14 minute read
October Section Meeting Schedule
Join a DBA Section
Today!
Advertisement
October DBA Section Meetings daybar.org to register
1
4
Juvenile Law @ 4pm
11
18
Federal Practice @ Noon
25 5
Employment Law @ Noon
12
Civil Trial & ADR @ 5pm
19 6
YLD @ Noon
13
Appellate Court Practice @ Noon
20
26 27
Criminal Law @ Noon 7
Real Property @ Noon
14
21
Workers' Comp & Social Security @ Noon
28
Paralegal @ Noon Corporate Counsel @ 5pm 8
15
Diversity Issues @ Noon
22
29
The Supreme Court abandoned the clear and present danger test in Brandenburg v. Ohio, 395 U.S. 444 (1969). The defendant in that case was a Ku Klux Klan leader who invited a local television station to film a Ku Klux Klan rally in Hamilton County. Based in part on that evidence, Brandenburg was charged with violating an Ohio law that banned the advocacy of the use of crime, sabotage, violence, or unlawful terrorism to accomplish political reform. Brandenburg was tried, convicted, and sentenced to prison for one to ten years. His conviction was summarily upheld by the First District Court of Appeals and the Ohio Supreme Court.
The U.S. Supreme Court reversed. In a per curiam opinion, the majority held that “Whitney has been thoroughly discredited by later decisions.” The Court further held that those decisions had “fashioned a principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Brandenburg’s “imminent lawless action” test remains the standard. It contains three parts: intent, imminence of lawlessness, and likelihood of lawlessness. Specifically, a defendant may be criminally convicted for speech that (1) is directed to inciting or producing (2) imminent illegal action (3) that is likely to occur.
The Brandenburg test reflects a welcome shift in the Supreme Court’s jurisprudence to be more protective of free speech. However, its contours are still unfolding. There are questions, for example, about its ability to limit or punish online speech that advocates violence or terrorism, given the unique nature of such speech (e.g., ever-present rather than temporally limited, not necessarily directed to a specific audience) and the concomitant difficulties of proving intent, imminence, and likelihood.
More than two hundred years after its enshrinement in the U.S. Constitution, we can expect that courts will continue to grapple with the First Amendment’s limits. But we still have plenty to celebrate. Exercise your right to free speech today!
Juvenile Law
Attorney Involvement in the Court Appointed Special Advocate (CASA) Program at the Montgomery County Juvenile Court
“W e live in a world in which we need to share responsibility. It’s easy to say, “It’s not my child, not my community, not my world, not my problem.” Then there are those who see the need and respond. I consider those people my heroes.” ~Fred Rogers
Pursuant to Ohio Revised Code §2151.281 and Rule 48 of the Rules of Superintendence for the Courts of Ohio (“Rule 48”), when a Complaint is filed in the Montgomery County Juvenile Court alleging Abuse, Neglect, or Dependency (“A/N/D”), a Guardian ad Litem (GAL) is appointed. The GAL may be an attorney or a volunteer Court Appointed Special Advocate (“CASA”). With new A/N/D Complaints totaling 601 by midyear 2021, compared to 719 at year’s end in 2019, the need for GALs is paramount. The Montgomery County Juvenile Court, under the leadership of Administrative Judge Tony Capizzi and Judge Helen Wallace, has been a strong supporter of the Court’s CASA Program. Currently, Judge Capizzi is involved with CASA at the national, state and local levels.
Although attorneys acting as GALs can receive payment for their services, in recent years there have been at least eleven attorneys that trained to become CASAs and then served as GALs on a Pro Bono basis and/or volunteered to help train CASA/GALs. Some of these attorneys are: James Armstrong, Richard Barnes, Misty Connors, Connie Klayko, Julia Kolber, Magistrate Katie Lenski, Cathy McCarthy, Magistrate Hope Smalls, Cassie Quinn, Cindi Westwood and Elizabeth Wood.
What is a GAL?
GALs are neutral third parties that must maintain their objectivity towards all those involved in the case; they must provide recommendations to the court regarding the best interest of the child, and they are expected to attend all hearings “relevant to the responsibilities of the GAL”. In the Juvenile Court, GALs are appointed to children in A/N/D cases, some types of Delinquency cases and some private Civil cases that involve custody and visitation issues.
GALs do not advocate for the Child’s wishes; rather, they attempt to make reasonable efforts to learn about the facts of the case in order to advocate for the child’s best interest. In order to research the child’s situation, GALs may do the following: (1) investigate-research the child’s circumstances, determine relevant facts in a child’s case and report this information to the court; (2) facilitate-identify resources and services for the child and facilitate a collaborative relationship between all parties not involved in the case; (3) advocate-the GAL will speak up for the child by making recommendations regarding the child’s best interest; and (4) monitor-make sure that services are provided for the child, court orders are carried out and that the court is informed of any new developments. Understanding the child’s wishes, if the child is old enough and developmentally able to express them, may be taken into consideration when articulating what is in the best interest of the child.
