Archive for October, 2006

PACs pouring money into judicial campaigns – just not in Minnesota

Tuesday, October 31st, 2006

by Elizabeth Stawicki, Minnesota Public Radio  October 16, 2006

A non-partisan Washington D.C.-based group reports special interests have poured an unprecedented amount of money into TV ads for judicial campaigns. Justice at Stake says the money spent on those ads jumped nearly 70 percent in the past two years in judicial races around the country – that is, except for Minnesota. At the same time, many in the legal profession blame Minnesota for the rise in expensive and abrasive judicial campaigns.

St. Paul, Minn. — In 2002, Minnesota’s Republican Party and a Golden Valley attorney won a major ruling at the U.S. Supreme Court. The justices struck down Minnesota’s rule that banned judicial candidates from announcing their views on controversial legal and political issues.

The decision rippled across the nation, particularly in states that elected their judges. Many had similar judicial speech restrictions. Jesse Rutledge of Justice at Stake says since the Minnesota case, special interest groups have increased their spending on judicial races from $1.1 million in 2004 to $1.8 million.

“We’ve seen higher levels of fundraising in almost every state, much more active role for 3rd party interest groups in the campaigns; we’re seeing TV ads that look like they should be for governor,” said Rutledge.

Consider the state of Nevada. In 2003, Nevada’s governor sued the state legislature for failing to pass its budget despite two special sessions. The state had recently amended its constitution so that any tax increase required a 2/3 legislative approval. Nevada’s Supreme Court suspended the 2/3 majority and directed the Legislature to approve education funding by a simple majority.

Becker is the first justice to run for re-election since that ruling. The group, Nevadans against Judicial Activists has paid for an attack ad against incumbent Justice Nancy Becker.

That these kinds ads could come to Minnesota, is state Chief Justice Russell Anderson’s nightmare. The issue was front and center at his inauguration earlier this year.

We are more apt to allocate resources to states that have bigger problems.
- Larry Akey, U.S. Chamber of Commerce”There are those who seek to inject large amounts of money into our system of selecting judges and influence the election of judges and subsequent decisions of judges, I ask the people of Minnesota join me in one unified response. And that is this, ‘In Minnesota justice is not for sale,’” Russell said.

So what’s happened in Minnesota since the Chief Justice’s speech? Not much.

The judicial candidate who has spent the most money so far is John Melbye. Melbye’s spent about $23,000 challenging his former boss, 9th District Judge Terrance Holter. Melbye was Holter’s law clerk. No special interest groups have boosted Melbye’s campaign fund, he’s using his own money.

“I feel that’s the only fair thing to do. I don’t feel ethical to ask people to give me money to get a job,” said Melbye. “If it’s something I feel that I can do and I can then it’s up to me and not other people to pay for that.”

Theories abound why Minnesota may not be attracting well-heeled special interests to spend there money here. Special interests tend to fund state Supreme Court campaigns and Associate Justice G. Barry Anderson is running unopposed. Special interests contribute to judicial campaigns in states where they perceive the legal climate is against their causes. When asked why the U.S. Chamber of Commerce has contributed to judicial campaigns in other states, but not Minnesota, spokesman Larry Akey said it was a matter of priorities.

“The business community allocates its resources where it thinks it can do the most good. And in the case of Minnesota, the state already has one of the better legal environments for business among the 50 states. So we are more apt to allocate resources to states that have bigger problems,” Akey said.

The U.S. Chamber of Commerce commissions an annual Harris poll that ranks the 50 states on how fair their court systems are to business. Minnesota ranked 14th best this past year but it’s slipped from previous years. Minnesota went from 7th to 14th in fairness to business. Jesse Rutledge of Justice at Stake says Minnesota shouldn’t rest on its laurels.

“These trends are taking place even if they’re not yet obvious in Minnesota. There’s very little reason to think based on national trends that they won’t one day be obvious in Minnesota unless safeguards are adopted shortly,” he said.

Former Governor Al Quie heads up a bipartisan group called the Citizens Commission for an Impartial Judiciary. That commission has been meeting since February to devise a way to keep special interests and attacks ads out of judicial campaigns. It’s expected to issue a recommendation in several months. It’s a bittersweet victory for the state’s Republican Party and a Golden Valley attorney. While they succeeded at the U.S. Supreme Court in changing the landscape for judicial campaigns around the nation, they haven’t succeeded in the state where they brought the original lawsuit, or as some would say, at least, not yet.

Associated Press article discusses Carey race against Judge Schroder for Sup. Ct. seat

Monday, October 30th, 2006

If Marcus Carey had his way, he’d tell voters how he feels about abortion, the right to bear arms and gay marriage.

Kentucky’s judicial campaigning rules recently were loosened on how much candidates can say, but they still bar him from revealing his viewpoints, at least “intentionally or recklessly.” Carey says that deprives voters of “their right to know.”

His frustrations as a state Supreme Court candidate are illustrative of a new era of judicial races – a time when traditional campaigns touting experience on the bench is giving way to rhetoric typical of stump speeches.

A decade ago, it was virtually unheard of for judicial candidates to express their viewpoints on hot-button issues – or even want to, experts say.

Not any more.

Since a 2002 U.S. Supreme Court ruling that all candidates for public office have a constitutional right to announce their views on “disputed legal and political issues,” more judicial candidates are willing to express their views on everything from gay rights to God.

Several states, such as Missouri and South Dakota, relaxed their rules after the Supreme Court ruling, while others, like Kansas and Minnesota, struck down such restrictions altogether.

While the 2002 ruling supports the right to free speech, critics say it also opens the door for lobbyists and special interest groups to pressure candidates to commit to an issue – typically in a questionnaire – in exchange for contributions and ultimately jeopardizing fairness and impartiality on the bench.

“The real problem is a variety of special interest groups from the far left to the far right have seized upon this to send out questionnaires to judicial candidates,” said Doreen Dodson, chair of the American Bar Association Standing Committee on Judicial Independence. “Money of course plays a big role in this and that’s a terrible danger.”

On the other hand, some say voters will benefit from free-speaking candidates by knowing how they stand on important issues and who is backing them.

Kentucky’s new rule bars candidates from identifying themselves as a member of a political party or expressing their personal beliefs, a change from a previous regulation that prohibited judicial candidates from making statements that “commit or appear to commit” to positions on cases they likely would hear.

A federal judge took the rule a step further by recently ruling that Kentucky’s judicial candidates can tell voters which political party they belong to and can even personally solicit contributions from attorneys who might later argue cases before them.

With Kentucky’s record 247 judicial openings this year, experts say it’s the state to watch for candidates who may push the free speech envelope.

“We will be keeping focused on developments in Kentucky. It’s extraordinarily unusual to have so many judicial candidates on the ballot,” said Jesse Rutledge, a spokesman for Justice at Stake, a nonpartisan Washington-based nonprofit that researches judicial issues.

“You’re in a situation where you have a very high number of candidates and hotly contested races across the state,” he added. That means “some candidates are going to speak more freely on political issues and religious issues.”

In Carey’s race, the candidates’ campaign Web sites do the talking. While Carey’s http://www.careyforjustice.com offers podcasts in which he discusses his lawsuit challenging Kentucky’s campaigning rules, his opponent, Court of Appeals Judge Wil Schroder, is taking a traditional approach. His http://www.schroderforjustice.com only posts his years of experience as a judge, offering no indication of his position on controversial issues.

Schroder, a 22-year veteran, said judicial candidates should rely on their experience on the bench and their history of court opinions to get the message across to voters. He said candidates who express opinions publicly risk having to recuse themselves from cases later.

“A judge doesn’t make law, the judge interprets the law,” Schroder said, adding that his 1,700 appeals court opinions over the past 15 years are a fair depiction of his judicial philosophy.

“If you’ve been on the court that long, you’re an open book,” he said.

Kentucky’s recent rules change hasn’t made a huge impact on how candidates are campaigning – at least not yet, said Al Cross, a member of the state Judicial Campaign Conduct Committee and a former political writer.

“I have not seen so far a tremendous expansion of rhetoric by judicial candidates. There are a few cases that I believe candidates have gone farther than they would have without changes in the rules,” said Cross, declining to name specific races.

At least one Kentucky Supreme Court race has offered a preview of what relaxed speech rules may do to judicial races.

During his speech at Fancy Farm, Court of Appeals Judge Rick Johnson gave his thoughts on the Ten Commandments, abortion and gay marriage. His opponent, Circuit Judge Bill Cunningham, warned the crowd of falsehoods being spread regarding his views on gun ownership.

Not only did the speeches keep political blogs abuzz, but they served as an early indicator of judicial candidates playing politics.

Taking stances could result in judges having to recuse themselves from cases once they’re on the bench, and it invites lobbying groups – not voters – to play a larger role in judicial elections, Cross said.

The influence of such groups is clear nationwide.

An analysis by the Brennan Center for Justice at New York University’s School of Law and Justice at Stake shows that special interest groups so far have spent $1.8 million on television ads to influence the outcomes of 2006 state Supreme Court campaigns – a 69 percent spike over the same point in the 2004 election cycle.

Two years ago, spending by special interest groups through September accounted for one quarter of television advertising expenditures in Supreme Court races. This year that figure has climbed to 39 percent.

Already, figures reported to the Kentucky election finance board indicate that eight candidates for the Kentucky Supreme Court have combined to raise $1.5 million – a record amount.

Loosening free speech rules for judicial campaigns has not only empowered judicial candidates, “it’s empowered special interest groups to try to pressure judges to rule their way rather than rule under the law,” Rutledge said.

“They can’t buy a seat, but they can buy a philosophy,” he added.

But James Bopp Jr., an Indiana-based free speech attorney representing Carey who also argued against Minnesota’s canons in the 2002 U.S. Supreme Court case, adamantly disagrees. He said allowing judicial candidates to express themselves, much like political candidates, on hot topics, is the only way to ensure that voters really know who they’re selecting.

“Voters need information they can use,” Bopp said. “To tell them to read legal opinions is not very helpful,” especially if the candidate has never served as a judge.

Bopp said judicial campaigns allow for transparency, giving candidates latitude to criticize their opponents’ stances and history. Such races would also keep contributions by special interest groups in check since, he said, a candidate would be eager to reveal the source of his opponent’s backing.

However, Bopp stressed that Kentucky new rule for campaigning is too vague, leaving candidates to err on the side of a traditional campaign for fear of violating judicial canons.

“There’s a huge resistance to allow judicial candidates to announce their views,” he said. “Rather than adopt a clear rule, they adopt a vague rule.”

Cross took it a step further and said not only is the rule fuzzy, but the consequences for violating it aren’t clear either.

“We’re still operating in very much a gray area,” he said. “Federal courts have loosened the rules and sent a clear signal that candidates can be freer to say what they want to say without fear of sanctions.”

ON THE NET

Justice at Stake at http://www.justiceatstake.org

Activism: n. Odious ruling – Definition of judicial activism

Sunday, October 29th, 2006

By Brandon Ortiz  HERALD-LEADER STAFF WRITER
The term judicial activism has been a buzzword ever since the U.S. Supreme Court’s ruling in Roe vs. Wade.

Just last week, conservatives used the term to decry a New Jersey Supreme Court decision ordering the state’s legislature to allow either civil unions or same-sex marriage.

Liberals have also begun to use the term. They’ve argued that President Bush wants to nominate to the federal appeals courts judicial activists who will overturn Roe vs. Wade and weaken environmental and labor regulations.

The term has been used frequently in the Kentucky Supreme Court race between Justice John Roach and Judge Mary Noble. They are running for the 5th District seat, which includes Fayette and 10 other counties.

But what does judicial activism mean?

Ask 10 different scholars, and you’ll get 10 different answers.

“I would not use the term activist in any situation. It has become such an overused word,” said University of Kentucky law professor Paul Salamanca, a member of the conservative Federalist Society.

“Too many times it is just an easy way to say ‘I don’t like what the court did, therefore it is activist.’”

Roach says a better term is judicial supremacy, the belief that courts have “the ability to decide every case and tell everyone what the ruling is in every case without acknowledging that the other branches of government have a role to play in our government.”

“We have a responsibility not to interfere, encroach or take away the other branches of government’s power,” he said.

But the term “judicial activism” has been used for several U.S. Supreme Court decisions that are now celebrated, such as Brown vs. Board of Education, which outlawed racial segregation in schools.

Noble says activism is when the court changes the law simply because it wants to, either to effect social change, to overturn a previous precedent or because of political leanings.

But “if you listen to the talk shows, judicial activism is what somebody else is doing, not what you’re doing,” Noble said at a recent debate. “If you do it, it is wisdom and courage and strength. But if they do it, it is activist.”

In a study on judicial activism that has garnered national attention, UK law professor Lori Ringhand defined activism as striking down a federal or state law or overturning existing precedent.

Roach and Salamanca disputed that definition. Salamanca said it ignores instances where the Supreme Court legitimately struck down a law.

But her definition, Ringhand wrote, avoids inherently subjective definitions that rely on “contested theories of constitutional interpretation.”

