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Last updated 12.20.11
FREE SPEECH
Susan B. Anthony List v. Rep. Driehaus,
et al.
Deters v. Schifrin
Habeeb v. Smith
ESTABLISHMENT CLAUSE
ACLU v. DeWeese
REPRODUCTIVE RIGHTS
Planned Parenthood of Cincinnati v. Taft,
(Restrictions on Use of Mifepristone)
FOURTH AMENDMENT — SEARCH AND SEIZURE
State v. Johnson (GPS tracking)
CRIMINAL JUSTICE
Hasan v. Ishee
Adam Walsh Act (SB 10) Sex Offender
Registration and Notification Cases
State v. Nelson
In re D.S.
In re CP (amicus)
State v. George Williams (amicus)
James Harris (debtors prison / child support)
DUE PROCESS
Kindhearts for Charitable Humanitarian
Development, Inc. v. Paulson
State v. Maxwell White
John Doe v. Mary Ronan, Cincinnati Public
Schools, and Ohio Department of Education
RELIGIOUS EXERCISE
State v. Daley
DEATH PENALTY
Skatzes v. Smith (amicus)
RIGHT TO COUNSEL
In re M.W.
Free Speech
Susan B. Anthony List v. Rep. Driehaus, et al.
FACTS: Ohio Revised Code 3517.21(B)
prohibits making or distributing “false” statements about candidates
for political office. Susan B. Anthony List (SBA List), a pro-life group, sought
to distribute this message critical of Congressman Driehaus’s vote in favor
of the federal health care bill: “Shame on Steve Driehaus! Driehaus voted
FOR taxpayer-funded abortion.” Driehaus filed a complaint with the Ohio
Elections Commission, pursuant to RC 3517.21(B), alleging that SBA List violated
state law by making a false statement about him and his voting record, and asserting
that the federal health care bill does not publicly fund abortion. OEC found probable
cause to believe the ad violated the statute. Driehaus commenced the discovery process.
SBA List filed suit in federal court against Driehaus and the Ohio Elections
Commission, claiming that RC 3517.21 is an unconstitutional restriction on speech.
LEGAL THEORY: The prohibition on political
speech in RC 3517.21(B), and the procedure by which the Ohio Elections Commission
judges the truth or falsity of political speech, are unconstitutional. The statute
is vague and overbroad, because it prohibits political speech protected by the
First Amendment.
STATUS: SBA List filed a complaint and motion
for temporary restraining order (TRO) on October 18, 2010, in the U.S. District
Court for the Southern District of Ohio, seeking to enjoin the proceedings against
them before the Ohio Elections Commission. The court accepted expedited briefing
on the TRO motion, and the ACLU of Ohio filed an amicus brief in support of SBA
List's motion for an order enjoining RC 3517.21(B) as unconstitutional.
On October 25, 2010, the District Court denied SBA's motion for TRO on the grounds
that the federal court must abstain from hearing a case while it is pending before
a state tribunal (the Ohio Elections Commission); the court stayed the federal case
pending resolution of the state proceedings. SBA List immediately appealed to the U.S. 6th
Circuit Court of Appeals, but the 6th Circuit affirmed the lower court ruling.
In November 2010, Driehaus lost his bid for re-election and filed an unopposed
motion to withdraw his complaint before the Ohio Elections Commission. The OEC accepted
the withdrawal, terminating the state proceeding.
The US District Court consolidated the SBA List case (case no. 1:10-cv-720) with a
similar case challenging the constitutionality of RC 3517.21, Coalition Opposed
to Additional Spending & Taxes (COAST) v. Ohio Elections Commission, et al
(case no. 1:10-cv-754). In December 2010 and January 2011, the parties filed
amended complaints, counter-claims, and answers in the district court.
On Jan. 31, 2011, Plaintiffs SBA List and the OEC Defendants each filed motions to
dismiss. SBA List also filed motions for partial summary judgment on their claims and
Driehaus's counterclaim for defamation. Briefs on the motions to dismiss
and motions for summary judgment were filed. A hearing and oral argument on the pending
motions was held on July 18, 2011, and the motions were taken under advisement.
The district court ruled on August 1, 2011, granting Defendant Driehaus's motions
to dismiss the claims made by COAST and SBA List. Both dismissals were based on lack of
ripeness and standing. The court granted the motion to dismiss COAST's complaint
because COAST had no evidence of harm. SBA's claims disappeared when they agreed to
Driehaus's voluntary dismissal of the Elections Commission complaint before it reached a
final determination. The Court also denied SBA List's motion for summary judgment on
Driehaus's counterclaim alleging defamation. The Court said Driehaus was likely to prevail
on his defamation claim and the case would proceed to trial on whether SBA List acted
with “actual malice” and Driehaus's damages.
On August 17, 2011, SBA List filed a motion for certificate of appealability, seeking leave
to appeal the dismissal of their claims immediately rather than waiting until the district
court concluded hearing the remaining defamation claim.
On November 2, 2011, the district court granted SBA List's motion for certificate of
appealability. All proceedings in district court are stayed during the pendency of
the appeal.
Deters v. Schifrin
FACTS: For the past 20 years, James
Schifrin has been writing a daily political gossip and satire post known as the
“Whistleblower.” The Whistleblower targets the Greater Cincinnati
area and focuses on gossip and scandals at the courthouse. Eric Deters, a local
Cincinnati attorney, filed suit in the local common pleas court against James
Schifrin about insinuations in the Whistleblower that Deters and his assistant,
a former client whose acquittal he secured on statutory rape charges last year,
are romantically involved. The Whistleblower has previously written other stories
about Deters. Deters has filed similar lawsuits against local prosecutors and
attorneys who have questioned his professionalism and legal acumen, none of which
have been successful.
