that executions in Ohio be carried out by use of only a single drug. On July 3, 2008 the state filed a notice of appeal and motion for leave to appeal. We filed a notice of cross appeal. We await a decision from the court of appeals on whether the appeals will be allowed to go forward. On September 26, 2008 the Court of Appeals agreed to hear the case on an expedited schedule. Briefing is due to be completed by November 17, 2008.

INTERSTATE COMMERCE

Toledo v. Eischen

FACTS:  Chris Eischen, an Ohio resident, drove to Michigan to purchase beer with a friend.  After crossing the border back into Ohio, they were pulled over by Liquor Control authorities and ultimately charged with buying alcohol for consumption in Ohio from a Michigan-based distributor, not licensed in Ohio.
 
LEGAL THEORY:  The charges against Eischen represent an unconstitutional infringement of the Commerce Clause of the U.S. Constitution.
 
STATUS:  Charges against Eischen were dismissed by the Toledo Municipal Court on Commerce Clause grounds. The case was appealed to the Sixth District Court of Appeals. Our Brief was filed March 12, 2007. Oral argument took place May 16, 2007. On August 31, 2007, the appeals court ruled the trial record was incomplete because there was no evidence the purpose was for personal consumption. The case was remanded back to the trial court which on January 30, 2008 made the finding that the purpose was personal consumption. We expect that a new motion to dismiss the charges will be filed by his trial lawyer, and after the court rules we will be back in the court of appeals. On February, 2008 the prosecutor appealed the ruling to the Lucas County Court of Appeals, Sixth Appellate District. Oral Argument was held on Thursday, September 18, 2008, in the Court of Appeals, Sixth Appellate District. We await a decision.

Prison Conditions and Policies

Austin, et al. v. Wilkinson, et al. (Supermax)

FACTS:  Opened in 1998, the Ohio State Penitentiary, also known as the “Supermax” was built to house the “worst of the worst” of Ohio’s criminals, and instead has become a facility that houses inmates who are mentally ill, are there due to procedural snags, or to fill bed space. The inmates spend twenty-three hours a day in solitary cells, and there are no opportunities for outdoor recreation, communication with other inmates, or vocational programs such as those available to inmates at other facilities. Mental health problems often go unchecked, with over forty prisoners on suicide watch and three suicides since the prison opened.
 
LEGAL THEORY: The conditions at Supermax amount to Cruel and Unusual punishment and violate human rights standards recognized under customary international law. The procedures for sending inmates to the Supermax are so vague and capricious that many of the transfers are arbitrary.
 
STATUS:  In January 2001, we filed our complaint in U.S. District Court. A class action was brought in the name of select class representatives, alleging a variety of claims, brought through the efforts of eight lawyers, all in cooperation with the Center for Constitutional Rights. Shortly before trial, we concluded a voluntary settlement with the ODRC that will (1) subject the Supermax to two years of medical and mental health oversight by outside expert physicians with the power to make binding changes to prison decisions (2) result in the construction of a four million dollar outside exercise area (3) limit the use of excessive restraints within the prison, and (4) the payment of attorney fees and costs.

A four day trial involving three experts and twenty-five lay witnesses was held beginning January 7, 2002. This trial focused solely on the unresolved issue of classification: how inmates get into, and are retained at, the Supermax. On February 25, 2002, we won. Judge Gwin declared that the ODRC system of sending inmates to and retaining them at the Supermax violated the Due Process Clause of the Fourteenth Amendment – the first time any court has ever declared an entire penal institution to do so. In March 2002, the Court ordered the state to adopt a new set of procedures modeled largely on what we had requested. The state has appealed. Our appellate brief was filed in November 2002. No oral argument has yet been set by the Court of Appeals.

In December 2002, we filed motions to enforce compliance with the Court’s order regarding the revision of the classification process, and the movement of maximum security prisoners into the OSP without the hearings mandated by the Court. A three day trial on that issue was held in March 2003. We prevailed, but were granted only partial relief, while the court strongly admonished the defendants to heed its order to the letter. Monitoring activity is meanwhile ongoing and constant. We continue active monitoring of classification decisions and conduct periodic oversight visits with the medical monitors appointed by the court. Three appeals from our various victories have been taken by the state and all are pending. Oral argument on the first appeal was held on October 30, 2003, and argued by Professor Jules Lobel of the University of Pittsburgh Law School.

On June 10, 2004, the Sixth Circuit Court of Appeals affirmed in part, reversed in part, and remanded to the District Court the appeals of four 2002 appeals. Briefly, the Court 1) found that confinement at the Supermax prison is an atypical and significant hardship, 2) reverses certain substantive changes in prison regulations directed by the District Court, but 3) affirms all of the procedural changes made by the District Court. In October 2004, Defendants filed a Petition for Writ of Certiorari with the U.S. Supreme Court. In November 2004, we filed a Motion in Opposition to their cert petition. On December 13, 2004, the U.S. Supreme Court granted Defendants Motion for Writ of Certiorari and oral argument proceeded on March 30, 2005. On June 13, 2005, the U.S. Supreme Court ruled the Constitution requires a hearing for Supermax prisoners before being placed at the prison. At the same time, the Court found the Ohio DRC satisfied prisoners’ due process rights with the placement scheme it developed during this litigation.