“At best, (judicial activism) is used to describe a judicial opinion with which one disagrees,” Ringhand wrote. “At worst, it is brandished as a rhetorical tool, intended to circumvent substantive debate about deeply contested issues.”

 

LawReader quoted in article on Justice Roachs legal philosopy

Sunday, October 29th, 2006

The following article quoting LawReader was featured in the Herald Leader.

Roach Admires Scalia – To Noble therein lies the rub

By Brandon Ortiz
HERALD-LEADER STAFF WRITER

Justice John Roach and Judge Mary Noble have staked out starkly different judicial philosophies in their campaigns for the Kentucky Supreme Court, even as they’ve each accused the other of being a judicial activist.

Roach calls himself a textualist “framed by original understanding” in the mold of conservative U.S. Supreme Court Justice Antonin Scalia. He says he will merely apply the law and not legislate from the bench.

Noble promises to apply the law regardless of whether she agrees with it. But she says judges must remember the primary job of the courts: to promote justice. Roach’s academic approach treats people like “case studies,” Noble said.

“It is real easy, from an academic standpoint, to get all caught up in ideas, and labels and positions, and never think about the fact that that case belongs to real people,” Noble said.

Thus far, Roach has held true to his philosophies in the 15 months he has been on the Supreme Court, said Shannon Ragland, publisher of the Kentucky Trial Court Review.

His opinions have mostly sided with defendants in civil cases, but he has occasionally sided with plaintiffs, Ragland said.

Ragland likens Roach to U.S. Supreme Court Chief Justice John Roberts: a judicial minimalist who supports the smallest possible role for the court. Roach is unlikely to extrapolate new rights from existing statutory or constitutional law, Ragland said.

Ragland said Noble is an unknown commodity because she applied, rather than wrote, precedent as a trial court judge.
But the public might not like all the consequences of Roach’s approach, said Ragland, who attended law school with Roach.

“Everybody loves to say they are for judicial restraint,” Ragland said. “But what does it mean? It is easy to say it, but I don’t think everybody is always for exactly what it means. And Roach is — unapologetically. He has the courage of his convictions, even if it leads to an unpopular result … like Scalia.”

This month Roach joined a dissent in Krause vs. Commonwealth that law blogger Stan Billingsley, writing on www. lawreader.com, said would condone police lying to bypass obtaining a search warrant, weakening Fourth Amendment protections against unreasonable search and seizure.

Billingsley said the dissent seems to indicate that Roach will have an “anti-Bill of Rights philosophy.”

A state trooper, who suspected Frederick Krause of possessing drugs but knew he would not consent to a search, fabricated a story about Krause being accused of raping a young girl, according to the majority opinion. The trooper asked to look around his house to see if his furnishings matched descriptions by the girl, and Krause consented. The trooper then found evidence of drugs that led to a conviction.
The Supreme Court, in a 5-2 decision, threw out the drug evidence, saying “the use of this particular ruse simply crossed the line of civilized notions of justice.”

Roach and Justice Donald Wintersheimer disagreed, saying police did not coerce the man into agreeing to a search.

In a recent interview, Roach defended the dissent.
“He was not in a situation believing that he did not have the ability to refuse,” Roach said. “Krause easily could have told him to leave.”
Scalia the activist

Noble finds irony in Roach’s admiration of Scalia, whom she considers a judicial activist. Noble noted a recent study by University of Kentucky law professor Lori Ringhand that concluded that Scalia is the second most active justice in terms of striking down federal laws.

Scalia “truly is an activist judge,” Noble said. “And he is trying to hide it under the cloak of saying he is an originalist or textualist. Yet he has advocated more change of case law than any other justice on the Supreme Court.”

A defining difference between the candidates is on the jural rights doctrine, Noble said.

The jural rights doctrine, unique to Kentucky, was created by a state Supreme Court ruling in 1932 and prevents the legislature from eliminating torts that existed in common law at the time of the state constitution’s drafting. The doctrine has made it difficult for the General Assembly to cap punitive damage awards in lawsuits.

In a case that came before the Fayette Circuit Court, Williams vs. Wilson, Noble applied the jural rights doctrine to declare unconstitutional a law that limited punitive damages for gross negligence. Her ruling was affirmed by the Supreme Court.

Noble said that Roach criticized her ruling when, as the governor’s general counsel, he interviewed her for the Supreme Court vacancy created by James E. Keller’s retirement. Noble and Roach were later nominated for the position, and Roach was appointed.

“We had a huge discussion about this, and he told me how wrong I was and that the law needed to be changed,” Noble said. “I know he has a personal agenda about the jural rights doctrine.”

Noble says the doctrine probably was judicial activism at the time of its development, but “it is an 80-year-old doctrine. It is not a doctrine of dysfunction.”  Not ‘outcome-oriented’

Roach said he didn’t interview Noble but had breakfast with her and that any opinions he may have expressed were those of his client, the governor. Roach declined to state his personal position on the doctrine.

Judges must not be outcome-oriented, and must pay no regard to winners and losers in their rulings, Roach said.

Courts must follow the original intent of the constitution’s drafters, he said.
He points to his concurring opinion in Posey vs. Commonwealth as a “perfect example of original understanding.” The 2006 case is about a convicted felon accused of possessing a gun, who argued that laws preventing felons from owning guns violate the state constitution.

Roach researched the Kentucky constitutional convention of 1890, learning that a committee chairman traced the rights outlined in the state constitution to the English Bill of Rights and Magna Carta. Roach examined 16th-century cases and concluded that felons have never had the right to bear arms in the common law, he said.

Noble called textualism a meaningless catch phrase that oversimplifies the law.
“A textualist will say to you that ‘I take the plain text of the law and I apply it.’ Well, according to whom?” Noble said. “This is the thing that is so humorous to me. If the language were that plain, why would we have had all these cases all these years?”

Replied Roach, “To criticize any … judicial interpretive theory because it is not 100 percent perfect — but then to not offer any other theory — seems to me not a very good way to engage in meaningful debate.”

 

Jack Conway says he is considering a run for Governor in 2007.

Thursday, October 26th, 2006

On the 11 p.m. news on WAVE television in Louisville, Jack Conway of Louisville, onThursday Oct. 26th. said he was among a number of persons who were considering a run for Governor in  2007.

Conway previously ran for Congress in the 3rd. Congressional District and lost a very close race to Ann Northup.

Conway was appearing on the WAVE evening news as a political commentator.  He said besides Steve Henry others were considering a run for Governor, including Crit Luellan.  He said, his name was among that group.

Congressional polls as of Oct. 26th. shows close election.

Thursday, October 26th, 2006

The following polls may or may not correctly depict the outcome of the election on Nov. 7.  You may want to read these polls after the election results are in to see how accurate the various polls turn out.

 

Generally anything under a 4% margin indicates a toss up due to the standard margin of error of all polls.

 

The latest poll (Oct. 24) shows that in Virginia, Webb –D has pulled to within 1% of Allen-R.  This is too close to call.

 

In Pennsylvania Casey-D maintains an 11% lead over Santorium-R.

 

In New Jersay Menendez-D has pulled to 4% ahead of Kean-R, this is a gain for Menendez over prior polls.

 

In Tennessee Ford-D trails Corker-R by 2%.

 

In Connecticut, Lamont-D trails Leiberman-Independent, by 11%.

 

In Montana  Tester-D leads Burn-R by 6% as of Oct. 18th.

 

In Ohio Brown-D is leading Blackwell-R by  8%.

 

For Congressional Race Trends go to:
 

http://www.pollingreport.com/2006a.htm  Congressional Races

 

President Bush 10/26
 

 

President Bush and the Bush Administration


 

Polls listed chronologically. Data are from nationwide surveys of Americans 18 & older.
 
 
 
 

Associated Press-Ipsos poll conducted by Ipsos Public Affairs. Oct. 2-4, 2006. N=1,234 registered voters nationwide. MoE ± 2.8.
          .  
“Which comes closest to your feelings about the Bush Administration: enthusiastic, satisfied but not enthusiastic, dissatisfied but not angry, or angry?”
          .  
    Enthusiastic
Satisfied
Dissatisfied
Angry
Unsure
    % % % % %
  10/2-4/06 10
29
29
31
1
                                        Positive 39% – Negative 60% -Undecided 1%

 

Los Angeles Times/Bloomberg Poll. Sept. 16-19, 2006. N=1,517 adults nationwide. MoE ± 3 (for all adults).
          .  
“Would you say the country is better off because of George W. Bush’s policies and should proceed in the direction he set out, or do you think the country is not better off and needs to move in a new direction?”
          .  
    Better Off/
Bush Direction
Not Better Off/
New Direction
Unsure  
 
    % % %    
  ALL adults
35
61
4
   
     Democrats
13
84
3
   
     Independents
25
69
6
   
     Republicans
74
22
4
   
          .  
  Trend:
  6/24-27/06 29
61
10
   

 

CNN Poll conducted by Opinion Research Corporation. Aug. 30-Sept. 2, 2006. N=1,004 adults nationwide. MoE ± 3 (for all adults).
          .  
“Do you think it would be good for the country or bad for the country if the Democrats in Congress were able to conduct official investigations into what the Bush Administration has done in the past six years?” Half sample, MoE ± 4.5
          .  
    Good
Bad
Unsure    
    % % %    
  8/30 – 9/2/06 57
41
2
   
          .  
“Next year, it is possible that the country will have a Republican president and a Democratic Congress. Do you think that is more likely to result in more cooperation between the two parties or more likely to result in more gridlock and stalemate in the government?” Half sample, MoE ± 4.5
          .  
    Cooperation
Gridlock
Unsure    
    % % %    
  8/30 – 9/2/06 27
70
3
   
          .  
“Based on what you have read or heard, do you believe that President Bush should be impeached and removed from office, or don’t you feel that way?”
          .  
    Should Be
Should Not Be
Unsure    
    % % %    
  8/30 – 9/2/06 30
69
1
   

 

 

Right Track/Wrong Track

Newsweek Poll conducted by Princeton Survey Research Associates International. Oct. 19-20, 2006. N=1,000 adults nationwide. MoE ± 3.
.
“Are you satisfied or dissatisfied with the way things are going in the United States at this time?”
.
    Satisfied Dissatisfied Unsure    
    % % %    
  10/19-20/06 25 67 8    
  10/5-6/06 25 67 8    
  8/24-25/06 28 65 7    
  8/10-11/06 26 67 7    
  5/11-12/06 23 71 6    
  3/16-17/06 30 64 6    
  11/10-11/05 26 68 6    
  9/29-30/05 31 61 8    
  9/8-9/05 28 66 6    
  8/2-4/05 36 54 10    
  12/2-3/04 46 46 8    
  10/27-29/04 39 56 5    
  10/21-22/04 40 56 4    
  10/14-15/04 40 55 5    
  9/30 – 10/2/04 38 57 5    
  9/9-10/04 39 53 8    
  9/2-3/04 43 49 8    
  7/29-30/04 36 58 6    
  7/8-9/04 40 54 6    
  5/13-14/04 30 62 8    
  4/8-9/04 36 59 5    
  1/22-23/04 43 52 5    
  1/8-9/04 46 47 7    
  12/18-19/03 46 47 7    
  10/9-10/03 40 54 6    

 

LawReader correspondent SSG Kathleen Stafford reports mortars hit almost every day. Iraq Special Forces invades womens shower.

Thursday, October 26th, 2006
LawReader Columnist, SSG Kathleen Stafford reports from Iraq.

 

Hello Judge Billingsley

 

I have been a bit busy the past few days.  I flew down to Balad Iraq to Camp Anaconda.  I was deployed there before.  The facilities here are better, i.e. sidewalks, paved streets, gravel instead of sand and dirt, and things are within walking distance.  But the downfall to being here is the mortars that are tossed in on a regular basis.  There were three mortars that hit the camp the first night here and at least one or two every night since.  A couple were close enough that I feel my hooch shake from the impact.  I am not even sure how to describe the feeling I had when the first round came in and shook me awake at 0400.  My chest felt as if someone was sitting on it and choking the breath out of me.  I had forgotten what it was like to feel that type of fear.  I just prayed  for safekeeping for myself and everyone else. 

 

The room that I am staying in while at Balad was the victim of a rocket attack.  I have taken some pictures that I will get together for you.  There are holes all over the walls and ceilings.  The individual that stayed here was not in at the time, but I was told that if he had been he probably would have been seriously injured if not killed.  One piece of shrapnel went completely through the door into the hooch across from it. 

 

Camp Speicher has been hit a lot the past few months as well.  Most of the hostile activity is being blamed on Ramadan, which is to end on 24 Oct.  The higher ups are hoping and saying that things should calm down once Ramadan is over with.  I don’t know about Speicher, but I can tell you that in Balad two years ago the insurgents tossed in a round at least once a day.  We will see, I know Bagdad has suffered a lot the past few months.  I have saved a couple of papers for you to read, will send them to you when I get back to Speicher. 

 

You asked some questions of me in your last letter.  I’ll attempt to answer them as best as I can. 

