Archive for February, 2007

SENIOR JUDGES ACT WOULD HINDER INCLUSION OF JUDGES REMOVED BY ELECTION BUT WOULD ALLOW AN APPEAL TO SUPREME COURT. See full text of HB 465.

Tuesday, February 27th, 2007
 In a story published in the Herald–Leader the Chief Justice says that in the 2000 session of the legislature, that wording in the original act would have allowed the Chief Justice to refrain from assigning Senior Judges back to their home county if they had been removed from office by election.  

The current wording of  legislation  (see HB 465 ) would not allow a judge removed by an election to be allowed into the Senior Judges program unless they were approved by the entire Supreme Court.

The Herald–Leader article stated:


 By Brandon Ortiz –  HERALD-LEADER
Chief Justice Joseph Lambert has told reporters that he has no authority to bar a senior judge from serving in a county in which he or she lost re-election.
But that’s different from what he told legislators in 2000, when he was urging them to pass the program.
“It would seem to me that a chief justice would be well advised not to assign a judge” to a county where the judge had lost re-election, Lambert testified to the House Judiciary Committee, according to a transcript.
Jason Nemes, Lambert’s chief of staff and the acting director of the Administrative Office of the Courts, said the chief justice’s position has been consistent. He said there had been a provision in the bill that would have given Lambert such discretion but it was later stripped during the legislative process.
“There was a number of different questions and that was one of them, whether he should have discretion,” Nemes said. “He said then that he should.”
Lambert said during testimony he would be against a blanket ban on defeated judges serving in the program.
A House committee approved last week a bill that would ban defeated judges from the program in the future.
Several prosecutors contend that the program is unconstitutional because senior judges are not elected.     In Louisville, an unpopular district judge who lost re-election last year is now presiding over cases as a senior judge.
“Kentucky has had a long-standing and deep-seated tradition of electing our judges,” Fayette Commonwealth’s Attorney Ray Larson said. Elections make “judges accountable for their decisions.”
Some prosecutors have tossed around the idea of filing a lawsuit challenging its constitutionality, but thus far that’s never gained any traction, Larson said.
“If you challenge it in court, who’s going to make the decision on these things? It is going to be the Supreme Court … a great proponent of the program,” Larson said.
Supporters note that the state constitution allows the chief justice to appoint special judges on a temporary basis.
House Bill 465, sponsored by Rep. Rob Wilkey, D-Scottsville, would prohibit senior judges who lost re-election from participating in the program and provide a screening mechanism for judges.
Currently, “you could be the worst judge in history and get into the program,” Jefferson Commonwealth’s Attorney R. David Stengel said.
Former senior judge Stan Billingsley, who edits a law blog on lawreader.com, said senior judges do not rule any differently than when they were elected.
Nonetheless, he conceded, there is less pressure and more freedom to make correct but unpopular decisions — something prosecutors don’t like.
“Some prosecutors,… like the idea that they have a political power base in their county,” Billingsley said. “That to me is more worrisome than a judge who votes his conscience.”

HB 465

AN ACT relating to the Court of Justice.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:


Section 1.   KRS 21.580 is amended to read as follows:

(1)     As a pilot project to determine the effectiveness of using senior retired judges to combat backlog and delay in Kentucky courts, there is hereby created a “Senior Status Program for Special Judges.” The program shall be implemented as follows:

(a)     KRS 21.400(1) and any other provision in KRS Chapter 21 to the contrary notwithstanding, a member who retires and who meets the criteria specified in subsection (2) of this section[at a time when combining his total years of judicial service credit and his age equals or exceeds the number seventy-five (75),] may elect, within ninety (90) days following retirement, to participate in the “Senior Status Program for Special Judges,” if he complies with the provisions of this subsection. In that event, the member shall be entitled to a service retirement allowance, commencing at the member’s normal retirement age, payable monthly during his lifetime in an amount equal to five percent (5%) of his final compensation multiplied by the number of years of his judicial service, not to exceed twenty (20) years of judicial service at the five percent (5%) factor, not to exceed one hundred percent (100%) of final compensation. “Final compensation”, notwithstanding any provision to the contrary, for all members retiring under any provision of KRS 21.345 to 21.570 or this section, or similar statutes governing the same positions, as defined in KRS 21.400 shall be based on a period of thirty-six (36) months. Any nonjudicial time shall be counted as is otherwise provided in KRS Chapter 21, but in no event shall service retirement allowance exceed one hundred percent (100%) of final compensation.

1.      In the event the retiring judge elects to retire as a “Senior Status Special Judge” under this subsection, he shall commit to serve, upon appointment by the Chief Justice of the Commonwealth, as special judge for one hundred twenty (120) work days per year for a term of five (5) years without compensation other than the retirement benefits under this subsection. The Senior Status Special Judge may agree to work more than one hundred twenty (120) days in any year within the five (5) years of service; however, the Senior Status Special Judge shall be compensated as otherwise provided by law, in addition to his retirement benefits, for any days served in excess of one hundred twenty (120) in that year. If the Senior Status Special Judge has not served a total of six hundred (600) days within the five (5) year period outlined in this subsection, the Chief Justice shall require the Senior Status Special Judge to serve at no additional compensation to the Senior Status Special Judge, until the six hundred (600) day period is served by the Senior Status Special Judge. The Senior Status Special Judge and the Chief Justice may agree in writing to serve less than the one hundred twenty (120) days in any one (1) or more of the five (5) years; however, any of the days not served in a given year shall be served at the end of the five (5) year period set forth in this subsection.

2.      Should any member electing to retire under the Senior Status Program for Special Judges fail, when ordered by the Chief Justice to serve the requisite number of days not to exceed one hundred twenty (120) days a year for the five (5) year period outlined in this subsection, unless otherwise agreed in writing, he shall no longer be eligible for benefits computed under this subsection and shall return to the benefits otherwise provided under this chapter.

3.      Subject to Section 110(5)(b) of the Kentucky Constitution, the Chief Justice shall give due regard, when practical, to the desirability of appointing Senior Status Special Judges to serve within their judicial region as defined by the regional administration charter.

(b)     The inviolable contract provisions of Kentucky law, KRS 21.480, shall apply during the period of time that KRS 21.580 is effective; however, no other provisions of 2000 Ky. Acts ch. 305 shall be considered subject to an inviolable contract of the Commonwealth.

(c)     Nothing contained in this section shall be construed to invalidate provisions in the current law which require a penalty for retiring before the normal retirement age.

(2)     Members seeking entry into the Senior Status Program for Special Judges after the effective date of this Act shall meet each of the following criteria, if applicable:

(a)     The member’s total years of judicial service credit and the member’s age when combined shall equal or exceed seventy-five (75) years;

(b)     A member seeking entry into the program who is under the age of sixty (60) shall have twenty (20) years or more of actual judicial service;

(c)     A member seeking entry into the program who is age sixty (60) or over shall have ten (10) years or more of actual judicial service;

(d)     If the member is a retiring District Judge, the member shall not have been defeated at the most recent election for a District Court judgeship;

(e)     If the member is a retiring Circuit Judge, the member shall not have been defeated at the most recent election for a Circuit Court judgeship;

(f)      If the member is a retiring Judge of the Court of Appeals, the member shall not have been defeated at the most recent election for a Court of Appeals seat;

(g)     If the member is a retiring Justice of the Supreme Court, the member shall not have been defeated at the most recent election for a Supreme Court seat; and

(h)     The member shall have been certified by the Judicial Conduct Commission as meeting the qualifications for the program and as being otherwise fit for continued judicial service.

(3)     A member denied certification under subsection (2)(h) of this section may appeal the denial to the Supreme Court, which shall conduct a de novo review of the member’s qualifications for the program and fitness for continued judicial service.

(4)     No later than thirty (30) days following the end of each fiscal year, the Judicial Retirement System shall provide a written report to the Legislative Research Commission and the Chief Justice of the Kentucky Supreme Court containing:

(a)     The number of members who have retired as Senior Status Special Judges since the effective date of this Act;

(b)     The amount of compensation and other benefits paid to those Senior Status Special Judges;

(c)     The number of days each Senior Status Special Judge has served as a special judge;

(d)     The fiscal impact on the Judicial Retirement System and the general fund as a result of the retirement of the Senior Status Special Judges; and

(e)     Any other relevant information that may be requested.

(5)     The Senior Status Program for Special Judges created by this section shall be open to any member who is a judge in office on the effective date of this Act[June 24, 2003], and who subsequently retires as a Senior Status Special Judge on or before July 1, 2012[January 31, 2009].

Section 2.   2000 Ky. Acts ch. 305, sec. 4 is repealed.

