Effective January of this year, the mortgage foreclosure provisions of the Illinois Code of Civil Procedure are amended to change certain rules regarding notices, payoff statements, attorney fees. The amendment also added a provision to The Illinois Fairness in Lending Act prohibiting discrimination in connection with making a loan and a provision to the Illinois Human Rights Act that increased civil penalties that could be sought by the Attorney General for certain civil rights violations. Those provisions became effective in September 2008.
Under the new provisions, mortgagees are required to residential mortgagors with a statutory notice of their rights along with the summons in a foreclosure action. The notice must be in at least 12-point font and be in both English and Spanish. The law provides a suggested form for the notice and the Attorney General’s office will provide a Spanish translation on its website.
The notice of rights should include ten information points that are set forth in the sample form. These include legal information about ownership and possession rights during foreclosure, the owners rights to reinstate the loan within 90 days after receipt of the summons or redeem the property during the redemption period, the owners right to receive any surplus funds resulting from the foreclosure sale, if any, and information on how to arrange for a work out. The notice also includes warnings that caution the owner about mortgage rescuers who might contact him and recommend the owner seek professional advice, including advice from a certified housing counselor and an attorney.
The amendment adds a new section to the mortgage foreclosure provisions requiring the mortgage to provide the mortgagor with a written statement of the total outstanding balance that would be required to fully satisfy the obligation. The statement should also include enough information to allow the mortgagor to calculate the per diem of interest for 30 days from the date of the letter or until the judicial sale and a list of any other charges the mortgagee expects to incur during that period. The latter could include any real property tax payments or insurance premiums the mortgagee expects to pay and charge back to the mortgagor. The statement should be provided no later than 10 business days from the mortgagee’s receipt of the mortgagor’s written demand. If the mortgage fails to furnish the statement to the mortgagee, it will be responsible for the mortgagor’s actual damages or $500 if no actual damage is incurred. If the mortgagor has already given a notice of intent to redeem, the mortgagee responding to that need not furnish the payoff statement.
Another change allows the court to award reasonable attorneys fees to a mortgagor who wins a motion, affirmative defense or counterclaim, or in the entire foreclosure action. Neither redemption nor reinstatement is considered a win under this provision.
The Illinois Human Rights Act already allowed the Illinois Attorney General to seek civil penalties for violations. Under the new amendments, the Attorney General may seek greater damages for civil rights violations relating to real estate and other financial transactions.
Tuesday, March 31, 2009
Extension of Dependent Health Insurance Coverage – Public Act 095-0958
Typically, group health insurance plans and HMOs cover dependent children until they reach age 18 or 19 years of age. Such plans often grant extensions to cover dependent children up to 21 or 22 years of age if they are full-time students. These rules left about 300,000 Illinoisans between the ages of 19-25 uninsured. However, the state of Illinois recently amended The Illinois Insurance Code and The Health Maintenance Organization Act to give parents the right to keep dependent accident and health insurance for their unmarried children until they reach age 26 on the same terms and at the same cost. The required extension of dependent coverage is not conditioned on college enrollment. Laws relating to medical coverage for state, county and municipal employees were similarly amended.
The age for dependent care eligibility is extended from 26 to 30 for military veterans. A veteran of the active or reserve components of any branch of the U.S. Armed forces who is 30 years of age or younger, may receive continued dependent coverage if he or she is an Illinois Resident and has received a release or discharge other than a dishonorable discharge. The Illinois Department of Veterans’ Affairs is required to approve a form evidencing the dependent’s service and date of discharge to be presented by eligible dependents to their insurers.
The changes affect new group and individual policies of accident and health insurance, and managed care plans or those that are renewed or amended after June 1, 2009. Upon amendment, delivery, issuance, or renewal of a policy after June 1, 2009, the insurer is required to establish an initial enrollment period. The initial enrollment period must last no less than 90 days. During the initial enrollment period an insured parent may make a written election for coverage of an unmarried dependent covered by the new law. After the initial enrollment period, enrollment of a dependent will be allowed under terms established by terms of the plan or policy.
Dependent coverage may be elected during the annual open enrollment date or the annual renewal date of a policy or plan if the dependent had at least 90 days of prior continuous creditable coverage and has not been without creditable coverage for more than 63 days. Creditable coverage is defined under the Illinois Health Insurance Portability and Accountability Act and includes group and individual health plans, Medicare and Medicaid, military medical benefits, State health benefits risk pools, medical care programs of the Indian Health Service or of a tribal organization, and plans for government employees.
The new law requires insurers to provide customers notice of these changes upon application or enrollment, on coverage certification documents and in a semi-annual notice to policyholders.
The original version of the amendments provided only for a 12-month extension of coverage for dependent college students taking a medical leave of absence or reducing their course load to part-time status because of a catastrophic illness or injury. Governor Blagojevich, in one of his last acts as Governor of Illinois, used his amendatory veto to add the other coverage extensions and both houses accepted his changes.