 

We do not have satellite or internet in our rooms as of yet.  I know they are working on it and hopefully soon.  I am missing the Packers and Cowboys games.

 

The chow halls at Speicher are set up to feed 6000 soldiers a day, and there are I believe currently 4 chow halls and working on building 2 more.  The food is pretty good.  The cooks are third country nationals.  I don’t know if they are sent to cooking school or not, but they do a pretty good job.  And you can eat as much or as little as you want. 

 

I carry a 9 millimeter Beretta which I qualifed as a marksman and a M16 rifle which I qualified as a sharpshooter.  We have to carry our weapons with us at all times.  Most times it seems to be an inconvenience, but reality is…you never know if you will need to use your weapon or not.  So inspite of the inconvenience, I carry mine and make sure I have enough ammo.

 

My job titles are Platoon Sergeant, Acting First Sergeant and Flight Operations NCOIC.  In flight ops I am responsible for assigning missions to pilots and aircraft, keeping track of where they are, making sure they have all the equipment necessary to complete their missions to include any and all survivability equipment should the aircraft go down, I am also responsible for making sure all flight hours are logged in for the pilots and the crew that fly with the plane. 

 

Halliburton is the parent cooperation of KBR.  KBR does most of the work around here.  I was amazed to find out that KBR was the contractor that put the latrines and housing areas together because the craftsmanship is horrible.  They hire local nationals or TCN’s (third country nationals) to do the work with a KBR rep. as the foreman.  I would have thought that because the majority of the foremen are Americans that the work would have been up to standard.  The workers do not get paid but about $400 to $500 a month, versus the KBR foremen.  Amazing, how much these people get paid, twice as much as a soldier does.  If not more.

 

Some of the contracts go to third country businesses.  Like those that work to clean out the porta johns, the beauty shop, barber shop.  The businesses in turn hire helpers and pay them less than $500 a month.  I know the spa is run by Turkish.  I spoke with a Filipino woman that gave massages and she said she makes $300 a month plus her tips.  I asked her how she found out about this work and she explained that she and a couple of her friends were working at a hotel in the Phillipines and the owner of this business came in and talked to them about going to work for him. He said that he would pay them $300 a month and assured them they would make a lot in tips because Americans are very generous and would tip them well.  The girls signed a 3 year contract with him.  They have not been home to see their families yet.  There are a couple of young boys that work in the laundry that are from Napal.  They make $400 a month, and for them that is a lot.  But when I asked them about staying once their contract was up they both said “No Way?.  They do not like the bombs. 

 

Before leaving Speicher, I saw a couple of the Iraqi Special Forces soldiers.  Not sure why, but I got a chill up my spine just looking at them.  I do not trust them I don’t care who trained them, after hearing that they walked into the female showers and stood there watching…and when asked about it claimed it was a mistake, I just don’t trust them. 

 

Not much else going on right now.  I’ll talk with you later.

 

Kathy

Herald Leader article on Supreme Court race in Bluegrass

Thursday, October 26th, 2006

Lexington Herald Leader article on supreme court race in Bluegrass. 

At times, the race for Central Kentucky’s seat on the Supreme Court has been a scholarly discussion on legal issues.

At other times, the ostensibly non-partisan contest has all the name-calling and accusations that have come to define partisan elections.

At candidate forums, Justice John Roach gushes about his love of the law, his relationship with other justices and his judicial philosophy, which he describes as “textualism framed by original understanding.” But the campaign of his opponent, Judge Mary Noble, has reminded reporters that he was a political operative for failed Lexington mayoral candidate Scott Crosbie and Gov. Ernie Fletcher.

Noble has touted her experience of 14 years on the Fayette Circuit Court and three years as a domestic relations commissioner, where she heard divorce and adoption cases. She considers her role in founding the Fayette Drug Court program her greatest achievement.

But Roach and several state prosecutors have pointed to rulings where they say Noble misapplied the law in favor of defendants.

Justice Roach

Roach, 39, who graduated in the top five of his class at the University of Kentucky law school in 1992, is prone to long, complicated answers to questions.

Shannon Ragland, who went to law school with Roach and now edits Kentucky Trial Court Review, says he is the brightest mind among the Supreme Court justices.

“He is probably running circles around them intellectually,” Ragland said.

Noble, 57, a former English teacher, is more plain-spoken and occasionally employs a sharp wit.

At a candidate forum, she referred to a Roach ad that said the justice wears a robe to work. “I usually wait to get to work before I put mine on,” Noble quipped.

Roach has been on the high court only 15 months, while Noble has been on the Circuit Court since 1992. Roach says, however, that as an attorney he argued twice before the Supreme Court, while Noble never did.

Roach, a former clerk for a U.S. Court of Appeals judge, has practiced law in Washington D.C. and Lexington. He handled corporate transactions and represented plaintiffs in civil rights and employment discrimination cases.

But Roach is better known for having managed Crosbie’s 2002 mayoral campaign and Fletcher’s congressional re-election effort in 2000, as well as working for the gubernatorial campaign in 2003.

Before being named to the Supreme Court in June 2005, Roach served as the Republican governor’s chief legal adviser. Two former officials have said they had warned Roach about potentially improper hirings in the Transportation Cabinet.

On a campaign door hanger, Noble hinted at the merit hiring scandal that mired Fletcher’s administration. The hangers were recently placed on homes in Frankfort, which has a high percentage of state workers.

“Fletcher appointed his inexperienced General Counsel, John Roach to the Supreme Court of Kentucky,” the hanger states. “Passing over Judge Mary Noble … WHY? Because Judge Noble’s record stands up for all Kentuckians, based on MERIT; not who their friends are.”

Roach said the Supreme Court is not divided on political lines but rather on judicial philosophy.

He noted that several prominent Democrats, such as Attorney General Greg Stumbo, are supporting him. The Commonwealth’s Attorneys Association and state Fraternal Order of Police have both endorsed Roach.

Roach has a pending legal malpractice lawsuit filed in 2001 in Pikeville. Jamie Hamilton claims that Roach botched a legal malpractice case for his deceased grandfather, John Hamilton. He also says Roach failed to name a legal expert and dismissed part of the case without consulting the family. Roach said the lawsuit is without merit.

Judge Noble

Noble has had several careers: high school English teacher, guidance counselor, college psychology instructor, lawyer and judge.

As a lawyer, Noble represented school boards, plaintiffs and criminal defendants.

Noble said she helped found Lexington’s drug court program in 1996. Rather than locking addicts in jail, the program requires drug users to attend treatment, stay drug-free, and hold jobs or take classes. Unlike typical probation, drug users must regularly meet with a judge to assess their progress.

Noble’s inspiration for drug courts came after a large drug bust in 1995. As she arraigned drug addicts, Noble was struck by how many users were poor and likely to use drugs again, she said. She began to research the issue and learned about drug court programs in California and Florida.

“I really do believe that God puts you in the right place and the right time to do things,” she said.

The program has been praised by researchers, state officials and some prosecutors for helping addicts overcome their addiction and stay out of jail — ultimately saving taxpayers money, they say. But it has not gone without criticism.

Fayette Commonwealth’s Attorney Ray Larson, a Roach supporter, says the program does a poor job of screening potential participants.

“It was originally intended for people who were basically drug addicts,” Larson said. “Now it’s not uncommon for offenders with violent and lengthy records to be placed in the program. We’re concerned about that.”

But Larson says the program has been “very, very helpful for 10 to 20 percent in it.”

Noble, four judges and a Supreme Court justice were privately admonished by the Supreme Court because of a Lexington expense account for judges, according to Noble’s application to the judicial nominating commission. Some judges had used the fund for office expenses, meals, baseball tickets and other items. Noble drew on the account to buy employees gifts.

The judge acknowledged that the $1,800 annual fund, a holdover from when city and county governments ran the courts, had been used improperly. It was abolished after news reports in 1999.

Roach says some of Noble’s rulings have incorrectly favored defendants over prosecutors. With Noble, her reversals “tend to be where a criminal defendant has been given more than they were ever required to get under the law,” he said. Noble’s campaign manager dismissed any claims that she is soft on crime.

“John Roach has not put one criminal in jail while Judge Noble has put thousands of criminals in jail,” campaign manager Dea Riley said.

Gordon Shaw, commonwealth’s attorney for Bourbon, Scott and Woodford counties, said that Noble’s critics are unfairly cherry-picking rulings she has made over a long career. Every case has its nuances and specifics, Shaw said, making it impossible to say a handful of rulings is representative of a judge’s philosophy.

“If it is pulled out of context, it can look like an idiotic view,” said Shaw, a Noble supporter. “I don’t think anybody else would like to be held to that same standard.”

Mark Nickolas: Louisville Leo column on the Judiciary

Thursday, October 26th, 2006
Bluegrass Politics: The Forgotten Branch  

By Mark Nickolas (LEO)  

 Among the least familiar, yet most important, votes you will cast on Nov. 7 are those for the many judicial races, particularly the Kentucky Supreme Court. 

  Those who are familiar with this column know I frequently spend time shining light on (some say “bashing?) the Kentucky Supreme Court. Many people wonder why, particularly since I’m not an attorney and the judiciary is usually the least noticed of our three branches of government.  

  The truth is, my interest in the courts began in November 2000, when I was one of those 50 staffers in Nashville who Vice President Gore flew to Florida in the wee hours of that infamous day after the 2000 presidential election.  

 For the next 36 days, I found myself in the trenches of the Florida recount. It was around 2:45 p.m. on Saturday, Dec. 9, 2000 — having just completed a procedural meeting with Lee County elections officials for the full recount that was about to begin — that I learned the U.S. Supreme Court had issued a stay in the case of Bush vs. Gore. Unbelievably, the highest court in the land told us to stop counting votes in a presidential election that hung in the balance.  

  Three days later, by a 5-4 vote, the Supreme Court ruled in favor of George W. Bush. The following day, Gore conceded. In his dissent, Justice John Paul Stevens minced no words about the damage this decision would cause to the integrity of the Judiciary: 
  

“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.?  

 

Justice Stevens’ words stuck with me. It was the first time in my life that I remember feeling the weight of our judicial branch of government and an appreciation for the selection process that goes into picking judges. The consequences of that 5-4 decision, and the awarding of the presidency to George W. Bush, has no doubt profoundly impacted the course of our nation.  

  Here in Kentucky, the state Supreme Court has also found itself front and center in several major clashes between our branches of government, the most critical being the power of our governor to grant blanket pardons when it came to wrongdoing by his own administration.  

  In that case, the high court ruled in favor of Gov. Ernie Fletcher’s (R) effort to slam the door on the Merit System investigation into the actions of his top officials, granting him sweeping executive powers and casting another pall over our faith in the judiciary.   

The Courier-Journal described the ruling as a “precedent for cover-up,? arguing that the court granted “a governor unchecked power to interfere in and, at his will, nullify an inquiry by a sitting grand jury into his own administration, by issuing pardons before anyone has even been charged.?    

But the harshest condemnation came from within the Court in a foreboding but thoughtful dissent offered by Justice William Cooper. Reminiscent of Justice Stevens’ powerful dissent in the Bush vs. Gore matter six years ago, Cooper warned:   

“History will not forget nor fondly remember the day that the Supreme Court of Kentucky put its imprimatur on a governor’s scheme to cover up alleged wrongdoing within his administration by granting a blanket pardon to all persons under investigation by a sitting grand jury.?  

  Cooper was right. The dreadful Supreme Court ruling opened the door to future corrupt governors who abuse their pardon powers to stop any prosecutor from pursuing allegations of official corruption at the highest level in hopes of preserving their power.  

 

The Fletcher decision came during a time of the growing and disturbing politicization of the Kentucky Supreme Court, compounded by the open contempt that Fletcher himself has shown to the rule of law, and the foul disrespect he has demonstrated for our judiciary, a co-equal branch of government.  

  During his three years in office, Fletcher has littered Kentucky’s courts with appointments of campaign staffers, donors and spouses of prominent Republican officials who had little or no judicial experience.    

Even more troubling was Fletcher’s shameless efforts to pack the appellate courts with temporary appointments at the very time the criminal case against him was on appeal, including two campaign contributors who he named as special justices to the Supreme Court to sit for just one case — his own criminal appeal!  

 

Louisville, too, found itself at the center of Fletcher’s court-packing when former Justice Martin Johnstone decided to retire this summer before the end of his term. At the time, two well-regarded candidates — Court of Appeals Judge William McAnulty and Circuit Judge Ann O’Malley Shake — were engaged in an especially competitive race to succeed Johnstone.  

 

But Johnstone’s vacancy gave Fletcher another opportunity to temporarily fill a seat on the Supreme Court at the very time the criminal case against him was active and would likely find its way back to the high court in short order.  

Many (including me) urged both McAnulty and Shake not to ask a governor under indictment for a temporary appointment to Johnstone’s seat, and instead allow the voters to make that decision in November. To do so would cast another dark cloud over the integrity of the Court and make voters wonder what sort of deal was made for that seat and what quid pro quo would be expected.  

