APPENDIX A
House Bill 46 (identity theft)
Effective August 5, 2008; portions effective September 1, 2008
House Bill 46 will:
- better protect citizens from identity theft by requiring public officials to establish security policies and procedures to protect social security numbers and other financial information maintained by public offices, including the redaction of social security numbers and other financial information when posting copies of public records on the internet;
o require public offices to redact, encrypt or truncate individuals' social security numbers when making records available to the general public on the Internet. Truncate is defined as redacting all but the last four digits of a social security number. The bill also specifies this requirement does not apply to systems protected by passwords. For other types of personal information (federal tax id numbers, driver's license or state id numbers, and checking, savings or credit account numbers), the bill establishes a process for individuals to make requests to public offices to redact this information from Internet records. The bill also provides immunity for public offices that are acting in good faith to comply with these requirements.
o give county recorders authority to reject documents that include individuals' federal tax id numbers, driver's license or state id numbers, or individuals' checking, savings or credit account numbers. Under current law, with certain exceptions, county recorders have authority to reject documents that contain social security numbers. Exceptions outlined in current law will apply.
o give the Secretary of State authority to refuse documents with social security numbers and federal tax id numbers. This is similar to authority given to county recorders last General Assembly.
o clarify HB 141 from last General Assembly by specifying that, other than an employer, public offices are not required to redact peace officers’, prosecutors’, etc. (security personnel) residential and familial information from all records maintained by those offices. Instead, the bill establishes a process for peace officers and other security personnel to request that public offices, except county auditors, redact their home address from Internet records made available to the general public. For records maintained by county auditors, establishes a process for peace officers and other security personnel to request that their legal initials, rather than their name, be listed on property record cards maintained by Auditors. Original deeds and mortgages would not be altered.
o specify that public offices are required to maintain a database or list that includes the names and dates of births of public officials and employees elected to or employed by that public office, which is a public record.
- prevent identify theft by giving individuals more control over their personal credit information and accounts through the implementation of a process that requires credit reporting agencies to allow individuals to place a security freeze on their credit report;
o allow any consumer to place a security freeze on the consumer’s credit report. When a freeze is in place, only certain entities may have access to information available on the consumer’s credit report.
o to place the freeze, a consumer may be charged a reasonable fee, not to exceed $5. For identity theft victims, no fee may be charged.
o require a consumer reporting agency to place a security freeze on a credit report not later than 3 business days after receiving a written request from the consumer by certified mail.
o give the consumer authority to allow the consumer’s credit report to be accessed by a specific party or for a period of time while a freeze is in place (place a temporary thaw) by contacting the consumer reporting agency by phone or other method established by the consumer reporting agency. The consumer may be charged a reasonable fee not to exceed $5.00. If request is made in writing, the thaw must be placed within 3 business days. If the request is made by phone, within 15 minutes.
- expand the time frame within which identity theft prosecutions can occur and the time frame for which consumers can recover civil damages due to identity theft; and
o expand the time for criminal prosecutions to 6 years or, if that timeframe has expired, 5 years from discovery. (Prior law: 6 years or 1 year from discovery.)
o expand the time for civil action to 5 years. (Prior law: 4 years).
APPENDIX B
H.B. 499: Amendments to the Ohio Trust Code
The House Civil and Commercial Law Committee
Proponent Testimony of Alan Newman
The University of Akron School of Law
Reporter for the Ohio Trust Code
I. Introduction.
II. Overview.
A. Clarifying/technical and substantive amendments.
B. Support of Ohio bankers and lawyers.
III. Clarifying/Technical Amendments.
A. Amendments to 10 sections of the Ohio Trust Code (OTC) are clarifying, technical, and non-substantive.
IV. Terms of a Trust (§§5801.10, 5804.14, 5805.01(C), and 5805.03).
A. Replaces “trust instrument” with “terms of a trust.”
V. Wholly Discretionary Trusts (§5801.01(Y)).
A. Eliminates an unnecessary limitation on wholly discretionary trusts providing for the clothing needs of a disabled beneficiary.
VI. Governing Law (§5801.06).
A. Includes a provision for the law that will govern the administration of a trust.
VII. Private Settlement Agreements (§5801.10).
A. Prevents an impermissible term or condition of a private settlement agreement from invalidating the entire agreement.
B. Binds creditors who are parties to a private settlement agreement.
VIII. Guardian of the Person or Estate of a Trust Beneficiary (new §5801.11).
A. Requires guardians acting under the Ohio Trust Code to comply with general guardianship law.
IX. Creation, Validity, Modification and Termination of Trusts (Chapter 5804).
A. Allows the settlor to designate someone other than the trustee to select a beneficiary from an indefinite class of beneficiaries.
B. Eliminates the restriction on the right of the settlor and all beneficiaries to modify or terminate a noncharitable trust to trusts created or becoming irrevocable after 2006.
C. Clarifies that if a charitable purpose of a trust fails and the settlor has provided for an alternative charitable purpose, the court may not exercise its cy pres authority to reform the terms of the trust to provide for a different charitable purpose.
D. Replaces the OTC’s standard for a trustee to combine or divide trusts with that of pre-OTC Ohio law.
X. Revocable Trusts (Chapter 5806) and Duties and Powers of Trustee (Chapter 5808).
A. Clarifies that while the settlor of a revocable trust is living, the trustee’s duties to provide information about the trust are owed only to the settlor.
B. Amends the statute of limitations for contesting a revocable trust to make it more consistent with the statute of limitations for contesting a will.
C. Allows the trustee to furnish a beneficiary with a redacted copy of the trust instrument unless the beneficiary requests a complete copy.
