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The Daily Legal News is a daily publication devoted to legal, financial, real estate and general news. Designated by the Federal, County and Municipal Courts as the Official Law Journal of Mahoning County, Ohio.

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Democracy, rights and marriage equality

The campaign for marriage equality broke its impressive unbeaten streak recently in Robicheaux v. Caldwell in which District Court Judge Martin Feldman of the Eastern District of Louisiana ruled that Louisiana’s laws refusing to recognize the marriages of same-sex couples are constitutional. Shortly thereafter, Judge Richard ... (full story)


Document: Governor's office forced pharmacy firing

Document: Governor's office forced pharmacy firing

COLUMBUS (AP) — A top aide to Gov. John Kasich threatened to "decimate" the state pharmacy board and ruin the executive director's reputation if the board didn't fire the director, according to a board document released Tuesday.
A timeline created by former board Executive Director Kyle Parker of events leading t ... (full story)


Candidates in Ohio governor's race won't debate

Candidates in Ohio governor's race won't debate

COLUMBUS (AP) — In a turn of events unprecedented in recent years, Ohio's governor and his Democratic challenger won't face each other in debates ahead of Election Day.
Republican Gov. John Kasich's campaign said Tuesday that he is seeking other opportunities to discuss his plans for Ohio's future.
Kasich spokeswoman Co ... (full story)