LAWREADER SAYS HOLD UP ON VISTA. IT WILL DRIVE YOU NUTS.

Tuesday, February 27th, 2007

Article by LawReader Senior Editor Stan Billingsley 

Our experience with Microsoft’s new Vista operating system ended in our telling Matt Simons our tech guru to “take Vista off and reinstall Windows XP!?.  He loved this because he told me to wait till the Vista bugs were worked out…but of course I knew better.

Always wanting to stay cutting edge, we installed Vista Premium on one of our computers (mine!) and the results were terrible.   First let me say that my computer is a Sony with all the bells and whistles and a 1 gig ram card.

The first problem we noticed was that the Sony sound card was not compatible with Vista so I have no sound until Sony issues a new driver…and we don’t know when this might be.

Secondly, we wanted Vista because it advertised that it allowed you to find files easier than other operating systems.  We noticed right off that it was much harder to find a file we had saved.

When we tried to find a file to attach to an e-mail, it took almost half an hour.  After that learning curve we still didn’t have it down, and often had to look at three or four different locations on my computer to find the file to attach….and when using that same method the next time it didn’t necessarily work.  When we clicked SAVE in Word we had no way of knowing where the file was going to be saved.

We found at least one occasion where the name for a file we had saved, was changed by Vista to another name.  We almost did not find that file again.  I really don’t want to play guessing games with my computer over who can assign the best names to a file.  The computer should work with me and not against me.

Of yes, we use Word to edit stories and then post them online through a PHP Linux based system.  This worked fine under Windows XP, but the PHP editor and Vista don’t work together well, and I have had to e-mail my postings to another computer and then call it up and post it from the non-Vista computer.  

Again I note that Vista is supposed to do things better and faster, but that has not been my experience.

We suggest that you delay the installation or upgrade to Vista until they have worked out some of these problems and the other software that you use catches’ up with Vista.   This is something we will reconsider next year…but for now, we are stripping Vista off our computer and hoping we still have a copy of Windows XP to reinstall.  XP worked just fine.

We have received the following advice:
Windows Vista isn’t exactly a gadget. But it does run on one. And if you want to keep your largest toy as up to date as possible, you may feel tempted to upgrade to Microsoft’s latest operating system. CNET’s Merritt suggests you wait. As with every new operating system, there are always some bugs that need to be worked out in the beginning.

Also, if you really want to exploit Vista’s cool new advances, such as the transparent menu bars, then you’ll need to purchase the premium version. There’s just one problem: There’s no guarantee that your current computer can handle it. PCs that are even just a couple of years old don’t have enough memory to support it. You’ll need 1GB of RAM memory and 15GB of free memory on a 40GB hard drive to run the “premium” package. In the meantime, if you’re happy with your current version of Windows, Merritt suggests sticking with it. There’s no huge benefit to upgrading now. Just keep using your current computer until you need to buy a new one and then you’ll get a cleaned up version of Vista for free.

DEVELOPER APPEALS JUDGE BILLINGSLEYS RULING UPHOLDING SANITATION DISTRICT PROGRAM TO DRAIN STORM RUN OFF WATERS

Tuesday, February 27th, 2007

See Judge Billingsleys decision at:  SANITATION DISTRICT RIGHT TO IMPOSE DRAINAGE TAX

The decision upheld the right of the sanitation district to assume the duties of management of drainge projects in the three counties. Over 30 cities have agreed to allow a comprehensive program to be run by the sanitation district.

See Ky. Post article by By Paul A. Long – Ky. Post

Reading court documents in the case of The Wessels Company, et.al v. Sanitation District No. 1, et.al reminds one of the old Miller Lite beer advertisements.
Taste great! Less filling!
 But instead of debating the merits of the alcoholic beverage, lawyers on both sides are arguing the specifics of how a state law is written. Each side insists it is abiding by the clear and unambiguous meaning of the law, and claims the other side offers only strained and unreasonable interpretations of the same law.
 Clear and unambiguous! Strained and unreasonable!
What’s at stake, though, is not beer, but the flow of storm water throughout Northern Kentucky.
 Sanitation District No. 1 says it has the right to collect a $4.02 monthly fee from homeowners in its service area to implement and manage how storm water – the runoff from rain, melting snow and ice that sometimes flows into sewage systems causing backups and flooding – is controlled.
 But opponents, led by a local development company, derisively dub it the “rain tax” and say it’s a power grab by sanitation officials who are acting outside their legal authority. What they are seeking is nothing less than a court-ordered repeal of the fee and the return of the millions of dollars already collected.
 If that happens, said Jeff Eger, general manager of the Sanitation District, cities and counties will have to control storm water with no money and often little expertise.
On Tuesday, the dispute will hit the state Court of Appeals, where three judges will hear oral arguments in Louisville over whether Boone Senior Judge Stan Billingsley was correct when he ruled in favor of the Sanitation District.
 “The case is simply determined by the ‘plain meaning rule,’” Sanitation District attorney Gerald Dusing wrote in his arguments.
 “The plain meaning of (the law at issue) unambiguously provides that SD1 has the authority to ‘implement’ a plan for management of storm water. … SD1 cannot fulfill its statutory mandate to develop and implement a program to manage storm water without collecting a reasonable fee to fund this service.”
 That’s simply not true, said Todd McMurtry, who represents the Wessels Co.
“SD1 contends that a combined reading (of the laws) provides it express authority to levy storm-water surcharges,” he said.
 “It is ironic that SD1 requires parts of three statutes to find an ‘express’ meaning. … A more reasonable interpretation is that the General Assembly did not intend to authorize a multi-million dollar surcharge by a combined reading of three statutes. If this were the General Assembly’s intent, it would have enacted plain and specific language authorizing a storm-water surcharge.”
 The district began collecting the storm-water fee in 2003. While homeowners are charged a flat rate, non-residential customers are charged based on the size of surfaces, such as rooftops and driveways, on their property that do not absorb rain.
 Many of the communities in Northern Kentucky asked the district to take over operation of their storm-water systems, reasoning that it would be a more efficient and economical way to address the situation than doing it individually. They did so through what are called interlocal agreements, which allow one government entity to administer a service normally provided by another.
 Wessels argues the agreements are illegal because they are not allowed by state law.
 Eger said the fees bring in about $8 million a year to the district’s $25 million budget. It’s used for a variety of storm-water related issues, he said.
For instance, the money was used in Fort Wright to repair storm-water lines that had cracked and were also taking in sewage, Eger said.
 In 2000, the state cited the city because a city-owned storm water pipe was discharging fecal coliform – raw sewage – into a tributary of the Banklick Creek. Fort Wright was given 25 days to fix the problem or face $25,000 a day in fines. The district eliminated the discharge and contributed about half of the $3 million to upgrade the city’s system.
 The district is now investigating a similar problem in Elsmere, Eger said, and has spent money on storm-water pipe repairs in Newport, Covington and elsewhere.
 USAGE OF FEES
Jeff Eger, general manager of the Sanitation District, said money from the fees is used for a variety of storm-water related issues, including enforcement of various state and federal regulations, oversight of construction sites, testing of storm-water pipes, and repair and installation of those pipes.

SENIOR JUDGE PROGRAM PROVIDES JUDGES AT 1/10TH THE COST OF PERMANENT JUDGES

Tuesday, February 27th, 2007

The Senior Judges Program currently have 45 judges participating.  If the state were to create 45 new judgeships to replace the Senior Judges who are helping to handle the large caseload in our courts, the cost would be $15,750,000 a year.  ($350,000 x 45 = $15,750,000)