LEGAL THEORY: This is a classic SLAPP
suit (“Strategic Lawsuit Against Public Participation”), brought for
the purpose of intimidating speakers to cease commenting about a particular subject
and have the effect of discouraging public dissemination of alternative views. It
is believed that what Deters actually wants to accomplish in this lawsuit is to
chill Schifrin’s inclination to write stories about him. This SLAPP suit
could impact not only one activist, but other alternative press as well.
STATUS: Deters filed a libel suit
against Schifrin in late August 2010 in the Hamilton County Court of Common Pleas.
On Nov. 16, 2010, we filed a motion to dismiss the lawsuit on the basis that it
was filed to suppress Schifrin’s First Amendment rights. Deters filed
his opposition to the motion to dismiss on Dec. 13, 2010, and Schifrin filed his
reply Dec. 27, 2010. On March 15, 2011, the court denied the motion to dismiss and
set a timeline for discovery, motions, and trial. Discovery is underway. The
court recently postponed trial dates and set the matter for a report in
October. Schifrin's deposition was scheduled at which point he opted to
settle. On October 27, 2011 the parties submitted a written settlement agreement
to the court releasing Schifrin from legal liability because of his previous
comments. Additionally, Schifrin agreed to publish the facts of the case and a
response from Deters in an upcoming edition of the “Whistleblower.”
Habeeb v. Smith
FACTS: In September 2005, Cleveland police officers
Habeeb and Kraynik shot and killed 15-year-old Brandon McCloud. The shooting spawned a
great deal of public outrage and criticism. Shirley Smith, then a state representative
from Cleveland, sent a letter a few days later to the Cleveland Safety Director and
cc’ing several other city officials criticizing the actions of Officers Habeeb and Kraynik.
The shooting was investigated by various government authorities, all of whom found no
wrongdoing by the officers. Habeeb and Kraynik later filed a lawsuit against the House
of Representatives in the Court of Claims seeking a determination as to whether Smith was
immune as well as a defamation suit against Smith personally for her letter.
LEGAL THEORY: This is a classic SLAPP suit (“Strategic
Lawsuit Against Public Participation”), brought for the purpose of intimidating
speakers to cease commenting about a particular subject and discouraging public
dissemination of alternative views. It is believed that Habeeb and Kraynik want to stifle
public criticism of their actions and other actions of Cleveland police. This SLAPP suit
could impact not only one person, but other police watchdogs as well.
STATUS: Habeeb and Kraynik filed suit against Smith in her
personal capacity. Because the House of Representatives was sued, the case first went to
the Court of Claims to decide whether Smith had immunity from suit as a government official.
The Court of Claims determined that Smith was not acting in her official capacity when
she sent the letter, so she was not immune from suit. The case in the Court of Common Pleas
was stayed pending resolution of the Court of Claims suit. On Dec. 21, 2010, Plaintiffs
Habeeb and Kraynik filed a motion for partial summary judgment, arguing that the Common
Pleas Court should adopt findings made by the Court of Claims. We filed a brief in opposition
on Feb. 11, 2011, and Plaintiffs filed a reply March 7th. On June 24, 2011, the
Common Pleas Court denied Plaintiffs’ motion for partial summary judgment, holding
that the Court of Claims decision was on the issue of immunity not on the issue of defamation,
which involves different legal standards. Discovery is underway. A pretrial was
held September 12, 2011 at which the judge and parties discussed discovery disputes
arising from Plaintiffs’ resistance to some discovery requests. The court ruled on two of the
disputes and instructed Defendant to file a motion to compel regarding a third matter, on
which the court wanted briefing. The court also granted Defendant leave to file a motion
for summary judgment, which is due November 4, 2011. A final pretrial is scheduled for
March 6, 2012 and trial for April 16, 2012. On November 10, 2011, both parties
filed a joint motion to extend the time to file a motion for summary judgment, due to
outstanding discovery issues. The court granted the motion and set new deadlines:
dispositive motions due 12/14/2011, brief in opposition due 1/16/2012 and reply due
1/30/2012.
Establishment Clause
ACLU v. DeWeese
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. We successfully sued him and
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 over the first
poster, asserting that it was an unconstitutional endorsement of religion. The court
agreed and ordered DeWeese 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 in the Northern District federal court a motion to show
cause why DeWeese should not be held in contempt for hanging the second poster. On
August 8, 2008, our motion to show cause why DeWeese should not be held in contempt
was denied on the basis that it was not the same poster.
We filed a new complaint on October 7, 2008. We filed a motion for summary judgment
on June 5, 2009, which was fully briefed by both sided in July 2009. On October 8, 2009,
the District Court granted our motion for summary judgment on all claims and ruled that
the latest display violates the First Amendment.
DeWeese appealed to the 6th Circuit Court of Appeals, and the case was fully briefed.
The Sixth Circuit heard oral argument on December 1, 2010. On Feb. 2, 2011, the
6th Circuit ruled 3-0 in our favor, affirming the lower court decision that DeWeese’s
actions violate the First Amendment.
We filed a joint motion in the district court on Feb. 9 for extension of time to file our
attorney fee petition until the conclusion of all appeals, which the court granted Feb. 10,
2011.
