Archive for June, 2006

Court of Appeals Judge R.W.Dyche retires June 17th, remains unopposed for November election for same office

Friday, June 30th, 2006

The Court of appeals in several decisions issued on June 30th,  announced in  footnotes that Court of Appeals Judge R.W. Dyche had formally retired on June 17th, from  the Court of Appeals.

Dyche is listed by the Secretary of States Election records as an unopposed candidate for re-election in this November’s election for the 3 rd Appellate, District 1st of the Court of Appeals (his prior seat). 

 If Dyche assumes office for a new term he may be eligible to draw a full salary and draw substantial judicial retirement benefits.

In the case of Cornett v. Board of Trustees of Kentucky Judicial Form Retirement System, 764 S.W.2d 644 (Ky.App. 01/27/1989) the court stated:

The Kentucky Court held in Maybury v. Coyne, Ky., 312 S.W.2d 455 (1958) that, in the absence of a provision providing for forfeiture of a retirement pension for a public officer or employee upon his return to employment by the entity by which he was previously employed,
 he may continue to draw the pension during that period of employment.

This raises a question of what it means to retire.  In a prior decision issued by the Court of Appeals in a case involving a municipal police officer the Court of Appeals says Retired means Retired. This rule apparently does not apply to the judicial retirement program.

Judge Dyche is not known to have stated if he will apply for retirement benefits, and also draw the regular salary of the office after Jan. 1, 2007.  It is also possible that he will withdraw from the race for re-election.  In that event the judicial nominating commission would nominate three candidates for the vacancy, and the Governor would fill the vacancy created, by selecting one of the three nominees.

This provision in the 2006 Judicial Budget Bill appears to prohibit “double dipping? by judges who retire and get re-elected.

10. Judicial Retirement: To achieve consistency with the Kentucky Court of Justice Personnel Policy Section 6.03(2),
with respect to non elected employees, the compensation payable to any Justice or Judge[, elected after January 1, 2007],
(Veto #3) receiving retirement benefits from the Judicial Retirement Plan on account of prior judicial service shall be fixed at
an amount whereby his or her total salary and retirement benefits shall not exceed the salary fixed for the judicial office held.

 

Kentucky Chief Justice Joseph Lambert has opposed double dipping by Judicial officials.

Supreme Court says President exceeded authority with Guantanamo tribunals

Thursday, June 29th, 2006

WASHINGTON – The U.S. Supreme Court this morning found President Bush exceeded his powers by creating military tribunals for prisoners at the much-maligned Guantánamo Bay detention center, reining in a portion of the administration’s prosecution of the war on terrorism.

The 5-3 ruling, a setback for the administration’s aggressive anti-terrorism stance, was written by Justice John Paul Stevens, who said the proposed trials violate U.S. law and the Geneva Conventions, signed by the United States in the aftermath of World War II.

”Trial by military commission raises separation-of-powers concerns of the highest order,” Justice Anthony M. Kennedy wrote in a concurring opinion. The decision does not address whether the controversial camps should be closed, dealing only with whether the administration can pursue plans to try the detainees under the type of military trials not seen since World War II.

President Bush said he will work with Congress to find a way to try the detainees before military tribunals — and two leading Republicans suggested they’re ready to help.

”To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so,” Bush said at a press availability with Japanese Prime Minister Junichiro Koizumi. “The American people need to know that the ruling, as I understand it, won’t cause killers to be put out on the street.”

Bush stopped short of saying the ruling would hasten efforts to close the prison — as many world leaders have encouraged him to do.

”We will seriously look at the findings, obviously,” Bush said, noting he’d only had a ”drive-by” briefing on the decision. “And one thing I’m not going to do, though, is, I’m not going to jeopardize the safety of the American people. People have got to understand that. I understand we’re in a war on terror; that these people were picked up off of a battlefield; and I will protect the people and, at the same time, conform with the findings of the Supreme Court.”

Republican Sens. Lindsey Graham of South Carolina and Jon Kyl of Arizona, who back Military Commissions, were quick to announce they’d help Bush with a legislative fix.

”We are disappointed with the Supreme Court’s decision. However, we believe the problems cited by the court can and should be fixed,” the two said in a joint statement.

Graham and Kyl said they found it ”inappropriate” to try terrorists in civilian courts, arguing it threatens national security and puts jurors in danger.

”In his opinion, Justice [Stephen] Breyer set forth the path to a solution of this problem,” the senators said, ‘He wrote, `Nothing prevents the president from returning to Congress to seek the authority he believes necessary.’ ”

The case was brought by Osama bin Laden’s one-time driver, Salim Hamdan, one of hundreds of men flown to the Guantánamo camps, which opened in early 2002 as a site for the United States to hold and interrogate al Qaeda and Taliban suspects flown in from Afghanistan.

The president created special Military Commissions to try 10 or more of some of the 450 captives being held there. But Hamdan challenged the legal proceedings, arguing that they violate international law and the U.S. Constitution.

Stevens agreed, writing that the commission ”lacks the power to proceed because its structure and procedures” violate both U.S. law and the Geneva Conventions.

But Justice Clarence Thomas, in a sharply worded dissent, disagreed, saying the decision “openly flouts our well-established duty to respect the executive’s judgment in matters of military operations and foreign affairs.”

The decision, Thomas noted, would ”sorely hamper the president’s ability to confront and defeat a new and deadly enemy” and he called his colleagues’ ”willingness to second-guess” the president “both unprecedented and dangerous.”

But lawyers for the detainees hailed the ruling as upholding the Geneva Conventions, which governs the treatment of prisoners of war.

”We’re looking at this with welcome hopefulness that the democratic institutions in this country are stepping forward to take their power back from a president [who] has tried to seize it for the last five years,” said Barbara Olshansky, an attorney with the Center for Constitutional Rights, which represents hundreds of detainees.

”The court has clearly stated that the president cannot invoke wartime powers to circumvent U.S. laws and international treaties that the United States has ratified,” said Amnesty International attorney Jumana Musa, who had been a Pentagon-approved observer at the commissions.

In arguments before the court in March, Neal Katyal, Hamdan’s attorney, said the Pentagon had concocted a conspiracy charge that isn’t a war crime, had ignored rights retained in the Geneva Conventions, such as prisoner-of-war status, and fell short of standards that Congress has set for how the United States conducts either military and civilian justice.

”This is a military commission that is literally unbounded by the laws, Constitution and treaties of the United States,” he told the court.

Critics have argued that the accused would be more fairly treated in the civilian courts or through a traditional military court martial.

But Solicitor General Paul Clement argued on behalf of the United States that Congress had given President Bush the power to craft the Military Commissions when it authorized the use of force after the Sept. 11, 2001, terrorist attacks. He called such commissions “part and parcel of the [presidential] war power for 200 years.”

The ruling is all but certain to increase international scrutiny and calls for the camps’ closure — pressure that has mounted following the suicides earlier this month of three captives.

Bush has acknowledged the camps hurt U.S. credibility abroad and has said he’d like to close the detention center — but warns it holds dangerous detainees who should be tried for their crimes. Others, he said, can be released, but the United States has had difficulty finding suitable countries to accept them.

The State Department has said U.S. diplomats are seeking agreements with dozens of countries to let some detainees return home, while seeking assurances from their native countries that the men won’t threaten U.S. soldiers, security or American targets.

But State Department officials said the task is complicated by a number of countries that deny the detainees are actually nationals of their countries.

And the U.S. has ruled out repatriation to some nations, including China, for fear that Muslim nationals now held at Guantánamo would be tortured if returned to the communist country.

One detainee has been returned to Iran, but the administration continues to detain two dozen Algerians, along with Iraqis, Libyans, Palestinians, Somalis, Sudanese, Syrians and Uzbeks — men from countries that are either too unstable or have human rights records that would suggest the U.S. is unable or unwilling to negotiate their return.

The Pentagon, however, announced last Saturday that it had sent 14 Saudi detainees home, the second major transfer in little more than a month.

Miami Herald staff writer Carol Rosenberg contributed to this report from Guantanamo Bay Navy Base, Cuba.

BY LESLEY CLARK
lclark@MiamiHerald.com

DENNIS COOK/AP

Supreme Court permits Redistricting at will of Legislatures. Requires rewrite of Latino District

Thursday, June 29th, 2006

The U.S. Supreme Court Wednesday upheld most of a Republican-engineered redrawing of congressional boundaries in Texas at the instigation of former House Majority Leader Tom DeLay (R-Texas), but it threw out part of the new map that it said discriminated against Latino voters.
In another of a series of fractured rulings – this one produced six separate opinions – the high court found nothing inherently wrong with drawing new congressional districts in mid-decade. While the 2003 Texas redistricting plan had partisan motives of increasing the Republicans’ congressional majority, the court said, it did not amount to unconstitutional political gerrymandering.

On the issue of whether part of the new map was drawn with the effect of disenfranchising minority voters in south and west Texas in violation of the Voting Rights Act, the court ruled 5-4 that such a violation occurred and ordered that it be remedied.

Justice Anthony M. Kennedy wrote the court’s opinion. Agreeing with him that part of the Texas map violated the Voting Rights Act were justices John Paul Stevens, Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer. Dissenting were the four most conservative members: Chief Justice John G. Roberts, Jr., and justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas.
On the issue of whether state legislators can redraw congressional districts at will – not just once a decade after Census figures come out, as Texas Democrats had argued – the court ruled 7-2 that they could.

The case consolidated four appeals challenging the constitutionality of various aspects of the Texas redistricting plan, which helped Republicans win a majority of seats in the 2004 congressional elections in the state and strengthened the party’s hold on the U.S. House of Representatives.

As a result of the 2000 census, Texas, the nation’s second most populous state, was entitled to two additional House seats, bringing its total to 32. The state legislature failed to agree on a new plan in 2001, triggering lawsuits in state and federal court.

A three-judge federal panel ended up drawing what it called politically neutral district boundaries to govern the 2002 congressional elections. Those elections produced a House delegation made up of 17 Democrats and 15 Republicans.

Republicans gained control over both houses of the Texas state legislature in the 2002 elections, a victory that prompted DeLay to revisit the redistricting issue. After a protracted battle with the state’s Democrats, the GOP succeeded in drawing new boundaries in 2003.

In January 2004, a panel of three federal judges rejected a Democratic challenge to the new map. The Democrats had argued that Texas could not “redistrict in mid-decade” after boundaries had already been drawn, that the GOP plan unconstitutionally discriminated on the basis of race, that it was an unconstitutional partisan gerrymander and that it violated the Voting Rights Act. They charged that the new districts broke up minority communities and merged them into largely conservative, white districts.

Going into the November 2004 elections, the Texas congressional delegation was split 16-16 between Republicans and Democrats, one of the Democrats having switched parties earlier in the year.

As a result of the new boundaries, Republicans picked up five House seats in Texas, emerging with 21-11 majority.

Among the big losers was veteran Democratic congressman Martin Frost, whose district was eliminated. Frost and other Texas Democrats claimed that the redistricting disenfranchised as many as 3.6 million black and Hispanic voters in the state.

In his opinion, Kennedy rejected the challenges to the redistricting plan as a whole, saying there were indications that partisan motives were not the entire reason for it.

The Texas legislature “does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew,” Kennedy wrote.

“The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own,” he said. “And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders.”