The Montgomery County Juvenile Court CASA Program (“CASA Program”) was established in 1988. Our volunteers have helped over 12,000 children and more than 6,000 families. At present, there are 45 CASA Programs in Ohio that serve 56 counties. The CASA Program is a member of both the Ohio CASA network and National CASA. 49 states have at least one local CASA Program (North Dakota has yet to estab-
lish any CASA programs). CASAs are volunteer GALs. CASAs are dedicated to the principle that every child is entitled to have a permanent home and family and to be free form abuse and neglect. CASA volunteers include attorneys, educators, social workers, former case workers, former foster parents, former foster youth, physicians, nurses, parents and individuals that want to help abused and neglected children.
What are some of the differences between a CASA/GAL and an Attorney/GAL?
CASA/GALs are required to attend a 30+ hour Pre-Service training (spread over 7 weeks), whereas Attorney/GALs’ Pre-Service training is 12 hours. The CASA training includes a practicum GAL report where the trainee has to interview “actors” who represent interested parties and write a GAL Report based on their observations and interviews. The final training session includes a mock hearing over which Judge Capizzi presides. Two new CASA/GALs are called as witnesses and an attorney representing the Mother cross-examine the two new CASA/GALs. Afterwards, Judge Capizzi provides valuable feedback and an explanation as to the importance of CASA/GALs to his court. Judge Capizzi then swears in the new CASA/GALs. Some of the other Pre-Service sessions include presentations about trauma informed care and how to effectively communicate with individuals impacted by trauma. Magistrate Kathleen Lenski always gives of her time to help during the Pre-Service training. She provides valuable information and insight regarding the expectations of a GAL in the Montgomery County Juvenile Court. After the Pre-Service training CASA/GALs are required to complete 12 hours of In-Service training on an annual basis, as compared to 6 hours for Attorney/GALs.
CASA/GALs are coupled with a Volunteer Coordinator. The Coordinator is an excellent support to the volunteer. The Coordinator is available to discuss case specifics and help the CASA determine what might be in the child’s best interest. Also, the CASA will attend any home visits with the CASA until the CASA feels comfortable interviewing individuals. The CASA will submit his/her GAL report to the Coordinator so that it can be reviewed for form and content. The GAL Report is very important as it contains information about the visits the GAL had with different individuals and the GAL’s concerns and recommendations. Both types of GALs must submit such a Report to the court and parties to the case.
CASA/GALs are mandated to visit the child once every 30 days. Our CASA Program expects GAL reports to be submitted 10 days before the hearing so that they can be reviewed and filed 7 days before the hearing as per Rule 48.
CASA/GALs, unlike Attorney/GALs may not file legal documents with the Court. CASA staff attorney Sarita Simon will act as counsel for any of the CASA/GALs that wish to file a Motion with the Court.
Attorneys that volunteer as a CASA/GAL are eligible to receive one CLE for 6 hours of volunteer work.
We would happily welcome more attorneys as CASAs. Attorneys that go through the CASA/GAL training are eligible to work as both an Attorney/GAL and CASA/GAL. We also are very pleased to have non-Attorneys apply to become CASA/GALs.
For more information please contact Jane Novick at jnovick@mcjcohio. org or Sarita Simon at ssimon@mcjcohio.org. Our website is: casamc.com
Reflections from Attorneys that have volunteered for CASA...
• "I like the training because it was a “back to basics” experience. I think a lot of our GALs could benefit from more training like this.” “I’ve liked working with the CASA office on my case because I can get some feedback and feel like I have someone checking the quality of my work. It’s nice to be part of a team sometimes.” ~Elizabeth Wood
• "I feel the experience helped me understand my role as a GAL better and provided much needed education and support.” “The CASA training was so much more on-point than the [attorney] pre-service…included a lot of collaborative work with other CASAs. Discussing scenarios with lay people who have much different perspectives than me helped me see a bigger picture of the importance of GAL work.” ~ Misty Connors
• “CASAs are an integral part of a child welfare case because they provide an independent recommendation to the court about a child’s best interest. In so many cases the CASA is the one constant for a child. We are fortunate to have such a robust program in our county with staff and volunteers dedicated to serving the most vulnerable children in our community.” ~Magistrate Kathleen Lenski
From the Judges Desk Let’s All Pitch In! How to Become More Active in
Leading the DBA By The Honorable Mary Wiseman Montgomery Cty Common Pleas Court
Mary.Wiseman@montcourt.oh.gov
How are the leadership positions within the DBA selected? This question occasionally arises as our bar adds new members, when long time members seek to become more active and engaged, and with the yearly process of developing a slate of new DBA officers that gets voted upon at the annual meeting. Thankfully, the answer is simple. Those who want to serve should let the DBA know of their interest. The DBA’s annual nominating committee then considers those names, along with others suggested by the DBA’s officers and trustees. In those rare instances when no new names are submitted, the nominating committee brainstorms for the names of attorneys that would likely agree to serve, if asked, and have a good record of involvement with the DBA. Also, the incoming DBA president always gets to appoint two at-large trustee positions when vacant. The board’s four at-large trustees serve staggered two-year terms. The DBA’s officers serve one-year terms, but the Secretary and the Treasurer may serve two consecutive terms. The officers and at-large trustees are voted into office at the DBA’s annual meeting held every May or June.