D. Clarifies that the first annual reports required by the OTC will be due in 2008 for the year 2007.
E. Limits the rule, which makes the judicial review of the exercise of discretion by the trustee of a wholly discretionary trust not subject to a reasonableness standard, to the trustee’s discretionary distribution decisions.
F. More accurately describes the power of a trustee to guarantee loans and pledge property of a revocable trust at the direction of the settlor, and specifically authorizes the trustee to employ agents.
XI. Liability of Trustee and Rights of Persons Dealing with Trustee (Chapter 5810 and §5815.35).
A. Clarifies that a beneficiary’s suit against a trustee for breach of duty could be barred by principles of law and equity as well as by the statute of limitations.
B. Eliminates the requirements that a certification of trust include the trust’s taxpayer identification number and the manner of taking title to trust property.
C. Deletes the provision under which a third party that refuses to accept a trust certification and demands a copy of the trust instrument will be liable for damages if the court determines that the third party did not act in good faith.
D. Clarifies that the liability of a fiduciary (for example, the trustee of a trust) that is a partner in a partnership is limited to the assets the fiduciary manages (for example, the trust assets). In its current form, the language in HB 499 to make this clarification is misplaced. HB 499 needs to be revised to correct that mistake before it is enacted.
E. Provides that if a trust or estate (rather than the trustee or personal representative) is incorrectly named as a partner in a partnership, the partner will instead be the trustee of the trust or personal representative of the estate. Again, in its current form, the language in HB 499 to make this amendment is misplaced. HB 499 needs to be revised to correct that mistake before it is enacted.
XII. Repeal of R.C. §2109.022.
A. Repeals §2109.022, which is unnecessary as its terms are identical with those of §5815.25.
APPENDIX C
Senate Bill 7 (eminent domain)
Effective October 10, 2007
Eminent domain
Both the United States and Ohio constitutions limit the government's power of eminent domain to situations where the property is being taken for a public use and the owner is compensated (United States Const., Amend. 5; Ohio Const., Art. I, sec. 19). In Kelo v. City of New London (2005), 125 S.Ct. 2655, the United States Supreme Court held that economic development was a legitimate public use and authorized the taking of private property in an area that was economically depressed, but not blighted, in order to give it to another private entity for purposes of economic development. Kelo noted, however, that individual states were free to enact legislation to further restrict the exercise of eminent domain.
Task force
In response to Kelo, the 126th General Assembly created the Legislative Task Force to Study Eminent Domain and its Use and Application in the State (hereinafter "task force"). The task force was instructed to study the use of eminent domain and its impact on the state, how the decision in Kelo affects state law governing the use of eminent domain, and the overall impact of laws governing the use of eminent domain on economic development, residents, and local governments. The General Assembly also placed a moratorium on the use of eminent domain. The task force issued its final report on August 1, 2006.
City of Norwood v. Horney
Shortly before the task force issued its final report, the Supreme Court of Ohio issued an opinion in City of Norwood v. Horney (2006), 110 Ohio St.3d 353, that interpreted the Ohio Constitution to provide greater protections for property rights than under the Kelo decision. In Norwood, the court held that an economic benefit to the community is not enough on its own, absent any other public benefit, to satisfy the public-use requirement. The court also struck down the City of Norwood's definition of blight as unconstitutionally vague because it included "deteriorating" areas, a classification that the court found improperly relies on speculation as to the future condition of the property. Although the task force was unable fully to evaluate the implications of the Norwood decision, its final recommendations incorporate the major holdings of that decision.
Specifically, Senate Bill 7:
- defines "blighted area," "slum," and "blighted parcel," and applies the new definitions uniformly throughout the Revised Code;
- prohibits any person from considering whether property could be put to a comparatively better use or could generate more tax revenue when determining whether the property is a blighted area or a blighted parcel;
- exempts agricultural land from being classified as blighted if its condition is consistent with conditions normally incident to generally accepted agricultural practices and the land is used for agricultural purposes or if the land is devoted exclusively to agricultural use;
- requires that before a public agency appropriates property for a private use based on a finding that the area is a blighted area or a slum, the agency adopt a comprehensive development plan describing and documenting the public need for the property and, if the agency is governed by a legislative body, obtain a resolution from that body affirming the public need for the property;
- prohibits appropriations of real property except as necessary and for a public use, lists uses that are presumed to be public, and specifies certain uses that are not public;
- authorizes the elected officials or elected individual who appointed an unelected public agency that seeks to appropriate property to veto the appropriation;
- requires an agency to provide the owner with a notice of intent to appropriate property and a good faith offer to purchase the property at least 30 days before filing an appropriation petition and sets forth a statutory form of the notice that includes a summary of the owner's legal rights;
- requires that an agency obtain an appraisal or summary appraisal of property to be appropriated and provide a copy of the appraisal or summary appraisal to the owner at or before making its first offer for the property;
- requires an agency that is appropriating property for a project, other than a project initiated under R.C. Title 55 (Roads, Highways, and Bridges) that will disrupt traffic flow or impede access to property to make reasonable efforts to plan the project in a way that limits those effects;
- requires an agency to prove by a preponderance of the evidence that it has the right to make the appropriation, the parties were unable to agree, or the appropriation was necessary or for a public use;
- provides that when a trial is had as to the value of appropriated property, neither party has the burden of proof;
- requires the jury to award up to $10,000 in compensation for any lost goodwill if the entire business property is relocated and the owner cannot reasonably prevent the loss of goodwill by relocation or other measures;
- permits a business owner to recover damages for actual economic loss resulting from an appropriation that forces the owner to relocate the business;
- requires the court to award the owner reasonable attorney's fees, expenses, and costs if the court decides for the owner on the matter of necessity or public use in a final, unappealable order;