The ruling took issue, however, with the legislature’s decision to redraw congressional District 23 to protect the Republican incumbent, Rep. Henry Bonilla, who was losing support from the jurisdiction’s growing Latino electorate.

“Faced with this loss of voter support, the legislature acted to protect Bonilla’s incumbency by changing the lines – and hence the population mix – of the district,” shifting nearly 100,000 Latino voters into a neighboring district and replacing them with voters from “a largely Anglo, Republican area in central Texas,” Kennedy wrote.

“The changes to District 23 undermined the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive,” said the opinion. “In essence the State took away the Latinos’ opportunity because Latinos were about to exercise it.”

Kennedy added, “The Court has noted that incumbency protection can be a legitimate factor in districting … but experience teaches that incumbency protection can take various forms, not all of them in the interests of the constituents.” The ruling said this apparent “intentional discrimination” cannot be allowed. But it did not make clear how or by whom it should be corrected before this November’s elections.

The consolidated cases appeared to produce a split among the court’s conservatives on the issue of federal courts’ jurisdiction to review gerrymandering. Justices Scalia and Thomas viewed such cases as “non-justiciable,” meaning they should be left to legislatures and kept out of federal courts. But the Supreme Court’s two newest members – Roberts and Alito, both appointed by President Bush – declined to go that far, although they did not completely close the door on such a finding.

They said the issue of justiciability was not raised and that therefore they would not opine on it. Their position left open the prospect that in a future case, they could agree with Scalia and Thomas that political gerrymandering should not be reviewed by the Supreme Court at all.

In an opinion joined by Alito, Roberts wrote that the appellants in the Texas redistricting case did not provide “a reliable standard for identifying unconstitutional political gerrymanders.” He added, “The question whether any such standard exists – that is, whether a challenge to a political gerrymander presents a justiciable case or controversy – has not been argued in these cases. I therefore take no position on that question, which has divided the Court.”

Long before the Texas redistricting case made it to the Supreme Court, six lawyers and two analysts in the Justice Department’s voting section found that it violated the Voting Rights Act by illegally diluting black and Hispanic voting power in two congressional districts, The Washington Post reported last year. But senior Justice Department officials overruled them and approved the plan. A memo written by the lawyers also said the plan eliminated several other districts in which minorities had a substantial, though not necessarily decisive, influence in elections.

DeLay, then the House majority leader, was a primary instigator of the redistricting. In October 2003, he was admonished by the bipartisan House ethics committee for his role in muscling the new boundaries through the Texas legislature. The committee expressed concern that DeLay had pressured the Federal Aviation Administration, the FBI and other federal agencies in 2003 to help locate Democratic legislators who had fled Texas in an effort to head off the redistricting by denying the state’s legislature a quorum.

DeLay was indicted last fall on conspiracy and money laundering charges in connection with corporate campaign contributions that were allegedly directed to GOP candidates for the Texas legislature in 2002 in violation of state law. The funds were intended to help the Republicans win control of the legislature so that it could then redraw the state’s congressional districts with the aim of increasing the party’s majority in the U.S. House.

Posted on Wednesday, June 28 2006 14:44:46 PDT by Intellpuke

Governor appoints Judge McAnulty to Ky Supreme Court vacancy

Wednesday, June 28th, 2006

In a press release by the Office of Governor Ernie Fletcher, it was announced that the Governor had appointed Court of Appeals William McAnalty to the vacancy on the Ky. Supreme Court created by the retirement of Justice Martin Johnstone.     

 Upon the retirement of Supreme Court Justice Martin E. Johnstone, the Judicial Nominating Commission has forwarded three names to Governor Fletcher to fill the vacancy until the election results are final at the end of 2006.

   The nominees are William E. McAnulty (currently on the Court of Appeals and one of the two candidates for the full term in this November’s general election), Scott Miller Jr. and Charles E. Ricketts, Jr.  Ricketts is a former President of the Kentucky Bar Association.   McAnulty is opposed in the November election by Judge Ann Shake.

    The Courier-Journal has called on McAnulty to remove his name from consideration so that he will not appear to be obligated in any way to Governor Fletcher if issues concerning the Governor’s pending indictment come before the Supreme Court. 

 Judge Shake has announced that she would not be a candidate for the interim appointment in order to avoid any appearance of favoritism towards the Governor.

The New York Times Leaks and The problem with Cong. Pete King’s prosecute the media approach.

Tuesday, June 27th, 2006

By Andrew C. McCarthy

Anger over the leaking of national-defense information by the media may have hit critical mass with the exposure, by the New York Times and other newspapers, of the Terrorist Finance Tracking Program. Since this highly effective counterterrorism tool was compromised last Friday, President Bush and Treasury Secretary Snow have spoken out forcefully in protest, and many commentators — including here at National Review Online — have argued that this rhetoric must be matched by strong corrective action.
  
But what action? New York Republican congressman Peter King boldly contends it’s time for a real nuclear option: an investigation and prosecution directly targeting the New York Times.

This suggestion is appealing, at least at first blush. The Times is a recidivist offender. And one not only without contrition (as executive editor Bill Keller’s weekend letter indicates) but which has announced a standard — its own perception of the “public interest? — that arrogates to itself the unilateral power to decide which of the nation’s vital secrets will be protected.

Understandably, the King proposal has won several adherents. But it would be a serious tactical error. From the standpoint of national security, the most urgent imperative here is to stop the leaks. The fatal flaw in the King approach is that it would ultimately result in more leaking and, ironically, a less successful prosecution.

NO MEDALS FOR BEING RIGHT
Rep. King is right … in theory. There is a law under which a case against the press could be brought: the Espionage Act of 1917. The pertinent provision is codified at Section 793(e) of the federal penal code. I wrote about it here, in connection with the Washington Post’s compromise of overseas terrorist detentions.

We must, however, confront a hard reality. No one gets a medal for being right. Being right doesn’t necessarily carry the day where the law is concerned. Getting five votes in the Supreme Court does. And there simply are not five votes on the current Court in favor of an interpretation of the Espionage Act that would hold journalists liable. (Caveat: As Gabriel Schoenfeld compellingly argues in Commentary, a prosecution of the Times for the leak of the NSA’s Terrorist Surveillance Program is more promising because a different, narrower statute, Section 798, applies to wrongful disclosures of signals intelligence.)

Some argue that the Supreme Court’s decision in the famous Pentagon Papers case — presciently entitled New York Times Co. v. United States (1971)—stands for the proposition that, while the press may not be subjected to prior restraints against publication, they are vulnerable to subsequent prosecution if what they publish violates the law. This assertion, though, is built on a very thin reed. Strictly speaking, Pentagon Papers is a prior-restraint case—the issue of subsequent prosecution was simply not before the Court.

Concededly, there is dicta supporting the notion of prosecution. But there is also dicta cutting decidedly in the other direction — specifically, the opinion of Justice William O. Douglas, joined by Justice Hugo Black, which would essentially insulate the press, regardless of how atrocious what it publishes may be.

But okay, let’s assume for argument’s sake that Pentagon Papers is strong authority supporting indictment of the press. So what? Two sad but almost certainly insuperable obstacles remain to be faced.

The first is simply this: When it comes to the pieties of liberal elites and civil-liberties extremists, the current Supreme Court cares nothing for precedent. In our culture wars, precedent counts mainly as a rationalization for not reversing Roe v. Wade. To the contrary, when bourgeois sensibilities are at issue, the Supreme Court regularly hews to contemporary political correctness. So, for example, when it ruled in favor of special rights for homosexuals in Romer v. Evans (1996), the Court ignored a flatly contradictory precedent from only a decade before, Bowers v. Hardwick (1986). And only last year, when it held that the death penalty could not be applied to a juvenile in Roper v. Simmons, it blithely explained that it had “evolved? past its antithetical decision only 15 years earlier in Stanford v. Kentucky.

Secondly, free-speech cases often bring out the worst of the Court’s p.c. proclivities, at least from a public-safety standpoint. Witness Ashcroft v. Free Speech Coalition (2002). There, the Court voided criminal enforcement of the 1996 Child Porn Protection Act on the remarkable theory that regulating smut on the Internet might somehow lead to banning performances of Romeo and Juliet.

That decision was written by Justice Anthony Kennedy. He also wrote for the majority in Romer. And in Roper. In fact, he has joined the liberal block of the Court (Justices Stevens, Souter, Ginsburg and Breyer) to form majorities in several other critical, closely divided cases. (For another example, see Rasul v. Bush (2004), holding that alien enemy combatants detained by the American military in Guantanamo Bay, Cuba, in wartime, had a statutory right to challenge their detention in the U.S. courts.)

Bottom line: You are engaged in wishful thinking if you believe you can prevail on an Espionage Act prosecution against the press in this Supreme Court. I wouldn’t be confident of the outcome even if I thought I had a shot at Justice Kennedy’s vote—but that’s academic, because there is a rich basis for concluding that I don’t.

WINNING IS ABOUT THE LEAKS, NOT THE REPORTERS
Why is all this important? Because if you start down this path, it is important to win. There are no moral victories. There is no comforting pat on the back for being right or defending principle. In this matter, there is a winner and a loser.

Imagine the media as the winner of a long, bitterly contentious struggle that ends in the Supreme Court. They will have succeeded in turning themselves into martyred heroes. We may, quite justifiably, view the Times and its allies in this cause as aiders and abettors of our wartime enemy. But the history — which they, primarily, will write — will portray them as Defenders of the Constitution.

More consequentially, were the press to win such a battle, it would only encourage more leaking. Now their recklessness (or worse) would bear a judicial imprimatur. Think of it as a Pulitzer Prize … but one backed by the prestige of the Supreme Court rather than the dwindling influence of journalism’s majordomos.

Let’s remember: The goal here is to stop the leaking. It is not to mount a trophy journalist on a prosecutor’s me-wall. From that practical perspective, making the reporters and their newspaper the targets of prosecution is a double failure. Not only do you probably lose the case in the long run; you also fail to get to the root of the scandal.

Face it: Internal government investigations into leaks go nowhere. The government is too big. Many people are in the loop even on sensitive information, so it is often impossible to pinpoint who the leaker is. When investigators occasionally manage to narrow the suspects down, the leaker typically lies about what he has done (as one would expect in the first place from someone who has betrayed his oath by leaking).

There is only one real way to identify government officials who disclose classified information. You have to get it directly from the journalist who spoke to them.

But if, as the King approach posits, the journalist were made the target of a criminal investigation, he would have a Fifth Amendment privilege to remain silent. That is, by clinging to the slim possibility of successfully prosecuting the journalist, investigators would render legally unavailable the only realistic witness to the public official’s illegal leaking. So in the end, no one would get prosecuted. And the leaks would go merrily on — undeterred, if not emboldened.

There is but a single viable strategy here. The focus of the prosecution must be the public officials who leaked, not the journalists who published. The journalists must be given immunity from prosecution. That would extinguish their privilege against self-incrimination, meaning they could be ordered to reveal their sources to a federal grand jury. There is no legal privilege to refuse. We saw that in the Valerie Plame investigation, in which a prosecutor moved aggressively against a leak that pales beside the gravity of what we are discussing.

If the immunized reporters declined an order to testify, they could be jailed for up to 18 months for contempt-of-court. Jail is an unpleasant place. Recall that it took Judith Miller only a few months there to rethink her obstructionist stance in the Plame case. And the mere specter of imprisonment inspired Matthew Cooper to surrender his source on the verge of a contempt citation.