The annual nominating committee consists of the four current at-large trustees and the two at-large trustees whose terms most recently expired. The DBA’s past president once removed (yours truly for 2021) serves as the nominating committee’s chairperson. If a member of the nominating committee desires to be considered for a leadership position, then that individual is removed from the nominating committee and replaced by a DBA member selected by the chairperson. These details are embodied in the DBA’s bylaws (aka the Amended and Restated Code of Regula-
tions of the Dayton Bar Association). For the 2021-2022 DBA year, this means that the nominating committee is currently composed of Ebony Davenport, Jamie Greer, Justine Larson, and Sean McCormick (the four current trustees at-large), Becky Gentry (trustee at-large whose term most recently expired) and a member to be named (since Anne Keeton, a past trustee at-large, has transitioned to an officer’s position), plus myself as chairperson.
DBA members also have the ability, via a petition signed by at least twenty-five current members, to nominate candidates for vacant positions. The deadline for that process is at noon on the fifteenth day of the month following the publication of the nominating committee’s recommendations that were approved and accepted by the DBA trustees. As a failsafe, in the event that the timing and notice provisions of the bylaws cannot be met, then the DBA trustees may delay the annual meeting or accept nominations from the floor. Election is by voice vote at the annual meeting, unless contested, in which case paper or electronic ballots would be used. In a contested election, a majority vote wins. Even the contingency of a second ballot to break a tie is provided for in the DBA’s bylaws. The key to this successful nomination and selection process is transparency and openness. There are no shadowy, smoke-filled back room deals infused with political intrigue. Instead, the process relies heavily on attorneys’ expressing an interest in a leadership role and members of the DBA nominating committee and board suggesting the names of fellow attorneys that would be willing to devote the time and energy necessary to serve well. The nominating committee makes its recommendations to the DBA board
with broad principles of equity, diversity, and inclusion in mind. A strong effort is made to have the DBA’s leadership reflect the bar’s valuable and vibrant diversity. In that vein, the committee seeks to equitably represent big, medium, small, and solo firms. It seeks attorneys that have litigation, corporate, transactional, government, and other diverse practice areas. The nominating committee also seeks to balance the DBA’s leadership to reflect diversity and inclusion for gender, race, years in practice, and other factors. In this dynamic process, some interested individuals might not receive a nod from the nominating committee due to the great number of lawyers interested. If that happens, then you just need to drop your name in the hat next year! In the meantime, opportunities abound for involvement through the DBA’s various sections, CLE offerings, and other DBA projects. Indeed, active involvement in the DBA’s various sections and other activities receives favorable weight when evaluating nominees for the DBA’s future leadership.
For the 2022-2023 DBA year, the nominating committee will be recommending to the DBA Board of Trustees nominees for Second Vice-President (a one-year term) and Treasurer (a two-year term composed of one-year increments). Notably, the Second Vice-President advances, under the bylaws, to First Vice-President and then becomes the DBA President. Thus, if you want to currently (or someday) be more active and involved in the DBA through a leadership position, then use the DBA’s website to let us know. Also, keep up your engagement and involvement, even if not nominated this year. Leadership opportunities arise annually through vacancies, natural expiration of terms, and revolving section leadership positions. Your talent, time, and support is always, always valued. Indeed, cultivating your practice, success, and enjoyable engagement with the DBA is the whole reason behind the DBA!
*Please visit daybar.org for the DBA Nominating Committee Form
Amendment to the Court’s Local Rules
Comments requested: The General Division of the Montgomery County Common Pleas Court will accept public comments on amendments to the court’s Local Rules of Practice and Procedure, specifically, the adoption of amendments to Mont. Co. C.P.R. 2.03 - Court Costs and Special Fees and the related Appendix G on an emergency basis, as well as the approval of proposed amendments to Mont. Co. C.P.R. 2.01 – Civil Case Management Plan.
The text of the amended and proposed rules and the procedure and time period for submitting comments can be found at: https://montcourt.oh.gov/
comments-requested-on-proposed-local-rule/.