DeWeese filed a motion for rehearing en banc in the 6th Circuit on Feb. 16,
2011. The Sixth Circuit denied en banc (by the full court) on March 16, 2011.
DeWeese filed a petition for certiorari with the U.S. Supreme Court on June 13,
2011. We filed our Brief in Opposition to cert on July 18, 2011. The U.S.
Supreme Court on October 3, 2011 denied DeWeese’s petition for certiorari. On October
12, 2011 we filed a motion for extension of time to file attorney’s fees, which was
granted. On October 27, 2011 we filed our motion seeking attorney’s fees and costs.
DeWeese filed a motion in opposition on November 11, 2011. We subsequently filed our
reply brief on November 18, 2011 and are awaiting a ruling.
Reproductive Rights
Planned Parenthood of Cincinnati v. Taft (Restrictions on
Use of Mifepristone)
FACTS: Ohio HB 126 was passed in June 2004. The law
regulates and restricts the use of mifepristone, an abortion-inducing medication, by
requiring that it can only be administered in the exact dosage approved by the FDA in
2000. The law prohibits doctors from altering the dosage based on current medical knowledge,
such as giving a patient a lower dosage that has been proven safe and effective with
fewer side effects. This practice is commonly referred to as off-label or evidence-based
usage, and it is common practice throughout the medical field to keep pace with growing
knowledge about a medication’s effective usage. HB 126 is a unique law that effectively
freezes medicine in time based on evidence more than ten years old.
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. On October 22, 2004, defendants appealed the preliminary injunction
to the U.S. Court of Appeals for the Sixth Circuit. On February 24, 2006, the Sixth
Circuit affirmed in part, vacated in part the District Court’s ruling, and remanded
it back to the District 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. On
September 27, 2006, the Court granted our Motion for Summary Judgment and Permanent
Injunction. Defendants once again appealed to the Sixth Circuit on October 26, 2006 Oral
Argument was held on April 23, 2008, in the Sixth U.S. Circuit Court of Appeals as to whether
the trial court correctly granted the Motion for Summary Judgment.
On June 23, 2008 the Sixth U.S. Circuit Court of Appeals asked the Ohio Supreme Court for
its interpretation of Ohio state law questions regarding off-label use of mifepristone
pursuant to HB 126. The Ohio Supreme Court agreed to answer the certified questions asked
by the Sixth Circuit, and briefs were filed in the Ohio Supreme Court. Oral argument in the
Ohio Supreme Court took place on Tuesday, March 10, 2009. The Ohio Supreme Court issued an
opinion on the meaning of the Ohio statute on July 1, 2009, and sent the answers back to
the U.S. Sixth Circuit Court of Appeals.
On August 6, 2009, the Sixth Circuit issued an order remanding the case back to the
District Court for rehearing in light of the Ohio Supreme Court’s decision.
The Sixth Circuit vacated the 2006 permanent injunction but left the 2004 preliminary
injunction in effect.
The U.S. District Court held a status conference December 8, 2009. Cross Motions for
Summary Judgment were filed March 15, 2010, and both sides filed briefs.
On January 12, 2011, a status conference was held in the District Court about
the status and scope of the preliminary injunction that restricts the enforcement
of the challenged state law. The parties disagreed on the scope of the injunction
– Plaintiffs Planned Parenthood and Preterm believed that the injunction
prohibited enforcement of the law in its entirety, while the State claimed that
the injunction had a much more limited scope. The Court ordered both sides to
submit cross briefs regarding the scope of the preliminary injunction by January
19, 2011, and responses by January 21, 2011. As a result of the uncertainty of
the status of the preliminary injunction after the January 12 status conference,
Plaintiffs concluded that they could not continue to offer women mifepristone
medication abortion using the standard off-label evidence-based regimen, even
though that regimen is standard practice nationwide. Plaintiffs presented evidence
in their brief that this change has already caused irreparable injury to many
women, and will continue to do. The district court ruled Feb. 4, 2011, that the
last Sixth Circuit narrowed the scope of the preliminary injunction so that it
only prohibits unconstitutional restrictions on off-label mifepristone abortions
that are necessary for the life or health of the woman. This means that off-label
use for non-necessary abortions is prohibited, at least for now. At the end of
the order, the judge indicated that she is close to ruling on the motions for
summary judgment.
On May 23, 2011, the District Court issued a ruling on the cross motions for summary
judgment. The court agreed with the Planned Parenthood Plaintiffs that the law lacked an
exception for the health or life of the women, and the court granted a preliminary
injunction enjoining enforcement of the law in situations that impact the life or health of
the woman. The court ruled against the Planned Parenthood Plaintiffs with respect to the
other claims - that the law is unconstitutionally vague, that it violates a woman's
right to bodily integrity and that the law imposes an undue burden on a patient's
right to choose abortion.
The Planned Parenthood Plaintiffs filed a motion asking the trial court to allow
them to immediately appeal the three claims that were dismissed, and they also filed a
motion asking for a stay of the trial on the remaining claim pending appeal. On September
13, 2011, the court granted the motion for leave to appeal and the stay of trial court
proceedings pending appeal.
On October 4, 2011, Planned Parenthood Plaintiffs filed notice of appeal. The
Sixth Circuit set the following schedule for appeal briefs: Planned Parenthood
Plaintiff brief due 12/1/2011, State appellee brief due 1/3/2012, and the reply is due
17 days after appellee brief is filed.