Chances are that the journalists who have exposed leaked national-security information over the past several months do not want to spend 18 months in prison. If they were put in that position, we would very likely learn who did the leaking. Those officials could then be indicted. A prosecution against government officials does not entail the same free-speech complications.

On the other hand, even if the subpoenaed reporters flouted the law by never giving up their sources — even if they took the incredibly arrogant position that their secrets take precedence over the nation’s secrets — 18 months’ imprisonment is a powerful disincentive. Fewer reporters would run the risk. Fewer would-be government leakers would bank on a reporter’s perseverance. The leaks would dry up in a hurry.

That ought to be the goal here.
 

YOUR NEIGHBOR NEVER SAW ANYTHING AS BOTHERSOME AS A TREE WHEN ITS BRANCHES HANG OVER THE PROPERTY LINE.

Tuesday, June 27th, 2006

 Hon. Bud Salyer sent LawReader a very interesting citation that will be of use to many lawyers, if not today, someday, regarding the state of Kentucky law regarding tree limbs overhanging the property line of the neighbor..  

    Kentucky has adopted the Massachusetts Rule regarding claims brought by homeowners who are offended by leaves, twigs and seeds falling on their property from a neighbor’s tree. 

Kentucky law allows a homeowner offended by a neighbor’s tree that extends across the property line, to trim that portion of the tree on (or overhanging) their property.  A tree owner has no liability for minor tree droppings falling on the roof or lawn of their neighbor.

If a tree is known to be rotten and hazardous, and likely to fall on their neighbor’s property causing damages, or if a rotten tree actually damages a neighbor’s property,  then a stricter rule may apply.
               See:  687 S.W.2d 551

Garry SCHWALBACH and Margaret Ann Schwalbach, Appellants,
v.
FOREST LAWN MEMORIAL PARK, Kentucky Corporation, Appellee.

No. 84-CA-1156-MR
Court of Appeals of Kentucky.
Feb. 22, 1985.
Discretionary Review Denied and
Opinion Ordered Published by
Supreme Court April 24, 1985.
        Paul H. Twehues, Jr., Newport, for appellants.
        Gary G. Sergent, O’Hara, Ruberg & Taylor, Covington, for appellee.
        Before COMBS, HOWERTON and LESTER, JJ.
        HOWERTON, Judge.

        The Schwalbachs appeal from a judgment of the Kenton Circuit Court holding Forest Lawn Memorial Park not liable for damages caused by its tree, which was located near the boundary line separating the properties of the parties. The trial court found that the damages complained of were the result of normal droppings of leaves and debris from the tree. The court used as the controlling law the “Massachusetts Rule,” as is set forth Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931). Based on the circumstances in this case, we agree that Forest Lawn is not liable to the Schwalbachs for damages, and we affirm the judgment.

        The Schwalbachs own an apartment building located next to property owned by Forest Lawn. They purchased the property in 1969, and they complain that the overhanging limbs began causing them trouble in 1972. The trouble persisted until April of 1983, when they replaced their roof. The original roof was flat, and the new roof was pitched in order to hold fewer leaves, twigs, and other droppings from the tree. The roof had a life expectancy of 20
Page 552

years and had existed for 19 years at the time it was replaced at a cost of $14,300.

        Forest Lawn responded to earlier complaints by removing six branches from the offending tree, but this effort apparently did not solve the total problem. The Schwalbachs took no action to cut any of the branches, nor did they request permission to do so. The trial court not only applied the “Massachusetts Rule,” but it further concluded that a more reasonable solution in this case would have been for the Schwalbachs to remove the offending limbs back to the boundary line.

        This case presents an issue of first impression in Kentucky. Although we might reach a different result if the tree was known, or should be known, to be so rotten so as to cause a serious threat or nuisance to adjoining property, the apparent good condition of this tree and the other facts in this case are such that we agree with the result reached by the trial court.

        The Schwalbachs urge us to adopt what they call a more modern rule, which requires everyone to be held responsible for private nuisances on real estate. They rely on Sprecher v. Adamson Companies, 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121 (1981). The California court used ordinary negligence principles to determine a landowner’s liability for harm caused by the condition of his land. The parties refer us to rules from various jurisdictions, which are divided in one way or another, but the California rule seems to be unique to the extent that it might be applied to permit recovery by the Schwalbachs in this factual situation. We might also apply negligence rules and nuisance rules in different situations, but we elect to apply the “Massachusetts Rule” in this case.

        As presented in Michalson, supra, the rule reads:

“As against adjoining proprietors, the owner of a lot may plant shade trees upon it, or cover it with a thick forest, and the injury done to them by the mere shade of the trees is damnum absque injuria. It is no violation of their rights.”

We see no distinction in principle between damage done by shade, and damage caused by overhanging branches or invading roots. The principle involved is that an owner of land is at liberty to use his land, and all of it, to grow trees. Their growth naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others….

The neighbor, though without right of appeal to the courts if harm results to him, is, nevertheless, not without remedy. His right to cut off the intruding boughs and roots is well recognized…. His remedy is in his own hands.

The common sense of the common law has recognized that is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.

        175 N.E. at 490-491. Imposing liability upon a landowner for damage resulting from the natural dropping of leaves and other ordinary debris would result in innumerable lawsuits and impose liability upon a landowner for the natural processes and cycles of trees.

 We are not confronted with a dead tree which is likely to fall and cause serious injury. A claim for damages or removal of such a tree might be based on the theory of negligence for damages or nuisance for removal. Although the landowner may have the right to cut back overhanging branches to the boundary line, in the case of a dead and dangerous tree, it may be more sensible to require the owner of the tree to remove it in its entirety, or be liable for damages. It would be futile to require the neighbor to remove a portion of the tree to the boundary line leaving the hazard of a large portion of the total tree to remain in a threatening position.

        Here, we are simply concerned with leaves, twigs, and seeds which fell on a roof and occasionally stopped up gutters. We decline to allow a recovery and concur

Page 553
with the trial court. The judgment of the Kenton Circuit Court is affirmed.

        All concur.

 

High court strikes states campaign fund limits. Read official syallbus.

Tuesday, June 27th, 2006

The U.S. Supreme Court found that Vermont’s restrictions amounted to government censorship, violating the free speech of candidates. 

WASHINGTON.  A bold experiment in Vermont that sought to address the often thorny connection between money and politics has come to an end.
On Monday, the US Supreme Court struck down as unconstitutional the most controversial aspects of Vermont’s campaign-finance law – including restrictions on the amount of money candidates for public office may spend in their campaigns.
REJECTED: Vermont’s Attorney General William Sorrell said campaign-spending limits helped politicians focus on issues rather than fundraising.
 
The court said the restrictions amounted to a form of government censorship of political candidates in violation of the free-speech protections of the First Amendment.

The high court also struck down the state’s limitations on the amount of money individuals may contribute to political candidates. The court ruled that the limits were too low.

The 6-to-3 decision is consistent with a 1976 landmark ruling in a case called Buckley v. Valeo in which the court struck down an attempt by Congress to limit campaign spending by candidates. The same 1976 ruling upheld the ability of government to restrict the amount of money contributed by political supporters to candidates.

The highly splintered opinion tracks the basic approach to campaign finance followed by the court over the past 30 years. But only three justices embraced it, although three others concurred in the judgment.

Justices Antonin Scalia and Clarence Thomas said they would overturn the Buckley v. Valeo precedent in favor of a regime more protective of speech. In a dissent, Justice John Paul Stevens said he would overturn the Buckley precedent to enable government more leeway in establishing campaign-finance safeguards.

The decision marks a setback to campaign-finance reform advocates who had seen the opportunity to shift the paradigm of campaign finance away from a view that money is speech toward a focus on the quality of political competition.

“In many ways, it is a lost opportunity for the court to address the arms race in campaign funding,” says Brenda Wright of the National Voting Rights Institute.

In invalidating the Vermont contribution limits, the court said it was leaving it to the Vermont legislature to rewrite its campaign-contribution regulations “in light of the constitutional difficulties we have identified.”

How the justices see it

The court’s splintered roster on the broader Buckley issue suggests no shortage of future litigation.

“We can find here no … special justification that would require us to overrule Buckley,” writes Justice Stephen Breyer in his plurality decision. “Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles.”

In a concurrence joined by Justice Scalia, Justice Thomas writes: “I continue to believe that Buckley provides insufficient protection to political speech, the core of the First Amendment.”

He adds, “The illegitimacy of Buckley is further underscored by the continuing inability of the court [and a plurality here] to apply Buckley in a coherent and principled fashion.”

In contrast, Justice Stevens, in a lone dissent, also says the time has arrived to overturn Buckley. But he cites entirely different reasons than those mentioned by Justice Thomas. “I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities,” he writes. “I think they would have viewed federal statutes limiting the amount of money that congressional candidates might spend in future elections as well within Congress’ authority.”

The high-court decision stems from nearly seven years of litigation challenging Act 64, Vermont’s 1997 campaign-finance reform law. The law took effect for only a brief time before it was enjoined pending the outcome of the lawsuits.

State lawmakers conducted 65 hearings and heard testimony from 145 witnesses about the difficulties and dangers of the campaign-finance system in Vermont.

The lawmakers concluded that electioneering in Vermont was becoming too expensive. Many ordinary Vermonters were being priced out of politics, and those involved in politics were spending increasing amounts of their time raising money for their next campaign.

Opponents said the campaign-finance restrictions were hindering candidates’ ability to communicate with voters in violation of the First Amendment guarantees of free speech and association.

In the past, such government campaign-finance restrictions have been justified in an attempt to prevent corruption of the political process by wealthy contributors literally buying favorable votes. The courts have also recognized that the government has a compelling interest in preventing the appearance of such corruption, even if actual quid pro quo corruption is not present.

Limits for candidates and donors

Vermont took this concern one step further. Rather than buying votes, large political contributions in Vermont were buying access and influence, state lawmakers said. Act 64 sought to reduce this access and influence by limiting both the intake and outflow of money in political campaigns in Vermont.

Under the law, a candidate for governor could spend no more than $300,000 during a two-year election cycle. The spending limit was $45,000 for other statewide offices. State senators were restricted to spending no more than $4,000 in their reelection campaigns. For state representatives, the limit was $2,000.

The law also restricted political contribution amounts at $200 to $400, the lowest level in the country.

It was all designed to reduce the power of money in the political process and foster a greater degree of equality among elected officials, candidates, and prospective candidates.

Opponents sued, claiming both the low contribution limits for donors and the expenditure limits for candidates had established a form of government censorship hindering the amount of political speech in Vermont. Act 64 also favored incumbents by making it more difficult for challengers to raise and spend large sums of money that might help them boost their name recognition among voters, opponents said.

They also argued that candidates must be free to choose how best to deliver their campaign message.

Vermont’s rules are ‘too restrictive’

In rejecting the contribution limits, Justice Breyer says the test is whether they are carefully drawn to achieve a compelling government goal while impacting a minimum amount of speech.

“Our examination of the record convinces us that, from a constitutional perspective, Act 64′s contribution limits are too restrictive,” Breyer writes. “We reach this conclusion based not merely on the low dollar amounts of the limits themselves, but also on the statute’s effect on political parties and on volunteer activity in Vermont elections.”