 These 45 judges are working for a retirement benefit enhancement that costs $1.57 million a year.  That means that the state is getting the benefit of the work of 45 Senior Judges for 1/10th the cost of creating new judgeships.
 The Associated Press press reported:
FRANKFORT, Ky. — The cost of a state program that uses retired judges to help with Kentucky’s caseload has ballooned to four times its original size.
State legislators approved the senior judge program seven years ago as a way to clean up case backlogs. The original budget was $420,000 for a pool of about 25 retired judges.
There are now 45 senior judges, and the Judicial Form Retirement System will pay out at least $1.57 million for the program this year, according to an analysis by the Lexington Herald-Leader.
The executive director of the retirement system, Donna Stockton-Early, acknowledged that the program’s annual liabilities to the pension fund far exceed the budgeted amount.
But Early said the senior status program would not jeopardize the state’s judicial retirement fund’s long-term health, because legislators increased the fund’s subsidy by $420,000 in 2000 to cover senior judges.
Overall, taxpayers pay for only 25 percent of the pension fund’s benefits, with investment income (69 percent) and pension contributions from active judges (8 percent) paying for the rest, she said.
But the newspaper found that the senior status program will get more expensive.
The number of eligible judges will reach 53 within two years, including 29 who are currently eligible but still active judges. Senior judges must serve 120 days a year for five years and are assigned to fill vacancies.
Senior judges also receive a boost to the pension payment, which is already generous compared with other states.
The pension boost changes the pension’s multiplier for judicial service from 2.75 percent to 5 percent, and the average enhancement was more than $30,000 — almost as much as Kentucky’s median household income in 2005.
The average senior judge’s pension was at least $88,411.
“That pay is way out of line,” said Jefferson County Commonwealth’s Attorney Dave Stengel, who says legislators should rein in the senior judge program’s retirement enhancement.
Supporters of the program say it saves taxpayers money, since the cost of creating a new judgeship runs more than $300,000 the first year.
Ohio pays senior judges the prorated salary of a sitting judge for each day of service, and Tennessee pays half the daily salary of a sitting judge.
Indiana pays $50 to $75 a day, according to information compiled by the National Center for State Courts.
In none of the three states do judges receive a retirement enhancement that stays with them even after they’ve completed their service. But in Kentucky, judges keep the enhancement for life.
Kentucky’s program has been successful at luring well-paid lawyers to run for judgeships, said Rod Messer, president of the Kentucky Circuit Judges Association.
“For the most part, the state and the public are getting the benefit of some more experienced people,” he said.
But Messer acknowledged the program has created an incentive for judges to retire early. Last year, the term of nearly every judgeship in the state expired, and 25 retired to become senior judges.
Jason Nemes, acting director of the Administrative Office of the Courts, said 12 judges will leave the program at the end of the year, bringing the number of participants closer to the original projection.

POLL SHOWS PUBLIC OVERWHELMINGLY FAVOR ELECTION OF JUDGES OVER APPOINTMENT

Tuesday, February 27th, 2007

A reader’s online poll conducted by the Cincinnati.com reveals that Kentucky participants favor choosing judges by election as opposed to appointment.

 

83.94%  of 1526 participants in the poll favored election of judges.

 

13.04% favored appointment of judges.

 

3.01% were not sure

 

The poll did not make a distinction between trial judges and appellate judges.

SUPREME COURT MAY BE READY TO APPROVE POLICE CHASES

Tuesday, February 27th, 2007

By Robert Barnes The Washington Post
WASHINGTON — The Supreme Court relies on precedents and case law, dry recitations of fact and the sometimes bloodless decisions of the courts below it. But in a case involving a now-paralyzed teenager who instigated a high-speed police chase, most of the justices, as a sportscaster might say, went to the videotape.
And the reviews rolled in.
“He created the scariest chase I ever saw since ‘The French Connection,’ ” Justice Antonin Scalia said during Monday’s hourlong oral arguments.
Justice Ruth Bader Ginsburg: “Anyone who has watched that tape has got to come to [the] conclusion, looking at the road and the way that this car was swerving, and the cars coming in the opposite direction … this was a situation fraught with danger.”
Videotape, in this case taken from cameras inside the police cars, is an unusual piece of the record for Supreme Court justices to weigh, but it is at the heart of Scott v. Harris. The tape was not played Monday, but it appeared that a majority of the justices had watched it.
The case involves Coweta County Deputy Sheriff Timothy Scott’s decision in 2001 to end a wild, high-speed chase over dark and wet Georgia highways by finally ramming the back of Victor Harris’ Cadillac, sending him down an embankment and flipping his car. Harris, then 19, was left a quadriplegic and has sued, claiming it was a violation of his constitutional rights for Scott to take such drastic action.
Scott has countered that his maneuver was reasonable to save others who were endangered by Harris’ unlawful driving and that, even if not, he should be granted immunity because it was not clearly established law that his action would violate Harris’ Fourth Amendment right to unreasonable seizure.
The case comes amid a backdrop of sensational high-speed police chases that have become a staple of cable-television shows and increasing debate about whether it is more dangerous for law-enforcement officers to chase and capture wrongdoers than to let them go and hope to arrest them later.
In this case, both a lower court and the U.S. Court of Appeals for the 11th Circuit have ruled in favor of Harris. The 11th Circuit said Scott’s actions constituted deadly force, and that it was unreasonable because the officer had no reason to think Harris had done anything more than violate traffic laws. The police gave chase because they clocked him going 73 mph in a 55-mph zone.

 

“Mr. Harris was simply an unsafe driver,” his attorney, Craig Jones of Atlanta, told the justices. Jones agreed that Harris should have stopped when the officers attempted to pull him over, and that the chase, which lasted six minutes and covered nine miles, involved speeds of more than 90 mph.
But he pointed out that Harris, who Jones has said panicked when police gave chase to him, did not use his car to try to assault other drivers, and that at times he even used his turn signals. That fact elicited little sympathy.
“He used the turning signal,” repeated Justice Anthony Kennedy. “That’s like the strangler who observes the no-smoking sign.”
Still, Jones argued that Supreme Court precedent holds that police may not use deadly force to stop fleeing suspects unless the suspects threaten the officer with a weapon or there is reason to believe they have committed a serious crime of physical harm or are a threat to do so.
And he said the police pursuit of his client is what created the dangerous conditions.
Deputy Solicitor General Gregory Garre, who represents the Bush administration’s support for Scott, argued: “When a suspect disobeys a lawful command to stop, races off in a reckless attempt to elude the police, and demonstrates a disregard for his own life and the lives of others in his path, the police may use force, including deadly force, to bring the suspect’s vehicle flight to a halt and protect the public safety.”
A decision is expected before July.
Copyright © The Seattle Times Company
 

 

 

 

U.S. SUPREME COURT TO HEAR STATE PRIMARY LAW SIMILAR TO ONE PROPOSED FOR KY.

Tuesday, February 27th, 2007

By Susan Gilmore Seattle Times staff reporter 

In what both sides say is a surprise, the U.S. Supreme Court has agreed to consider whether Washington state’s voter-approved, top-two primary is constitutional. 

The announcement Monday came nearly three years after state voters overwhelmingly passed Initiative 872, sponsored by the Washington State Grange. 

The initiative provided that the two candidates with the most votes in the primary would move on to the general election, regardless of political affiliation. 

Federal courts tossed out the new primary system before it was ever used. 

Jim Pharris, an assistant state attorney general who defended the initiative, said “it was a long shot” that the Supreme Court would even take the case. 

Pharris said the high court may have decided to accept the appeal because it also agreed last week to take an elections case from New York state, where lower courts threw out nominating conventions for state judges. 

Since 1935, the state had operated under a “blanket” primary system, where voters could choose a candidate in the primary regardless of party label. 

Washington‘s primary history

1935: Washington adopts a “blanket” primary that allows voters to pick a favorite for each office without regard to party label. The top vote-getter from each party advances to the November general election. 

June 2000: The U.S. Supreme Court invalidates a similar system adopted by California. Washington continues to use its blanket primary, though, when U.S. District Judge Frank Burgess sides with the state. 

September 2003: The 9th U.S. Circuit Court of Appeals overturns Burgess and sides with the state’s political parties. 

March 2004: After the high court declined to hear the state’s appeal, lawmakers approved a top-two primary that allows the top two vote-getters to advance to the general election, without regard to party. But it also included a backup system, a Montana-style primary that requires voters to limit themselves to one party’s candidates. 

April 2004: Gov. Gary Locke vetoes the top-two part of the bill and leaves the state with the partisan Montana system. 

September 2004: Washington holds its first Montana-style primary. It proves very unpopular. 

November 2004: Voters approve Initiative 872, creating a top-two system, by a 60 percent yes vote. 

July 2005: U.S. District Judge Thomas Zilly throws out the top-two system, saying it infringes on the political parties’ right to pick their own nominees. That leaves the Montana plan in place. 

August 2006: The 9th U.S. Circuit Court of Appeals upholds Zilly’s ruling. 

Monday: The U.S. Supreme Court agrees to hear the top-two case. 

Source: Seattle Times archives, The Associated Press 

But in 2000 the Supreme Court invalidated a similar blanket-primary law in California, and in 2003 the 9th U.S. Circuit Court of Appeals, relying on the California decision, threw out Washington’s blanket primary. 

The Supreme Court refused to consider an appeal of that decision. 

After voters approved I-872, the political parties went back to federal court and the top-two primary was tossed out, before it was ever used. 

The parties successfully argued that the top-two primary infringes on their right to pick their own nominees for the general election. 

Since then, the state has been operating under a Montana-style primary, which requires voters to choose a party ballot before voting. 

“We’re very pleased,” said Tom Ahearne, the attorney for the Grange in the dispute. “It allows us to have the Supreme Court correct the 9th Circuit mistake.” 