Fourth Amendment —
Search and Seizure
State v. Johnson (GPS tracking)
FACTS: A Butler County Sheriff’s Deputy
secretly attached a GPS tracking device to Mr. Johnson’s vehicle when it was parked
on the street across from Johnson’s home. The officer did not have a warrant or
contact a judge for authorization. The sheriff’s department suspected Johnson of
drug trafficking and decided to use the GPS tracking device after concluding that
round-the-clock visual surveillance was impractical. The deputies tracked Johnson’s
van for six days as it traveled through at least three states. Their tracking came to an
end at a “traffic stop” conducted at gunpoint by over a dozen sheriff deputies
and state police officers. No contraband was found in Johnson’s vehicle, but
contraband was found in his associate’s vehicle which had also been stopped.
LEGAL THEORY: It violates an individual’s Fourth
Amendment rights for law enforcement to secretly attach a GPS tracking device without a
warrant. Courts across the country are divided on this issue, and this is a case of first
impression in the Ohio Supreme Court.
STATUS: Johnson was arrested and charged. Prior to
trial, Johnson filed a motion to suppress all evidence obtained or resulting from the
warrantless GPS tracking. The trial court overruled the motion. Johnson entered a no
contest plea and appealed. The 12th District Court of Appealed affirmed Johnson’s conviction. Johnson asked the Ohio Supreme Court to hear his appeal, and the Court
accepted the case.
Johnson’s appeal brief was filed June 3, 2011. We signed onto an amicus brief in support of
Johnson’s Fourth Amendment claim that was filed on June 6, 2011. The amicus brief was
prepared by the National Association of Criminal Defense Lawyers and joined by the Ohio
Association of Criminal Defense Lawyers, Electronic Frontier Foundation, First Amendment
Lawyers Association, Center for Democracy and Technology, ACLU of Ohio, Ohio Public Defender,
and seven law professors. The state's appeal brief was filed July 1, 2011. Oral argument is
scheduled for October 19, 2011. On September 8, 2011, counsel for Johnson filed a notice
that the U.S. Supreme Court has accepted U.S. v. Jones, a case raising the same question about the
legality of warrantless GPS tracking by law enforcement. The Ohio Supreme Court
held oral argument for the case on October 19, 2011. We are currently awaiting a
decision.
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: We are amicus on this federal habeas case.
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 that had been previously
excluded from being presented. On April 2, 2007, the Ohio Attorney General was
granted leave to respond to the additional authority and on April 10, 2007 filed
their response. On Nov. 16, 2010, the state filed a motion to set a status conference,
which was denied the same day. The magistrate issued a Dec. 29, 2010 report and
recommendations as to how the court should resolve the case. Hasan sought an
extension and filed an appeal of the magistrate’s decision on Apr. 1, 2011. The
State filed its response Apr. 13, 2011.
In the interim, the U.S. Supreme Court decided a case, Cullen v. Pinholster, in
which it limited the role of new evidence in federal courts' habeas review of state
court decisions. Hasan filed an unopposed motion on April 13 to schedule briefing on the
impact of the recent U.S. Supreme Court decision in Pinholster, which was granted
April 14. On May 5, Hasan filed his brief. Currently, the parties are still discussing the
applicability of the Pinholster case and whether the case can be appealed. On
June 7, 2011, the court issued an opinion on the impact of Cullen v. Pinholster.
Hasan filed his objections to the court's opinion on June 24. The court scheduled oral
argument and evidentiary hearing for October 20, 2011 before Judge Dlott Cincinnati.
On November 17, 2011, an order granting Hasan leave to obtain limited discovery
was entered. The parties are now required to file a joint discovery status report or
jointly request a telephonic conference regarding the status of discovery on or before
February 28, 2012.
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 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 (known as Megan’s
Law) 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 Adam Walsh Act.
The Ohio Supreme Court accepted several test cases on the Adam Walsh Act. Details
on these cases can be found below.
In June 2010, the Ohio Supreme Court ruled in State v. Bodyke that
individuals who were classified by a court under the old Megan’s Law
could not be reclassified under the new Adam Walsh Act. However, the Court’s
decision in Bodyke still leaves many unanswered questions that are being
pursued in other test cases. Unfortunately, this leaves many cases in limbo.
On July 13, 2011 the Ohio Supreme Court ruled in State v. Williams
that the new registration requirements of the Ohio Adam Walsh Act are punitive because
they impose additional burdens or obligations on individuals who committed an offense
before the passage of the law, thus violating the Ohio Constitution’s Retroactivity
Clause that prohibits imposing greater punishment after the fact. This was a huge victory,
because prior sex offender registration and notification laws, including Megan’s Law,
had been upheld by the Court as not being punitive. The Williams decision was 5-2.
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.
In re D.S.
LEGAL THEORY: In January 2005, D.S. was
adjudicated delinquent for three counts of rape and committed to the Ohio
Department of Youth Services. In August 2007, D.S. was classified as a Tier
III juvenile sex offender registrant under S.B. 10, Ohio's newly enacted
version of the Federal Adam Walsh Act. He appealed his classification to the
Third District Court of Appeals, which affirmed D.S.'s classification.