The age for dependent care eligibility is extended from 26 to 30 for military veterans. A veteran of the active or reserve components of any branch of the U.S. Armed forces who is 30 years of age or younger, may receive continued dependent coverage if he or she is an Illinois Resident and has received a release or discharge other than a dishonorable discharge. The Illinois Department of Veterans’ Affairs is required to approve a form evidencing the dependent’s service and date of discharge to be presented by eligible dependents to their insurers.
The changes affect new group and individual policies of accident and health insurance, and managed care plans or those that are renewed or amended after June 1, 2009. Upon amendment, delivery, issuance, or renewal of a policy after June 1, 2009, the insurer is required to establish an initial enrollment period. The initial enrollment period must last no less than 90 days. During the initial enrollment period an insured parent may make a written election for coverage of an unmarried dependent covered by the new law. After the initial enrollment period, enrollment of a dependent will be allowed under terms established by terms of the plan or policy.
Dependent coverage may be elected during the annual open enrollment date or the annual renewal date of a policy or plan if the dependent had at least 90 days of prior continuous creditable coverage and has not been without creditable coverage for more than 63 days. Creditable coverage is defined under the Illinois Health Insurance Portability and Accountability Act and includes group and individual health plans, Medicare and Medicaid, military medical benefits, State health benefits risk pools, medical care programs of the Indian Health Service or of a tribal organization, and plans for government employees.
The new law requires insurers to provide customers notice of these changes upon application or enrollment, on coverage certification documents and in a semi-annual notice to policyholders.
The original version of the amendments provided only for a 12-month extension of coverage for dependent college students taking a medical leave of absence or reducing their course load to part-time status because of a catastrophic illness or injury. Governor Blagojevich, in one of his last acts as Governor of Illinois, used his amendatory veto to add the other coverage extensions and both houses accepted his changes.
FOSTER PARENTS INFORMATION RIGHTS -- 89 Ill. Adm Code 340; 32 Ill Reg 8063) IMPLEMENTING Public Act 94-1010.
Recently, the Department of Children and Family Services amended the Foster Parent Code to expand foster and adoptive parents’ rights. The changes reflect amendments to The Children and Family Services Act made by the Illinois legislature in 2004 that became effective in 2006.
The amendments change information sharing requirements of the agency and more specifically describe the format in which the information may be presented. Before the changes, DCFS was required to provide information about a child to the foster parents, group home, institution, or relatives that would be taking care of the child. Now, DCFS is required to provide that information to prospective adoptive parents. Prior to the changes, DCFS was required to provide the caretaker with information about the child including the child’s previous placements, reasons for placement changes, visitation arrangements, health and education history, including immunization records and insurance information. DCFS was also required to inform the caretaker of any background of destructive or criminal behavior or substance abuse. However, the law did not say how the information should be delivered. Now, the law suggests DCFS prepare a written summary for the caretaker. The summary must be reviewed and approved by a supervisor before it is given to the caretaker.
While the written summary is suggested under the law, it is mandatory under DCFS’ amended rules. The rules also require the summary is to be given to the caretaker on placement or prior to placement, if possible. In an emergency, DCFS is directed to advise the caretaker verbally as information becomes available and follow up with the written summary.
Within 10 working days after the placement of a child, DCFS is required to obtain a signed verification that the foster parent or prospective adoptive parents received the information summary. DCFS is also required to forward the summary to the child’s guardian ad litem.
The Foster Parent Code also contains a list of foster parents’ responsibilities. The new rules add to that list. Now, foster parents have a duty to understand and actively participate in all relevant administrative and court processes. They are further charged with knowing and abiding by all deadlines and document filing requirements.
Under The Foster Parent Code, each Department region and each purchase of service agency with a foster home contract is required to create an annual plan for implementing all of the rights and responsibilities of foster parents listed in the regulations. The plan must also create a grievance procedure for addressing foster parent complaints of violations by the Department region or purchase of service agency. Plans are evaluated and scored based on adherence to the rating components listed on Appendix B of the Foster Parent Code. The new rules add a rating component to Appendix B to account for compliance with the new information sharing rules. Component 7.5 adds an additional scoring criteria worth up to 4 points rating how well a plan provides for the training of staff in the new information sharing policies and procedures and how well the plan holds caseworkers accountable for the newly required sharing of information.
The amendments change information sharing requirements of the agency and more specifically describe the format in which the information may be presented. Before the changes, DCFS was required to provide information about a child to the foster parents, group home, institution, or relatives that would be taking care of the child. Now, DCFS is required to provide that information to prospective adoptive parents. Prior to the changes, DCFS was required to provide the caretaker with information about the child including the child’s previous placements, reasons for placement changes, visitation arrangements, health and education history, including immunization records and insurance information. DCFS was also required to inform the caretaker of any background of destructive or criminal behavior or substance abuse. However, the law did not say how the information should be delivered. Now, the law suggests DCFS prepare a written summary for the caretaker. The summary must be reviewed and approved by a supervisor before it is given to the caretaker.
While the written summary is suggested under the law, it is mandatory under DCFS’ amended rules. The rules also require the summary is to be given to the caretaker on placement or prior to placement, if possible. In an emergency, DCFS is directed to advise the caretaker verbally as information becomes available and follow up with the written summary.