Ahearne said Justice Antonin Scalia, in the California decision, specifically said a primary like the top-two system could pass constitutional muster. 

But the state’s political parties are convinced they’ll prevail. 

“We’re going to win, absolutely,” said Luke Esser, chairman of the state Republican Party. “We have the law, the facts, the common sense. Everything is on our side.” 

In a prepared statement, Dwight Pelz, chairman of Washington State Democrats, said he’s also confident the court will “uphold the right of political parties to choose their own nominees.” 

Attorneys expect the case will be argued in October, which means the state will have at least one more year with a Montana primary. 

Secretary of State Sam Reed, who supports the top-two primary, said he was surprised the high court agreed to take the case. 

“This is encouraging for the voters of the state who have felt so strongly that they have a right to vote for the person, not the party, in the primary and felt this was fundamental to having the right to control who their public officials are,” Reed said. 

The Grange, which sponsored the initial blanket primary, proposed legislation this year to make primaries nonpartisan, but the bill apparently has died. 

“People are not happy with the party-dominated system,” said Dan Hammock, a spokesman for the Grange. “We’re really excited about the fact the Supreme Court is taking this up.” 

Susan Gilmore: 206-464-2054 or sgilmore@seattletimes.com 

Copyright © The Seattle Times Company 

 

 

KY. STATE TREASURER JONATHAN MILLER BLASTS HB 184. BILL ALLOWS BUDGET COMMITTEE TO MEET IN SECRET AND PASS OR REPEAL ANY STATUTE

Monday, February 19th, 2007

The House will vote on HB 184 on Tuesday Feb. 20th.  The bill would affirm that the General Assembly has – the power to suspend, modify, amend, create, repeal, and repeal and reenact statutes in the budget bill; amend KRS 48.316 to conform; make the amendment retroactive.- 
This bill would allow the Budget Committee to bypass the traditional committee system of the legislature and pass or repeal new legislation without notice, and in secret.  The checks and balances of the committee system would be rendered irrelevant.  This bill would give the Budget Committee jurisdiction over any issue, not just those affecting spending.
The following is an excerpt from an e-mail sent out by Ky. State Treasurer Jonathan Miller.
Dear Friend,
I am taking a break from the campaign trail to ask for your help in stopping passage of a harmful piece of legislation that is scheduled to be debated by the State House of Representatives tomorrow. While all Kentuckians would like to see a government that is more responsible and responsive to the people, this legislation – House Bill 184 – represents the worst of the good-ole-boy system, where a handful of legislative leaders cut deals behind closed doors that are not in the best interests of the people of Kentucky.
As every middle school student learns, for a bill to become law, it typically must go through a process of analysis and discussion in both the House and the Senate, examined by committees and subcommittees, and then brought to the legislative floors for debate and a vote.
Over the years the process has retreated further and further under a shroud of secrecy with deals being cut, laws being made while others are repealed, and pork-barrel projects being funded – all without the benefit of public debate. In the past few years, a few legislative leaders have inserted major laws into the bi-annual budget bill during middle-of-the-night, closed-door, top-secret sessions involving only a handful of the most powerful legislators.
Because the budget bill must be passed – or else state government shuts down – the rest of the legislature is presented the full bill, without amendments, for an up-or-down vote. Not only do they have no time to read most of the details; even if they found something objectionable, they could not vote against it, unless they wanted to be on record to opposing the entire budget.
We saw how harmful this practice could be when this procedure was used to try to raid $14 million from the KAPT (Kentucky’s Affordable Prepaid Tuition) program, a trust fund we established to help Kentucky families save for their children’s higher education.
Even though 95% of the legislature supported KAPT and would have opposed this attempt to rob the KAPT families of their hard-earned savings, they were misled by a few of their leaders and were forced to vote on this huge budget bill that they had not had a chance to digest completely.
As State Treasurer, I sued, and the court agreed that the KAPT raid was unconstitutional. The 9,000 KAPT families are now permanently protected and continue to realize the dream of affordable higher education for their children, shielded from the excessive tuition taxes of the last few years.
Just last year, lawmakers met for hours on end – behind closed doors guarded by State Troopers – to discuss the state budget with no public vote taken on compromises made and with expenditures that likely would never have seen passage if the votes were up to public scrutiny.
This is all wrong, and unfortunately, House Bill 184 would make such legislative abuse more likely in the future. While the legal effect of a budget bill expires at the end of the two-year budget cycle, House Bill 184 would deem any substantive laws tacked onto the budget bill as permanent.

Jonathan Miller
 

LEGISLATIVE HISTORY OF HB 184:
 

HB 184/FN (BR 455) – H. Moberly Jr
     AN ACT relating to the branch budget bills.
     Amend KRS 48.310, relating to the operation of the budget bill, to reaffirm that the General Assembly has the power to suspend, modify, amend, create, repeal, and repeal and reenact statutes in the budget bill; amend KRS 48.316 to conform; make the amendment retroactive.
HB 184 – AMENDMENTS

     HCS – Retain original provisions; create a new section of KRS Chapter 446 to clarify the intent of the General Assembly regarding branch budget bills; amend KRS 446.145 to refer to the provisions of KRS 48.310 as establishing the method by which the General Assembly will designate intent with regard to a branch budget bill.
     Jan 4-introduced in House
     Jan 5-to Appropriations and Revenue (H)
     Feb 8-posted in committee
     Feb 14-reported favorably, 1st reading, to Calendar with Committee Substitute
     Feb 15-2nd reading, to Rules
     Feb 16-posted for passage in the Regular Orders of the Day for Tuesday, February 20, 2007

RACKETEERING LAWSUIT FILED AGAINST HEALTH INSURER FOR DENYING CLAIMS

Sunday, February 18th, 2007

Paul Krugman  New York Times

Is the health insurance business a racket? Yes, literally — or so say two New York hospitals, which have filed a racketeering lawsuit against UnitedHealth Group and several of its affiliates.

I don’t know how the case will turn out. But whatever happens in court, the lawsuit illustrates perfectly the dysfunctional nature of our health insurance system, a system in which resources that could have been used to pay for medical care are instead wasted in a zero-sum struggle over who ends up with the bill.


So it’s an arms race between insurers, who deploy software and manpower trying to find claims they can reject, and doctors and hospitals, who deploy their own forces in an effort to outsmart or challenge the insurers. And the cost of this arms race ends up being borne by the public, in the form of higher health care prices and higher insurance premiums.


Like denial management, however, marketing and underwriting cost a lot of money. McKinsey & Company, the consulting firm, recently released an important report dissecting the reasons America spends so much more on health care than other wealthy nations. One major factor is that we spend $98 billion a year in excess administrative costs, with more than half of the total accounted for by marketing and underwriting — costs that don’t exist in single-payer systems.

And this is just part of the story. McKinsey’s estimate of excess administrative costs counts only the costs of insurers. It doesn’t, as the report concedes, include other “important consequences of the multipayor system,? like the extra costs imposed on providers. The sums doctors pay to denial management specialists are just one example.

Krugman concludes:
But the larger problem isn’t the behavior of any individual company. It’s the ugly incentives provided by a system in which giving care is punished, while denying it is rewarded.

REHAB CONFLAG – MAYBE WE ARE IN THE WRONG BUSINESS?

Sunday, February 18th, 2007

Editorial by Senior Editor Stan Billingsley.

My wife Gwen and I are planning a new business venture…and the Rehab scam looks really good.

One can’t help but note how many celebrities are going to rehab these days.  Brittany Spears flew to the Bahamas, checked into rehab for one day, then flew coach (She’s worth some $100 million and she flies coach?  That in itself is a sign of some serious trouble in the old Spears noggin’) to L.A., spent one hour at her home in the Hollywood Hills, and then went to a beauty (?) shop and cut off all her hair before getting two new tattoos.
 

There must be ten or fifteen incidences in the last month were celebrities have gone to rehab.  Remember the Congressman who prayed on Pages?  Rehab!  The conservative born again mega-church pastor in Colorado who hates gays?  Yes, after one month of rehab he is no longer gay!  The NBA player who announced he hates gays?  Rehab is recommended.   Lindsay Lohan?  She goes to rehab during the day and parties to dawn all night. Michael Richards?  Remember Kramer?  Rehab for his N word rant! Nicole Richey who used to be kind of cute and now is skin and bones, and stops her car in the middle of heavy traffic on a L.A. expressway. The list is almost endless.
 

These Rehab emporiums are getting $1000 a day to house celebrities and “cure? them of being gay, hating gays, being drug abusers, alcohol abusers, N word abusers, pedophilia, victims of imagined parental abuse revealed only under hypnosis.  And success is guaranteed in only a day or two of rehab.
 