 

Shake immediately announced she would not ask for the appointment and would try to win the seat outright at the ballot box. Unfortunately, McAnulty instead opted to ask our indicted governor for the judicial handout, and he was quickly appointed by Fletcher to the Supreme Court for the remaining few months of Johnstone’s term, accompanied by a lavish swearing-in ceremony to boot.      

In my opinion, the opposite decisions by Shake and McAnulty are part of the larger story that has been playing out over the disturbing politicization of Kentucky’s Judiciary.  

 

Sadly, while many of us have concluded that the cancer of good ol’ boy politics and backroom deal-making has metastasized into the organs of the executive and legislative branches, the Judiciary had remained, largely, the last sanctuary of good government and the link that keeps us believing we are governed by facts and the rule of law, not our political friends or party affiliation.     

In the case of Judge Shake, it was her refusal to be used as a political pawn by Fletcher, knowing that decision would put her at a competitive disadvantage in her race, that gives me hope for the future of our courts.  

 

To the average voter, not much thought is given to the mundane workings or the make-up of our courts. No doubt, their work is tedious and their opinions don’t often grace the front page of newspapers. But as we’ve seen with Bush vs. Gore and in the case against Fletcher, its decisions do have profound consequences.  
  

I hope you give that some thought before you cast your vote on Nov. 7.  

     

Mark Nickolas is publisher of Kentucky’s most widely read political blog, BluegrassReport.org. Contact him at Mark@BluegrassReport.org  


LawReader and Bellarmine host symposium on the courts and politics.

Tuesday, October 24th, 2006

   LawReader and the Bellarmine University sponsored a Symposium last night in Louisville on the issue:  Where is Politics taking Kentuckys Judiciary? Panelists were Al Cross, John David Dyche and Mark Nickolas.
    One of the best comments was made by John David Dyche.  When it was noted that Justice Roach had been Gov. Fletchers legal counsel, Republican lawyer and Courier Journal columnist John David Dyche opined:
 “You can’t blame Roach for any legal missteps by Fletcher, everyone knows that Gov. Fletcher has never sought or listened to sound legal advice.?
 Dyche also expressed criticism for the U.S. Supreme Court decision in Bush v. Gore. He expressed admiration for Justice Scalia but felt that this decision in which the Supreme Court stopped the counting of votes in Florida in the 2000 election was a mistake since the constitution spells out a process for election contests.
   Mark Nickolas raised a question about the Governor’s appointment of judges who would hear his then pending criminal case.  He felt that Justice McAnulty or any judge should have refused to accept a gubernatorial appointment under the circumstances of  that moment.  
 Even if  a judge appointed by Gov. Fletcher recused himself from hearing the then pending case if appealed, this politicized the judicial process since Ky. law allows the Governor to appoint special judges to the Supreme Court when two judges have recused themselves.  In the past the Governor has appointed special judges who many felt were too closely indebted to the Governor.  Nickolas felt that this abused the judicial process.
 He said, “I have come to expect that the legislative and executive branches are highly political, but I have always felt that the courts should be above politics.?  “We should be able to go into court and expect to get a ruling based only on the law.?
Nickolas also spoke about the Supreme Court’s decision in Bush v. Gore.  At the time he was working with the Gore campaign, and was assigned to monitor the counting of votes in Ft. Myers.  He said they were getting ready to start the vote recount when the Supreme Court ordered that the counting of votes must stop. 
  Al Cross, the symposium moderator, discussed the idea of removing appellate judges from the election process.
 

Enquirer endorses Moore, Keller for appeals court

Monday, October 23rd, 2006

The Cincinnati Enquirer, which services Northern Kentucky published the following editorial endorsing Joy Moore and Michelle Keller for Court of Appeals.

Northern Kentucky judicial candidates have been scrapping, at times in less than law-scholar fashion, for two seats on Kentucky’s Sixth District Court of Appeals. 

In the race between Joy Moore of Florence and Jim Kidney of Fort Thomas, litigator Kidney has been in non-stop attack mode. Both are Chase Law School graduates. Moore admits she has not tried cases on her own, but is much more experienced than Kidney in the inner workings of appeals courts after serving as staff attorney for distinguished appellate judges. She also out-rated Kidney by far in the Northern Kentucky Bar Association poll, and despite Kidney’s condescending insults, has maintained an even-handed, analytical temperament that is needed for this court. We endorse Joy Moore.

 

 

Moore clerked for federal Judge William O. Bertelsman, served as staff attorney for Kentucky Appeals Court Judges Dan Guidugli and Robert Dyche III, and is now a litigator in private practice. She says she has handled hundreds of cases for the judges she’s worked for, and takes offense at Kidney’s accusations that her marriage to Boone County Judge-executive Gary Moore is somehow responsible for her law career. She reminded Kidney she finished first in her law school class, and “Gary didn’t take one test for me.”

 

 

At one candidate forum, Kidney claimed he was endorsed by Kentucky Right to Life, whereupon Moore produced a page from the group’s Web site showing she, not Kidney, got the endorsement.

 

 

He has assembled an impressive record of trial and appellate work in 28 years of practice, yet even resorted to hearsay to grossly distort Moore’s judicial staff attorney work. He half-apologized for one cheap shot at her with the excuse: “I got p—– off at your husband.” In Kidney’s 28 years of lawyering, he must have missed the memos about how highly voters and his fellow lawyers value judicial temperament. We back Moore.

 

 

For the other appellate judgeship, Fort Mitchell attorney Michelle Keller is running against Fort Thomas lawyer Owen Kennedy. Kennedy has served more than eight years as senior staff attorney for Kentucky Supreme Court Justice Donald Wintersheimer, but has never tried a case. The Bar Association overwhelmingly favored Keller. She has served as a Kenton County assistant prosecutor, written opinions as a certified hearing officer for the Kentucky Attorney General, practiced before the appeals court and tried diverse cases ranging from family law to medical malpractice. We endorse Keller.

 

 

The candidates disagreed on appellate court backlogs. Kennedy compared them unfavorably to Supreme Court dockets, but Keller argued less than a year for appeals was very good. They also clashed on whether judges were setting social policy. Kennedy argued voters should be told candidates’ personal views and criticized a court ruling that weakened the fetal homicide standard from moment of fertilization to whether the fetus was viable. Keller argued a judicial candidate’s personal views are irrelevant. The judge has to apply the law to the facts brought out at trial.

 

 For her more diversified, in-depth experience, we endorse Keller for the Sixth District Appeals Court. 

 

AARP, nations largest lobbying group, sends letter to members saying Geoff Davis television ad misleads voters.

Monday, October 23rd, 2006

    The American Association of Retired Persons (AARP), has sent out a letter to its members in the Fourth Congressional District of Kentucky informing them that a television ad for the campaign of Republican Geoff Davis misleads and wrongly attacks Democratic Congressional Candidate Ken Lucas.

 

The letter says that the television ad:

 

-wrongly attacks candidate Ken Lucas for supporting the need for a bipartisan plan to continue the program’s guaranteed benefits for future generations-
 

The AARP has over 33 million members. The  AARP is the leading nonprofit, nonpartisan membership organization for people age 50 and over in the United States.
There are an estimated 150,000 people in the 4th. Congressional District eligible for membership in the AARP.
 

The letter states:
 

-Every election cycle we see ads trying to scare voters about the future of Social Security. This season is no different, and its now happening right here in the 4th. Congressional District of Kentucky.-
 

-We wanted to alert you to recent actions taken by some political interests to mischaracterize AARP Voters Guides in an effort to mislead voters.-
 

They maintain a web site for information about election claims at: www.aarp.org/elections
 

Judge sues reporter for defamation. Case may set precedent for judges to sue when their rulings are defamed.

Sunday, October 22nd, 2006

War of words -
The chief justice of Illinois’ Supreme Court says he’s been defamed. A reporter wants to keep his sources secret. Other high court justices want to keep their conversations secret. It’s a libel trial that may shape how the media and the judiciary behave.



Posted Sunday, October 22, 2006

 

A former Chicago Bears player turned chief justice of the Illinois Supreme Court will square off at trial Wednesday against a colorful former newspaper columnist with a penchant for raising people’s ire.

Even though the two men are quick to give their opinions, it is what they won’t be saying that has court watchers concerned.

The three-week defamation trial in Kane County pits a reporter’s right to use anonymous sources against a judge’s right to keep private his talks with colleagues and law clerks about pending cases.

The courtroom drama began in 2004 when Robert Thomas of Wheaton, a former Bears place-kicker and current chief justice, filed a defamation suit against Shaw Suburban Media Group and Bill Page, a St. Charles columnist who at the time worked for a Shaw newspaper, the Kane County Chronicle.

Both men say the trial is about reputation. Thomas said he wants to clear his name. Page said he wants to honor his word to sources that he would keep their names private.

But the trial has ramifications for people who don’t know Page or Thomas.

In the balance hangs what type of news you get about those who spend your tax dollars and how court verdicts are reached.

The case stems from Page columns that accuse Thomas of abusing his power to gain support for a friend running for a Kane County judge position. Page claimed that Thomas would agree to reduced punishment for Kane County State’s Attorney Meg Gorecki – who was facing ethics violations – in exchange for support of his candidate.

Illinois law does not guarantee wide-reaching protections for reporters to keep their sources private without going to jail for contempt, but judges have the discretion on how much protection they allow.

So far, the court’s pretrial rulings have tipped the scales against press confidentiality and potentially opened the door for more judges to sue over coverage they find critical of their decisions.

Cook County Judge Donald O’Brien was tapped to hear the case after Kane County judges recused themselves. In a rare maneuver, he allowed attorneys to do a pre-trial appeal to the state’s appellate court on the issue of whether Thomas and the other six Supreme Court justices, along with their law clerks, could keep their deliberations and memos private. It was Illinois’ first test of judicial privilege.

The 2nd District Appellate court unanimously ruled the judges and their clerks have an absolute right to secrecy, but that privacy is limited to intra-court communications on court business.

Thomas has agreed to waive his privilege so a lawsuit could go forward. The other justices have not. That means Thomas will testify about what he said and did. The other justices can be questioned about what Thomas said to them at certain times. They cannot be questioned about inferences they drew from Thomas’ behavior or anything that made them feel they had to act a certain way, such as delaying a court decision. Page has alleged the justices delayed their vote on Gorecki’s punishment until Thomas lined up support for a political candidate he favored.

“We’ve been unsuccessful on having the opportunity to fully cross examine,” said Steven Mandell, a Chicago attorney representing Page and his former employer.

O’Brien later ruled Page could not use reporter privilege to avoid naming his sources without risking jail time for contempt. In a last-minute compromise, Page will be allowed to keep his sources confidential but not defend their credibility. That compromise, however, doesn’t erase the precedent set by O’Brien’s earlier ruling, which means it would affect future cases.

In a worst-case scenario, media advocates fear the rulings on judicial and reporter privilege combined with a win by Thomas at trial could create an intimidating climate for journalists. It could lead to a drought of analysis of courtroom rulings and judges’ actions, they say.

Thomas’ attorney, Joseph Powers of Chicago, disagrees. He said the trial is all about defamation and that the justices are being open with the court.

“Clearly whatever Justice Thomas said is open,” Powers said. “They can question whether what Justice Thomas is saying is true.

“As far as we are concerned, if the privileges had been decided the other way, we would just have more witnesses.”

The columns

The trial hinges on three columns published in 2003 by Page when he worked at the Kane County Chronicle. Page often targeted Tri-Cities area officials for criticism or praise in his column, which ran one or two days a week. He began writing a column for the Chronicle in September 2001. Before that he worked briefly as a columnist for the Daily Herald’s Tri-Cities edition.

Page, a vocal supporter of Gorecki, alleged in the columns that Thomas was angered by Gorecki’s defeat of the Republican pick for the state’s attorney’s office in the 2000 primary. That anger reared its head, Page alleged, when Gorecki was brought up before state officials for discipline on ethics violations charges.

The violations stemmed from allegations that in 1998, before her election, Gorecki had left a phone voice mail message on a friend’s answering machine. The message hinted that a campaign contribution to an elected official could earn her husband a county job. Gorecki claimed she made up the job story to get the friend of a friend off her back.

When Gorecki’s ethics violation charges appeared before the court, Thomas had just recently been elected to the Illinois Supreme Court, which has the final say on attorney punishments.

In his columns, Page alleged Thomas was first seeking disbarment or a one-year law license suspension for Gorecki. He later agreed to the final four-month suspension. Page said that turnaround was in return for high-profile people supporting his friend Robert Spence for a circuit judge post in the 16th Judicial Circuit, which covers Kane, Kendall and DeKalb counties.

When questioned in pre-trial discovery about the allegations in Page’s columns, Thomas contends in court affidavits he did not discuss the Gorecki case until the Illinois Attorney Registration and Disciplinary Commission first presented it to the Supreme Court. That was four days after Page’s first critical column.

Thomas also denied having ever suggested more than a six-month suspension for Gorecki.

“… I never argued, pressured, demanded or pushed other court members with regard to sanctioning Meg Gorecki …” Thomas said in the affidavit.