Within 10 working days after the placement of a child, DCFS is required to obtain a signed verification that the foster parent or prospective adoptive parents received the information summary. DCFS is also required to forward the summary to the child’s guardian ad litem.
The Foster Parent Code also contains a list of foster parents’ responsibilities. The new rules add to that list. Now, foster parents have a duty to understand and actively participate in all relevant administrative and court processes. They are further charged with knowing and abiding by all deadlines and document filing requirements.
Under The Foster Parent Code, each Department region and each purchase of service agency with a foster home contract is required to create an annual plan for implementing all of the rights and responsibilities of foster parents listed in the regulations. The plan must also create a grievance procedure for addressing foster parent complaints of violations by the Department region or purchase of service agency. Plans are evaluated and scored based on adherence to the rating components listed on Appendix B of the Foster Parent Code. The new rules add a rating component to Appendix B to account for compliance with the new information sharing rules. Component 7.5 adds an additional scoring criteria worth up to 4 points rating how well a plan provides for the training of staff in the new information sharing policies and procedures and how well the plan holds caseworkers accountable for the newly required sharing of information.
Recent Changes to the Juvenile Court Act of 1987—SB2275—Amends 705 ILCS 405/5-105 et. Seq.
Recently, the Illinois State Senate passed amendments to the Juvenile Court Act raising the age under which a minor will be treated as a juvenile from 17 to 18. The bill, SB 2275, was first introduced by State Senator John Cullerton and provides that any minor who has not yet reached his or her 18th birthday will subject to the exclusive jurisdiction of the juvenile court system for any violation solely classified as a misdemeanor offense.
The age limit for offenses not solely classified as misdemeanors remains 16. However, any 17 year old charged with multiple offenses, some classified as misdemeanors and others not, will be prosecuted under the general criminal laws of the State. If after trial or plea the court finds that the minor has committed an offense that is solely classified as a misdemeanor, the court is required to sentence the minor under The Juvenile Court Act.
The bill also creates a Juvenile Jurisdiction Task Force. The Task Force will study, budget and implement this expansion juvenile courts’ jurisdiction and made its report by January 1, 2010 when the changes become effective.
In the bill, the General Assembly noted that 37 other states, the federal courts and the courts of most of the rest of the world use 18 as the age of juvenile court jurisdiction. The legislature also recognized studies showing the lower age disproportionately impacts minority youth, and studies indicating that those parts of the brain controlling reasoning and impulse behavior are not fully developed until one’s early twenties.
In 1889, Cook County, Illinois created the world’s first juvenile justice system focusing on rehabilitation rather than punishment. That focus changed during the 1980s and 1990s, as Illinois followed the national trend toward treating teenagers as adults in its criminal courts. However, due to statistics indicating that juvenile crime was trending downward while recidivism was trending upward, and public opinion polls favoring rehabilitation programs, this trend has been reversing both nationwide and in Illinois.
In 2004, the Illinois Department of Human Services developed a pilot program called Redeploy Illinois, to decrease both the total number of jailed minors and recidivism. Redeploy Illinois provides financial incentives to programs addressing the underlying causes of non-violent delinquent behavior such as mental illness, substance abuse, learning disabilities, unstable living arrangements and dysfunctional parenting.
DHS recently reported that in its first two years, Redeploy Illinois pilot sites have, on average, reduced incarcerations by 44% and the Illinois Department of Juvenile Justice reports a savings of $3.55 million in costs to incarcerate juveniles for every $1 million spent by the four Redeploy Illinois Pilot sites .
In 2006, the Department of Juvenile Justice was created as a separate department to specifically focus on the rehabilitation of juvenile offenders including treatment and services including education, vocational, social, emotional, and basic life skills training. Eight juvenile facilities and the Department of Juvenile Justice School District were moved into the new department which also provides transitional and post-release treatment programs for juveniles, including counseling, mental health, and substance abuse services.
The age limit for offenses not solely classified as misdemeanors remains 16. However, any 17 year old charged with multiple offenses, some classified as misdemeanors and others not, will be prosecuted under the general criminal laws of the State. If after trial or plea the court finds that the minor has committed an offense that is solely classified as a misdemeanor, the court is required to sentence the minor under The Juvenile Court Act.
The bill also creates a Juvenile Jurisdiction Task Force. The Task Force will study, budget and implement this expansion juvenile courts’ jurisdiction and made its report by January 1, 2010 when the changes become effective.
In the bill, the General Assembly noted that 37 other states, the federal courts and the courts of most of the rest of the world use 18 as the age of juvenile court jurisdiction. The legislature also recognized studies showing the lower age disproportionately impacts minority youth, and studies indicating that those parts of the brain controlling reasoning and impulse behavior are not fully developed until one’s early twenties.
In 1889, Cook County, Illinois created the world’s first juvenile justice system focusing on rehabilitation rather than punishment. That focus changed during the 1980s and 1990s, as Illinois followed the national trend toward treating teenagers as adults in its criminal courts. However, due to statistics indicating that juvenile crime was trending downward while recidivism was trending upward, and public opinion polls favoring rehabilitation programs, this trend has been reversing both nationwide and in Illinois.