Gwen and I have a couple of extra rooms in the house, and we could always use an extra thousand dollars a day to fund our golf habit….perhaps we should open a Rehab center.
All you need to do is feed them breakfast, pat them on the back, spend an hour letting them tell how awful it is to be worth millions and to have people approach you for your autograph. (The horror!)  And then we print out a certificate of attendance and send them on their way as soon as their large check clears.
 

We could specialize in politicians who tell us they want to improve education, the highways, the environment and have signed the Grover Norquist pledge that they will veto any new taxes.  Now those people really need rehab.
 

 We also will have room for those legislators who argue for family values, and then want to put limits on loss of consortium claims.  Maybe we can put up a cot in the basement for those legislators who seriously are considering HB 184 which would allow any statute to be repealed or enacted during closed door deliberations on the budget bill thereby bypassing the public committee hearings that are currently required for approval of legislation.
 

That’s the plan.  We will appreciate any referrals

OHIO LOOKS TO CHANGE THE WAY JUDGES ARE PICKED. KY. METHOD OF SCREENING PANELS PRAISED

Sunday, February 18th, 2007

Cincinnati Enquirer -
After a decade of campaigning for Ohio to reform the way it chooses its judges, Ohio Chief Justice Thomas Moyer last month finally got one of the key points of his reform enacted – an appointments panel that will screen and nominate candidates to fill a vacancy on the bench.
The irony is that Moyer, a Republican, had to wait until a Democrat was finally elected governor for this to happen.
One of Gov. Ted Strickland’s first major acts after taking office in January was to create a independent five-member panel to screen applicants for an open judgeship, then send the governor its top three picks – something his predecessor, Bob Taft, could have done at any time, but didn’t.
This replaces the old system in which county bosses in the governor’s political party sent up attorneys’ or judges’ names based mainly on their activity in the party.
“I think it’s a major step forward. I’m more hopeful than I’ve been in a number of years,” Moyer said. “We now have a governor who has indicated that he is keenly interested in the judiciary in Ohio, particularly in improving the selection process.”
With Strickland’s order, Ohio joins Kentucky and 31 other states that assign this crucial task to the public scrutiny of screening or nomination panels.
Kentucky, in fact, has been doing it that way since 1976, when a constitutional amendment approved by voters went into effect, establishing a unified, four-tiered statewide “court of justice” system with vacancies filled from a list submitted by the Judicial Nominating Commission, chaired by the chief justice.
The Kentucky Supreme Court’s newest justice, William McAnulty, was chosen in this manner, then won election to a full term last fall. “I am impressed and grateful that a governor (Ernie Fletcher) who I did not know selected me on my experience and qualifications,” McAnulty says.
Why is the process for filling judge vacancies so crucial? An appointee becomes the incumbent – a huge advantage when he or she eventually has to run for election. As Moyer notes, at least half of Ohio’s 700-plus sitting judges, from the Supreme Court down to municipal courts, were first appointed to their posts.
“There are more than 40,000 lawyers in Ohio, yet the pool from which the governor has traditionally selected is very, very shallow, because it has relied on one’s activity at the local level in political parties,” Moyer said. “That pool should be much, much deeper.”
Still, the appointments panel isn’t as revolutionary as it has been portrayed. The governor chooses the members of the panel, and doesn’t have to accept its recommendations. His appointment of judges is still final, with no confirmation from the legislature or any other body.
In Kentucky, the governor must select one of the three nominees, and if he does not do so within 90 days, the chief justice makes the choice.
The panel does not remove politics or partisanship from the process – nor perhaps should it. “Everything is political in this,” McAnulty says. “It’s just a matter of degree.”
Strickland’s appointments could be heavily weighted toward Democrats – but not necessarily. McAnulty, a Democrat, was selected by Fletcher, a Republican. “Interestingly, Fletcher has appointed four Democrats and one Republican to the Supreme Court and appeals courts, yet he has been criticized for exercising his constitutional authority,” McAnulty says.
That’s why some Democrats were disappointed by Strickland’s move – it may not serve as their party’s “equalizer” for 16 years and two governors’ worth of GOP appointments.
“Democrats have been out of power for some time. One would hardly have been surprised if Strickland had retained the traditional vetting system of county party officials,” says John C. Green, distinguished professor of political science at the University of Akron and a leading expert on Ohio politics.
“It may very well be that it is something Strickland is very sincere about. It also may be that after an unpopular administration, a new governor is determined to set a different tone.”
Ideally, part of that tone will involve ratcheting down the rhetoric surrounding the choice judges.
“There are a number of groups, such as the Ohio Bar Association (OBA), that have been concerned about the quality of judges in Ohio,” Green says. “The fear was that partisan politics had become so rancorous both in appointments and elections that many of the best-qualified judge candidates didn’t want any part of it – and when they did, they often didn’t succeed.”
Further reforms
Moyer calls the Ohio panel a “huge refinement,” but it is just that – a refinement. It makes the process more open and transparent. It ensures that a larger number of qualified candidates is considered. But more meaningful reforms are needed.
Perhaps the biggest reform will be finding a way to insulate judges from political money and the perception, at least, of special-interest influence, especially in the Supreme Court and state appeals courts.
In the past decade, Ohio judicial campaigns at those upper levels have spun out of candidates’ control, hijacked by special interest groups’ advocacy ads. According to the OBA, more money was spent in 2002 on two Supreme Court races than on all the state supreme court races in the rest of the nation combined.
“The real question here is, how do we protect the independence and integrity of the judicial branch?” Moyer said.
One solution is longer terms for judges so they don’t have to run as often. “That’s very important at the appellate and Supreme Court because of the physical and mental resources it takes to run a campaign,” Moyer says.
Kentucky Supreme Court justices, for example, are elected to eight-year terms, as opposed to Ohio’s six years. Moyer would like to see it doubled, to 12 years between elections.
But his ideal solution focuses on what is often called “merit selection:” Stop electing justices and appeals judges. Appoint them after a rigorous screening process, after which they would face a “retention election” after a prescribed term. Lower-court judges would continue to be elected.
“I feel very strongly about this,” Moyer said, “because money talks and it is the antithesis of what the system is about – impartiality.”
McAnulty created a bit of a stir recently for suggesting Kentucky put together a study group to look at other states’ systems and consider merit selection.
“We need to do this business better,” he says. “So-called ‘non-partisan’ elections are not the way to choose appellate judges.
“A retention setup allows the electorate pass judgment on a judge’s qualifications. Of course, it also allows special interests to torpedo a judge. There are pros and cons to every system.”
Possible weaknesses
Strickland’s new panel is not about merit selection, as some believe. And it could have some weaknesses. “Obviously, the proof of any plan like this is in the execution,” Moyer says.
One major factor in the execution is who is on the appointments panel, and the regional sub-panels, and who they represent. So far, Strickland is getting high marks for his panel of three Democrats and two Republicans. “If you look at who he’s appointed, they’re pretty impressive people, even if you don’t agree with all of their politics,” Green says.
As the Columbus Dispatch said in a recent editorial, political parties should continue to have a voice in the process because in a sense, they may be more accountable to the public than the sort of private groups – law firms and trade associations – that are represented on Strickland’s panel. The assumption that partisan selection leads to less qualified judges is questionable. Besides, there are times when a judge’s political party should matter.
“One of the key factors is the person’s ability to hold the office when they have to run for election,” Moyer said. “That can bring in the issue of one’s political party – but it may not be crucially important in some counties.”
So while Strickland’s panel is a good first step, Ohio should do more to give voters greater confidence in the judiciary’s independence and integrity. Part of that should be finding ways to make voters more informed and involved – perhaps instituting a regular “report card” on sitting judges to serve as a voter guide.
A forum Moyer convened in 2003, which Green participated in, came up with several specific reforms. Two years later, Rep. Bill Seitz, R-Green Township, submitted a bill that adopted several of those reforms, but it died in the Judiciary Committee. It would have:
Created a Judicial Appointment Review Commission (which Strickland essentially has done).
Raised the bar for legal experience required to be a judge (with an option for small counties to reduce the requirement)
Mandated a training program for judicial candidates.
Lengthened Ohio’s six-year judicial terms of office to eight years for common pleas judges, 10 years for appeals judges and 12 years for Supreme Court justices.
A new version of the bill expected this year should have a better chance of passage. State lawmakers should consider it seriously and ignore the partisan rhetoric on judicial appointments.
“I’m very pleased that we now have all three branches of government focused on the question of what do we do to improve our judiciary,” Moyer said. “It is good, but it can be much better.”
 

The Courier-Journal has reported that former congressman Gene Snyder who served 11 terms has died at age 79.