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                            [headline] => Democracy, rights and marriage equality
                            [body] => The campaign for marriage equality broke its impressive unbeaten streak recently in Robicheaux v. Caldwell in which District Court Judge Martin Feldman of the Eastern District of Louisiana ruled that Louisiana’s laws refusing to recognize the marriages of same-sex couples are constitutional. Shortly thereafter, Judge Richard Posner penned a 7th Circuit opinion striking down the gay marriage bans in Wisconsin and Indiana in Baskin v. Bogan.
In a head-to-head between the two judges, Baskin wins easily. Not only is Posner a circuit court judge, he is easily the most influential conservative jurist who is neither on Supreme Court nor named Frank Easterbrook. He was appointed by President Reagan after teaching at the Federalist Society hotbed, University of Chicago Law School. His legal and conservative credentials are impeccable, although he has shown an independent streak of late which will undoubtedly keep him off the high court.
Judge Feldman is simply a federal trial judge. That is plenty impressive in most contexts, but here he pales.
For all the accolades being showered on Judge Posner’s opinion and for all the derision being aimed at Judge Feldman’s, the latter raises an argument about upholding the democratic process that the former dismisses without much analysis.
When Judge Posner confronts the democratic process argument as raised by Wisconsin and Indiana, he says little more than, “[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”
According to reports, in the oral arguments regarding the 6th Circuit marriage cases, Chief Judge Jeffry Sutton – who holds the apparent deciding vote – was particularly concerned about the democratic process. The process argument thus may have some substantial weight going forward and should be considered in greater detail.
First, it is worth noting that often when people raise this issue, they don’t mention rights. For example, Judge Feldman begins his opinion in Robicheaux by framing the question as “a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition.”
The essence of his opinion is that the state has a rational interest in defining marriage via the democratic process. In contrast, as he typifies it, the plaintiffs’ case argues that “if two people wish to enter into a bond of commitment and care and have that bond recognized by law as a marriage, they should be free to do so, and their choice should be recognized by law as a marriage; never mind the historic authority of the state or the democratic process.”
Conspicuously absent from this framing is the fact that marriage confers a set of legal rights and that the American legal tradition, since the passage of the Fourteenth Amendment, holds that the state cannot confer rights to one group and deny them to another without a reason that meets an appropriate standard of review.
While the democratic process is arguably the most appropriate way to define legal rights and institutions, it does not follow that the majority can decide who has access to those legal rights.
For example, the state can and should define public education through the democratic process. Decisions about curriculum, standards, buildings, vocational offerings, and more can and should be decided by the people through their elected representatives or through ballot initiatives. It does not follow that the people should have the power to exclude groups of students from those schools.
This touches a foundational argument about the nature of constitutionalism: is a constitution that protects the democratic process sufficient to protect rights or must it also include affirmative guarantees of rights?
These two visions of constitutionalism literally went to war in the 1860s. The Fourteenth Amendment exists because the side that won the Civil War saw that majority rule by itself is insufficient to guarantee the rights of minorities.
Today, it is exceedingly rare to find judges whose fealty to the democratic process is applied evenly across the board. Justice Scalia, for example, lauds the democratic process when the issue is marriage rights for same-sex couples, but he had no difficulty voting against the democratically elected Congress’s democratically adopted provisions of the Voting Rights Act and the Affordable Care Act. Too often the process argument appears to be little more than a make-weight for judges’ legal preferences.
People of goodwill can differ on whether the state has a sufficient basis for excluding gay people from the benefits of state-recognized marriage. But arguments that the democratic process is an appropriate or sufficient mechanism for making those decisions miss the point of having a constitution in the first place.
[teaser] => [byline] => SCOTT PIEPHO
Cases and Controversies [section] => Local [publication_date_aln] => 2014-09-19 [publication_date_pcln] => 2014-09-19 [publication_date_dln] => 2014-09-19 [purge_date] => 0000-00-00 [ap] => N [front_page] => Y [export_date] => 2014-09-19 [created_at] => 2014-09-19 07:30:30 ) [1] => Array ( [id] => 11185 [headline] => Document: Governor's office forced pharmacy firing [body] => COLUMBUS (AP) — A top aide to Gov. John Kasich threatened to "decimate" the state pharmacy board and ruin the executive director's reputation if the board didn't fire the director, according to a board document released Tuesday.
A timeline created by former board Executive Director Kyle Parker of events leading to his firing also says Kasich adviser Jai Chabria wanted Parker fired in April but board members negotiated a deal allowing him to step down by Sept. 1.
"Jai threatened to decimate the board, remove board members, turn our agency into an umbrella board and ruin my reputation if they did not fire me," Parker said in an April 8 entry in the timeline obtained by The Associated Press.
Parker declined to comment, as did board representatives. Kasich spokesman Rob Nichols, speaking for Chabria, said Parker wasn't doing enough to combat the state's prescription painkiller epidemic.
"Ohio is in all-out war with opiates and pill mills, and the executive director was sitting on his hands," Nichols said. "It was either indifference or tone deafness, or he was being an obstructionist, but either way, we wanted to move the board in a new direction."
The timeline, which was first reported Tuesday by the Dayton Daily News, said board members also chastised Parker for testifying about state budget proposals without their backing.
Parker had faced outside pressure from at least March, according to documents obtained by the AP.
On March 19, state Sen. Dave Burke sent Parker a letter reminding him that under a new law, managed care organizations now had access to a board database meant to track potential prescription abuse.
Nichols said Parker was incorrectly citing federal health privacy laws in an attempt to shield information required by the law.
On April 2, Parker testified before the House Finance Committee about potential changes to board policy, including a request that board investigative agents be reclassified as peace officers, giving them an ability to swear out search warrants and detain suspects.
Parker, a pharmacist, also noted that a proposal to eliminate a requirement that the executive director be a pharmacist did not come from the board.
His testimony apparently didn't sit well with the board, according to the timeline. "First day of board meeting. No eye contact from any board members. Very uncomfortable," Parker noted in the timeline's April 7 entry.
The next day, the board sent an apology letter to House Finance Chair Ron Amstutz saying Parker had been "encouraged" not to testify until the issues had been discussed at the board's April 7 meeting.
There's no need for a pharmacist to be executive director, given how many pharmacists already sit on the board, Nichols said. He said Parker's description of events in the timeline should be taken with a grain of salt.
"Don't assume that everything in the timeline is accurate and not overly dramatized," Nichols said.
[teaser] => [byline] => ANDREW WELSH-HUGGINS
Associated Press [section] => State [publication_date_aln] => 2014-09-19 [publication_date_pcln] => 2014-09-19 [publication_date_dln] => 2014-09-19 [purge_date] => 2014-10-19 [ap] => Y [front_page] => Y [export_date] => 2014-09-19 [created_at] => 2014-09-19 07:30:30 ) [2] => Array ( [id] => 11182 [headline] => Candidates in Ohio governor's race won't debate [body] => COLUMBUS (AP) — In a turn of events unprecedented in recent years, Ohio's governor and his Democratic challenger won't face each other in debates ahead of Election Day.
Republican Gov. John Kasich's campaign said Tuesday that he is seeking other opportunities to discuss his plans for Ohio's future.
Kasich spokeswoman Connie Wehrkamp said Democrat Ed FitzGerald's campaign is troubled and Ohio Democrats have shifted resources.
"Despite good faith efforts on our side, the implosion of his campaign two months ago put a pause on debate negotiations, and then the recent abandonment by his party and give-away of his campaign cash seems to now have finished off any serious effort by their campaign altogether," Wehrkamp said in a statement.
Her comments came in response to a FitzGerald campaign statement Tuesday claiming that Kasich's campaign refused to debate.
FitzGerald, a Cuyahoga County executive, could have used the statewide attention generally drawn by a televised debate. The little-known candidate has trailed Kasich in the polls and lags significantly behind in fundraising. He announced toward the end of August that he planned to divert a significant amount of his campaign cash to Democrats' coordinated get-out-the-vote efforts.
His campaign also has suffered a series of blows, including the departure of two top staffers and revelations that FitzGerald lacked a permanent driver's license for more than a decade. The issue was brought to light by 2012 police records that showed him in a parking lot at 4:30 a.m. with a woman who isn't his wife. He has apologized for letting his license lapse and said nothing inappropriate happened in his meeting with the woman.
Ohio Democratic Party chairman Chris Redfern defended FitzGerald on Tuesday. "The accusation that the Ohio Democratic Party has abandoned any of our candidates is simply untrue," he said in a statement.
FitzGerald spokeswoman Lauren Hitt said the campaign told the opposing camp that the Democrat would agree to the debate format, time and date of the governor's choosing. She also said in a statement that Kasich's campaign was notified that if it did not come forward with a decision by Sunday, "we would have to assume they were refusing to debate all together."
"He's not accepting the challenge because his handlers know that when the Governor is forced to speak on his feet he reveals his disdain for working Ohioans and he is unable to defend his record of helping his wealthy friends at the expense of Ohio's middle class," Hitt said in a separate statement.
Wehrkamp confirmed that Kasich had been preparing over the last two months for debates with his challenger and as recently as Friday. Details of Kasich's debate prep were first reported by WBNS-TV in Columbus.
Jo Ann Davidson, Kasich's point person on debate negotiations, said in an interview with The Associated Press that the governor's campaign proposed two dates — Sept. 30 and Oct. 13 — and two locations — Columbus and Cincinnati.
She said the FitzGerald campaign had a problem with it. Other invitations and cities were then discussed as recently as late August or early September.
"We had not withdrawn that offer," Davidson said. "It had been a solid offer when we put it out there, and they had not accepted it. So then we moved on to consider some of the other additional offers that had come in since that time."
Hitt disputed the comments. "That's not what happened," she said in an interview.
Hitt said the times and locations were suggested nearly two months ago, but the offer was quickly withdrawn before the campaign had a chance to return with an answer and continue talks.
"If they hadn't withdrawn, this would have been solved," she said.
[teaser] => [byline] => ANN SANNER
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