In 2004, the Illinois Department of Human Services developed a pilot program called Redeploy Illinois, to decrease both the total number of jailed minors and recidivism. Redeploy Illinois provides financial incentives to programs addressing the underlying causes of non-violent delinquent behavior such as mental illness, substance abuse, learning disabilities, unstable living arrangements and dysfunctional parenting.
DHS recently reported that in its first two years, Redeploy Illinois pilot sites have, on average, reduced incarcerations by 44% and the Illinois Department of Juvenile Justice reports a savings of $3.55 million in costs to incarcerate juveniles for every $1 million spent by the four Redeploy Illinois Pilot sites .
In 2006, the Department of Juvenile Justice was created as a separate department to specifically focus on the rehabilitation of juvenile offenders including treatment and services including education, vocational, social, emotional, and basic life skills training. Eight juvenile facilities and the Department of Juvenile Justice School District were moved into the new department which also provides transitional and post-release treatment programs for juveniles, including counseling, mental health, and substance abuse services.
U.S. COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS -- Autism Proceedings
Since its inception in 1986, 5,535 autism cases have been filed with the U.S. Court of Claims under the Vaccine Injury Compensation Program. Last month, the U.S. Court of Claims ruled against the parents of three autistic children claiming a right to compensation under the Program. The Program was created under the National Childhood Vaccine Injury Act of 1986 as a no-fault system to compensate victims harmed by the side effects of certain government-recommended vaccines. It is administered by the Health Resources and Services Administration of the Department of Health and Human Services. Claims are paid out of a trust fund financed through an excise tax on vaccine doses.
Several known side effects of vaccines are listed on a Vaccine Injury Table created by the HRSA. If table listed, an injury occurring within a specified period after a vaccination is presumed to have been caused by the vaccine. Claimants with timely table listed injuries are automatically covered under the Program if their injury lasted for greater than six months or resulted in a hospital stay, surgery or death. When a victim claims an injury that is not table listed, he or she must prove by a preponderance of the evidence that the vaccine caused the injury.
Since autism is not table listed, the petitioners in the recent cases had the burden of proving by a preponderance of the evidence that vaccines were the cause-in-fact of the autism. In the recent cases, the Special Masters of the Claims Court relied upon the standard of proof created in a 2005 federal circuit court case, Althen v. Secretary of HHS and found that the petitioners did not meet their burden. The Althen standard allows a petitioner to meet the burden of proof through medical theory, a logical sequence of cause and effect and a showing of a proximate temporal relationship between vaccination and injury.
The Special Masters found the Petitioners’ evidence failed all three prongs of the Althen standard. Petitioners argued that mercury in thimerosal-containing vaccines led to immune dysfunction allowing the measles virus in the MMR to persist in the victims’ brains causing autism. However, the Special Masters found the medical study and expert testimony supporting their medical theory unreliable. First, the medical study had not been replicated. Also, the laboratory that completed the study failed to publish any sequencing data to confirm the validity of its testing. The Petitioners’ expert testimony and published articles were deemed less credible than countering evidence given by governments’ experts. The Special Masters preferred the credentials of the governments’ experts and felt the published articles on the Petitioners’ theory relied on the laboratory study they already rejected. The Special Masters also found no logical sequence of cause and effect because the Petitioners’ experts testified that the persistence of the measles virus caused the autism, while also claiming that the symptoms of autism showed within 7 days of the MMR vaccine. Finally, the Petitioners’ experts were unable to specify a post- vaccination time frame for the first symptoms of autism that could be deemed consistent with causation.
Several known side effects of vaccines are listed on a Vaccine Injury Table created by the HRSA. If table listed, an injury occurring within a specified period after a vaccination is presumed to have been caused by the vaccine. Claimants with timely table listed injuries are automatically covered under the Program if their injury lasted for greater than six months or resulted in a hospital stay, surgery or death. When a victim claims an injury that is not table listed, he or she must prove by a preponderance of the evidence that the vaccine caused the injury.
Since autism is not table listed, the petitioners in the recent cases had the burden of proving by a preponderance of the evidence that vaccines were the cause-in-fact of the autism. In the recent cases, the Special Masters of the Claims Court relied upon the standard of proof created in a 2005 federal circuit court case, Althen v. Secretary of HHS and found that the petitioners did not meet their burden. The Althen standard allows a petitioner to meet the burden of proof through medical theory, a logical sequence of cause and effect and a showing of a proximate temporal relationship between vaccination and injury.
The Special Masters found the Petitioners’ evidence failed all three prongs of the Althen standard. Petitioners argued that mercury in thimerosal-containing vaccines led to immune dysfunction allowing the measles virus in the MMR to persist in the victims’ brains causing autism. However, the Special Masters found the medical study and expert testimony supporting their medical theory unreliable. First, the medical study had not been replicated. Also, the laboratory that completed the study failed to publish any sequencing data to confirm the validity of its testing. The Petitioners’ expert testimony and published articles were deemed less credible than countering evidence given by governments’ experts. The Special Masters preferred the credentials of the governments’ experts and felt the published articles on the Petitioners’ theory relied on the laboratory study they already rejected. The Special Masters also found no logical sequence of cause and effect because the Petitioners’ experts testified that the persistence of the measles virus caused the autism, while also claiming that the symptoms of autism showed within 7 days of the MMR vaccine. Finally, the Petitioners’ experts were unable to specify a post- vaccination time frame for the first symptoms of autism that could be deemed consistent with causation.