 By Warren Richey | Staff writer of The Christian Science Monitor

Syallbus released by the U.S. Supreme Court

SUPREME COURT OF THE UNITED STATES
Syllabus
RANDALL ET AL. v. SORRELL ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 04–1528. Argued February 28, 2006—Decided June 26, 2006*
Vermont’s Act 64 stringently limits both the amounts that candidatesfor state office may spend on their campaigns and the amounts thatindividuals, organizations, and political parties may contribute tothose campaigns. Soon after Act 64 became law, the petitioners—individuals who have run for state office, citizens who vote in state elections and contribute to campaigns, and political parties and committees participating in state politics—brought this suit againstthe respondents, state officials charged with enforcing the Act. The District Court held that Act 64’s expenditure limits violate the First Amendment, see Buckley v. Valeo, 424 U. S. 1, and that the Act’s limits on political parties’ contributions to candidates were unconstitutional, but found the other contribution limits constitutional. The Second Circuit held that all of the Act’s contribution limits are constitutional, ruled that the expenditure limits may be constitutional because they are supported by compelling interests in preventing corruption or its appearance and in limiting the time state officials must spend raising campaign funds, and remanded for the District Court to determine whether the expenditure limits were narrowly tailored to those interests.
Held: The judgment is reversed, and the cases are remanded.
382 F. 3d 91, reversed and remanded. JUSTICE BREYER, joined by THE CHIEF JUSTICE and JUSTICE ALITO, concluded in Parts I, II–B–3, III, and IV that both of Act 64’s sets of
limitations are inconsistent with the First Amendment. Pp. 6–8, 10–
29.
1. The expenditure limits violate the First Amendment’s free speech guarantees under Buckley. Pp. 6–8, 10–11.
                        (a) In Buckley, the Court held, inter alia, that the Government’s asserted interest in preventing “corruption and the appearance of corruption,? 424 U. S., at 25, provided sufficient justification for the contribution limitations imposed on campaigns for federal office bythe Federal Election Campaign Act of 1971, id., at 23–38, but that FECA’s expenditure limitations violated the First Amendment, id., at 39–59. The Court explained that the difference between the twokinds of limitations is that expenditure limits “impose significantly more severe restrictions on protected freedoms of political expressionand association than? do contribution limits. Id., at 23. Contribution limits, though a “marginal restriction,? nevertheless leave the contributor “fre[e] to discuss candidates and issues.? Id., at 20–21. Expenditure limits, by contrast, impose “[a] restriction on the amount of money a person or group can spend on political communication,? id., at 19, and thereby necessarily “reduc[e] the quantity of expression byrestricting the number of issues discussed, the depth of their exploration, and the size of the audience reached,? ibid. For over 30 years, inconsidering the constitutionality of a host of campaign finance statutes, this Court has adhered to Buckley’s constraints, including those on expenditure limits. See, e.g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 134. Pp. 6–8.
                        (b) The respondents argue unpersuasively that Buckley should be distinguished from the present cases on a ground they say Buckley did not consider: that expenditure limits help to protect candidates from spending too much time raising money rather than devotingthat time to campaigning among ordinary voters. There is no significant basis for that distinction. Act 64’s expenditure limits are not substantially different from those at issue in Buckley. Nor is Vermont’s primary justification for imposing its expenditure limits significantly different from Congress’ rationale for the Buckley limits: preventing corruption and its appearance. The respondents say unpersuasively that, had the Buckley Court considered the time protection rationale for expenditure limits, the Court would have upheld those limits in the FECA. The Buckley Court, however, was aware of the connection between expenditure limits and a reduction in fund-raising time. And, in any event, the connection seems perfectly obvious. Under these circumstances, the respondents’ argument amounts to no more than an invitation so to limit Buckley’s holding as effectively to overrule it. That invitation is declined. Pp. 10–11.
 

2. Act 64’s contribution limits violate the First Amendment because
RANDALL v. SORRELL Syllabus
Amendment limits are present here. They are substantially lower than both the limits the Court has previously upheld and the comparable limits in force in other States. Consequently, the record must be examined to determine whether Act 64’s contribution limits are “closely drawn? to match the State’s interests. Pp. 13–19.
                        (c) The record demonstrates that, from a constitutional perspective, Act 64’s contribution limits are too restrictive. Five sets of factors, taken together, lead to the conclusion that those limits are notnarrowly tailored. First, the record suggests, though it does not conclusively prove, that Act 64’s contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns. Second, Act 64’s insistence that a political party andall of its affiliates together abide by exactly the same low $200 to $400 contribution limits that apply to individual contributors threatens harm to a particularly important political right, the right to associate in a political party. See, e.g., California Democratic Party v. Jones, 530 U. S. 567, 574. Although the Court upheld federal limitson political parties’ contributions to candidates in Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, the limits there at issue were far less problematic, for they were significantly higher than Act 64’s limits, see, e.g., id., at 438–439, and
                        n. 3, and they were much higher than the federal limits on contributions from individuals to candidates, see id., at 453. Third, Act 64’s treatment of volunteer services aggravates the problem. Althoughthe Act excludes uncompensated volunteer services from its “contribution? definition, it does not exclude the expenses volunteers incur, e.g., travel expenses, in the course of campaign activities. The combination of very low contribution limits and the absence of an exception excluding volunteer expenses may well impede a campaign’sability effectively to use volunteers, thereby making it more difficult for individuals to associate in this way. Cf. Buckley, supra, at 22. Fourth, unlike the contribution limits upheld in Shrink, Act 64’s limits are not adjusted for inflation, but decline in real value each year.A failure to index limits means that limits already suspiciously lowwill almost inevitably become too low over time. Fifth, nowhere in the record is there any special justification for Act 64’s low and restrictive contribution limits. Rather, the basic justifications the Statehas advanced in support of such limits are those present in Buckley.Indeed, other things being equal, one might reasonably believe that acontribution of, say, $250 (or $450) to a candidate’s campaign wasless likely to prove a corruptive force than the far larger contributions at issue in the other campaign finance cases the Court has considered. Pp. 19–28.
 

(d) It is not possible to sever some of the Act’s contribution limit
6 RANDALL v. SORRELL Syllabus Act 64 is unconstitutional, but disagreed with the plurality’s rationale for striking down that statute. Buckley v. Valeo, 424 U. S. 1, provides insufficient protection to political speech, the core of the First Amendment, is therefore illegitimate and not protected by stare decisis, and should be overruled and replaced with a standard faithful to the Amendment. This Court erred in Buckley when it distinguished between contribution and expenditure limits, finding the former to be a less severe infringement on First Amendment rights.See, e.g., Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 410–418. Both the contribution and expenditure restrictions of Act 64 should be subjected to strict scrutiny, which they would fail. See, e.g., Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 640–641. Pp. 1–10.
BREYER, J., announced the judgment of the Court and delivered anopinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined as to all but Parts II–B–1 and II–B–2. ALITO, J., filed an opinion concurring in part and concurring in the judgment. KENNEDY, J., filed an opinion concurring in the judgment. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. STEVENS, J., filed a dissenting opinion. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined, and in which STEVENS, J., joined as to Parts II and
III.
 

 

Court rules that web site authors are journalists too.

Monday, June 26th, 2006

LawReader Analysis.    On May 26, 2006, the California court of Appeals held that internet writers and publishers was entitled to the same statutory and constitutional protections provided to Journalists working for newspapers.   This case involved an attempt by Apple Computer company to obtain discovery of internet publishers sources in the face of the California Press Shield Law.

 It should be noted that the California Press Shield Law is more comprehensive than the Ky. Law, but the issue that is important about this decision is it is one of the first (if not the only) court reviews of the difference between internet writers and traditional journalists and it’s conclusion that web site journalists are real journalists.

The California court held that internet publishers enjoy the same protection under the Press Shield Law as more traditional journalists.  This decision noted:

“… petitioners’ Web sites are highly analogous to printed publications: they consist predominantly of text on “pages? which the reader “opens,? reads at his own pace, and “closes.? 

“…we can see no sustainable basis to distinguish petitioners from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience.?

“We agree …with petitioners’ (web site authors) arguments, that petitioners are reporters, editors, or publishers entitled to the protections of the constitutional privilege.?

“If their activities and social  function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.?

“(The) Amicus Internet Technology Industry Council (ITIC)… notes that the internet has “contribute[d] to dramatic increases in business productivity.?

      According to the reasoning in Apple v. Does, the mere fact that a story is published on the internet as opposed to be printed in a newspaper is not a sufficient basis to deny them the protections enjoyed by traditional publishers.

Kurt Opsahl, an attorney for the Electronic Frontier Foundation, “What makes a journalist a journalist is not the format. If you’re engaged in journalism, you’re a journalist. You have to look beyond the medium selected.”
                      Selected Excerpts from Apple v. Does

May 26, 2006

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JASON O’GRADY et al.,
Petitioners,
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
APPLE COMPUTER, INC.,
Real Party in Interest.

“Digital communication and storage, especially when coupled with hypertext
linking, make it possible to present readers with an unlimited amount of information in connection with a given subject, story, or report. The only real constraint now is time—the publisher’s and the reader’s. From the reader’s perspective, the ideal presentation probably consists of a top-level summary with the ability to “drill down? to source materials through hypertext links.?

“D. Covered Publications
We come now to the difficult issue, which is whether the phrase “newspaper,
magazine, or other periodical publication? (Cal. Const., art. I, § 2, subd. (b)) applies to Web sites such as petitioners’. Again, Apple offers little if any argument concerning the construction to be given this language, beyond the general notion that it should not extend to petitioners.

“As potentially applicable here, the phrase, “newspaper, magazine, or other
periodical publication? (Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070, subd. (a)) is ambiguous. The term “newspaper? presents little difficulty; it has always meant, and continues to mean, a regularly appearing publication printed on large format, inexpensive paper. The term “magazine? is more difficult. Petitioners describe their own sites as “magazines,? and Apple offers no reason to take issue with that characterization. The term “magazine? is now widely used in reference to Web sites or other digital publications of the type produced by petitioners. Thus a draft entry in the Oxford English Dictionary defines “e-zine? as “[a] magazine published in electronic form on a computer network, esp. the Internet. “

“ Although most strongly associated with special-interest fanzines only available online, e-zine has been widely applied: to regularly updated general-interest web sites, to electronic counterparts of print titles (general and
specialist), and to subscription-only e-mail newsletters.?19

Similarly, an online dictionary of library science defines “electronic magazine? as “[a] digital version of a print magazine, or a magazine-like electronic publication with no print counterpart (example: Slate), made available via the Web, e-mail, or other means of Internet access.?20   And a legal encyclopedia notes that “[a]s with newspapers, the nature of magazines has changed because of the internet. Magazines may be published solely on the internet, or as electronic adjuncts of a print magazine.? (58 Am.Jur.2d (2002) Newspapers, Periodicals, and Press Associations, § 5, p. 11, fn. omitted.)