Saturday, February 17th, 2007


 Snyder was born in Louisville on Jan. 26, 1928, to Marion Gustavus and Lois E. Snyder. He attended the local public schools and graduated from duPont Manual High School. He attended the University of Louisville and got a law degree from the old Jefferson School of Law. While he was in college, Snyder became active in politics, working as a precinct captain before he was old enough to vote.
 The Snyder Freeway circling Louisville was named after Congressman Snyder.
He died at home with his wife Patricia just before midnight. Funeral arrangements weren’t immediately available.


PROPOSED SENIOR STATUS AMENDMENT HAS TROUBLESOME PROVISIONS AFFECTING JUDICIAL INDEPENDENCE. STENGEL VENDETTA GIVEN TOO MUCH WEIGHT.

Saturday, February 17th, 2007

The Ky. Post published an article Feb. 17, 2007 which describes some provisions of a bill introduced by Rep. Arnold Simpson.  We believe that some of these provisions are not well thought out and should not be adopted without some careful thought of the potential effect they may have on the independence of the Judiciary.
The Post article said:Rep. Simpson’s bill:


… limits eligibility to judges who have 20 years actual judicial experience – currently, judges can “buy time,” or get credit for other governmental experience, such as being a prosecutor.?

All other state employees (including legislators and Commonwealth Attorneys) are allowed to purchase or convert years of service in the military, legislative service, or state employment to the Judicial Retirement System in order to make up a total of 20 years of eligibility for the Senior Status Judges program. Why should judges be singled out for exclusion from this widely accepted state practice? 
“It also says a judge who has lost an election is not eligible,..?

 The exclusion of a Judge who lost an election is the most troublesome provision in the Simpson bill.   We can think of one obvious example that shows the lack of reason in such a restrictive provision.   Circuit Judge Ann Shake ran last year for the Ky. Supreme Court.  She has many years of outstanding service as a Circuit Judge.  Under the Simpson bill, she would apparently be ineligible for the Senior Status Judges program because she attempted to run for the Supreme Court and lost.  This loss in no way reflects on her ability to serve as a judge, it only reflects on the publics decision that they wanted Judge McAnulty instead of Ann Shake. 
If this provision was adopted, then few judges would risk enhancement of their retirement benefits by seeking higher office.  We ask where would our Appellate Judges come from?  The answer is that prior service as a trial judge, which should be a prerequisite for being an appellate judge, will now be a detriment.  The public may replace a good judge, with a better judge.  This does not mean that the replaced judge is not fully qualified to serve as a useful and productive Senior Status Judge.  Losing an election is a poor standard to measure a judges career.
If this concept makes any sense, why don’t we adopt legislation that any legislator who has ever lost an election is ineligible for state retirement benefits?

Commonwealth Attorney Dave Stengel is noted for his hot temper.  Just because he has a problem with Judge Fitzgerald doesn’t mean the entire judiciary should be punished.  Stengel’s vendetta against Judge Fitzgerald should be given the proper weight it deserves, and that in our opinion is “not much?! We hope the legislature will slow down just a bit and consider the long term effect some of these provisions may have on judicial independence.  We suggest that the legislature give the judiciary an opportunity to study this issue and come up with recommendations to be considered during the 2008 session of the General Assembly.  We have a Chief Justice who should be consulted on this issue.  The courts are not just another state commission or board, they represent an equal branch of government, and the judiciary should be heard on this issue.The current LRC listing of the Simpson bill does not contain the wording of these proposed amendments, and we therefore have relied on the Post article regarding the provision of the Simpson bill.
 
 

WHEN DOES THE SENIOR STATUS JUDGE PROGRAM EXPIRE? WE SAY 2009. Read the full text of the act.

Saturday, February 17th, 2007

The Kentucky Post published a story about the Senior Status Judges Program, and gives great weight to an argument that the program is scheduled to terminate as of July 1, 2007.  We believe that that interpretation is incorrect.  The law was clearly amended in 2003 and the legislature has extended the program to July 1, 2009.
The Senior Judge Statute, KRS 21.580 creates this issue because there is a statement in the heading of the statute which is contained in parenthesis which states (Effective until July 1, 2007).
 

That language was contained in the original act adopted in the year 2000.
 

The legislative statutory history states:
 

“ 2000 Ky. Acts ch. 305, sec. 1, created KRS 21.580, which established the Senior Status Program for Special Judges. Section 4 of the same Act repealed KRS 21.580 effective July 1, 2007. Thereafter, 2002 Ky. Acts ch. 258, sec. 1, amended KRS 21.580 to change the retirement date from June 30, 2007, to January 31, 2009..?

 

A current version of the statute as amended includes the following provision which reflects the amendments made in 2003 Ky. Acts ch. 128, sec. 6, effective June 24, 2003 and states:

 

(2) The Senior Status Program for Special Judges created by this section shall be open to any member who is a judge in office on the June 24, 2003, and who subsequently retires as a Senior Status Special Judge on or before January 31, 2009.
 

The rules for statutory construction require an interpretation where the courts are charged with the duty to give meaning to all provisions of a statute if possible.  The original statement mentioning the date 2007 correctly states the original ending date of the program.  But subsequently the legislature added a provision that extends the expiration date to 2009.

 

We believe that the amendment can be read along with the original ending date and the statute must be interpreted to have been extended to 2009.

 

We note that the legislature has adopted a law which tells us how to interpret statutes:

 

KRS 446.080 Liberal construction — Statutes not retroactive — Common usage –
Technical terms.
(1) All statutes of this state shall be liberally construed with a view to promote their
objects and carry out the intent of the legislature,…

 

 

See full text of Senior Status Judge Act below

******
The Post article published Feb. 17, 2007 states:
“As many as 20 judges across the state – including three from Northern Kentucky – could take early retirement this summer unless the General Assembly passes legislation extending the senior judge program.
The number would be on top of an estimated 30 to 40 percent of the state’s 232 judges who left the bench last year, leaving the state judiciary nearly half-staffed with younger, less experienced judges.
The senior judge program, which allows retired judges to fill in as needed across the state in exchange for a hike in their annual pensions, is set to expire in July, or – perhaps – in February 2009. It’s unclear because two different laws include sunset dates for the program.
If the former date is the operative one, judges would have to sign up for it by June 30. And to do that, they would have to retire from full-time service on the bench by then
A bill pending in the legislature, filed by state Rep. Arnold Simpson, D-Covington, would extend the program to 2012.
“Any time you have that many judges leave, it’s disquieting to the practicing bar and to the general public,” said Rod Messer, a circuit judge in Laurel and Knox counties who is president of the Kentucky Circuit Judges Association.
“That’s a lot of experience you’re not going to be able to replace for a long time.”
When the 2000 General Assembly created the program, it set the expiration date for June 30, 2007, which meant no additional judges could enter the program after that. Two years ago, the legislature extended it to end on Jan. 31, 2009.
But in doing so, it failed to repeal the 2007 expiration date – leading some to conclude it would indeed end this year.
“That’s a legal snaggle,” said Campbell Family Court Judge D. Michael “Mickey” Foellger, who has been following the legislation.
“We’d like to have that straightened out. … We have no reason to believe they wouldn’t do that.”
If the program does end this year, Foellger will be one of three Northern Kentucky judges – Kenton Circuit Judge Steve Jaeger and Pendleton Circuit Judge Robert McGinnis are the others – faced with the decision of whether to retire early.
“It’s possible, but if I had to go in ’07, I probably wouldn’t do it,” said McGinnis, who also hears cases Harrison, Robertson and Nicholas counties.
Jaeger said early retirement would be an option for him. Foellger said he has been crunching numbers to try to determine which course is best for him.
“If it’s clear that it does end this year, I’d have to give it serious consideration,” Foellger said.
Both said they are confident the program will be extended. But some who oppose it question its constitutionality, because it uses non-elected judges.
The opposition is particularly strong in Jefferson County, where Commonwealth Attorney R. David Stengel complaints that it has created judges who no longer must answer to the public.
He points to the senior judge appointment of former District Judge Paula Fitzgerald – whose behavior he called bizarre and who was voted out of office in November.
“The voters threw her out, and now she doesn’t have to answer to the voters anymore,” Stengel told the Louisville Courier-Journal. “There is no accountability.”
Simpson’s bill addresses some of those concerns.
It limits eligibility to judges who have 20 years actual judicial experience – currently, judges can “buy time,” or get credit for other governmental experience, such as being a prosecutor.
It also says a judge who has lost an election is not eligible, and all potential senior judges must pass a screening test by the Judicial Conduct Commission.
“I think the modifications address the concerns that arose in Jefferson and that I’ve heard elsewhere,” said Messer. “I’m hopeful it will pass.”
Currently, about 40 judges participate in the senior program, at an annual cost to the state of about $500,000.
Supporters said the benefits are enormous, enabling the state to get extra judges at a fraction of the cost of full-time judgeships, currently estimated at $350,000 annually each.
The senior judges fill in for district and circuit judges who are ill, on vacation, or otherwise unavailable.
They have sat in for judges in the military reserves who have been sent to Bosnia or Iraq.
In Boone County, they have helped Circuit Judge Tony Frohlich keep up with his docket, the busiest in the state.
Special judges are required to work 120 days a year for five years.
They are not paid a salary, although they do get expenses.
But at the end of the period, the judges’ annual pension generally will be set at 100 percent of their salary when they retired.?
 