Mandatory Country of Origin Labeling -- 7 CFR Parts 60 and 65
Recently, the Agricultural Marketing Act of 1946 was amended to require retailers to notify customers of the country of origin of covered commodities. The Agricultural Marketing Service of the USDA issued its final rule implementing the changes. The new rules go into effect on March 16, 2009.
The final rules consist of the key definitions, consumer notification and product marking requirements, and retailer and supplier recordkeeping duties. Covered commodities include muscle cuts of beef and veal, lamb, chicken, goat, and pork; ground beef, ground lamb, ground chicken, ground goat, and ground pork; wild and farm-raised fish and shellfish; perishable agricultural commodities; macadamia nuts; pecans; ginseng; and peanuts.
The final rules require covered commodities to bear labels stating the country of origin and method of production information. Required method of production information includes whether the product is wild or farm raised. Generally, the country of origin is the country of manufacture, production, or growth of any article of foreign origin entering the United States. The standards for whether a product may receive a U.S. country of origin label depend on the product. For example, farm-raised fish and shellfish must be hatched, raised, harvested, and processed in the United States. Wild fish and shellfish must be harvested in the waters of the United States or by a U.S. flagged vessel and processed in the United States or aboard a U.S. flagged vessel. Beef, pork, lamb, chicken, and goat must be derived from animals exclusively born, raised, and slaughtered in the United States, and if born and raised in Alaska or Hawaii, transported through Canada for a period of no more than 60 days and once present in the United States, remained continuously in the United States. Perishable agricultural commodities such as peanuts, ginseng, pecans, and macadamia nuts must be harvested in the United States.
Designations required under the new rules can be made in placards, signs, labels, stickers, bands, twist ties, pin tags, or other formats and may be typed, printed, or handwritten consistent with other federal labeling laws. Signs must be placed in a conspicuous location, so they are likely to be read and understood under normal conditions. Bulk containers are permitted, but must list all possible countries of origin and production methods.
Retailers covered by the rules are those engaged in the business of selling any perishable agricultural commodity at retail. Products sold in restaurants, delicatessens, bars, cafeterias, lunchrooms, and salad bars are exempt from the labeling requirements and ingredients in a processed food items are excluded from the rules.
Retailers are required to retain records in either electronic or hard copy format. Suppliers are required to provide country of origin and method of production information to retailers and must keep substantiating evidence for a period of 1 year from the transaction. Generally, retailers will use the information given to them by their suppliers and will not be liable if that information is incorrect, but the retailer is responsible for initiating a new label if it commingled the product with products of different origin or method of production. Records may be kept in any location, but must be provided to the USDA within 5 business days of its request.
The final rules consist of the key definitions, consumer notification and product marking requirements, and retailer and supplier recordkeeping duties. Covered commodities include muscle cuts of beef and veal, lamb, chicken, goat, and pork; ground beef, ground lamb, ground chicken, ground goat, and ground pork; wild and farm-raised fish and shellfish; perishable agricultural commodities; macadamia nuts; pecans; ginseng; and peanuts.
The final rules require covered commodities to bear labels stating the country of origin and method of production information. Required method of production information includes whether the product is wild or farm raised. Generally, the country of origin is the country of manufacture, production, or growth of any article of foreign origin entering the United States. The standards for whether a product may receive a U.S. country of origin label depend on the product. For example, farm-raised fish and shellfish must be hatched, raised, harvested, and processed in the United States. Wild fish and shellfish must be harvested in the waters of the United States or by a U.S. flagged vessel and processed in the United States or aboard a U.S. flagged vessel. Beef, pork, lamb, chicken, and goat must be derived from animals exclusively born, raised, and slaughtered in the United States, and if born and raised in Alaska or Hawaii, transported through Canada for a period of no more than 60 days and once present in the United States, remained continuously in the United States. Perishable agricultural commodities such as peanuts, ginseng, pecans, and macadamia nuts must be harvested in the United States.
Designations required under the new rules can be made in placards, signs, labels, stickers, bands, twist ties, pin tags, or other formats and may be typed, printed, or handwritten consistent with other federal labeling laws. Signs must be placed in a conspicuous location, so they are likely to be read and understood under normal conditions. Bulk containers are permitted, but must list all possible countries of origin and production methods.
Retailers covered by the rules are those engaged in the business of selling any perishable agricultural commodity at retail. Products sold in restaurants, delicatessens, bars, cafeterias, lunchrooms, and salad bars are exempt from the labeling requirements and ingredients in a processed food items are excluded from the rules.
Retailers are required to retain records in either electronic or hard copy format. Suppliers are required to provide country of origin and method of production information to retailers and must keep substantiating evidence for a period of 1 year from the transaction. Generally, retailers will use the information given to them by their suppliers and will not be liable if that information is incorrect, but the retailer is responsible for initiating a new label if it commingled the product with products of different origin or method of production. Records may be kept in any location, but must be provided to the USDA within 5 business days of its request.