Page contends he got the information from numerous sources, all of whom he promised anonymity.

What’s at risk

On its most basic level, the trial is about whether reporters can write critically about public figures while keeping their sources confidential. While confidentiality is not guaranteed by law, courts have the ability to grant it in the form of reporter privilege. Without the ability to use anonymous sources, stories like the Watergate Hotel break-in and subsequent cover-up would not be told, some media experts say.

“Who else do (confidential sources) have to talk to but us,” Page said. “The one thing I have learned over the years of writing columns is the fear that penetrates the workforce, especially the public sector.”

Several scholars and legal experts declined to comment on the case, most citing a lack of information. One of those declining to be named questioned the ramifications of being involved with the trial.

Others, though, said the trial’s outcome could still pose concerns for different reasons.

“If Thomas were to win, that is not only a chilling effect, it is putting the First Amendment in the freezer,” said Steven Helle, an attorney and University of Illinois journalism professor. “I hope it doesn’t disintegrate into the Pennsylvania system where it became a pastime for officials to sue the press.”

Still, Helle said he can’t envision anyone supporting an erosion of judicial privilege.Former Kane County Judge Gene Nottolini, who now serves as the county’s ethics adviser, said the public has much at stake if the judiciary’s rights are lessened.

Allowing judges to tap into each other’s knowledge on cases or bounce ideas off them creates a pool of decades of experience from which to draw sentence lengths and courtroom verdicts. That serves the public better than relying on one person’s experiences, Nottolini said. Likewise, any move to limit the privilege for judge’s law clerks, who do much of the case research, would cause a dramatic slowdown of the court process as judges would be forced to spend less time on the bench and more time on looking up relevant cases, he said.

Odd case

While it’s not unusual for public officials to sue the news media for defamation, this case has some unique twists that have the potential to set precedent, at least in Illinois.

“It is fascinating in a legal sense, but it is also fascinating in a journalism sense,” said Allen May, a professor who heads the broadcast studio at Northern Illinois University in DeKalb. “I see here some interestingly novel issues.”

Academic and legal officials somewhat familiar with the case can’t readily point to a prior instance when a judge sued over what was alleged to have been said during judicial deliberations on a pending case.

Typically libel suits involving judges deal with criticism of the verdict itself or the judge’s actions off the bench.

Mandell said absolute privilege is rarely given to the executive branch or the judiciary. He said he believes this is one of only two times when absolute judicial privilege has been recognized by courts in the U.S. Those instances occurred in the Nixon era. At that same time, the Supreme Court said even the president’s privilege is not absolute and shot down President Nixon’s attempts at using executive privilege to keep Oval Office audio tapes from court proceedings involving Nixon.

Judicial privilege involving judges – and not simply attorneys – rarely becomes an issue in lawsuits. In most cases it is viewed as a qualified privilege, meaning its use is limited and a showing of greater public need can supersede it.

Illinois’ 2nd District Appellate court, however, unanimously deemed the right to secrecy is absolute, though narrowly tailored to intra-court communications on court business.

“The overriding public good requires that judges be able to confer with each other and their staffs freely and frankly without fear that their communications might be publicly disclosed,” wrote Judge Thomas Hoffman in the October 2005 appellate opinion. “Anything less than the protection afforded by an absolute privilege would dampen the free exchange of ideas and adversely affect the decision-making process.”

But media advocates claim that leaves the judiciary, some of whom are elected, without checks and balances.

“I think it is a bad thing for the media because there are times those (discussions) can become part of the news,” said Don Craven, an attorney with the Illinois Press Association. “It is our job to cover folks who are powerful.”

The trial comes at a time when public trust in the media is at a low point and, nationally, First Amendment rights are under fire.

“There was a time that reporter privilege seemed to be on the rise, and now it is in retreat,” Helle said. “Even in Illinois where statutorily there is privilege. It seems that courts are interpreting privilege more narrowly and looking at exceptions.”

So far, judges’ rulings in the Thomas lawsuit have left reporter protections out in the cold.

Last week, Judge O’Brien ruled to remove the reporter’s privilege that Page was using as a defense against identifying his sources. Thomas argued he had exhausted all other means of getting information and can’t prove his assertion that Page knew his columns were false without knowing who the sources were.

But both sides reached a compromise in which Page can keep part of the privilege, essentially refraining from naming his sources, but in return he cannot argue their reliability at trial. That could affect whether Page’s camp can prove he should have trusted that the sources could know about the deliberations or that they weren’t lying.

The justices subpoenaed in the case, on the other hand, have been allowed to invoke judicial privilege to keep secret what they want but at the same time waive the privilege to selectively talk about certain aspects of the case. For example, State Supreme Court Justice Rita Garman testified in a court deposition, “(Thomas) never made any comments about (Gorecki) that would in any way indicate to me bias.”

Mandell, Page’s attorney, said the limits on what could be asked of Thomas’ fellow justices hindered cross-examining Thomas to see whether his statements are accurate.

“It seems in the battle of privileges, the reporter’s privilege did not fare well,” Mandell said.

Now as the trial is set to begin with more than a dozen witnesses slated, the two sides are going head-to-head over who can say the least.

The cost

“It’s a smart thing to do to settle a case like this,” said Nottolini, a retired Kane County judge who specializes in mediation and serves as the county’s ethics adviser.

Mandell said the idea of settlement came up last spring at a pre-trial conference, but the two sides were far apart.

Thomas is seeking $1.5 million to $7.7 million in damages. The damage amounts correlate to estimates of how much he could have earned in his lifetime if he got various attorney or judge jobs. He contends the columns have hindered, if not eliminated, those career options.

Mandell is expected to supply witnesses to counter what he calls “speculative” potential salary claims. Thomas’ camp is contending the columns could have a negative effect on Thomas’ attempts to get a job as a private attorney at a large Chicago law firm, or an appointment to a federal court or to win a retention vote to the Illinois Supreme Court in 2010. He was elevated to the head of the Supreme Court in September 2005.

Proving loss of income is difficult, experts say, without a firm job offer in hand or something akin to a note saying the columns would be the reason for passing over Thomas. Predicting what a jury will do is nearly impossible.

“You do see cases where juries award $1,” Nottolini said. “You win by principle but you don’t get any money.”

Strategy

Libel trials are rare and even rarer still when they involve judges.

The Iowa Libel Research Project of 1985 out of Wartburg College studied 700 libel cases between 1974 and 1984. Of those, seven of 10 involved the news media, mainly print media, and 60 percent of the plaintiffs were public figures. The news media won 90 percent of the cases.

But when the media lose, the losses can be big.

In one of the most renowned cases, a Pennsylvania Supreme Court justice won a $6 million libel verdict in 1990 against the Philadelphia Inquirer for stories alleging influence peddling. The state’s supreme court refused to hear an appeal. This summer the case was scheduled for a retrial before the state’s superior court when it was dismissed after both sides settled, agreeing to pay their own court costs.

Thomas has the burden to prove Page made up the facts in his column and that Page did that on purpose to hurt Thomas, or that the comments themselves were inherently malicious. Without knowing who Page’s sources are, it’s hard to discredit them or their existence.

Page, on the other hand, could vindicate himself by proving his columns told the truth. But without the other justices having to reveal possibly damning discussions with Thomas, Page will have trouble proving that.

On some level, the case comes down to one man’s word against the other.

“You have a clash of rights and a clash of protections and a clash of privileges here. The real issues becomes which right trumps the other,” says NIU’s May. “What you are asking is how does one decide and measure the greater good.”

What the answer is, May said, he doesn’t know.

As an attorney, May can envision a host of problems with eroding protections for the judiciary. Where would the erosion stop? Who would draw the that line?

“Would you want to get to the point of where jury deliberations are videotaped?” he said.

But as a former investigative broadcast journalist in Milwaukee, May understands the need for journalists to have the freedom to criticize those in power when they feel it’s their civic duty.

Page says he went ahead with the story, after holding off for about two months, for exactly that reason. A sense of responsibility, coupled with the fact he had high-level sources and he was seeing support for Judge Spence’s candidacy that was coming from former opponents, gave him confidence the columns were accurate, he said.

“Around the courthouse it is not a good place to have your name known as a source,” Page said. “And (Thomas) was a pretty powerful member of the Supreme Court.”

If sources’ names were to come out “they would lose their jobs and their careers would be over, ” he said.

Still, Illinois law doesn’t guarantee wide-reaching reporter privilege to keep sources anonymous without ending up in jail on contempt of court charges.

For that reason, May tells students to use anonymous sources as a last resort if they are sure of the sources’ trustworthiness.

The freedom of press comes with risks and responsibility, he said.

“It is really important to be able to back things up rather than relying on the notion of confidential sources,” he said. “My standard (in investigative stories) was if push comes to shove, could you go to court with this and win this case. If not, then you look for another way to verify it.”

Thomas did not return calls for comment.

tkunz@dailyherald.com

Does your law office need a good idea for a tv ad or a new home page for your law firm.

Sunday, October 22nd, 2006

We ran across this web site and it blows us away!   Show this to your designer today, and start raking in the cash!  Clients will break down your door with your version of this home page.

 
Official Website of Dog “Duane” Chapman – The Bounty Hunt
 

UofK College of Law professor Lori Ringhand quantifies activist judges

Sunday, October 22nd, 2006

Law professor’s study draws accolades – Editorial spotlights UK’s Ringhand
By Mark Pitsch   Reprinted from The Courier-Journal  Oct. 22, 2006


 LEXINGTON, Ky. — University of Kentucky law professor Lori Ringhand was eating cereal and reading The New York Times editorial page one morning last month when suddenly she wasn’t hungry anymore.
 An editorial focused on her research on the Supreme Court, praising her by name for quantifying how the judges voted on certain issues.
 ”It was a wonderful surprise,” Ringhand said. “I quickly quit eating my breakfast and got into the office because I thought it would be a busy day.”  It was.
 A parade of Ringhand’s colleagues stopped by her office to offer congratulations throughout the morning of Sept. 11. UK law school alumni called her to say they had read the editorial. And then the online debate started, with law professors, lawyers and political scientists debating her work.
 ”It’s certainly been a lot of fun. There’s no question about that,” Ringhand said in an interview last week. “What legal academics want is to be part of the conversation.”
The editorial praised Ringhand’s research for applying “a reasonable, objective standard” to votes by members of the U.S. Supreme Court to determine whether they engaged in “judicial activism.”
 For purposes of her research, she has defined judicial activism as a vote from the bench to invalidate federal laws, a vote to invalidate state laws or a vote to overturn precedent.
 The novelty of trying to objectively define judicial activism — a term more often used, as Ringhand says, as an “epithet” to criticize rulings — attracted the attention of a Times editorial writer.
 Ringhand said she had talked to the writer about her study twice before the editorial was published. But she said she thought she was helping him understand the study and that she wouldn’t be mentioned by name.
 Since then, the 38-year-old professor — who’s been at UK less than five years — has received requests to speak at a conference, seen her work debated around the country, and talked with some of the nation’s top constitutional scholars.
“It’s opened a lot of doors,” Ringhand said.
 Allan Vestal, dean of the UK law school, said Ringhand is part of a cadre of young law scholars the school has hired in recent years. He said she is pioneering legal research at UK that is data-based rather than theory-based.
 ”She really is the complete package and she’s indicative of the kind of young scholars we have been able to attract,” Vestal said.
 Carl Frazier, 24, a third-year law student from Corbin, Ky., praised Ringhand’s teaching, which he said often includes elements of her research.
 ”She’s a very unusual law professor in that her classes are very dynamic. It’s very much interactive whereas most professors use more Q and A, the Socratic method,” Frazier said. “It’s amazing how she can take a sea of 60 people and make you feel like she’s talking directly to you.”
 Judicial activism?
 Ringhand said politicians — mostly conservatives, but increasingly liberals — have used the term “judicial activism” to describe court decisions with which they disagree.
But until her research, she said, no data showed how Supreme Court justices actually voted in ways that could be considered activist.
 So Ringhand reviewed the votes of each member of the U.S. Supreme Court between 1994 to 2005, the years William Rehnquist was chief justice and the court remained constant in personnel.
 The study found that conservative justices were “much more likely” than the liberals to invalidate federal laws and overturn precedent while the liberals were more likely to invalidate state laws.
 ”This work is an example of innovative scholarship. It’s an example of creativity. It’s an example of coming at an old problem from a new perspective,” said Douglas Kmiec, a professor of constitutional law at Pepperdine University in Malibu, Calif., and a former constitutional law adviser to Presidents Ronald Reagan and George H.W. Bush.
He also said it doesn’t show evidence of political or ideological bias.
 Some critics challenged Ringhand’s definition of “judicial activism,” but she said her definitions were key to continuing debate about what that term means.
“Once you choose that definition, it’s plainly true that some acts of activism will be good and some acts of activism will be bad. That’s the substantive discussion of constitutional law. That’s the discussion we should be having,” she said.
 Kmiec said the work has propelled debate about what judicial activism is, but more research needs to be done.
 The research doesn’t have direct impact on the Kentucky courts, Ringhand said. Earlier this year, a bill failed that would have asked citizens to vote on a constitutional amendment that would require the courts to “not engage in judicial activism.”
 That bill’s sponsor, Senate President David Williams, R-Burkesville, didn’t respond to requests for comment.
 Internet influence
Ringhand said her work had been well-regarded before the Times editorial but not well-known. The Internet helped.
 In August, she posted a draft of her study on a Web site devoted to social science research. A few weeks later, Lawrence Solum, a constitutional law professor at the University of Illinois who runs the Legal Theory blog, wrote about the study.
“I read a lot of legal scholarship and this article did catch my attention. I remember thinking, ‘This is real interesting,’ ” Solum said.
 Soon after, Ringhand received a call from New York Times editorial writer Adam Cohen. She talked to him a second time before the editorial appeared Sept. 11.
 That prompted criticism of Ringhand’s work in National Review Online, a supportive column by University of Pennsylvania law professor Kermit Roosevelt in the Los Angeles Times, and citations on washingtonpost.com and by The Associated Press.
Before the editorial, Pepperdine held a conference on the inaugural year of Chief Justice John Roberts that featured discussion of Ringhand’s work, Kmiec said.
“Professor Ringhand’s work was held out by name as giving important insight about the work of the court,” he said.
 Ringhand’s study is to be published in Constitutional Commentary, an academic journal, next year.
 Ringhand herself is a blogger. She helps run Ratio Juris, a general-interest law blog that focuses on empirical research in the field.
 In addition to her teaching and research, Ringhand is the adviser to the Kentucky Law Journal and chairwoman of the faculty recruitment committee. She recently was elected to Vestal’s faculty advisory committee.
 Oxford experience
Ringhand, who grew up in Augusta, Wis., population 1,460, became interested in the law while working as an aide in the Wisconsin Legislature.
 She enrolled in law school at the University of Wisconsin in Madison and practiced corporate law for three years.
 Finding corporate law unsatisfying, she studied comparative law at Oxford University for a year.
 It was at Oxford where Ringhand developed an interest in becoming a legal scholar and where she began thinking about the role of the U.S. Supreme Court in the political system.
 ”Being at Oxford was just an astonishing experience,” she said. “I’ve never been in a place where you sit at a restaurant and if you eavesdrop on the conversations happening around you, every one of them is fascinating.”
 She returned to Wisconsin and taught at the university for a year while looking for a job. She landed at UK in 2002 and earned tenure last year.
 ”I like the freedom” of being a legal scholar, Ringhand said. “When you’re a practicing lawyer, most of the time you don’t get to choose your clients and you don’t get to choose the issues that you work on. I love being able to write and think about what interests me. I love the dialogue. It is a constant learning experience. It’s quite literally never leaving school.”
 