Of course, in construing an ambiguous statute, courts will “attempt to ascertain the
Legislature’s purpose by taking its words ‘ “ ‘in the sense in which they were understood at the time the statute was enacted.’ ? ’ ? (Resure, Inc. v. Superior Court (1996) 42 Cal.App.4th 156, 164, quoting People v. Fair (1967) 254 Cal.App.2d 890, 893, italics added; see People v. Williams (2001) 26 Cal.4th 779, 785.) The term “magazine? was added to Evidence Code section 1070 in 1974, as was “or other periodical publication.? (Stats. 1974, ch. 1456, § 2, p. 3184.) “

“Presumably the Legislature was not prescient enough to have consciously intended to include digital magazines within the sweep of the term. By the same token, however, it cannot have meant to exclude them. It could not advert to them at all because they did not yet exist and the potential for their existence is
not likely to have come within its contemplation.

However, even were we to decide—which we do not—that Web sites such as
petitioners’ cannot properly be considered “magazines? for purposes of the shield law, we would still have to address the question whether they fall within the phrase “other periodical publications.? That phrase is obviously intended to extend the reach of the statute beyond the things enumerated (newspapers and magazines). The question is how to delineate the class of unspecified things thus included within the sweep of the law.

But petitioners’ Web sites are highly analogous to printed publications: they consist predominantly of text on “pages? which the reader “opens,? reads at his own pace, and “closes.? The chief distinction between these pages and those of traditional print media is that the reader generally gains access to their content not by taking physical possession of sheets of paper bearing ink, but by retrieving electromagnetic impulses that cause images to appear on an electronic display.22

Thus, even if there were evidence that the Legislature intended the term “publication? in this narrower sense, it would be far from clear that it
does not apply to petitioners’ Web sites. Thus the online library science dictionary to which we have previously adverted defines “electronic publication? to include Web sites.23?

“We conclude that petitioners are entitled to the protection of the shield law, which precludes punishing as contempt a refusal by them to disclose unpublished information.?

“…we can see no sustainable basis to distinguish petitioners from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience.?
“We agree with these implied concessions, and with petitioners’ arguments, that petitioners are reporters, editors, or publishers entitled to the protections of the constitutional privilege.29?

 “If their activities and social  function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.?

“(The) Amicus Internet Technology Industry Council (ITIC)… notes that the internet has “contribute[d] to dramatic increases in business
productivity. Accordingly, ITIC and its members strongly favor policies that protect the flow of free speech across the Internet.?
 
________________________________________
Bloggers can shield sources, court rules  In setback for Apple, Internet journalists are protected by law
Ellen Lee, Chronicle Staff Writer  Saturday, May 27, 2006
 
•In a decision that could set the tone for journalism in the digital age, a California appeals court ruled Friday that bloggers, like traditional reporters, have the right to keep their sources confidential.

A panel of three judges said in a 69-page decision that a group of bloggers did not have to divulge their sources to Cupertino’s Apple Computer Inc., contending that the same laws that protect traditional journalists, the First Amendment and California’s Shield Law, also apply to bloggers.
Siding with the Electronic Frontier Foundation, a high-tech legal group that had filed the appeal, the judges said that Apple could not force the bloggers to reveal the identity of the person — presumably an Apple employee — who had leaked details about a digital-music-related project code-named “Asteroid” to a number of bloggers. The details of the product release were published on several Web logs, Internet sites commonly referred to as blogs, including Jason O’Grady’s PowerPage, which reports on Apple news.

“This was a huge win for the First Amendment and for journalists who publish online,” said Lauren Gelman, associate director for Stanford’s Center for Internet and Society, who filed a brief supporting the Electronic Frontier Foundation. “The court recognized that in the modern era, one way journalists publish information is through the Internet.”

The decision by the state Court of Appeal in San Jose, which reverses a ruling by the Santa Clara County Superior Court, speaks to changes in the way news is gathered and published. Anyone with a computer and an Internet connection can now be a reporter. It also means that information, not limited by region or resources, can reach far and wide via the Web.

In their ruling, the judges said the online news sites should be treated as newspapers, television and radio broadcasts are. O’Grady and the other bloggers, they contended, were acting as traditional reporters and editors do: developing sources, collecting information and publishing it, albeit on the Web.
“The shield law is intended to protect the gathering and dissemination of news, and that is what the petitioners did here,” the judges said in the ruling.
Apple had initially argued that the bloggers shouldn’t be considered journalists. The maker of the popular iPod digital music player, along with other Bay Area high-tech companies such as Intel Corp. and Genentech, also were concerned that the Internet had made it easy for the bloggers to make their trade secrets public, potentially giving their competitors an edge and harming their business.

But Kurt Opsahl, an attorney for the Electronic Frontier Foundation, said the companies can still protect their businesses but cannot use reporters as their first resort to expose a leak.

“The court upheld strong protections for the free flow of information to the press and from the press to the public,” Opsahl said.
In addition, the judges ruled that, in the digital age, bloggers’ e-mails should also be protected, just like a telephone call or written document. Apple had not sued the bloggers directly but had tried to subpoena their Internet service provider, which had access to the e-mails sent between the confidential source and the bloggers. The Electronic Frontier Foundation, representing the bloggers, intervened.
In the end, the judges made little distinction between online journalists and traditional journalists.

“Does Walter Cronkite stop being a journalist if he blogs for the Huffington Post (an online news site)?” Opsahl said. “What makes a journalist a journalist is not the format. If you’re engaged in journalism, you’re a journalist. You have to look beyond the medium selected.”
George Riley, an outside attorney representing Apple, declined to comment. Apple did not return calls for comment. It was not clear whether the company would appeal.

                            The Kentucky Press Shield Law is not as extensive as the California law.
.
KRS 421.100 Newspaper, radio or television broadcasting station personnel need not disclose source of information.

No person shall be compelled to disclose in any legal proceeding or trial before any court,

or before any grand or petit jury, or before the presiding officer of any tribunal, or his

agent or agents, or before the General Assembly, or any committee thereof, or before any

city or county legislative body, or any committee thereof, or elsewhere, the source of any

information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.

Effective: June 19, 1952

State Office of Technology Includes LawReader.com in BlogBlock. Court users not affected

Monday, June 26th, 2006

LawReader has received confirmation from two state executive agencies that LawReader.com has been included in the blog block that the State Office of Technology has placed against blogs. We assume that this action applies to all other state executive agencies.

This block does not affect users on the Administrative Office of the Courts computer networks. Judges and judicial support staff attempting to log on to LawReader have NOT been affected by this action of the executive branch.

LawReader is a non-partisan legal research data base. We provide access to court decisions of all 50 states courts, the Federal Courts, and the Statutes and Rules of Procedure of all courts. 

We are scratching our heads as to how we were included in the blog roundup…COT responded to our request for information by blaming their software vendor, WebWasher. They said WebWasher writes the criteria for inclusion on the blacklist.  We are waiting for a reply from WebWasher.  COT said there were some sites on the list that shouldn’t be there, and there were still some that should be on the blacklist that should be. 

We have among our subscribers several state agencies, and this blacklist will cause us a loss of some revenue. We apologize for this inconvenience to those customers.  COT said that an agency that was denied access should write COT and provide them a business justification for needing to access our site. They would then review the situation.

Community Caretaking Function traffic stops limited by Court of Appeals

Monday, June 26th, 2006

In  Poe v. Commonwealth, 169 S.W.3d 54 (Ky. CA) July 22, 2005, the Ky. Court of Appeals limited traffic stops based on the community caretaking function theory. 

In this case the officer said he felt the motorist was lost.  The officer turned on his takedown lights and pulled the motorist over and subsequently cited him for DUI.  The court held this did not meet the required test for the application of this law. The court held this traffic stop did not meet the required test for the application of this law.

Courts are required to “make an objective assessment of the officer’s actions” when determining if a stop was reasonable.
******************************
       
        On December 21, 2002 an officer with the Hopkinsville Police Department observed Poe driving up and down the same streets around 1:30 a.m. The citation notes a “courtesy stop was made to possibly offer directions.” The officer effected the stop by pulling behind Poe and activating his emergency lights. Once the stop was made the officer noticed Poe had bloodshot eyes, a carefree attitude, and was not wearing a seatbelt. Poe admitted upon questioning that he had been smoking marijuana. Poe was arrested and charged with operating a motor vehicle while under the influence of drugs, no insurance, possession of marijuana, and possession of drug paraphernalia, first offense.

        Poe filed a motion to suppress all evidence based on the allegation that the officer did not have a reasonable and articulable suspicion upon which to believe any criminal activity was afoot, thus, the stop did not meet the constitutional standards required by Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

The Commonwealth admits that the stop of Poe was not based on any reasonable and articulable suspicion of criminal activity and the circuit court’s ruling also recognizes that the stop of Poe was not based on this principle, thus, it cannot be justified pursuant to the doctrines expressed Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) and Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). See also, Simpson v. Commonwealth, 834 S.W.2d 686, 687 (Ky.App.1992). Essentially the Commonwealth is admitting the stop of Poe was illegal unless the community caretaking function exception applies.

        The community caretaking function was first articulated by the United States Supreme Court Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). The Court explained the idea in the context of a case where the police had searched a vehicle without a warrant that had been removed from an accident scene. The search occurred later in time from the accident and was made to locate the driver’s, who was a Chicago police officer, service revolver. Id. 413 U.S. at 437, 93 S.Ct. at 2526. The Court found the search not to violate Constitutional principles stating:

        Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.         Id. 413 U.S. at 441, 93 S.Ct. at 2528.

 

 All courts that have considered the community caretaking function have required, at a minimum, that the officer’s actions must be measured by a standard of reasonableness. One court described this determination as “balancing the public need and interest furthered by the police conduct against the degree and nature of the intrusion upon the privacy of the citizen.” State v. Ellenbecker, 159 Wis.2d 91, 96, 464 N.W.2d 427, 429 (Wis.App.1990), rev. den., 468 N.W.2d 28 (Wis.1991).

        Ellenbecker applied this test in the context of a police officer requesting the license of an operator of a disabled vehicle. Id. 159 Wis.2d at 96-97, 464 N.W.2d at 429. But its principle is equally applicable to Poe’s case because when Officer Marszalek stopped Poe using his emergency lights he effectively seized him. That is, any reasonable person in Poe’s situation would not have felt free to walk, or drive, away. Terry v. Ohio, supra 392 U.S. at 16, 88 S.Ct. at 1877. See also, State v. Jestice, 861 A.2d 1060, 1062 (Vt.2004)(stop is a shorthand way of referring to a seizure).
As others have noted, for the community caretaking function to apply there must be some specific and articulable facts that would lead the officer to reasonably believe the citizen is in need of assistance. Jestice, supra 861 A.2d at 1064. An officer’s practice cannot provide reasonable grounds. Id. In this respect we agree with the observation that:

        An officer’s subjective explanation for stopping or detaining a driver does not control Fourth Amendment analysis. Courts are required to “make an objective assessment of the officer’s actions” when determining if a stop was reasonable.

        State v. Rinehart, 617 N.W.2d 842, 845 (S.D.2000)(Sabers, J. dissenting)(quoting United States v. Cummins, 920 F.2d 498, 501 (8th Cir.1990)(citing Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168, 177 (1978))).

        Such an objective assessment must also be applied in the context of an argument for the community caretaking function, otherwise, the protections afforded by the Fourth Amendment would quickly be eroded. Court approval of any reason related to “public need” for stopping and detaining a citizen based on the subjective beliefs of police officers is constitutionally insufficient.