STATUS: The Ohio Supreme Court agreed to
hear D.S.’s appeal. Along with issues of retroactivity, one of the
questions the court will have the opportunity to address in this case is
the discretion of juvenile court judges to determine classification. If the
judges have sufficient discretion, then that changes the entire dynamic of the
law, rendering many of its provisions constitutional. In the case In re
G.E.S., the Ninth District Court of Appeals, held that juvenile judges have
that jurisdiction. We are amicus in support of D.S. addressing the judicial
discretion issue. The amicus brief was filed in the Ohio Supreme Court March 3,
2009. Oral argument was held November 4, 2009. The Ohio Supreme Court released
its decision on October 20, 2011, in which it reversed and remanded the case to
be reconsidered in light of its decision in State v. Williams.
In re CP (amicus)
LEGAL THEORY: This case is parallel
to In re DS, above, in which we are also amicus. Both cases question
the constitutionality of applying the Adam Walsh Act to juveniles. In re
DS involved retroactive application (2004 offense), and In re CP
involves prospective application (2009 offense).
CP entered an admission to the charges and was adjudicated delinquent. The court
ordered that CP be committed to the Ohio Department of Youth Services (DYS), and
the court entered a suspended prison term to the Department of Rehabilitation and
Corrections that was stayed pending successful completion at DYS. The court also
informed CP of his duties and obligations as a Tier III juvenile offender
registrant and a public registry-qualified juvenile offender registrant under
Adam Walsh (meaning that his photo and other information are on the AG’s
internet registry of sex offenders, even though his case remained in juvenile
court). CP appealed the constitutionality of Adam Walsh, but the court of appeals
ruled against him.
STATUS: The Ohio Supreme Court
accepted the appeal July 21, 2010. CP filed his merit brief Sept. 30, 2010. The
National Juvenile Defender Center filed an amicus brief in support of CP on
Sept. 29, 2010, that was joined by us and the Children’s Law Center, arguing
that the application of Adam Walsh to juveniles is unconstitutional and
inappropriate. The state’s merit brief was filed Nov. 1, 2010, and the
Ohio Attorney General filed an amicus in support of the state on Oct. 29, 2010.
The Court heard oral argument February 16, 2011. We are currently awaiting
a decision.
State v. George Williams (amicus)
LEGAL THEORY: Mr. Williams’ case
falls within one of the many unanswered questions left in the wake of the
Court’s decision in Bodyke. Williams’ offense occurred in
2007 while the old Megan’s Law was still in effect, but he was sentenced in
2008 when Adam Walsh had become law. The question before the court is which law
applies. The Retroactivity Clause of the Ohio Constitution and the Ex Post Facto
Clause of the US Constitution prohibit retroactive application of a law that is
punitive, or that retroactively increases the punishment for a past act. We
believe that retroactive application of Adam Walsh is constitutionally prohibited,
and that Williams should be sentenced under the law that was in effect on the date
of his offense.
Williams was charged on Nov. 13, 2007, with one count of unlawful sexual conduct
with a minor (he was age 19 and his girlfriend was age 14). On Dec. 14, 2007,
Williams pled guilty. Williams filed a motion on Jan. 25, 2008, to be sentenced
under the old law that was in effect on the date of his offense. The trial court
denied that motion and sentenced Williams under the new Adam Walsh law. The court
of appeals affirmed.
STATUS: Williams filed his notice
of appeal in January 2009. The Court accepted jurisdiction of the appeal in April
2009 and stayed the case pending a decision in Bodyke. On July 22,
2010, the Court lifted the stay and ordered a briefing schedule. Williams
filed his merit brief on Oct. 4, 2010. We filed an amicus brief in support of
Williams the same day, as did the Cleveland Rape Crisis Center. The State filed
their brief Nov. 17, 2010. Amici in support of the State were filed by the
Franklin County Prosecutor on Nov. 17 and the Ohio Attorney General on Nov. 22,
2010. Williams' reply was filed Dec. 6, 2010. The Ohio Supreme Court heard
oral argument March 1, 2011.
The Court issued its decision on July 13, 2011. It found the registration requirements
of the Ohio Adam Walsh Act are punitive because they impose new burdens or obligations
on individuals who committed an offense before the passage of the law, thus violating
the Ohio Constitution's Retroactivity Clause that prohibits imposing greater
punishment after the fact. This was a huge victory, because prior sex offender registration
and notification laws, including Megan's Law, had been upheld by the Court as not
being punitive. The Williams decision was 5-2. On July 25, the State and
Ohio Attorney General filed a joint motion for reconsideration and/or clarification.
Williams' brief in opposition to the state's motion was filed July 27, 2011. The Ohio
Supreme Court denied the State's motion on September 21, 2011.
James Harris (debtors prison / child support)
FACTS: Mr. Harris’s case presents a modern case
of “debtors prison,” incarcerating someone for inability to pay. James Harris
was under court order to pay child support for two minor children. In 2007, Harris lost
his job. He tried, unsuccessfully, to modify his child support order based on his
unemployment. Evidence supports that Harris spent three years diligently trying to find
employment, to no avail. In July 2010, Harris was charged with two felony counts of
failure to pay child support. Harris pled guilty in exchange for probation. However, one
of the terms of his probation was to pay the back child support he owed, and which
Harris was still unable to pay. In March 2011, even though he had finally found a job,
the trial court found that Harris had violated probation. Harris was sentenced to one
year in prison on one of the counts, and the other count was stayed (so that when Harris
finally gets out the probation will continue).