Justice Roach and Justice Wintersheimer would weaken 4Th. Amendment and support police lying to bypass search warrant requirements of the Bill of Rights.

Saturday, October 21st, 2006

    LawReader Editorial by Senior Editor Stan Billingsley-
 

     

  Justice Roach (and Wintersheimer) issued a dissent Thursday in Krause v. Commonwealth which supports the right of the police to lie in order to avoid the 4th. Amendment prohibition against searches without a search warrant. 


    This ruling shows the Commonwealth Attorneys Association knew what they were doing when they  recently endorsed  Justice Roach in his bid to hold on to the Supreme Court seat to which Gov. Fletcher appointed him in the Nov. 7th.

election.  He is being opposed by  Fayette Circuit Judge Mary Noble.


    This McCracken County case involved the issue of how far the police could go in lying to a citizen in order to obtain entry into their home.  The police officer, instead of seeking a search warrant, made up a story involving the rape of a child in order to gain entry to a suspects residence.  The story was a complete fabrication.  Once inside, the officer took advantage of the plain view exception to the Fourth Amendment to obtain evidence against the drug suspect whom he was investigating.
The Commonwealth took the position that it is alright for the police to lie and that the citizen waived their 4th. Amendment rights.  While the court found this particular lie to be a violation of the 4th. Amendment, it cautiously preserved the right of the police to use ruses in proper situations.


  In Krause the majority of the Court held that:


 -the Fourth and Fourteenth Amendments require that a consent (to search) not be coerced, by explicit or implicit means . . .for, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed .-


 The majority quoted a U.S. Supreme Court decision which described other police ruses:

 

-widespread use of this type of tactic could quickly undermine “the set of values reflecting society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness-


 The majority in this decision consisted of:  Chief Justice Lambert, Justice Graves, Justice McAnulty, Justice Minton, and Justice Scott.


     The balancing of the interests of the police versus those of the public are important issues, and how a judge weighs these interests is a matter of valid public concern.  We have noted over the years that almost all of the trial judges we have seen defeated for re-election have strongly supported the prosecutorial view that all police actions are okay and that any recognition of defendants rights is a sign of weakness. 

 Those trial judges that try to fairly balance the rights of the public against the power of the government seem to get a lot of flak from the press, the police and from prosecutors, but in the end the public seems to value their fairness and more often than not returns them to office.


 The appellate judges are so far removed from public scrutiny, that their positions on such issues are rarely are affected by the voting public.  Justice Wintersheimer, who is retiring in January, has built a reputation that is best stated by Judge Keller who is quoted in the Courier Journal as having said, that- Wintersheimer rules for one defendant each year just so it cannot be said that he never rules for a defendant.  


 While one ruling may not be sufficient to predict a whole career, this particular ruling in the face of the contrary ruling by the majority of the court, would seem to indicate that Justice Roach is nominating himself as the heir-apparent for the Wintersheimer anti-Bill of Rights philosophy.  We believe that Justice Roach, who brings impressive legal credentials to the bench, would have benefited from a tour of duty in the real world by having sat for a few years on the trial bench.

We believe that the truly conservative judge is the one who upholds the Bill of Rights as it is written, and does not contenance lying by the police or the government.

Courier-Journal sizes up Ky. Sup. Ct. races. Discusses direction the Court may take. Pre-Impact fright tort may be affected by the election.

Saturday, October 21st, 2006

   Andrew Wolfson, a feature writer for the Courier-Journal, has published a detailed and illuminating discussion of the candidates for the four open Supreme Court seats and the direction the court might take depending on the Nov. election.  It is interesting to note that Wolfson starts his article with reference to a case pending before the Supreme Court in which I, while sitting as Gallatin Circuit Judge, held that the plaintiff was entitled to an instruction for  pre-impact fear.  Justice Minton, in his dissent when reviewing this decision at the Court of Appeals level, objected that that I had created a new Tort.
The decedent was crushed to death by a coil of steel that had fell off a tractor trailer.  An emergency medical technician who happened to live in a house at the accident scene came to the aid of the decedent and testified that she found the decedent dead but with a scream on her face.  The jury awarded $100,000 damages for this pre-impact fright. Since the death was instantaneous the plaintiffs request for a pain and suffering instruction was denied.  The jury awarded $2.6 million for wrongful death, loss of consortium, and another million dollars was added for punitive damages making the total award $3.7 million.  –LawReader Senior Editor Stan Billingsley-
Supreme Court’s future up to voters  -  Four seats could shift state rulings
By Andrew Wolfson  Reprinted from The Courier-Journal
After Melissa Congleton was killed in October 2002 by a 37,000-pound steel coil that flew off a truck into her vehicle, a jury awarded her estate damages that included $100,000 for “pre-impact fear” — the terror she experienced in the moments before her death.
It was the first time such a verdict had been allowed in Kentucky, and it’s been appealed to the state Supreme Court, which will decide if it’s justified or frivolous.
The decision, which could affect wrongful death suits for years to come, is one of the many legal issues whose fate may turn on the Nov. 7 election. Voters could elect as many as four new faces to the seven-member Kentucky Supreme Court.
A new pro-business group, the Partnership for Commonsense Justice, says the contested elections – — in Louisville, Lexington, and Western and Northern Kentucky — promise the biggest changes in the court’s 30-year-history.
And lawyers of various stripes agree the races come at a crossroads for a court increasingly torn by politics and dissension.
“These seven people will shape the future of Kentucky law, and this is really important to Kentucky citizens,” said Louisville attorney Edward Stopher. “As a practical matter, they have the last word on obligations, duties and damages in our state … so we need to cast our votes carefully.”
The new court will decide such questions as whether:
A criminal lawyer denies his client effective counsel by walking out of the courtroom during his testimony because the attorney knows the defendant is lying.
A foundation that runs a university’s dormitories is liable when a student is raped, sodomized and set on fire in one of them.
A Kentucky doctor was guilty of negligence when he slipped in a hospital operating room and grabbed a patient to keep from hurting himself — injuring the patient.
Many law professors and other legal experts predict the court will move slightly to the left on criminal and civil law because of the justices who are leaving it, regardless who replaces them.
Professor William Fortune of the University of Kentucky noted, for example, that two of the justices most likely to affirm criminal convictions, Donald Wintersheimer of Covington and Bill Graves of Paducah, are among those retiring.
Defense attorneys have joked that Wintersheimer votes to reverse one conviction a year — just so nobody can accuse him of reversing none. “You aren’t going to get more pro-prosecution than Don,” said former Justice James Keller of Lexington.
Court observers also say they expect the court to empathize more with plaintiffs in personal injury, medical malpractice and product liability cases because its staunchest voice for business, William Cooper, has retired.
He has been succeeded by former Court of Appeals Judge John D. Minton Jr. of Bowling Green, who was appointed to the court and faces no opposition as he seeks a full term. Practicing lawyers and professors describe Minton as a moderate and a scholar likely to be a leader on the court.
Predicting a court’s future complexion is like playing a roulette wheel, Stopher says. And justices can be hard to pigeon-hole.
As Court of Appeals Judge Tom Wine quipped at a recent forum, “A strict constructionist is a judge who rules for you; while an activist judge is one who rules against you.’”
But lawyers and professors say the court could tilt to the right if voters retain Justice John Roach, who was appointed to the District 5 seat last year, and elect Republican activist Marcus Carey of Erlanger in District 6, who says on his Web site that “fundamental to my core philosophy is the unyielding belief that every right we have is given to us by God.”
They would join Republicans Joseph Lambert of Mount Vernon and Deputy Chief Justice Will T. Scott of Pikeville.
Supreme Court justices serve eight-year terms and are paid $132,012 a year. Here is a closer look at the contested races:
DISTRICT 1Court of Appeals Judge Rick Johnson vs. Circuit Judge Bill Cunningham
Cunningham and Johnson are running to succeed Graves, who has endorsed Johnson, citing in part his “family values.”
Johnson actually has rung up a moderate record in 14 years on the Court of Appeals, trial lawyers say. But at the Fancy Farm picnic in August, he noted that he opposes abortion except in case of “serious endangerment to the life of the mother” and supports display of the Ten Commandments, “the right to pray freely at school,” the right to bear arms, the death penalty and marriage limited to one man and one woman.
The Kentucky Judicial Campaign Conduct Committee, a private watchdog group, rebuked him for violating a pledge not to make any statements committing him to rule a certain way on an issue likely to come before the court.
In private practice, Johnson worked in the Paducah office of a liberal Louisville labor firm headed by Herb Segal, and has been endorsed by from several labor union political action committees, including the United Mine Workers. He’s also gotten contributions from trial attorneys who represent both plaintiffs and insurance companies.
Criticizing his opponent for being soft on criminals, Johnson cited Cunningham’s 1993 opinion ordering the release of eight convicted rapists serving sentences of life without parole because that sentence for rape was later abolished. Cunningham held it was unjust to keep them locked up on an “abandoned sanction.” His ruling later was reversed.
Cunningham points out that he’s been endorsed by the Kentucky Association of Commonwealth’s Attorneys and that, as commonwealth’s attorney for Caldwell, Livingston, Lyon and Trigg counties, he prosecuted more than 1,000 felonies and six death penalty cases.
Shannon Ragland, editor of Kentucky Trial Court Review, said either candidate is likely to be more sympathetic to plaintiffs than Graves. Criminal law experts also say both are more likely to reverse convictions based on errors by prosecutors or judges.
DISTRICT 4Jefferson Circuit Judge Ann O’Malley Shake vs. Justice William E. McAnulty Jr.
Court watchers say the outcome of this contest may have the least impact because the candidates are so similar — they even pray at the same church, Highland Presbyterian.
“We have both been careful to follow the law as we perceive it,” said Shake, who has spent 16 years on the circuit and district bench.
McAnulty, who was a district and circuit judge before his election to the Court of Appeals in 1998, said, “If you analyze my opinions you wouldn’t conclude I’m a plaintiffs’ guy or a defense guy.”
UK law professor Paul Salamanca said that both are slightly more plaintiff-oriented than Martin Johnstone, who retired from the seat, and criminal law experts say either would be slightly more likely to reverse convictions.
The main spice in the race has come from McAnulty’s decision to accept an interim appointment to the seat from Gov. Ernie Fletcher while the governor was under indictment for alleged merit-system law violations; the charges have been dismissed.
Shake said the appointment left him beholden to Fletcher, which McAnulty denied. Shake is hoping to become the only woman on the court, while McAnulty is seeking to retain his seat as its first African American.
DISTRICT 5Justice John Roach vs. Fayette Circuit Court Judge Mary C. Noble
Roach and Noble are running for the seat held by Keller, who was one of the more liberal recent members of the court. Keller has endorsed Noble, whom he considers his protege.
If voters keep Roach on the bench, the seat will have a more conservative flavor, said UK professor Bob Lawson, who taught both candidates when they were law students.
Roach declined to comment on the direction in which he might move the court, although he told the Commonsense Judiciary group that his favorite jurist is U.S. Supreme Court Justice Antonin Scalia, arguably its most conservative member.
Since his appointment in June 2005, Roach has been more likely than his colleagues to find prosecutorial errors “harmless,” according to law professors and criminal attorneys. However, he has written majority or concurring opinions reversing at least six convictions.
Roach has been endorsed by the state commonwealth’s attorneys association and state FOP lodge, but Noble said that can’t be because of his criminal law experience. She noted he practiced law only six years before becoming a “political operative” and in comparison touts her experience hearing an array of 14,000 cases.
DISTRICT 6Marcus Carey vs. Court of Appeals Judge Wilfrid Schroder
Carey, a former radio talk show host and local Republican Party chairman whom Fletcher appointed to the state Board of Tax Appeals in 2004, makes no secret of his beliefs.
On his Web site, he said he promotes “the sanctity of marriage” and “counsels youthful offenders to recognize their situation as a wake-up call from God.” In an interview, he cited his “deep and abiding respect for the life and the values of the individual family.”
He won a federal court ruling earlier this month allowing candidates to proclaim their party affiliation, and to solicit money directly.
Schroder, who has been a judge for 22 years, has run a more traditional campaign. “The difference between my opponent and me is that I have no political or personal agenda,” he said.
The two are vying to succeed Justice Donald Wintersheimer, who is retiring.
Carey has the endorsement of Right to Life, which lawyers say can be important in heavily Roman Catholic Northern Kentucky.
But he must overcome the stigma of a 1971 conviction for negligent homicide in a Kenton County auto accident that killed his 16-year-old passenger. Carey, who was 18 at the time, has said he was drinking the night of the crash, though he was not charged with driving under the influence.
Reporter Andrew Wolfson can be reached at (502) 582-7189.
 