OHIO VALLEY ENVIRONMENTAL COALITION et. al. v. ARACOMA COAL COMPANY et. al.
Last month, a three-judge panel of the Fourth U.S. Circuit Court of Appeals overturned a lower court ruling restricting mountaintop removal coal mining. The Ohio Valley Environmental Coalition, the Coal River Mountain (together referred to in the case as OVEC) sued the Army Corps of Engineers over its issuance of valley fill permits. The permits allowed four separate mining operations to deposit waste into West Virginia streams. The District Court for the Southern District of West Virginia rescinded the permits for violating the Clean Water Act and enjoined all activity under the permits.
In a separate order, the District Court ruled that the Corps lacked authority to issue valley fill permits because the stream segments linking the permitted fills to treatment ponds were waters of the United States. The Fourth Circuit reversed and vacated the order rescinding the permits and the injunction.
Mountain top removal coal mining began in Appalachia in the 1970s as a cheaper, less labor intensive and higher yielding version of conventional strip-mining. The practice has several steps. First the mountaintop forests are clear-cut and the topsoil is removed. Then, explosives are used to blast away from 800 to 1000 feet of mountaintop. Waste dirt and rock called “spoil” is hauled and dumped into nearby valleys. Then, a machine called a dragline digs into the rock and exposes the coal and other machines are used to scoop out the coal.
At issue was the dumping of the spoil into nearby valleys. OVEC claimed the Corps failed to properly study the impact of buried streams and the stream segments and sediment ponds that were used to stabilize the valley fill. Specifically, in its complaint, OVEC claimed that the Corps failed to prepare the Environmental Impact Statements required under the National Environmental Policy Act or NEPA before issuing the permits. OVEC also claimed that the Corps failed to determine the adverse individual and cumulative impacts to the affected aquatic ecosystems in accordance with the Clean Water Act. The Corps claimed that it had the authority to determine the scope of NEPA, and further, that it could treat affected streams and sediment ponds as part of a unitary waste treatment system excepted from separate Clean Water Act permitting requirements.
The Fourth Circuit panel agreed with the Corps. First, the panel ruled that since the Corps was interpreting its own rules, its interpretation had to be given deference unless it was arbitrary or capricious. Then, it agreed with the Corps that the stream segments and sediment ponds were not waters of the United States, but unitary waste treatment systems over which it had authority.
The panel agreed with the Corps’ interpretation of the scope of its NEPA requirements pointing out that NEPA requires federal agencies prepare an Environmental Impact Statement for major federal actions. It did not believe that the waste treatment system alone could turn the entire mining project, otherwise regulated by state law, into a federal project. As for its Clean Water Act duties, the panel ruled that the Corps’ jurisdiction under the clean water act was limited so it did not have responsibility for the environmental consequences of the larger project and therefore was not required to make the impact determinations sought by OVEC.
In a separate order, the District Court ruled that the Corps lacked authority to issue valley fill permits because the stream segments linking the permitted fills to treatment ponds were waters of the United States. The Fourth Circuit reversed and vacated the order rescinding the permits and the injunction.
Mountain top removal coal mining began in Appalachia in the 1970s as a cheaper, less labor intensive and higher yielding version of conventional strip-mining. The practice has several steps. First the mountaintop forests are clear-cut and the topsoil is removed. Then, explosives are used to blast away from 800 to 1000 feet of mountaintop. Waste dirt and rock called “spoil” is hauled and dumped into nearby valleys. Then, a machine called a dragline digs into the rock and exposes the coal and other machines are used to scoop out the coal.
At issue was the dumping of the spoil into nearby valleys. OVEC claimed the Corps failed to properly study the impact of buried streams and the stream segments and sediment ponds that were used to stabilize the valley fill. Specifically, in its complaint, OVEC claimed that the Corps failed to prepare the Environmental Impact Statements required under the National Environmental Policy Act or NEPA before issuing the permits. OVEC also claimed that the Corps failed to determine the adverse individual and cumulative impacts to the affected aquatic ecosystems in accordance with the Clean Water Act. The Corps claimed that it had the authority to determine the scope of NEPA, and further, that it could treat affected streams and sediment ponds as part of a unitary waste treatment system excepted from separate Clean Water Act permitting requirements.
The Fourth Circuit panel agreed with the Corps. First, the panel ruled that since the Corps was interpreting its own rules, its interpretation had to be given deference unless it was arbitrary or capricious. Then, it agreed with the Corps that the stream segments and sediment ponds were not waters of the United States, but unitary waste treatment systems over which it had authority.
The panel agreed with the Corps’ interpretation of the scope of its NEPA requirements pointing out that NEPA requires federal agencies prepare an Environmental Impact Statement for major federal actions. It did not believe that the waste treatment system alone could turn the entire mining project, otherwise regulated by state law, into a federal project. As for its Clean Water Act duties, the panel ruled that the Corps’ jurisdiction under the clean water act was limited so it did not have responsibility for the environmental consequences of the larger project and therefore was not required to make the impact determinations sought by OVEC.