LEGAL THEORY: The U.S. Constitution, Ohio
Constitution, and Ohio statutes prohibit incarcerating someone for inability — as
opposed to unwillingness — to pay court imposed debts. Therefore, we believe
Harris’s one-year sentence is unconstitutional.
STATUS: We are working with the Cuyahoga Public
Defender to help Harris present his inability to pay defense in two separate avenues
– (1) defending against the criminal nonsupport charges, and (2) modifying the child
support orders to reflect his ability to pay so that Harris can avoid further criminal charges.
(1) Defending against the criminal charges – The public defender was appointed to
represent Harris, and the ACLU is acting as amicus. Harris moved to vacate his guilty plea
so that he could present his inability to pay defense, but his motion was denied by the
trial court. Both that denial and the appeal of his one-year sentence are currently pending
before the 8th District Court of Appeals. Harris's appeal brief and our amicus brief in
support of Harris's appeal were filed on July 22, 2011. The county appellee's brief
is due September 16, 2011. Harris is out on parole on the case for which he was imprisoned
and is on probation in the second case, so he remains at risk for being sent back to prison
for inability to pay. On November 15, 2011, the 8th District Court of Appeals
remanded this matter to the trial court for resentencing.
(2) Modifying the child support orders – The ACLU represents Harris in the juvenile
court to help him modify the child support orders. Indigent parents are frequently
‘caught in the system’ when due to changed financial circumstances they can no
longer pay the required child support, but they also cannot afford a lawyer to help them
modify the support order. This often results in criminal non-support charges against indigent
parents, like Harris.
Harris is under support orders for two children. After being laid off in 2007, Harris
repeatedly tried to get his support orders modified to reflect his changed income, but he
was unsuccessful. Most recently, Harris filed pro se motions on November 22, 2010
to modify the orders.
A hearing was held July 7, 2011 on the motion to modify for the
older child. The court
denied the motion on the basis that an appeals court recently ruled that once a child turns
18, the court no longer has authority to modify the order. We disagree. Once a written
denial is issued, we will be able to appeal. We are still awaiting a written
decision.
A hearing was scheduled on August 29, 2011, on the motion to modify for the younger child. However, the hearing had to be rescheduled, because
parties have been unable to locate the child's mother in order to properly serve her
with notice of the hearing. The October 11, 2011 hearing also had to be
rescheduled until March 6, 2012 because the child’s mother still could not be
located. We filed a motion to join Cuyahoga Support Enforcement Agency CSEA) as a
party to force them to serve the mother.
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.
Briefing and oral argument took place in late 2008 and early 2009.
On August 18, 2009, the court ruled on the government’s motion to dismiss
and our motion for partial summary judgment, granting each in part. The court
granted the government’s motion to dismiss with regard to our claims that
the Fourth Amendment precludes final designation of a charity as a terrorist
organization, the authority of the U.S. Treasury Department's Office of Foreign
Assets Control (OFAC) is void for vagueness, and several of our due process claims.
However, the court granted several of the claims made in our motion for partial
summary judgment. Specifically, the court ruled that the government cannot freeze
an organization's assets under a terror financing law without obtaining a
warrant based upon probable cause (Fourth Amendment violation). The court also
found that the government must give the organization notice of the basis for
freezing its assets and a meaningful opportunity to defend itself (due process
violation).
The court held a status conference on September 21, 2009, to schedule briefing and
argument on the remaining issues. Also on September 21, 2009, we filed a motion for
interim relief or a temporary restraining order, seeking relief for the constitutional
violations the court found in granting us partial summary judgment on August 18,
2009. Briefs were filed and oral argument was heard.
On October 26, 2009, the court granted a TRO restraining the government from
classifying Kindhearts as a SDGT (Specially Designated Global Terrorist
organization) and basically staying the designation process pending a final
determination of remedy for the constitutional violations found by the court
in August 2009. The court accepted briefs on the issue of what the final remedy
should be.
On May 10, 2010, the court issued an order granting relief for the constitutional
violations it previously found. The court ruled that the U.S. Treasury
Department's freezing of the charity's assets was unconstitutional and that in
order to comply with the Constitution, Congress must fix the law to require a
warrant be obtained based upon probable cause before taking such action. The
court also found that the Treasury Department's failure to give the charity
notice of the basis for freezing its assets violated the Constitution by
preventing the charity from being able to meaningfully respond to the freeze.
The court also ruled that OFAC violated the Fifth Amendment's guarantee of due
process by failing to provide KindHearts notice of the charges against it or
a meaningful opportunity to respond. It held that OFAC must remedy these failures
by declassifying or adequately summarizing the classified evidence against
KindHearts or by allowing KindHearts' counsel to view the classified evidence
pursuant to security clearances and a protective order.
Briefs and reports were filed in 2010 regarding classified evidence and government
showing of probable cause. Oral argument about remedy has been postponed at the
parties request to provide time for settlement discussions. Status reports were filed
April 15, May 16, and July 22, 2011. A telephone status conference was held August
15, 2011 and a status report was filed September 15, 2011. A telephone status
conference was held October 7, 2011, and a status report was filed November 14, 2011.
A telephone pretrial conference was held on Nov. 28, 2011, and the next status report
is due by Dec. 30, 2011. The Court ordered the parties to file a dismissal order or
further status report by July 1, 2012.