SENIOR STATUS JUDGE ACT:
 

KRS 21.580 Senior Status Program for Special Judges. (Effective until July 1, 2007).
(1) As a pilot project to determine the effectiveness of using senior retired judges to
combat backlog and delay in Kentucky courts, there is hereby created a “Senior
Status Program for Special Judges.” The program shall be implemented as follows:
(a) KRS 21.400(1) and any other provision in KRS Chapter 21 to the contrary
notwithstanding, a member who retires at a time when combining his total
years of judicial service credit and his age equals or exceeds the number
seventy-five (75), may elect, within ninety (90) days following retirement, to
participate in the “Senior Status Program for Special Judges,” if he complies
with the provisions of this subsection. In that event, the member shall be
entitled to a service retirement allowance, commencing at the member’s
normal retirement age, payable monthly during his lifetime in an amount equal
to five percent (5%) of his final compensation multiplied by the number of
years of his judicial service, not to exceed twenty (20) years of judicial service
at the five percent (5%) factor, not to exceed one hundred percent (100%) of
final compensation. “Final compensation”, notwithstanding any provision to
the contrary, for all members retiring under any provision of KRS 21.345 to
21.570 or this section, or similar statutes governing the same positions, as
defined in KRS 21.400 shall be based on a period of thirty-six (36) months.
Any nonjudicial time shall be counted as is otherwise provided in KRS
Chapter 21, but in no event shall service retirement allowance exceed one
hundred percent (100%) of final compensation.
1. In the event the retiring judge elects to retire as a “Senior Status Special
Judge” under this subsection, he shall commit to serve, upon
appointment by the Chief Justice of the Commonwealth, as special judge
for one hundred twenty (120) work days per year for a term of five (5)
years without compensation other than the retirement benefits under this
subsection. The Senior Status Special Judge may agree to work more
than one hundred twenty (120) days in any year within the five (5) years
of service; however, the Senior Status Special Judge shall be
compensated as otherwise provided by law, in addition to his retirement
benefits, for any days served in excess of one hundred twenty (120) in
that year. If the Senior Status Special Judge has not served a total of six
hundred (600) days within the five (5) year period outlined in this
subsection, the Chief Justice shall require the Senior Status Special
Judge to serve at no additional compensation to the Senior Status
Special Judge, until the six hundred (600) day period is served by the
Senior Status Special Judge. The Senior Status Special Judge and the
Chief Justice may agree in writing to serve less than the one hundred
twenty (120) days in any one (1) or more of the five (5) years; however,
any of the days not served in a given year shall be served at the end of
the five (5) year period set forth in this subsection.
2. Should any member electing to retire under the Senior Status Program
for Special Judges fail, when ordered by the Chief Justice to serve the
requisite number of days not to exceed one hundred twenty (120) days a
year for the five (5) year period outlined in this subsection, unless
otherwise agreed in writing, he shall no longer be eligible for benefits
computed under this subsection and shall return to the benefits otherwise
provided under this chapter.
3. Subject to Section 110(5)(b) of the Kentucky Constitution, the Chief
Justice shall give due regard, when practical, to the desirability of
appointing Senior Status Special Judges to serve within their judicial
region as defined by the regional administration charter.
(b) The inviolable contract provisions of Kentucky law, KRS 21.480, shall apply
during the period of time that KRS 21.580 is effective; however, no other
provisions of 2000 Ky. Acts ch. 305 shall be considered subject to an
inviolable contract of the Commonwealth.
(c) Nothing contained in this section shall be construed to invalidate provisions in
the current law which require a penalty for retiring before the normal
retirement age.
(2) The Senior Status Program for Special Judges created by this section shall be open to any member who is a judge in office on the June 24, 2003, and who subsequently retires as a Senior Status Special Judge on or before January 31, 2009.
Effective: June 24, 2003
History: Amended 2003 Ky. Acts ch. 128, sec. 6, effective June 24, 2003. — Amended
2002 Ky. Acts ch. 258, sec. 1, effective July 15, 2002. — Repealed 2000 Ky. Acts ch.
305, sec. 4, effective July 1, 2007 — Created 2000 Ky. Acts ch. 305, sec. 1, effective
July 14, 2000.
Legislative Research Commission Note (6/24/2003). 2000 Ky. Acts ch. 305, sec. 1,
created KRS 21.580, which established the Senior Status Program for Special Judges.
Section 4 of the same Act repealed KRS 21.580 effective July 1, 2007. Thereafter,
2002 Ky. Acts ch. 258, sec. 1, amended KRS 21.580 to change the retirement date
from June 30, 2007, to January 31, 2009, and 2003 Ky. Acts ch. 128, sec. 6,
amended KRS 21.580 to extend eligibility for the program to judges in office on June
24, 2003. Neither of these Acts specifically addresses the repeal set out in the 2000
Act.
 

 

Statutory Construction:

Commonwealth v. Plowman, 86 S.W.3d 47 (Ky. 09/26/2002) An unambiguous statute is to be applied without resort to any outside aids. Delta Air Lines. Inc. v. Commonwealth, Revenue Cabinet, Ky., 689 S.W.2d 14 (1985). See & Gatewav Construction Co. v. Wailbaum, Ky., 356 S.W.2d 247 (1962). This Court has repeatedly held that statutes must be given a literal interpretation unless they are ambiguous and if the words are not ambiguous, no statutory construction is required. See McCracken County Fiscal Court v. Graves, Ky., 885 S.W.2d 307 (1994); Commonwealth v. Shivlev, Ky., 814 S.W.2d 572 (1991). KRS 446.080 provides for a liberal construction of statutes with the view to promote their objects and to carry out the intent of the legislature. All words and phrases shall be construed according to the common and approved usage of language. Cf. 446.080(4). Here, the language of KRS 513.010 is clear and unambiguous when considered in its expansive content and no further interpretation is required. Although dictionary definitions can sometimes offer guidance as to statutory construction, they are not conclusive. The predominant element is the legislative intent.

LOSS OF CONSORTIUM BILL ADVANCES IN LEGISLATURE

Saturday, February 17th, 2007

    HB 403 proposes an amendment to KRS 411.145 and expand the right to bring loss of consortium claims by the surviving spouse and personal representative for wrongful injury or death of a spouse.   The bill as currently worded would apply retroactively to such claims. Other proposed amendments would limit the amount of an award to $150,000.

 

AN ACT relating to consortium.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

Section 1.   KRS 411.145 is amended to read as follows:

(1)        As used in this section “consortium” means the right to the services, assistance, aid, society, companionship and conjugal relationship between husband and wife and includes consortium which a surviving spouse would reasonably have been expected to enjoy in the future if his or her spouse had survived[, or wife and husband].

(2)        A spouse or surviving spouse[Either a wife or husband] may recover damages[ against a third person] for loss of consortium, resulting from the negligence[ a negligent] or wrongful conduct of any party that causes or contributes to cause injury to or the death of his or her spouse[ act of such third person].

(3)        The rights of a surviving spouse to bring a cause of action under this section shall be in addition to any action brought by the personal representative pursuant to KRS 411.130 and all other elements of damages that are usually recoverable in a wrongful death action.

(4)        The causes of action under this section shall be independent causes of action from the underlying injury claim sustained by the injured or deceased spouse. However, an action arising under this section shall be commenced pursuant to the limitations of action that apply to the underlying claim arising from the injury or death of the spouse.

(5)        This section shall be retroactive and shall apply to new actions accruing on or after that date and actions in process as of that date which have not reached final judgment.