Ky. Supreme Court throws out contingent fee when attorney fired. Limits use of police ruses to gain entry to search residence.

Friday, October 20th, 2006

    This week the Ky. Supreme Court issued 35 rulings. LawReader subscribers may review our complete synopsis and the full text of the case.
 Two cases are very important.   First the court overruled prior Law and held that when an attorney who had a contingent fee contract is fired from the case, he cannot enforce the contract and is only entitled to quantum merit damages.


 The second case limited the use of police ruses to gain entry to a residence to conduct a search.  This decision did not outlaw police ruses, but does discuss the standard for their review.  In this case the majority found the police violated the 4th. Amendment rights of the defendant.  Justices Roach and Wintersheimer both dissented.   This decision may be a telling prediction of Justice Roach’s view of the Bill of Rights in future cases and places his claim as Justice Wintersheimer’s philosopical replacement. 

 Justice Wintersheimer, who is retiring from the bench in January, follows his predictable pattern of overwhelming denial of defendant’s rights.
 

LawReader case #4 OVERRULING PRIOR LAW: when an attorney employed under a contingency fee contract is discharged without cause before completion of the contract, he or she is entitled to fee recovery on a quantum meruit basis only, and not on the terms of the contract.
LawReader Synopsis:
WO SIN CHIU v.  RICHARD SHAPERO AND CARL FREDERICK JEFFERSON CIRCUIT COURT NO. 98-CI-6240
Appellants, Kenneth H . Baker and Wo Sin Chiu, appeal from an opinion of the Court of Appeals which affirmed in part and vacated in part a decision of the Jefferson
Circuit Court. On discretionary review to this Court, we reverse the Court of Appeals and remand the case for further consideration.
This matter involves the enforcement of an attorney’s lien by Appellees, Richard Shapero and Carl Frederick.
With Baker as his attorney, Chiu ultimately received a total settlement of $175,000 . Shapero and Frederick immediately filed an attorney’s lien against the
settlement, claiming entitlement to the contingency fee set forth in the Employment Agreement signed by Chiu on April 1, 1998 . Pursuant to the standards set forth in
LaBach v. Hampton, 585 S.W.2d 434 (Ky. App. 1979), the trial court determined that Shapero and Frederick were dismissed without cause, and thus, were entitled to a fee based on this employment contract.
 The Court of Appeals affirmed, but vacated and
remanded for a recalculation of the fee actually due to Shapero and Frederick.
Appellants petitioned for discretionary review to this Court, which we granted . We now overrule LaBach v. Hampton , supra, and therefore, must reverse both the Court of Appeals and the trial court.
Since this 1979 ruling, it has been noted that Kentucky’s policy of allowing attorneys who are discharged without cause to claim entitlement to a contingency fee
on a former client’s final recovery, even though they never completed the contracted work, is an extreme minority position .
 Most jurisdictions only allow these discharged attorneys to claim fees on a quantum meruit basis.
 See Lester Brickman, Setting the Fee when the Client Discharges a Contingent Fee Attorney,  41 Emory L.J . 367, 373 n . 37 (Spring 1992) (citing the vast majority of jurisdictions which apply  true quantum meruit recovery for attorneys who are discharged without cause); Limitation to Quantum Meruit Recovery, Where Attorney Employed under Contingent-Fee Contract is
Discharged without Cause, 56 A.L.R. 5th 1, § 3(a) (1998) (same).
In accordance with the vast majority of other jurisdictions that have addressed this issue, we hold that when an attorney employed under a contingency fee contract is
discharged without cause before completion of the contract, he or she is entitled to fee
recovery on a quantum meruit basis only, and not on the terms of the contract.
 As such, the Court of Appeals’ opinion is reversed, and this matter is remanded for proceedings in conformity with this opinion . Specifically, Shapero and Frederick shall be permitted to prove the quantum meruit value of the services they provided to Chiu prior to their final discharge on July 14, 1998 .
LawReader Synopsis:
LawReader case #5 IMPORTANT 4THH. AMENDMENT RULING: “the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . .[fjor, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed ." JUSTICE ROACH AND JUSTICE WINTERSHEIMER DISSENT.
FREDERICK CARL KRAUSE III v. COMMONWEALTH OF KENTUCKY MCCRACKEN CIRCUIT NO . 03-CR-00162-002
Appellant, Frederick Carl Krause, III, entered conditional guilty pleas in McCracken Circuit Court to First Degree Possession of a Controlled Substance,
Cocaine ; Use/Possession of Drug Paraphernalia, Second Offense; and Possession of Marijuana. For these crimes, Appellant was sentenced to three days' imprisonment and two and one-half (2'/2) years of probation ....we reverse the Court of Appeals' opinion, vacate  Appellant's convictions and sentence, and remand for further proceedings.
When one of the residents, most likely Appellant, opened the door, Trooper Manar stated that a young
girl had just reported being raped by Yamada in the residence. He asked if he could look around in order to determine whether her description of the residence and its furnishings was accurate.
 The trial court found that Trooper Manar "knew there would be no such evidence because he knew there was no assault. His intention was to gain consent to search for drugs."
Despite finding that "the ruse employed [by Trooper Manar] raises serious Constitutional rights questions and is not an appropriate police practice,” the trial court
ultimately concluded “that Defendants voluntarily consented to a search for evidence of an assault.”
On appeal to this Court, the sole issue for our consideration is whether the consent given by Appellant and his roommate was constitutionally valid. In Cook v.
Commonwealth, 826 S.W.2d 329 (Ky. 1992), this Court stated that “consent is one of the exceptions to the requirement for a warrant.” Id. at 331 (citing United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L .Ed .2d 598 (1976)).
We further indicated that the “test for determining if consent is constitutional is set out in Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S .Ct. 2041, 36 L.Ed.2d 854 (1973).” Id .
In Schneckloth, supra, the Supreme Court held that “the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . .[fjor, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed ." Id. at 228, 93 S .Ct . at 2048. Whether consent is the result of express or implied coercion is a question of fact, id, at 227, 93 S.Ct. at 2048, and thus, we must defer to the trial court's finding if it is supported by substantial evidence. RCr 9.78 .
The ruse in this instance was employed for the purpose of gaining consent (1) to make a warrantless entry into a home ; and (2) to conduct a plain view warrantless
search of the residence. Thus, the underlying purpose and policies in this case differ from the purpose and policies in the Adcock case. The guiding factor here is to determine whether this particular ruse frustrated the purpose of the constitutional requirement that consent to make a warrantless entry into and search of a home must be voluntary, and thus, free of implied or express coercion .
Finally, we believe that if the type of ruse utilized by Trooper Manar was sanctioned by this Court, citizens would be discouraged from "aiding to the utmost of
their ability in the apprehension of criminals" since they would have no way of knowing whether their assistance was being called upon for the public good or for the purpose of incriminating them. Schneckloth, supra, at 243, 93 S.Ct. at 2056 (internal quotation
omitted).
Moreover, widespread use of this type of tactic could quickly undermine "the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness." Id. at 225, 93 S.Ct. at 2046.
We are careful to note that our holding is limited and narrow. We do not hold that the use of ruses, in general, is unconstitutional . The United States Supreme Court has long held that "[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises.” Sorrells v. United States , 287 U.S . 435, 441-42, 53 S.Ct. 210, 212, 77 L.Ed . 413, 416-17 (1932)
Because the record lacks sufficient evidence to support a finding of voluntary consent, the decision of the Court of Appeals is reversed, and Appellant’s sentence and
convictions are vacated. This matter is remanded to allow Appellant to withdraw his guilty pleas pursuant to RCr 8 .09 and for further proceedings consistent with this
opinion.
Lambert, C.J ., Graves, McAnulty, Minton, and Scott, J .J., concur.


 DISSENTING OPINION BY JUSTICE ROACH:
I must respectfully dissent from the majority opinion because it misinterprets the clear statement of the circuit judge which found that the police were given consent to search . The order denying the motion to suppress evidence entered on July 25, 2003 clearly states that the defendants gave consent for the police to search for evidence of  an assault.: Under all the circumstances, I believe that consent was given and that this judgment of conviction should be affirmed in all respects.
Roach, J ., joins this dissent.
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the majority opinion because it misinterprets the clear statement of the circuit judge which found that the police were given consent to search . The order denying the motion to suppress evidence entered on July 25, 2003  clearly states that the defendants gave consent for the police to search for evidence of an assault.

Federal Sentencing Guidelines – New Standard is Reasonableness

Tuesday, October 17th, 2006

Sentencing Guidelines

Below-the-Range Sentences: Appellate Review

 New York Law Journal
October 17, 2006

The U.S. Supreme Court’s decision in Booker ushered in a new era in sentencing not only because it rendered the Sentencing Guidelines “advisory,” but also because it introduced a new standard of review for sentencing decisions: reasonableness.

While questions of law are still reviewed de novo and findings of fact for clear error, Justice Stephen Breyer’s opinion excised the de novo review of departures introduced in 2003 by the Feeney Amendment, instead declaring that the ultimate sentence should be upheld unless it is “unreasonable.”

Although appeals of above-the-range, and even within-the-range, sentences far outnumber appeals of below-the-range sentences, a number of recent decisions have explored the lower bounds of reasonableness. For many courts, reasonableness is a question of degree: the farther a sentence is from the guideline range, the more scrutiny the court will apply.

A review of recent below-the-range cases in the U.S. Court of Appeals for the Second Circuit, however, reveals that in this circuit at least, post-Booker appellate review is effectively the same as it was pre-Feeney: absent an error of law or clearly erroneous finding of fact, such a sentence will not be overturned absent an abuse of discretion.

The Sliding Scale

A number of circuits around the country have adopted a sliding scale approach to reasonableness review of below-the-range sentences. For example, the U.S. Court of Appeals for the Eleventh Circuit, in United States v. Crisp1 and United States v. Martin,2 held that “[a]n extraordinary reduction must be supported by extraordinary circumstances.”3 The U.S. Court of Appeals for the First Circuit similarly adopted the position that reasonableness requires that the court “consider the reasonableness of a below-guideline sentence on a sliding scale: the farther the judge’s sentence departs from the guidelines sentence, the more compelling the justification based on factors in §3553(a) that the judge must offer.”4 Although “[a]n appellate court is not well suited to determine the appropriate sentence for a defendant,” the court held, “post-Booker appellate courts are tasked with drawing the line separating reasonable from unreasonable sentences.”5

The Second Circuit also has had the opportunity recently to review below-the-range sentences. In at least four such decisions, the court vacated and remanded for resentencing; yet the court appears to be affording more deference to the sentencing judge than its sister circuits. What follows is a look at those cases.