State v. Maxwell White
FACTS: White was convicted and sentenced
to death for a crime that occurred in January 1996. The U.S. 6th Circuit
Court of Appeals found sentencing phase errors, reversed his sentence and
remanded for re-sentencing. On remand to the state court for re-sentencing,
the issue was raised as to whether White could be re-sentenced to death under
the current statute or whether the court could only apply the re-sentencing
options provided by statute at the time of White’s 1996 crime, under
which a person could not be sentenced to death again at re-sentencing.
White's counsel filed a motion in the trial court to prohibit re-sentencing
of death on the grounds that it violates the retroactivity clause of the
Ohio Constitution. The trial court agreed. The state appealed, and the appeals
court reversed. White appealed, and the Ohio Supreme Court accepted jurisdiction.
LEGAL THEORY: At the time of White's
offense, he could not be re-sentenced to death. Under the current statute,
he can. This constitutes a retroactive increase in punishment in violation
of the Ex Post Facto Clause of the United States Constitution, it imposes new
and additional burdens, and it takes away or impairs a vested right in violation
of the Retroactivity Clause of the Ohio Constitution.
STATUS: The Ohio Supreme Court accepted
jurisdiction on Dec. 2, 2009. White's merit brief and OACDL's
amicus in support were filed Feb. 16, and our amicus in support was filed Feb.
17, 2010. The Ohio Attorney General filed an amicus in support of the state
appellee on March 11, 2010. The state appellee's merit brief was filed
March 17, 2010, as was an amicus from the Franklin County Prosecutor.
On March 21, 2011, the State filed a motion asking Justice Pfeiffer
to recuse himself because of his stated position on the death penalty. By
letter dated March 31, Justice Pfeiffer declined to recuse himself, stating the
motion was without merit. Oral argument in the Ohio Supreme Court was
heard on November 16, 2011.
John Doe v. Mary Ronan, Cincinnati Public Schools,
and Ohio Department of Education
FACTS: State law requires all public
school employees to undergo a criminal background check. Prior to 2007,
background checks were only required for school employees who had
direct care or custody of schoolchildren. In 2007, the General Assembly
amended the law to require background checks for all current school
employees and applicants, regardless of whether or not they have direct
care of schoolchildren. One of two things happen to employees whose background
checks reveal a criminal record. Most are given an opportunity to prove they
are rehabilitated and should still be eligible for employment. However, the
new law included a list of past offenses, including non-violent drug offenses,
where the employee would not be allowed to prove rehabilitation and would just
be summarily terminated.
John Doe had been a good employee of the Cincinnati Public Schools for
twelve years, as a Safe and Drug Free School Specialist and was later
promoted to be a Due Process Hearing Specialist. He did not have direct
supervision of students, so he was not required to undergo a background
check until the 2007 law was adopted. A background check revealed that
John Doe had a single drug conviction in 1976. The result was that Doe’s
employment was automatically terminated, without any chance to prove
rehabilitation, despite the fact that he had been a model employee for
over a decade.
LEGAL THEORY: The Retroactivity Clause
of the Ohio Constitution prohibits retroactive application of a law that
infringes on substantive rights. The law at issue here infringed on Doe’s
substantive rights by divesting him of his employment without due process.
Several other states have found similar automatic employment bans to infringe
on due process. Thus, the law that divested Doe of his employment without due
process violated his rights under the Retroactivity Clause.
STATUS: In April 2009, Doe filed suit in
the Hamilton County Court of Common Pleas. CPS and Ronan removed the case to
the U.S. District Court for the Southern District of Ohio. In November 2009,
the District Court granted Doe’s request and issued an order certifying
state law questions to the Ohio Supreme Court and staying proceedings pending
resolution of the state questions. On January 17, 2010, the Ohio Supreme Court
agreed to hear both certified questions. The two questions presented to the Ohio
Supreme Court are whether the 2007 law that led to Doe’s automatic
termination violated his rights under the Retroactivity Clause and the Contract
Clause of the Ohio Constitution. John Doe’s merit brief was filed March
8, 2010. Also on March 8, we filed an amicus brief in support of Doe arguing
that his termination without due process violated his rights under the
Retroactivity Clause. The Ohio Employment Lawyers Association, Legal Aid Society
of Cleveland, and Towards Employment filed an amicus in support of Doe under
the Contract Clause. The defendants sought an extension on their brief deadline.
The Ohio Department of Education filed their brief April 22, and the Cincinnati
Schools and Ronan filed their brief April 26, 2010. Doe’s reply brief was
filed 20 days later. The Ohio Supreme Court heard oral argument on June 8, 2010.
On October 26, 2010, the Ohio Supreme Court held that the law under which Doe
was fired did not violate the Contract Clause or Retroactivity Clause of the Ohio
Constitution. The case now returns to federal court for the remaining issues to
be heard and decided.
RELIGIOUS EXERCISE
State v. Daley
FACTS: John Daley is a member of a religion known as
the “Mountain of Fire Ministry,” a Christian religion that believes in the
literal wording of the Old Testament. Daley is extremely active and vocal about his
religious beliefs and believes that he has a duty to warn people who violate God’s
laws.
In December 2009, Daley received a notice from the Cuyahoga Support Enforcement Agency
(CSEA) that he was delinquent in child support and instructing him to call and make
arrangements to pay. He called CSEA several times and left messages which were recorded.
In the messages, Daley said that various people including the judge and CSEA would burn
in hell and God would punish them. He repeatedly said that he was not threatening anyone
but that these people would be punished by God.