In April 2005, we also filed a motion in U.S. District Court asking why the State should not be held in contempt of court, per an earlier court ruling, for its proposed move of Ohio’s “death row” to OSP. A trial on this issue took place from August 31 to September 2, 2005. On September 30, 2005, Judge Gwin issued an order denying our Motion for Preliminary Injunction to stop the move. However, Gwin deferred on ruling on our Motion for Permanent Injunction until the Court can better determine the restrictions placed on and privileges afforded to the Death Row inmates at Supermax.

On October 20, 2005, we filed a Motion for Order Extending the Jurisdiction of the Court Over Due Process Issues for One Year. On March 21, 2006, Judge Gwin granted that Motion and denied the Defendants’ motion to terminate the prospective relief provided by the Court’s February and March 2002 Orders. Gwin further ordered Ohio to modify its existing policy to include the procedural modifications described within this order for the placement and retention of inmates at OSP. Ohio shall fully implement these procedures within six months of this Order, or a final disposition of this matter. On May 18, 2006, we filed a Motion for Leave to File a Second Amended Complaint in order to address the issue of indefinitely confining “longtermers” who are not receiving meaningful periodic reviews of their status thereby violating their Fifth and Eighth Amendment rights. That motion was opposed via Motion filed by Defendants on June 19, 2006. On June 19, 2006 we filed a Motion for and Memorandum in Support of an Order Extending the Provisions of the Stipulation for Injunctive Relief until 07/07/07. Defendants filed an Opposition to that Motion on July 28, 2006 and filed their own Motion for Order to Terminate those same provisions also on July 28, 2006. On August 3, 2006, our Motion denied and Defendants’ Motion was granted. On February 16, 2007, a hearing was held regarding the Level 4 and 5 classifications of inmates after which a briefing scheduled on the issue was set. On March 16, 2007, a Joint Motion for Order to Extend This Courts Jurisdiction over Due Process Issues was filed by defendants.

On July 11, 2007, a Motion for Order to Re-Open Mental Health Claims was filed by all Plaintiffs. On September 4, 2007, a Motion for Order Extending the Jurisdiction of the Court was filed by Plaintiffs. On September 27, 2007, Judge Gwin issued an Opinion and Order granting in part and denying in part plaintiffs’ motion for order directing defendants to modify their proposed prison administration policies. That Order was appealed to the U.S. Court of Appeals for the Sixth Circuit on October 26, 2007. On October 18, 2007 Judge Gwin issued an Order denying plaintiffs’ motion for order to vacate previous judgment and reopen mental health claims. On January 11, 2008, oral argument was held in U.S. District Court on our motions to extend jurisdiction and to terminate prospective relief. On 3-12-08, Judge Gwin terminated jurisdiction of the District Court. We are now negotiating attorney fees. No further appeals are now being considered. The order for attorney’s fees has been finalized and all fee issues have been resolved. This will no longer appear on the docket.

Sixth Amendment

In Re: Brian Jones - Amicus

FACTS:   Brian Jones was a public defender in Portage County. He had been licensed to practice law for three months and had never yet tried a case when he was assigned to a case before Judge Plough in Portage Municipal Court (in Kent). The case was scheduled for trial the day after he was assigned it. He actually learned about the assignment just a half-hour before trial. The judge gave him an extra two hours to prepare. When the time was up and Jones asked for a continuance so that he could adequately investigate the case and prepare his defense, the judge denied the request and ordered him to go forward with the trial. When he refused, he was held in criminal contempt by the judge.
 
LEGAL THEORY:  The Sixth Amendment right to counsel is a right to the effective assistance of counsel. No attorney should ever be required to go to trial with so little time to prepare. Adequate assistance is just not possible under the circumstances. Jones was then punished by the judge for insisting on doing his job properly and providing his client with the representation demands.
 
STATUS:  The judge has recently issued a nominal fine to Jones in this case. Jones appealed the contempt finding. Along with 7 other organizations, in and outside Ohio, we signed an amicus brief on his behalf which was filed on May 19, 2008 in the Ohio Court of Appeals Eleventh Appellate District, Portage County. Oral argument was held on Monday September 29, 2008 at Lakeside High School in Ashtabula, Ohio.

Border Detentions

Rahman v. Chertoff

FACTS:   As a consequence of post 9-11 policies, perhaps thousands of law-abiding citizens and their families are repeatedly subject to unwarranted, protracted, and highly punitive detentions whenever they reenter the United States from other countries. The border detentions include body searches, handcuffing, seizure of personal and business records, brandished handguns by authorities and other excess. The victims of these detentions are predominantly Muslim and/or of Middle Eastern or South Asian descent. They are erroneously listed – or wrongly identified as being listed – on the government’s Terrorist Screening Database, and they have no meaningful way of either determining their status or challenging it.
 