There have been no published cases in Kentucky considering the application of the community caretaking function to a stop made by a police officer. Cady v. Dombrowski, supra has only been cited and relied on twice: once City of Danville v. Dawson, 528 S.W.2d 687 (Ky.1975) which has since been reversed by Estep v. Commonwealth, 663 S.W.2d 213 (Ky.1983). And the other Kentucky case citing to Cady v. Dombrowski, supra is Blankenship v. Commonwealth, 740 S.W.2d 164 (Ky.App.1987). Blankenship held that an officer’s search of a vehicle of a person who had been shot and was unconscious in order to seek his identity was proper. Id. at 166. In the process the officer found incriminating evidence in plain view — the Court held the evidence admissible. Id.
        The circumstances in these cases are dissimilar from the facts here. In Poe’s case the issue is not whether an inventory search meets the constitutional standard, but whether the stop itself qualifies under the community caretaking function.
       
The question is was Officer Marszalek’s stop of Poe reasonable in the circumstances. We hold it was not.

 The public need in this case is slight. People commonly become lost, if in fact Officer Marszalek’s assumption about Poe’s driving was correct. Police officers do not normally pull someone over because they believe the operator of the vehicle needs directions. The intrusion on the privacy of the citizen, however, is great. The ordinary citizen would not expect a police officer to activate his emergency lights and effect a stop with which the citizen must comply without the stop being supported by some sort of traffic violation or criminal activity. Poe, of course, was free to stop the officer and ask directions. If he had initiated the stop, we would have a different situation.
       
Officer Marszalek’s belief that Poe may need directions is not a valid basis to stop him in these circumstances. Officer Marszalek observed no traffic violations, no criminal activity, and no evidence such as a flat tire, flashing lights, jumper cables, a raised hood or any other indication that Poe required assistance.

 The community caretaking function does not provide justification for the stop in this case. Whether it would provide justification in other circumstances we leave for another day.
        The decision of the circuit court is reversed and the case is remanded for proceedings consistent with this opinion.

 

 

 

 

William R. Mapother, Prominent expert and Author on Debtor Creditor Law, relative of actor Tom Cruise, passes away at 68.

Sunday, June 25th, 2006

 MAPOTHER, WILLIAM R., a third-generation Louisville attorney of the firm Mapother & Mapother and a nationally-renowned speaker, passed away Thursday, June 22, 2006, at Deaconess Hospital in Evansville, IN. He was en route to his home in Kentucky after an Alaskan cruise with his fiancée, family, friends, and business associates. He was 68.

 The cause was complications due to pulmonary fibrosis and lung cancer. Mr. Mapother was a bankruptcy consultant, who for over 30 years, and in all 50 states, taught seminars for banks, credit unions, and lenders. He was a recipient of the prestigious Certified Speaking Professional designation of the National Speakers Association, and he was well known for his clear, enthusiastic, and entertaining style of public speaking. He is the author of 13 books on bankruptcy and, since 1985, was a regular columnist for Credit Union Magazine. Mr. Mapother was the Kentucky Credit Union League attorney for over three decades and the West Virginia Credit Union League attorney for over one decade. He was admitted to practice before the U.S. Supreme Court and was also a member of the Kentucky, Indiana, Ohio, Tennessee, and West Virginia Bar Associations. At age 28, Mr. Mapother became the youngest person to serve as a Jefferson County Juvenile Court Judge, a position he held from 1967-70. He was a member of the Edward Frederick Sorin Society of the University of Notre Dame, and he served 21 years of volunteer service to ACCEPT Consumer Credit Counseling Program. In the early 1970′s, he was President of the Louisville Chapter of Planned Parenthood. He was a member of the Pendennis Club. Mr. Mapother is a graduate of St. Xavier High School, the University of Notre Dame with honors, and the University of Virginia Law School. He was preceded in death by his father, Thomas Cruise Mapother Jr.; his mother, Catherine Reibert Mapother; and his brother, Thomas Cruise Mapother III. He is survived by one son, William Reibert Mapother Jr.; two daughters, Katherine Grigsby Mapother and Amy Cruise Mapother; and his fiancée, Valerie Brown. The funeral will be at 11 a.m. on Monday, June 26, 2006, at St. Leonard Catholic Church, 440 Zorn Avenue. Burial will follow in Calvary Cemetery. Visitation will be from noon -5 p.m. and 7-9 p.m. on Sunday at Ratterman Funeral Home, 3711 Lexington Road. The family requests that memorial gifts be made to any of the following: Mapother Memorial for Scholarship Aid at St. Xavier High School (www.saintx.com), Blue Apple Players (www.blueappleplayers.org), or The Community Foundation of Louisville designated for the Sudanese Refugee Education Fund (www.sudaneseinkentucky.org).

Published in The Courier-Journal on 06/25/2006.

Courier Journal article says Lambert footnote ill advised. LawReader says Lambert unfairly treated on this one

Sunday, June 25th, 2006

Andrew Wolfson writing for the Louisville Courier Journal quotes a number of legal authorities on the topic of Chief Justice Lamberts footnote in a decision regarding immunity of public officials from civil suits. The controversial footnote said: “though unsettled, there is a strong argument in favor of barring criminal charges against a sitting executive for actions taken while in office”…

In a prior article posted on LawReader and in an interview with Wolfson, LawReader Senior Editor Stan Billingsley made the point that the footnote was merely dicta, and that it was not unusual for judges to add dicta to their rulings.  Billingsley further argues that Lambert did not rule that Fletcher or any other executive was immune from prosecution prior to impeachment. He only made a comment that there was an argument in the law about such a theory.  “The footnote was surplusage, but it is not unusual for authors of legal opinions to comment on other arguments that might show the outer parameters of the pending legal issue.”  Billingsley who disagrees with the cited argument that there is a “strong” argument for executive immunity from prosecution, has nevertheless written that Lambert is being unfairly criticized for a scholarly comment.

In the Courier Journal article, Wolfson wrote:
 Lambert wrong, legal experts say   Fletcher footnote called ill-advised

By Andrew Wolfson  Reprinted from The Courier-Journal June 25, 2006

Legal experts say Kentucky Chief Justice Joseph Lambert showed poor judgment when he weighed in on whether Gov. Ernie Fletcher may be prosecuted while still in office. They also say he got it wrong.

In a footnote to a June 15 Supreme Court opinion, Lambert suggested that Fletcher may be prosecuted only if impeached first. But five sitting governors in the United States have been convicted of crimes over the past 30 years, and U.S. Justice Department spokeswoman Donna Sellers said in an interview last week that “there is nothing to prevent a sitting governor from being prosecuted.”

Several nationally recognized experts on legal ethics also said that it was ill-advised for Lambert to comment on a roiling political controversy, and that he undermined confidence in the judiciary by appearing to aid a friend and fellow Republican.

“Given the current charges against the governor, I believe it was an error in judgment,” said New York University law professor Stephen Gillers.
Lambert has declined to comment, saying he doesn’t talk about pending cases. But his general counsel and chief of staff, Jason Nemes, issued a statement Friday defending the footnote. Nemes noted that “highly regarded legal scholars,” including Laurence Tribe of Harvard and Erwin Chemerinsky, of Duke, have said that the president of the United States, as chief executive, cannot be prosecuted while in office because it would interfere with his ability to run the government. Nemes said the same logic applies to the governor, as a state’s chief executive.

Nemes also noted that prosecution of sitting governors in other states isn’t relevant unless their state constitutions are the same as Kentucky’s.
And he cited a 1951 case in which Kentucky’s high court held that a judge who was indicted on a charge of misfeasance in office could not be prosecuted because impeachment “sufficiently protects the public interest” and “must be considered exclusive.”

In an interview last week, Justice Bill Graves, who joined in the majority opinion in which the footnote was inserted, defended it as “an interesting side point.”
He also noted that “you can logically infer that impeachment should come before prosecution because otherwise an aggressive prosecutor could indict a sitting governor and put him in jail on charges that aren’t well founded. You would have a coup d’etat.”

Lambert offered the footnote in a 4-2 ruling against state employees who claimed they were inadequately paid in 2002 when the General Assembly adjourned without passing a budget. The suit named the governor and turned in part on his immunity in civil cases.

Lambert wrote that “though unsettled, there is a strong argument in favor of barring criminal charges against a sitting executive for actions taken while in office” because both the federal and state constitutions say that after an officer is impeached, he ” ‘shall be nevertheless liable and subject to indictment, trial, judgment and punishment.’ ”

Lambert suggested that language means a governor can only be prosecuted after he is impeached. The General Assembly has taken no steps to impeach Fletcher.

Heated debate

The footnote, one of 36 in the 13-page majority opinion, doesn’t carry the force of law, but it ignited a heated debate in blogs and the legal community.
One of Lambert’s colleagues, Justice William Cooper, who is retiring, was quoted in the Lexington Herald-Leader last week as saying Lambert’s comment was “kind of inane — not only doesn’t it have to do with this case, but the argument was specious.”

The controversy is one of several recent ones involving Lambert, who was re-elected chief justice by his colleagues earlier this year.
The Courier-Journal reported last month that Lambert wrote to Fletcher and got him to speed up the start date of an anti-double-dipping law that would penalize a campaign opponent of Lambert’s wife, a family court judge seeking re-election. Lambert said the move had nothing to do with his wife’s candidacy.
Lambert also was the subject of an ethics complaint that accused him of failing to recuse himself from a decision upholding a $14.5 million award for a coal operator who had funneled $9,000 in straw-man contributions to Lambert’s wife’s 2000 election campaign.

The Judicial Conduct Commission dismissed the complaint in March, which Lambert said showed he did nothing wrong.
Writing about the June 15 footnote in LawReader, a nonpartisan newsletter for lawyers, senior editor Judge Stan Billingsley, a retired district judge, said he could find no case anywhere supporting the proposition that a governor is immune from prosecution while still in office.

In an interview, Billingsley said Lambert misinterpreted the impeachment clause in the U.S. and Kentucky constitutions. Billingsley and other analysts say the framers included that language — that impeached officers are nevertheless subject to prosecution — not to say they had to be impeached before being prosecuted, but to keep them from claiming they couldn’t later be prosecuted because of the protection against double jeopardy.
In state and federal prosecutions, the governors of Maryland (Marvin Mandel, 1977), Alabama (Guy Hunt, 1993), Arkansas (Jim Guy Tucker, 1996), Arizona (Fife Symington, 1997) and Ohio (Bob Taft, 2005) all were convicted of various crimes while in office.

Fletcher’s criminal defense lawyer, M. Stephen Pitt, declined to say whether the governor would mount an immunity defense. His motion to dismiss charges of conspiracy, official misconduct and political discrimination is due July 7 in Franklin District Court, where Fletcher is scheduled for trial Nov. 8.
There is no rule barring judges from making comments in footnotes, even about future cases.

But George Mason University law professor Ronald Rotunda said Lambert’s inclusion of the footnote was “not prudent.” Professor Monroe Freedman of Hofstra University said it is “injudicious to use a dictum on such an important and complex issue without its having been thoroughly briefed and argued.”
Retired Kentucky Court of Appeals Judge Michael McDonald said the footnote was “ill-advised” because it could cause “a lot of mischief in the lower courts.”
McDonald added that he was surprised that none of the other court justices commented in writing about the footnote, including Cooper, who dissented.
“I know when I wrote things that were goofy,” McDonald said, “other judges said, ‘You ought to think about that.’ ”

Reporter Andrew Wolfson can be reached at (502) 582-7189.