Daley was charged with the crimes of Intimidation, Aggravated Menacing, Menacing,
Telecommunication Harassment and Retaliation for the messages he left CSEA. After several
pretrials, the court decided to order a competency hearing and ordered Daley to be
evaluated by the court psychologist. On September 9, 2010, a competency hearing was held
and Dr. Noffsinger, the court psychologist, testified that Daley had such extreme
intensity of religious beliefs in a very “unorthodox religion” that he
was incompetent to assist in his defense and should be hospitalized for treatment in
a mental facility where he would be treated with antipsychotic medication until he is
restored to competency. Dr. Noffsinger defined “competency” as a less
fervent belief in Daley’s religion. In accordance with the Doctor’s
recommendation, Judge Sheehan committed Daley to the Northcoast Behavioral Healthcare
facility for hospitalization and involuntary treatment with antipsychotic medication
until he is restored to competency.
LEGAL THEORY: The sole basis for the Court’s
determination that John Daley was incompetent to stand trial was the Court’s
conclusion that John Daley’s religious beliefs were “unorthodox” and
he was overly fixated on his religious beliefs. Committing him to a mental health
facility and forcibly administering antipsychotic medication will have the effect of
punishing him for his religious beliefs in violation of his First Amendment rights.
STATUS: Daley’s appointed trial counsel moved
for a stay of the commitment order which was denied by the trial court. A notice of appeal
and motion for stay were filed in the Court of Appeals, but the stay was denied.
Daley filed his appeal brief on Oct. 25, 2010, and we filed an amicus in support, arguing
that the court’s order was based solely on its view of Daley’s fervency of
religious belief in violation of his free exercise rights under the First Amendment.
Daley’s counsel filed a renewed motion for stay that was once again denied by the appeals
court. On Nov. 10, 2010, both we and Daley’s counsel filed motions to supplement our
briefs with an argument that the court ordered forced medication was in violation of
Daley’s due process rights under the Fifth and Fourteenth Amendments.
The 8th District Court of Appeals held oral argument on June 6, 2011 on the
appeal of Daley’s initial commitment.
A defense expert conducted an evaluation of Daley that was presented to the court.
Daley was found competent to stand trial. The County offered Daley a resolution whereby
he would be released if he pled guilty to a lesser offense. On July 8, 2011, Daley chose
to plead to a charge of menacing, a 4th Degree misdemeanor. The judge imposed a 30-day
suspended sentence, and Daley was released.
On July 11, 2011, the County moved to dismiss our appeal pending in the 8th
District Court of Appeals. However, on July 21, 2011, the Court of Appeals issued a 3-0
opinion in favor of Daley, ruling that finding him incompetent based solely on his
religious beliefs violated his First Amendment rights, and reversing and remanding
the competency determination.
On September 6, 2011, the county filed a Notice of Appeal and Memorandum in Support
of Jurisdiction in the Ohio Supreme Court, asking the Supreme Court to accept review
of the Court of Appeals decision. On October 6, 2011, Daley filed a Memorandum
in Opposition of Jurisdiction. We await decision from the Ohio Supreme Court on
whether it will accept the appeal.
DEATH PENALTY
Skatzes v. Smith (amicus)
FACTS: George Skatzes is one of the so-called
“Lucasville Five,” who were convicted of various crimes that
occurred during the 1993 Lucasville Riot. Skatzes is currently on death row based
largely on testimony provided by an unreliable informant who had an incentive to
provide false testimony.
LEGAL THEORY: A number of scholarly research
projects have addressed the unreliability of uncorroborated informant testimony
and both the ABA and ALI (American Law Institute) have published reports on this
issue. Nevertheless, many state and federal courts permit juries to hear informant
testimony without any counter evidence about the unreliability of that testimony.
This failure has the effect of denying defendants a fair and impartial trial.
Experience has revealed that oftentimes informants may have a separate agenda
or incentive to provide false testimony which creates issues with fairness and
impartiality. Alice and Staughton Lynd will prepare, under the auspices of the ACLU
of Ohio, an amicus brief focusing on the unreliability of informant testimony
in death penalty cases to be filed in the case of Skatzes v. Smith and made
available as a form brief to other criminal defense attorneys challenging the
unreliability of informant testimony.
STATUS: Skatzes filed his traverse on Jan. 7,
2011. We filed a motion asking permission to file an amicus brief on Jan. 13, 2011,
which was granted on Jan. 14. We filed our amicus brief in support of Skatzes'
traverse on Jan. 14, 2011. The parties are currently involved in the discovery process.
The parties are briefing the effect of the recent U.S. Supreme Court decision
in Cullen v. Pinholster (see explanation under Hasan,
above).
Right to Counsel
In re M.W.
FACTS: M.W. is a minor who was interrogated
by police without speaking with a lawyer.
Legal Theory: In 2007, the Ohio Supreme Court
ruled in the case In re C.S. that a juvenile in a delinquency proceeding may
only waive his constitutional right to counsel after consulting with a parent,
guardian, or attorney. Under state law, a minor's right to counsel attaches when he
or she is taken into custody. Therefore, we believe a minor's right to counsel attaches
during police interrogations, and the interrogation of M.W. violated her Sixth Amendment
rights.
STATUS: We signed onto an amicus brief prepared by the
Juvenile Law Center and joined by numerous groups in support of M.W. that was filed on
July 11, 2011. M.W.'s appeal brief was also filed July 11, 2011. The State
Appellee merit brief was filed August 30, 2011. Oral argument has been
scheduled for Tuesday, December 6, 2011.
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