LEGAL THEORY:  These detentions, and their underlying policies, violate due process and the right to be free from unreasonable search and seizure. This is a class action on behalf of two plaintiff classes: (1) U.S. citizens subject to unreasonable detention and treatment because they are wrongly classified or misidentified; (2) their family members who are unreasonably detained along with them.
 
STATUS:  This case was brought in 2005 by the ACLU of Illinois. On April 23, 2008, plaintiffs asked for leave to file a third amended complaint in the U.S. District Court for the Northern District of Illinois and to add 6 additional plaintiffs including three from Ohio (one our former Board members Ahmad Al-Akhras). On June 26, 2008, the Seventh U.S. Circuit Court of Appeals reversed the District Court’s decision to certify class status and remanded the case.

PRIVACY

Roe v. Planned Parenthood of Southwest Ohio – Amicus
(Civil discovery of non-party minors’ medical records)

FACTS:   This case arises from a very sad situation where 13-year-old Jane Roe became pregnant from a sexual relationship with her 21-year-old coach. The young woman and coach pulled a fast one on Planned Parenthood, lying about her age and her parents’ knowledge, in order to seek an abortion. (This occurred back when Ohio had a parental notice requirement, not a parental consent requirement.) Jane signed the form consenting to the abortion and the coach paid for it.

A teacher overheard Jane talking about the relationship at school and reported suspected sexual abuse to the police. The coach was convicted of seven counts of sexual battery. The Hamilton County Prosecutor investigated but did not bring charges against Planned Parenthood.

The girl’s parents filed a lawsuit in state court against Planned Parenthood alleging failure to report suspected child sexual abuse and performing a wrongful abortion on their minor child without valid consent. The parents sought, through discovery, records of ten years’ worth of abortions on minors by Planned Parenthood in an effort to prove that they had a practice of not reporting abuse or obtaining valid consent, in an effort to recover punitive damages.
 
LEGAL THEORY:  While we have no involvement in the underlying tort case, we object to the parents’ overbroad discovery request. The parents are not entitled to violate the medical privacy rights of Planned Parenthood patients from the last ten years. Minors have a right to medical privacy and integrity of the physician-patient privileged relationship. The ACLU Reproductive Freedom Project has been involved in similar cases across the country, seeking to protect the privacy of privileged medical records from what are, in essence, fishing expeditions.
 
STATUS:  The trial court ordered Planned Parenthood to provide the records, though it said they should redact personal identifiers. The Court of Appeals First Appellate District reversed that decision holding that the records were neither necessary nor relevant to the parents’ claims.

The parents asked the Ohio Supreme Court to reverse that decision and order the medical records released. The court has agreed to hear the case. The parents and their amici filed their briefs on May 15, 2008. Our amicus brief was filed June 16, 2008 in the Supreme Court of Ohio. Oral Argument was held in the Supreme Court of Ohio on October 7, 2008.

 

Medical Mutual of Ohio v. Schlotterer – Amicus

FACTS:   Dr. Schlotterer’s primary practice is treatment of HIV patients. Medical Mutual is an insurance company wanting to sift through six years of patient records in search of evidence of billing fraud.
 
LEGAL THEORY:  The common pleas court granted Medical Mutual’s request for patient records finding that the company’s pecuniary interest in discovering whether Schlotterer was committing fraud outweighed the privacy interests of his patients. The court of appeals disagreed, noting that there was nothing in the record to indicate that Medical Mutual had made any effort to get the information it wanted by non-invasive means (including examining its own records) or of limiting the information it wanted or that it even had any particular evidence to support the claim of fraud it was making.
 
STATUS:  After the court of appeals held that the trial court abused its discretion in granting the discovery order, Medical Mutual appealed to the Ohio Supreme Court. That court agreed to hear the case. Medical Mutual filed its brief on September 12, 2008. Our amicus brief will be filed November 3, 2008.

DUE PROCESS

Kindhearts for Charitable Humanitarian Development, Inc. v. Paulson

FACTS:   Kindhearts is a Toledo-based charity that funds day care and the like in Israel and Palestine. In early 2006, the federal government froze its assets while it investigated whether to charge it with support of terrorists (Hamas). Kindhearts has been, effectively, shut down all this time with no real opportunity to demonstrate that the charges against it are bogus.
 
LEGAL THEORY:  Our lawsuit argues that the government’s action violates Kindhearts’ rights to due process to address the charges. The extraordinary time that this has taken has done irreparable damage to the reputation and interests of the charity and left the charity and its people under a horrible cloud of mistrust and fear.
 
STATUS:  A groundbreaking lawsuit was filed on October 9, 2008 in the U.S. District Court for the Northern District of Ohio. On that day, the judge granted a temporary restraining order against the government to prevent it from taking further action in the short term so that litigation could be pursued. After discussion with the Justice Department, we agreed to vacating the restraining order and to an expedited briefing schedule. Our motion for summary judgment is due November 21, 2008, the government’s opposition and its own motion for summary judgment is due December 12, our reply in support of our motion and opposition to theirs is due January 7, 2009, and the government’s reply is due January 26.