OREGON v. ICE
The U.S. Supreme Court recently ruled that the Sixth Amendment right to a jury trial does not prohibit judges from imposing consecutive, rather than concurrent, sentences based on facts not found by a jury. The ruling in Oregon v. Ice upheld an Oregon law allowing judges to impose consecutive sentences based on their own findings despite its rulings in two earlier cases requiring a jury find the facts leading to a higher sentence.
In 2000, the Court overruled a New Jersey appellate decision upholding an enhanced sentence based on the trial judge’s finding that the defendant’s crime was motivated by race. In Apprendi v. New Jersey, the Court ruled that the Sixth Amendment requires any finding of fact increasing the penalty for a crime beyond the prescribed statutory maximum to be submitted to a jury, and proven beyond a reasonable doubt. The Court excepted findings of prior convictions. In 2004, the Court applied its decision in Apprendi to another case, Blakely v. Washington. In Blakely, the Court ruled that a trial judge could not increase a sentence based on his finding that the defendant acted with “deliberate cruelty”.
In Oregon v. Ice, the defendant, Thomas Eugene Ice, had twice broken into the home an 11 year-old girl. During each visit, the defendant touched her breast and vagina. The defendant was charged with 6 separate offenses, one burglary and two counts of sexual abuse from each incident. The judge imposed three consecutive sentences based on his own factual finding consistent with the requirements of the Oregon statute. The Oregon Appellate court affirmed the sentence, but the Oregon Supreme Court found that the Apprendi decision required the jury make the findings that were made by the judge at trial. The U.S. Supreme Court overruled that decision.
Writing the majority opinion, Justice Ginsburg determined that the Court’s prior rulings in Apprendi and Blakely were not dispositive. Neither case involved a judge’s determination to impose consecutive rather than concurrent sentences, and both were limited to their own offense-specific context. The Ice case involved a statute granting certain limited discretion to trial judges in imposing impose consecutive sentences. Consecutive sentences could be imposed if the trial court made certain specific findings of fact.
Free of its prior rulings, the Court reviewed the history of state consecutive versus concurrent sentencing laws. It found that states traditionally gives judges wide discretion to run sentences consecutively or require judges to make certain factual findings directing their discretion. The Oregon statute represented the latter tradition. Since the jury had already convicted the defendant of multiple offenses, the judge’s findings did not encroach on the jury’s traditional role, so the Court upheld the trial judge’s sentence.
The ruling appears to create an exception to the usual Sixth Amendment jury trial requirement for sentencing decisions involving the specific question of whether to impose consecutive or concurrent sentences for multiple offences. In his dissent, Justic Scalia said that he could not understand why the Court would make such a strange exception to the treasured right of trial by jury.
In 2000, the Court overruled a New Jersey appellate decision upholding an enhanced sentence based on the trial judge’s finding that the defendant’s crime was motivated by race. In Apprendi v. New Jersey, the Court ruled that the Sixth Amendment requires any finding of fact increasing the penalty for a crime beyond the prescribed statutory maximum to be submitted to a jury, and proven beyond a reasonable doubt. The Court excepted findings of prior convictions. In 2004, the Court applied its decision in Apprendi to another case, Blakely v. Washington. In Blakely, the Court ruled that a trial judge could not increase a sentence based on his finding that the defendant acted with “deliberate cruelty”.
In Oregon v. Ice, the defendant, Thomas Eugene Ice, had twice broken into the home an 11 year-old girl. During each visit, the defendant touched her breast and vagina. The defendant was charged with 6 separate offenses, one burglary and two counts of sexual abuse from each incident. The judge imposed three consecutive sentences based on his own factual finding consistent with the requirements of the Oregon statute. The Oregon Appellate court affirmed the sentence, but the Oregon Supreme Court found that the Apprendi decision required the jury make the findings that were made by the judge at trial. The U.S. Supreme Court overruled that decision.
Writing the majority opinion, Justice Ginsburg determined that the Court’s prior rulings in Apprendi and Blakely were not dispositive. Neither case involved a judge’s determination to impose consecutive rather than concurrent sentences, and both were limited to their own offense-specific context. The Ice case involved a statute granting certain limited discretion to trial judges in imposing impose consecutive sentences. Consecutive sentences could be imposed if the trial court made certain specific findings of fact.
Free of its prior rulings, the Court reviewed the history of state consecutive versus concurrent sentencing laws. It found that states traditionally gives judges wide discretion to run sentences consecutively or require judges to make certain factual findings directing their discretion. The Oregon statute represented the latter tradition. Since the jury had already convicted the defendant of multiple offenses, the judge’s findings did not encroach on the jury’s traditional role, so the Court upheld the trial judge’s sentence.
The ruling appears to create an exception to the usual Sixth Amendment jury trial requirement for sentencing decisions involving the specific question of whether to impose consecutive or concurrent sentences for multiple offences. In his dissent, Justic Scalia said that he could not understand why the Court would make such a strange exception to the treasured right of trial by jury.