United States v. Thorn6

Joseph P. Thorn ran A+ Environmental Services Inc., an asbestos abatement company. A+ routinely submitted low bids for contracts on the assumption that it would employ illegal shortcuts, including failing to contain dust or provide protective gear and instructing workers to dump bags of loose asbestos.

Mr. Thorn was convicted of violating the Clean Air Act and money laundering. Chief Judge Frederick J. Scullin Jr. calculated an initial guidelines range of 235 to 293 months, but imposed a sentence of 65 months after departing to criminal history category I and granting a heartland departure because the money laundering was not incident to “a far-reaching scheme, such as drug trafficking or organized crime.”7

The Second Circuit reversed, requiring a more-detailed record to review the criminal history departure and instructing the district court to reconsider its heartland departure in light of United States v. McCarthy,8 which specifically held that money laundering may lie in the heartland of cases despite not involving drug trafficking or organized crime.

The district court again departed to a criminal history category of I and applied a heartland departure. The court concluded that Mr. Thorn’s prior unrelated convictions did not demonstrate a risk of recidivism. McCarthy, the court held, was distinguishable because the money laundering was not critical to the enterprise. This time, however, Judge Scullin imposed a 168-month sentence.

The Second Circuit held that sentence unreasonable. “A district court abuses or exceeds the discretion accorded to it when its decision rests on an error of law . . . a clearly erroneous factual finding, or . . . cannot be located within the range of permissible decisions.”9 The court held that the district court committed an error of law because the heartland departure rested on a misinterpretation of McCarthy. It further held that the district court had also “abused its discretion” in departing to criminal history category I because it failed to account for two previous civil cases involving similar bad acts. The court remanded again for resentencing, directing the district court not to depart on these grounds.

United States v. Rattoballi10

James Rattoballi successfully built his printing company into a $7-million-dollar-a-year business. Part of that success, however, resulted from a kickback scheme. Mr. Rattoballi traded clothing, gifts and cash to advertisers in exchange for contracts.

Mr. Rattoballi pleaded guilty to conspiracy to rig bids and to commit mail fraud. Judge Thomas P. Griesa calculated a guideline range of 27-33 months but imposed a sentence of one year home confinement and five years’ probation, citing Mr. Rattoballi’s ultimate “com[ing] clean” after withholding information from the government, the stigma of a felony conviction, the damage imprisonment would cause his business and his lesser culpability relative to one of the advertisers.

The Second Circuit reversed. The court specifically declined to adopt the sliding scale review evolving in other circuits. However, it held that the district court’s rationales were common to all defendants, reflected a lack of consideration for the Sentencing Commission’s policy statements regarding the need for imprisonment in antitrust cases, and impermissibly double-counted the reduction for acceptance of responsibility. Moreover, the court held it was clear error to conclude that Mr. Rattoballi’s business would be forced to close if he were imprisoned. Finally, the Court held that the guidelines already accounted for any disparity-the high end of the guideline range was less than half the advertiser’s sentence. The court held that by failing to justify the sentence with respect to the §3553(a) factors, the district court “exceeded the bounds of allowable discretion.”11 In so holding, the court stated more generally that its reasonableness review, “though deferential, will not equate to a ‘rubber stamp’” and that it will view as “inherently suspect” a sentence based on factors not unique to a particular defendant.12

United States v. Toohey’13

Timothy J. Toohey, a New York attorney, pleaded guilty to willfully underreporting his income. Mr. Toohey agreed to a guideline range of 15 to 21 months imprisonment but moved for a departure based on the extraordinary impact imprisonment would have on his business.

Judge John T. Elfvin imposed a sentence of two years’ probation. The court rejected Mr. Toohey’s requested departure but instead stated that incarceration would create disparity between Mr. Toohey’s sentence and that given to another, more-culpable attorney in an unspecified case. In a summary opinion, the Second Circuit vacated and remanded for resentencing, explaining that the district court’s opinion “lacked the [specific] explanation required by 18 USC §3553(c).”14

On remand, the district court imposed the same sentence, this time identifying the earlier case to which it had referred. The Second Circuit again vacated and remanded, holding that the sentencing opinion still lacked sufficient specificity for review and that it was error to view disparity by reference to one other case rather than “similarly situated defendants nationwide.”15

Judge Elfvin, understanding the Second Circuit’s opinion as mandating a term of imprisonment, imposed a sentence of 15 months. Mr. Toohey moved to correct the sentence, arguing that the Second Circuit’s opinion had specifically contemplated the possibility of a non-guideline sentence. Judge Elfvin refused, stating that the previous sentences were influenced by a prior friendship between the defendant and the judge and that the court was “correcting” that error by strictly following rather than “abus[ing]” the guidelines.16

The Second Circuit began by noting that its previous opinion had not mandated any specific sentence, but only required that the district court consider all of the 3553(a) factors in deciding upon a guideline or nonguideline sentence. The court viewed the district court’s statement that it does not abuse the guidelines as an indication that it had placed too much weight on the guidelines, especially in light of its misapprehension of the Second Circuit’s previous opinion. In light of Judge Elfvin’s acknowledged bias, the court remanded for resentencing before a different judge.

United States v. Castillo17

On March 24, 2004, Juan Castillo pleaded guilty to conspiring to distribute and distributing both crack and powder cocaine. At his sentencing, Mr. Castillo argued that the court should impose a sentence below his guideline range of 135-168 months because, following Booker, the court was “now free to ignore the harsher penalties imposed under the guidelines” for crack versus powder cocaine.18

Judge Robert W. Sweet agreed. The court concluded that the 100:1 ratio called for under the guidelines created an unwarranted disparity between those convicted of crack and powder cocaine offenses. He noted that the Sentencing Commission itself had proposed a more lenient 20:1 ratio and, following that suggested policy, he imposed a sentence of 87 months.

The Second Circuit reversed. The court noted that the 100:1 ratio was derived from the mandatory minimum sentences Congress adopted in the Anti-Drug Abuse Act of 1986. Although the Sentencing Commission had three times suggested reducing or eliminating the ratio, Congress had repeatedly rejected such proposals. Thus, the court concluded, Congress had made its intentions clear and the district court had committed an error of law by substituting its own policy judgment for Congress’ rather than grounding its sentencing decision on facts specific to Mr. Castillo’s case.

“Akin to Abuse of Discretion”

Prior to the Feeney Amendment, appellate courts were required to give “due deference” to a sentencing court’s application of the guidelines to the facts presented in a particular case. Previously, in United States v. Koon,19 the Supreme Court interpreted the due deference standard. “District courts have an institutional advantage over appellate courts in making these sorts of determinations,” the court held, “especially as they see so many more guidelines cases than appellate courts do.”20 Therefore, the court concluded, a district court’s sentencing decisions, other than errors of law or clearly erroneous factual determinations, were to be upheld unless they represented an abuse of discretion.

The Supreme Court’s observation is equally applicable to appeals of below-the-range sentences, at least in the Second Circuit. While several of its sister circuits view the distance of a sentence from the applicable guideline range as a heuristic for reasonableness, the Second Circuit is employing the deference it granted district court sentencing decisions pre-Feeney. This deference is reflected in the careful decision in each of the cases described above to isolate erroneous legal conclusions as the basis for the decision to remand and the court’s refusal to set an explicit lower bound or suggest a reasonable sentence. In fact, the court has expressly stated that “[r]easonableness review does not entail the substitution of our judgment for that of the sentencing judge. Rather, the standard is akin to review for abuse of discretion.”21

Nor should too much be read into the court’s multiple reversals of below-the-range sentences. The government is extremely selective about the sentencing decisions it appeals-for example, from October 2004 through September 2005, below-the-range sentences were imposed in more than 1,200 noncooperator cases in the Second Circuit,22 yet the government appealed only 19 of those sentences.23 In other words, the government generally appeals only those below-the-range sentences that it regards as most extreme, leaving the others undisturbed. Thus, the fact of multiple reversals in this small category of unusual cases cannot be taken as a sign that the Court of Appeals will routinely reverse below-the-range sentences.

Conclusion

The Second Circuit’s recent sentencing decisions do not represent a retreat from the principle that district courts have an institutional advantage in determining what a “reasonable” sentence is in a particular case. The Second Circuit appears ready to remand for resentencing only in the face of an error of law or fact or a record that demonstrates the judge’s failure to consider all of the 3553(a) factors. Nevertheless, these decisions serve as a reminder to defense counsel of the importance of presenting to the sentencing court all possible legitimate grounds for a below-the-range sentence in order to maximize the chances that such a sentence, if challenged, will be upheld as a reasonable, individualized exercise of discretion.

Alan Vinegrad, former United States Attorney for the Eastern District of New York, is a partner at Covington & Burling. Douglas Bloom is an associate at the firm.

Endnotes:

1. 454 F3d 1285 (11th Cir. 2006).

2. 455 F3d 1227 (11th Cir. 2006).

3. Crisp, 454 F.3d at 1291.

4. United States v. Thurston, 456 F.3d 211, 215 (1st Cir. 2006) (quoting United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006)) (internal quotations omitted).

5. Id. at 220; see also United States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006); United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005).

6. 446 F.3d 378 (2d Cir. 2006).

7. Thorn, 446 F.3d at 390.

8. 271 F.3d 387 (2d Cir. 2001).

9. Thorn, 446 F.3d at 391 (quoting United States v. Brady, 417 F.3d 326, 322-23 (2d Cir. 2005)).

10. 452 F.3d 127 (2d Cir. 2006).

11. Id. at 137 (quoting United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006)).

12. Id. at 132-33.

13. 448 F.3d 542 (2d Cir. 2006).

14. United States v. Toohey, 85 Fed. Appx. 263, 263-64 (2d Cir. 2004).

15. United States v. Toohey, 132 Fed. Appx. 883, 886-87 (2d Cir. 2005).

16. Toohey, 448 F.3d at 544.

17. 460 F.3d 337 (2d Cir. 2006).

18. Id. at 342.

19. 518 U.S. 81 (1996).

20. Id. at 98.

21. United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).

22. United States Sentencing Commission, 2005 Sourcebook of Federal Sentencing Statistics, Tables 26 and 26A, available at http://www.ussc.gov/ANNRPT/2005/SBTOC05.htm.

23. Id. at Table 56A.

Judge may be charged with Violation if he fails to take possession of suspended drivers license.

Monday, October 16th, 2006

Legislature makes it a Violation for Judge to fail to take up suspended driver’s license.
 

    Under Chapter 186.550(1)  the clerk is charged with the responsibility to report a person’s conviction that results in the suspension of his driving privileges to the Dept. of Transportation.
 

Under KRS 186.550(2) the court is required to “take up? the person’s drivers license when same is suspended due to a conviction.  The court is required by this statute to forward the license to the Department of Transportation.
 

 

KRS 186.990 the penal statute relating to 186.550 (1) and (2) is worded strangely as it first mentions the clerk and the judge, but it only penalizes a violation of 186.550(1) which is the duty of the clerk, and it does not mention 186.550(2) which is the duty of the judge.
 

    We believe the actual practice is that the judge typically expects the bench Clerk to be responsible for taking up the driver’s license and forwarding it to the Dept. of Transportation.  Most judges don’t know about this law, and don’t involve themselves in the work of the clerk’s office.
 

  The first statute might be interpreted to impose upon the judge a penalty if he doesn’t direct the Clerk to file the required report.   Whether or not the Legislature should be imposing fines upon the trial judge in this manner is an interesting question regarding the “inherent powers? of the court.
 

Possible Remedy for the Judge:
 

   We would suggest that the trial judge (and this includes Circuit Judges who hear criminal cases, since you may get a DUI case combined with a felony, and then this statute would apply the Circuit Judge as well) issue a standing order to the clerk to file the required report and to take up the license of the defendant, and forward it to the Dept. of Transportation.
 

Example of suggested Court Order:
 

                       General Order #____   _______District/Circuit Court
 

It is hereby ordered that the Clerk of ____county shall fully comply with the provisions of KRS 186.550, and shall under this order be directed to take possession of all driver’s licenses suspended by the action of the court, and promptly forward said license to the Dept. of Transportation.    In the event the defendant does not have the license in his possession at the time of the conviction,  this shall be reported to the court in writing, and all such persons shall be noticed to appear in court with 15 days.
 

 

 

Statute sets up duties of Clerks and Trial Judge regarding suspension of driver’s privileges:
 

KRS 186.550 Courts to report convictions and send licenses to cabinet.
(1) The clerk of any court having jurisdiction over offenses committed under motor
vehicle laws shall report upon a form furnished by the cabinet the conviction, pleas
or forfeiture of bond arising under motor vehicle laws, to the cabinet within fifteen
(15) days.
(2) The court shall take up the motor vehicle operator’s license certificate of a person
convicted of any of the offenses for which mandatory revocation is provided by
KRS 186.560 and have it immediately forwarded to the cabinet with the report
covering the conviction.
 

The Penalty Provision:
 

KRS 186.990 Penalties.
(4) Any clerk or judge failing to comply with KRS 186.550(1) shall be guilty of a
violation.