 

Judge Wehrman donates kidney to prosecutor. No objection from Defense bar.

Saturday, June 24th, 2006

 Judge Wehrman of Covington donated one of his kidneys to Assistant U.S. Attorney E.J. Walbourn. This is the most selfless acts we have ever heard of by a Judge. The following story appeared in the Kentucky Post.
Assistant U.S. Attorney E. J. Walbourn is recovering from a kidney transplant this week. The donor: U.S. Judge Magistrate J. Gregory Wehrman.

“E.J. was in bad shape,” Wehrman said Thursday from his hospital room at Christ Hospital. “Luckily, I was a match.”

The two have faced each other across the judge’s bench for years in the federal courthouse in Covington. Tuesday they were in Christ Hospital, sharing much more than courtroom space and trial information, as surgeons took out one of Wehrman’s kidneys and transplanted it into Walbourn.

“They took it out and five minutes later it was in E.J.,” Wehrman said. “It started working immediately. E.J. is ecstatic.”

Both men were in good condition Thursday and hoped to go home next week.

Wehrman’s donor operation was laparoscopic surgery, which meant the surgeon was able to extract his kidney through tiny incisions while using a camera to guide his instruments.

In Greater Cincinnati, Christ and University are the only hospitals performing adult kidney transplants. According to the Web site for the Health Alliance, which includes both hospitals, the laparoscopic procedure is less invasive than an open kidney transplant, which involves a substantial incision from the navel to the back. With laparoscopic surgery, donors experience less pain and discomfort and have a shorter recovery time.

The kidney’s primary job is to cleanse blood. One kidney is usually adequate, so a person with two can lose one without suffering consequences.

Walbourn supervises the Covington office for the U.S. Attorney for the Eastern District of Kentucky and has prosecuted cases in Wehrman’s courtroom.

Walbourn declined to comment for this story.

Steve Wolnitzek, chairman of the Judicial Conduct Commission of Kentucky and a former president of the Kentucky Bar Association, said a kidney exchange wouldn’t preclude a judge and prosecutor from working on the same case.

“I’d think if it was a judge in Kentucky, he would disclose that to opposing counsel,” said Wolnitzek. “He (the judge) could say ‘I don’t think it’s grounds for me to recuse, but if they do, I’ll consider their arguments.’”

Wolnitzek said he knew Walbourn was seriously ill and needed a transplant.

The biggest concern for transplant recipients is rejection of the new organ.

Nationally, more than 66,000 people are waiting for donor kidneys, said Dr. Steven Woodle, chief of transplant surgery at Christ and University hospitals, in an interview last month.

He said the average wait for cadaver kidneys – those harvested after the donor’s death – can range from three to 5½ years, depending on blood type.

Live donors are preferred. Woodle has worked with donors who are blood relatives, spouses and friends of recipients. Lately he’s been transplanting kidneys from live donors who are strangers, but linked by common needs.

Because so many people who need kidneys have a willing donor who does not have a matching blood type, Woodle helped organize a paired kidney donation program that can increase the chances of finding a live donor by matching donor and recipient pairs for a kidney trade.

“There’s such a need for kidneys,” said Wehrman. “When you look at what a difference it can make, it’s a miracle.”
Kentucky Post staff report

Statement by Kentucky Supreme Court Justice Donald C. Wintersheimer

Saturday, June 24th, 2006

I have absolutely no intention to retire early. I plan to complete my term on Dec. 31, 2006.

In 1998, I clearly and unequivocally promised the voters that I would serve a full term, the Lord willing. I intend to fulfill that solemn commitment.  I have no criticism of others who do retire early. I respect their personal decision in that regard.

High court will recess in July Saves best cases for last

Saturday, June 24th, 2006

WASHINGTON.  The Supreme Court has had divisive rulings this year on the environment, police power and whistleblowers, and the justices are not even through with their hardest cases.

The high court is on a tight deadline to finish before July, when justices begin a three-month break that provides time for traveling, teaching classes, writing books and relaxing.

As usual, justices have left some of the most significant cases to the very end. There are 10 rulings left, on issues from a president’s wartime powers, capital punishment, Texas’ political boundaries and the insanity defense.

The past year has been a time of change. Chief Justice William H. Rehnquist died and a protege, his former law clerk John Roberts, succeeded him.

In addition, the influential Justice Sandra Day O’Connor, the first female justice, retired. She was replaced in January by Samuel Alito.

Justice Anthony M. Kennedy has emerged as an important swing voter – a role previously held by O’Connor. Kennedy wrote the term’s two biggest death penalty cases, which made it easier for death row inmates to contest lethal injections and to get DNA evidence before the courts.

 

Kennedy, a centrist put on the court by President Reagan, also blocked conservatives from dramatically scaling back the Clean Water Act. The 5-4 decision preserves government authority to block development on wetlands as long as the wetlands meet Kennedy’s test.

“We have entered the era of the Kennedy court. It’s striking what a pivotal role Kennedy has come to play,” Duke Law School professor Erwin Chemerinsky said.

In conservative victories, Kennedy wrote a 5-4 decision that said public employees do not have free-speech protections for what they say as part of their jobs. He also broke a 4-4 tie to make it easier for police with search warrants to enter homes without knocking or waiting.

Roberts, in his first term as chief justice, has built a firm conservative voting record, but without Kennedy does not have a solid voting block.

“This is not a court that has a clear solid five votes for doing anything that a conservative majority wants to do,” said Stephen Wermiel, a law professor at American University.

Roberts has written seven opinions, all but one unanimous. Among them, he bolstered police power to enter a home to break up a fight without knocking first; upheld a church’s use of hallucinogenic tea; and found that the government can force colleges to open campuses to military recruiters despite university objections to the Pentagon’s “don’t ask, don’t tell” policy on gays.

The chief justice has encouraged his colleagues to be more unified in their decision-making. So far, justices have been split 5-4 in just seven of the 59 rulings.

The big test, however, is still ahead.

The most significant case of the year challenges the president’s power to order military trials for suspected foreign terrorists held at the Navy prison at Guantanamo Bay, Cuba. Roberts cannot participate because he served on an appeals court panel that backed the Bush administration in the case last year.

Two election cases are still to be decided.

Justices have been asked to throw out all or part of a Texas congressional map promoted by former House Majority Leader Tom DeLay, R-Texas. They also will decide how far states can go to limit spending and donations to political campaigns.

Alito is expected to break a tie in the one death penalty case still undecided, a constitutional test of Kansas’ death penalty law. The case was argued the first time before O’Connor’s departure. A new argument session was held after his arrival.

It is tough to tell the court’s direction so early in the tenures of Roberts and Alito, most court-watchers say.

Justices have lined up some significant cases for next fall, on abortion, public school affirmative action and the environment.

“Justices are willing to test the new lineup right away. Next year is where the rubber is going to hit the road,” said John Yoo, a University of California, Berkeley, law professor.

On the Net:

Supreme Court: http://www.supremecourtus.gov/

By GINA HOLLAND
ASSOCIATED PRESS WRITER

LawReader has prepared a synopsis for each of the 24 cases released by the Ky Court of Appeals on June 23

Friday, June 23rd, 2006

LawReader published these cases within four hours of their release. There is no better way to stay informed of the law. The following is a simple reference to the rulings.  For synopsis and full text access subscribe to LawReader.com.

This weeks Important cases:

1 Court did not err in ordering spouse to compensate ex-wife for share of retirement benefits based on[QDRO]? assets pursuant to property settlement agreement
2 Developer  is not entitled to compensation for their sewer plant which was bypassed by MSD. It was not therefore taken.  No damages for “inverse condemnation?.
3 TO BE PUBLISHED: the trial court erred by concluding as a matter of law that the crowbar constituted a deadly weapon under KRS 500.080(4)(d).
4 Insurance company was not obligated to provide coverage after homeowner failed to pay for the policy.  It was homeowner’s responsibility to inform insurer of his new address, therefore failure to receive notice of policy cancellation was not insurer’s fault.  Plaintiff set the romantic mood by spreading the money on the sofa in the living room of the lake house. Unfortunately for Plaintiff, a masked intruder forced his way into the home and brandished a gun, stole the money and set the house of fire before fleeing.
5 if a probated sentence for a felony is revoked after the commission of another felony, KRS 533.060 requires the sentences for the two felonies to run consecutively even if the probation revocation occurs after the passage of the ninety-day period described in KRS 533.040.
6..Dicta: .“(a) single sales transaction (of controlled substance) between the same principals at the same time and place which violates a single statutory provision does not justify conviction or a sentence for separate crimes, even though more than one item of a controlled substance (of the same schedule) is involved.? A trial court is not permitted to review the credibility of evidence, or the weight it should be given. Such a review is the province of the jury.
7 TO BE PUBLISHED: Co-defendant’s plea of guilty did not waive her right to assert Fifth Amendment right to not testify.  –  “the introduction of inadmissible evidence by one party allows an opponent, in the court’s discretion, to introduce evidence on the same issue to rebut any false impression that might have resulted from the earlier admission.?
8 a motion for directed verdict will not preserve  a claim that the evidence is insufficient to sustain the  Commonwealth’s burden of proof on one or more of the indicted offenses.
9 The voluntary nature of consent to search is to be determined by the trial court with regard to
the totality of the circumstances
10 Law enforcement personnel are not automatically excluded from the jury panel
11 Plaintiff needed, yet did not obtain, an expert witness to support the medical malpractice claim
12 counsel’s negligence in failing to answer discovery is imputed to the client and is normally not a ground for relief from a court order of judgment.
13 Defendant is entitled to? “a fair trial, not a perfect one.?
14 the family court erred by awarding the certificate of deposit to Justin instead of finding it to be a marital asset and dividing it in just proportions.
15 when the time for filing a notice of appeal ran on December 9, 2004, the Commonwealth’s CR 60.01/60.02 motion did not toll the time and the November 9, 2004, opinion and order setting aside the guilty plea became final.
16 negligence by Eastern State which contributed to his escape does not absolves defendant of the crimes he committed following the escape  – failure of trial attorney to pursue such a defense not basis for 11.42 relief
17 18 the date the insurer issues payment, is the date from which the limitations period begins to run.
19 TO BE PUBLISHED: Defendant clearly and deliberately rejected the arbitration provision contained in the offer by marking through that clause of the contract. By executing the general terms of the contract, Collins did not waive his right to reject the specific arbitration clause proposed
20 Any agreement (regarding child support) which affects the best interest of a child is always subject to the approval of the court having proper jurisdiction of the parties.
21 only Dr. Eberbaugh, as School Superintendent, had the authority to enter into an employment agreement with teacher…summary upheld.
22 Constructive service of process by a warning order attorney has been permitted in termination of parental rights cases due to problems in locating the parent in question.
23 Miranda is applicable only in the event of a custodial interrogation
24 “given the evidence most credible by the ALJ, we cannot say the ALJ’s determination that

Lover spreads money on bed, intruder robs him, sets house on fire, shoots him in the buttocks and flees. Court rules his homeowners insurance did not cover loss

Friday, June 23rd, 2006

A Kentucky man attempted to reenact a scene from the movie Indecent Proposal. After laying $7000 on bed prior to planned romantic encounter, an intruder broke in, stole the money, set the house on fire, and shot him in the buttocks. He then found out his insurance policy had been cancelled.