Decriminalization of Marijuana Possession
The city of Chicago Heights recently passed an ordinance making possession of small amounts of marijuana a municipal ticket offense. Passed under the city’s home rule authority, the ordinance allows local police to write a ticket rather than charging the suspect with a violation of state law when less than 30 grams of marijuana are found. Upon receiving a ticket, suspects will go through an administrative hearing in city court rather than a criminal proceeding in a state court. Local officials hope that the new procedure for handling small marijuana possession cases will help unclog the criminal justice system. They also hope it will provide additional revenue to the city, which under the new rule, will no longer be required to share fines with the Cook County courts.
Several state and local ballot measures liberalizing the penalties for possession of small amounts of marijuana were decided in the November election. Sixty-five percent of voters in Massachusetts voted in favor of Question 2. Passage of Question 2 reduces the penalty for possession by an adult of less than one ounce of marijuana for personal use from possible jail time to a one hundred dollar fine. Before Question 2, offenders would become subject of a Criminal Offender Record Information that would follow them throughout their lives when looking for school loans, jobs or housing. That has been eliminated for those charged with minor marijuana possession.
Several local precincts in Massachusetts were also given a choice to call on their state representatives to vote in favor of legislation allowing seriously ill patients to possess and grow small amounts of marijuana for personal, medical use. All of these measures passed by over 70%. The state of Michigan also approved a ballot initiative legalizing medical marijuana with 63% of the vote. Under the new Michigan law, marijuana use and cultivation must be physician-supervised and patients must be pre-authorized by the state.
In Berkeley, California, Measure JJ a zoning law expanding the non-residential zones wherein medical cannabis collectives may be located passed with 62% of the vote. However, voters in the State of California rejected Proposition 5 that would have diverted certain non-violent drug possession offenders from prison to treatment programs and decreased penalties for minor marijuana possession offenses, under 28.5 grams, to a non-criminal infraction similar to the Chicago Heights ordinance.
In Hawaii County, Hawaii, 58% of voters favored Project Peaceful Sky making the cultivation, possession and adult personal use of cannabis the single the lowest law enforcement priority. This is a prioritization rule making all other offenses a higher priority than adult personal use of cannabis. The rule applies to single cases involving twenty-four or fewer cannabis plants at any stage of maturity or the equivalent in dried cannabis, which is set by law at twenty-four or fewer ounces. A similar prioritization measure passed in Fayetteville, Arkansas with 66% of the vote. Now, adult marijuana possession has the lowest law enforcement priority in Fayetteville. The ballot measure also requires the city clerk to send a letter each year to elected state and federal representatives seeking similar laws at higher levels. Similar de-prioritization laws previously passed in Seattle, Oakland, Columbia, Missouri, and Denver.
In Illinois, Senate Bill 2865 would decriminalize doctor recommended medical use of marijuana. The bill recently passed Senate Committee in a 6 to 4 vote.
Several state and local ballot measures liberalizing the penalties for possession of small amounts of marijuana were decided in the November election. Sixty-five percent of voters in Massachusetts voted in favor of Question 2. Passage of Question 2 reduces the penalty for possession by an adult of less than one ounce of marijuana for personal use from possible jail time to a one hundred dollar fine. Before Question 2, offenders would become subject of a Criminal Offender Record Information that would follow them throughout their lives when looking for school loans, jobs or housing. That has been eliminated for those charged with minor marijuana possession.
Several local precincts in Massachusetts were also given a choice to call on their state representatives to vote in favor of legislation allowing seriously ill patients to possess and grow small amounts of marijuana for personal, medical use. All of these measures passed by over 70%. The state of Michigan also approved a ballot initiative legalizing medical marijuana with 63% of the vote. Under the new Michigan law, marijuana use and cultivation must be physician-supervised and patients must be pre-authorized by the state.
In Berkeley, California, Measure JJ a zoning law expanding the non-residential zones wherein medical cannabis collectives may be located passed with 62% of the vote. However, voters in the State of California rejected Proposition 5 that would have diverted certain non-violent drug possession offenders from prison to treatment programs and decreased penalties for minor marijuana possession offenses, under 28.5 grams, to a non-criminal infraction similar to the Chicago Heights ordinance.
In Hawaii County, Hawaii, 58% of voters favored Project Peaceful Sky making the cultivation, possession and adult personal use of cannabis the single the lowest law enforcement priority. This is a prioritization rule making all other offenses a higher priority than adult personal use of cannabis. The rule applies to single cases involving twenty-four or fewer cannabis plants at any stage of maturity or the equivalent in dried cannabis, which is set by law at twenty-four or fewer ounces. A similar prioritization measure passed in Fayetteville, Arkansas with 66% of the vote. Now, adult marijuana possession has the lowest law enforcement priority in Fayetteville. The ballot measure also requires the city clerk to send a letter each year to elected state and federal representatives seeking similar laws at higher levels. Similar de-prioritization laws previously passed in Seattle, Oakland, Columbia, Missouri, and Denver.
In Illinois, Senate Bill 2865 would decriminalize doctor recommended medical use of marijuana. The bill recently passed Senate Committee in a 6 to 4 vote.
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