Kentucky.COURT OF APPEALS CASE #4 ISSUED JUNE 23, 2006, summarized by LawReader.com in its weekly decisions:

INSURANCE COMPANY WAS NOT OBLIGATED TO PROVIDE COVERAGE AFTER HOMEOWNER FAILED TO PAY FOR THE POLICY.  IT WAS HOMEOWNER’S RESPONSIBILITY TO INFORM INSURER OF HIS NEW ADDRESS, THEREFORE FAILURE TO RECEIVE NOTICE OF POLICY CANCELLATION WAS NOT INSURER’S FAULT.

HUDDLESTON, SENIOR JUDGE: Richard Humphrey, the owner of a house situated on the banks of Kentucky Lake in Western
Kentucky, appeals from a summary judgment that denied his claim for insurance benefits and related damages arising from the partial destruction of his house by fire. This litigation arose after a fire at Humphrey’s lake house in Marshall County on May

Humphrey sought funds to pay off personal debts and also planned to finance a romantic weekend during which he planned to propose marriage to Kelley.

 Humphrey intended to recreate a scene from
the movie “Indecent Proposal,? where money would be spread across a bed for an intimate encounter.

That evening, Humphrey set the romantic mood by spreading the money on the sofa in the living room of the lake house. Unfortunately for Humphrey, a masked intruder forced his way into the home and
brandished a gun. A physical altercation ensued and the intruder was revealed to be Chadwick.

During the scuffle, Humphrey was shot in the buttocks and knocked unconscious.
While the two men were fighting, Kelley gathered the money in a garbage bag and ran outside. Candles were inadvertently knocked over and the couch was engulfed in flames.

Chadwick dragged Humphrey outside the burning house and fled with the cash.
Chadwick and Kelley were subsequently prosecuted for their roles in the arson, assault and robbery.

On May 28, 1998, Humphrey filed a claim for the damage with Western Rivers Corporation, his local insurance agency.  Western Rivers informed Humphrey that his homeowner’s policy had
been cancelled by his insurance carrier, Grange Mutual Casualty Company, for non-payment of premium on May 14, 1998. Humphrey claimed he never received notice that his policy was to be
cancelled.

It is indisputable that Grange gave proper statutory
notice that the policy would be cancelled for non-payment. It is also undisputed that Mary, who was a named insured on the policy, continued living at the Missouri address where Grange sent the cancellation notices. Furthermore, it was Humphrey’s
responsibility to ensure that Grange had the proper contact information if he expected to receive mail at his lake house.

Once Grange properly cancelled the policy for non-payment, Grange no longer owed any duty to Humphrey. The parties’ relationship was based on contractual obligation, and Grange was
not obligated to provide coverage after Humphrey failed to pay for the policy.  Accordingly, summary judgment was properly granted in favor of Grange as a matter of law.

Finally, Humphrey argues Western Rivers is liable
under the UCSPA. We disagree. Western Rivers was not obligated to disclose the status of Humphrey’s policy, and it otherwise made no material misrepresentations.

Consequently, Humphrey’s claims must fail, and we find summary judgment for Western Rivers was proper as a matter of law.

High court eases path for worker discrimination suits Employees can sue for retaliation even if they are not fired

Friday, June 23rd, 2006

WASHINGTON  (In Burlington Northern v. White)   The US Supreme Court has made it easier for workers to sue their bosses for acts of retaliation in the workplace. In a unanimous decision announced Thursday, the high court established a relatively broad standard empowering employees to take their supervisors to court if they retaliate after the worker has complained about illegal discrimination.
Such lawsuits, which hinge on the antiretaliation section of Title VII of the Civil Rights Act, have more than doubled in the past 10 years. They now account for 30 percent of the cases filed with the Equal Employment Opportunity Commission (EEOC), according to lawyers involved in the case. The average retaliation lawsuit costs about $130,000, the lawyers say.

The Civil Rights Act bars discrimination based on race, color, religion, sex, or national origin. But it also forbids employers from taking adverse action against an employee who attempts to report workplace discrimination.

The question before the high court was: How serious must the retaliation be to qualify as an unlawful employment practice under the civil rights law? Must an employee face a sanction as serious as losing one’s job? Or would any adverse action by management that might prevent a worker from speaking up about discrimination qualify as illegal retaliation?

Federal appeals courts across the country have provided vastly different answers to the same questions. On Thursday, the Supreme Court set a single standard in a case called Burlington Northern v. White.

The antiretaliation provision seeks to prevent employers from interfering with their workers’ ability to complain about discrimination, writes Justice Stephen Breyer for the court. “It does so by prohibiting employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers.”

Managers and bosses displaying behavior like “petty slights, minor annoyances, and simple lack of good manners” does not constitute deterrence, writes Justice Breyer. But “the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.”

The decision comes from a case filed by Sheila White, who complained about sexual harassment while working in a Tennessee rail yard as a forklift operator for the Burlington Northern & Santa Fe Railroad Company.

A company investigation supported Ms. White’s claims. Her supervisor was suspended for 10 days and ordered to attend a sex-discrimination workshop.

A few weeks later, White was reassigned from her coveted forklift job to work as a track laborer. Both jobs were contained within the same job description and both earned the same level of pay and benefits. But the laborer job was physically more demanding and required working outside in all weather conditions.

In addition, after a dispute with another supervisor, White was suspended without pay for 37 days pending an investigation of alleged insubordination. She was later reinstated with full back pay.

White sued the company in federal court, claiming the reassignment and her suspension without pay were forms of illegal retaliation for her earlier sexual harassment complaint. A jury awarded her $43,250 in compensatory damages for emotional distress and related doctors’ bills.

A federal appeals court panel ruled that the award should be reversed because neither of the two actions taken against White were adverse enough to qualify as illegal retaliation under Title VII. But that ruling was reversed by the full Sixth US Circuit Court of Appeals, which upheld the jury verdict for White.

In affirming the Sixth Circuit decision, the Supreme Court said the test is whether the employer’s retaliatory acts are likely to dissuade a reasonable employee from complaining or assisting in complaints about discrimination.

The high court stressed that judges must consider the unique circumstances of each situation. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed,” Breyer writes.

He offered two examples of potential retaliation. “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”

He added, “A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.”

Reprinted from the Christian Science Monitor
 In the Monitor By Warren Richey | Staff writer of The Christian Science Monitor
Friday, 06/23/06

Justice William Cooper to retire from Supreme Court on June 30th

Wednesday, June 21st, 2006

 Justice William Cooper annouced Wednesday that he would retire from the Kentucky Supreme Court as of June 30th.

Cooper has served on the court since l996. Earlier this year he announced that he would not be seeking re-election this year.
Court of Appeals John Minton is unopposed in this November’s general election to replace Cooper.

Cooper is thought by many members of the bar to have been the brightest jurist on the Supreme Court. His opinions were often filled with the historical backgrounds of laws, and peppered with biting wit.

   When there is a vacancy in a judicial office, the designated regional Judicial Nominating Commission nominates up to three candidates for the vacancy, and the Governor then has 30 days to select one of the nominees to serve the balance of the term. Cooper’s term will expire at the end of this year.

   It would seem logical to assume that Judge Minton would be appointed to fill the vacancy, but this is only a possibility.

State computer network blocks Bluegrassreport..and even block queries on (word censored by state) discrimination

Wednesday, June 21st, 2006

By Stan Billingsley, Senior Editor of LawReader.    Mark Nicholas reports on his blog site that he has been receiving e-mails from state workers who have informed him that the Commonwealth Office of Technology has blocked access to his site, BluegrassReport.org.  BluegrassReport is a highly read democratic blog, and recently won a national award for its reporting.  This week it was mentioned in an article by the New York Times. 

In the first three days after the blogflogging started, Bluegrassreport.org reports that it has received 39,488 visitors who have viewed 72,784 pages. Compare that to their average traffic of 3,000 visitors per day and 10,000 page views.  This would seem to have had the opposite effect intended by State Government. But isn’t that the way it works with censorship….want a book to be a best seller…  Just Ban it in Boston and you’ll  assure its success.
Censorship on the state network is so tight that it even blocks legitimate legal research.  A year ago  (before my retirement as Judge) I was researching a decision on a case involving (the three letter word meaning the same thing as gender which has been censored and blocked by the state of kentucky censors) xxx discrimination from a state computer, and the search query was blocked.  I guess “XXX (word censored)… discrimination” is a purient topic these days.

This article when first written contained the banned word used in place of gender.  However, the state censors have banned the use of this three letter word even though it is a common legal term used to identify a class of civil rights cases.  We have removed the offending word in order that this article may be accessed by our judges and other state personnel.   The music you hear in the background is the theme song from The Twilight Zone.

The following article was posted by the Courier-Journal:

Governor tells state workers to read blogs on their own time    State blocks more sites from employee surfing

By Tom Loftus  The Courier-Journal

FRANKFORT, Ky. — Political bloggers have joined pornographers, casinos and hate groups on the Fletcher administration’s list of Web sites that state employees are blocked from visiting.

So have blogs and Web sites dealing with entertainment, auctions and humor, as well as sites that could transmit computer viruses.

Political blogs were among the categories added to the list Wednesday.

One political blogger in Kentucky said the timing is suspicious and charged the Fletcher administration has targeted his site because he is critical of the governor.

On Tuesday, he ran excerpts of a New York Times story Tuesday about the state hiring investigation, which included quotes from him criticizing Fletcher.

But Jill Midkiff, spokeswoman for the Finance and Administration Cabinet, said the goal is to make sure that state workers on state time use state computers for only work purposes.

“Today we blocked new categories of sites. We didn’t target specific sites,? said Midkiff. “The new categories are in addition to categories that have been blocked for a while now — pornography, lingerie, computer games, hate sites, illegal activity sites, chat rooms.?

Midkiff said the state has retained a contractor called Webwasher to check the number of visits state employees make on state computers to various Web sites. A report from that group two weeks ago showed that certain categories of sites were being frequently visited which had no value to state government.

So Midkiff said that the administration to decided to ban entire categories of sites — including blogs.

“Visiting these sites is not an efficient use of state employee time,? she said.

Web surfers using state computers accounted for less than 1 percent of visits — or 6,342 — to courier-journal.com between June 1 and 6:53 p.m. on Wednesday.

Mark Nickolas, a Democratic blogger whose Web site BluegrassReport.org is harshly critical of the Fletcher administration, said his site is important for state workers to read. Blog is shorthand for Web log.

“It’s phony to say a website like mine doesn’t serve a legitimate purpose. People in government are developing policy and need to understand what’s going on in the state, and they can help inform themselves of that by visiting my site,? he said. “This shows the Fletcher administration’s way of dealing with dissent is to censor it.?

He also noted that access to sites of the political parties was not blocked.

Midkiff said mainstream media sites were not blocked because they can provide state employees a broader range of news on issues which agencies may need.

Midkiff said the recent report from the state’s consultant did not show state workers were visiting the sites of the Kentucky Republican and Democratic parties.

Charles Wells, executive director of the Kentucky Association of State employees, said he did not believe state workers should visit political blogs on work time, but should be allowed to do so during breaks or lunch.

“And I don’t understand why a state employee can go to the Republican Party Web site but not BluegrassReport. Drawing the line where they have has started another fight this administration didn’t need to fight,? Wells said.