 

LEGISLATIVE HISTORY AS OF FEB. 16, 2007:

 

 

HB 403 (BR 1648) – R. Wilkey, J. Bell, M. Cherry, L. Clark, H. Collins, T. Edmonds, J. Gray, J. Greer, R. Henderson, M. Henley, C. Hoffman, J. Jenkins, T. Kerr, M. Marzian, H. Moberly Jr, L. Napier, F. Nesler, R. Palumbo, T. Pullin, R. Rand, C. Rollins II, A. Simpson
     AN ACT relating to consortium.
     Amend KRS 411.145, relating to loss of consortium, to include actions by the surviving spouse as well as the personal representative; specify how limitations of actions apply to the action; provide that section is retroactive.
HB 403 – AMENDMENTS

     HCS – Retain most substantive provisions, except that the provisions are transferred to a new section of KRS Chapter 411 and amended to provide that the consortium claim is brought as part of the wrongful death action and not as a separate lawsuit, that the damages recoverable are separate from other damages and payable only to the surviving spouse, and that the bill applies retroactively in certain situations; EMERGENCY.

     HCA (1/Title, K. Stein) – Make title amendment.

     HFA (1, J. Fischer) – Amend to limit damages recoverable to $150,000 and to provide for non-severability in the event of a finding of unconstitutionality.

     HFA (2, J. Fischer) – Amend to limit damages recoverable to $150,000, to include loss of parental consortium during gestation, and to provide for non-severability in the event of a finding of unconstitutionality.

     HFA (3, J. Fischer) – Amend to limit damages recoverable to $150,000 and to provide for non-severability in the event of a finding of unconstitutionality.

     HFA (4, J. Fischer) – Amend to limit damages recoverable to $150,000, to include loss of parental consortium during gestation, and to provide for non-severability in the event of a finding of unconstitutionality.
     Feb 9-introduced in House
     Feb 12-to Judiciary (H)
     Feb 14-posted in committee
     Feb 15-posting waived
     Feb 16-reported favorably, 1st reading, to Calendar with Committee Substitute, committee amendment (1-title); floor amendments (3) and (4) filed to Committee Substitute, floor amendments (1) and (2) filed
 

BILL WOULD PERMIT COURTS TO FALSIFY COURT RECORDS

Friday, February 16th, 2007

Reporters Committee for Freedom of the Press – Arlington,VA,USA


Feb. 16, 2007  ·   Some prosecutors in Florida are pushing the state Legislature to pass a law that would permit state prosecutors to alter or falsify court records if a judge approves.

Under the proposed bill, the court would be able to authorize or approve an application by law enforcement officers and state attorneys to alter, withdraw or falsify records for undercover law enforcement purposes in active cases and investigations.

Such authorizations would be able to last for up to 180 days. Multiple 30-day extensions of an order could be granted.

In November, The Miami Herald revealed that some judges and prosecutors in Miami-Dade County altered dockets and records in some cases. For example, court records were altered to conceal the felony convictions of informants.

The Florida Public Defenders Association and open government advocates argue that such practices should be banned.

Under current Florida law, it is illegal to alter or falsify court records. Violators can be sent to prison for up to a year.

“The fundamental problem is that it so goes against our notion of the way our justice system ought to work,” Randall Marshall, legislative director of the American Civil Liberties Union of Florida, told the Herald. “How would we ever be able to trust anything in the judicial record knowing that something could be intentionally falsified with a judicial seal of approval?”

Proponents of the secrecy, such as state prosecutors, argue that sometimes it is necessary in order to protect informants and investigations.

The push for the legislation is just one aspect of a greater controversy in Florida concerning secrecy in court records.

Last summer, the Herald reported that hundreds of civil and criminal cases in Florida were hidden on secret dockets.

As a result of the Herald‘s reports, Florida Supreme Court Chief Justice R. Fred Lewis asked a committee of the Florida Bar to examine current practices and recommend rule changes by March 1. The Supreme Court will hear arguments on secret and false dockets March 5.

Apprendi Rule & Sentencing Rights – Justice Alito’s Dissent is his first opinion on constitutional rights

Friday, February 16th, 2007

By VIKRAM DAVID AMAR AND AARON RAPPAPORT 


A few weeks ago, the Supreme Court issued perhaps the biggest decision of the Term to date: Cunningham v. California. There, the Court held that California’s current criminal sentencing system violates a defendant’s Sixth Amendment rights. 

As discussed in Part One of this series, the Court’s ruling seemed to be a straightforward application of a rule developed in Apprendi v. New Jersey and several subsequent cases – namely, that a judge may not impose a sentence above the statutory “maximum” based on his or her own fact-finding. For purposes of this rule, the statutory maximum is defined as the highest sentence that the defendant could lawfully receive based solely on the jury’s verdict or the defendant’s guilty plea (that is, without any additional fact-finding by the judge). 

California‘s system violated this rule, since it permitted judges to exceed the presumptive sentence set by the legislature based on their own finding of aggravating factors, rather than on account of facts found by a jury beyond a reasonable doubt.  

One of the most interesting features of Cunningham was Justice Alito’s intricate dissenting opinion, which was also joined by Justices Kennedy and Breyer. As one of Justice Alito’s first opinions in this controversial area of criminal constitutional law – and one of his most prominent opinions to date more generally — his writing deserves careful study. 

Particularly interesting is how his dissent highlights and explores one of the great puzzles emerging from this line of cases: When, and why, does the exercise of judicial discretion at sentencing violate the Sixth Amendment? 

The Puzzle of Judicial Discretion: When Is It Constitutional, and Why? 

In Apprendi and later cases, the Supreme Court criticized so-called “determinate” sentencing schemes (described in detail in the earlier column in this series) that allow judges to use their discretion to find facts that then trigger enhanced sentences or sentence ranges. 

The puzzle is that, at the same time, the Court has upheld a purely advisory federal guidelines scheme, a system that actually increases the discretion of judges over sentencing. Moreover, the Justices uniformly agree that “indeterminate” sentencing schemes, where trial courts have virtually unreviewable leeway to set sentences within a broad range, are constitutional. So which is it? Is judicial discretion good, or bad? 

As Justice Alito recognizes in his Cunningham dissent, the “bright-line rule” set forth in Apprendi was intended to identify when judicial discretion is acceptable. However, Alito argues that the line is not quite as bright as the majority in Cunningham suggests, and certainly not dispositive in assessing whether the California sentencing system is constitutional. Alito advances two arguments in support of this claim: 

First, Alito argues that the Apprendi rule is sharply limited. It applies, he says, only when judges increase sentences beyond the maximum based on specific “fact-finding.” (Emphasis added.) According to Alito, the California system allows judges to exceed the maximum based on other criteria besides fact-finding, such as their own policy judgments about whether a higher sentence for particular categories of crimes is needed to serve a valid purpose of punishment (such as deterrence). This added judicial discretion, Alito implies, saves the California system, rendering it constitutional.  

Alito’s argument faces serious problems. Perhaps most importantly, his reading of state law is questionable. The Cunningham majority did not agree with his view that judges in California have unlimited discretion to increase sentences above the maximum. Rather, they held that California law permits enhanced sentences only after judicial fact-finding has occurred. 

Moreover, even if Alito’s interpretation of state law had been accepted by the majority, his argument still might falter. Notably, Alito never explained why the possibility that judges can sentence above the maximum based on their own policy judgments – as opposed to their own fact-findings — makes the system constitutional (and fairer for the defendant). One might think, for example, that if the Court’s concern in this line of cases is about the dangers of judicial discretion, Alito’s reading of state law would not necessarily solve the constitutional problem. 

Is the Supreme Court’s Booker Precedent Incoherent? 

Alito’s second point deserves closer attention. He argues that “[e]ven if California did require that a sentencing court find some aggravating ‘fact’ before imposing the upper term sentence, that would not make this case constitutionally distinguishable” from what the Supreme Court upheld as constitutionally permissible in United States v. Booker

In Booker, the Court struck down the federal sentencing guidelines system under the Apprendi rule. But at the same time, in its remedial order, the Court allowed the guidelines to remain as an “advisory” system of rules. Alito suggests that this remedial order effectively limits the Apprendi rule, since an advisory system necessarily allows judges to impose sentences above the “maximum” based on the judges’ own fact-finding. 

How so? Alito suggests that the key here is to realize that sentences imposed under the advisory system are still to be reviewed by appellate courts for “reasonableness.” Alito argues that appellate reasonableness review means that for each offense, there is a sentence which “represents the [most] onerous sentence that [could] be regarded as reasonable in light of the bare statutory elements found by the jury.” 

On Alito’s view, any higher sentence is not per se illegal, but it would have to be justified in order to be held reasonable on appeal. Booker‘s remedial order “necessarily anticipates that the imposition of sentences above this level may be conditioned upon findings of fact made by the judge and not the jury.” As Alito puts the point, “if reasonableness review is more than just an empty exercise, there inevitably will be some sentences that, absent any judge-found aggravating fact, will be unreasonable.” 

Presto! Booker‘s remedial portion thus suggests that judges can, in fact, justify sentences above the “maximum” based on their own fact-finding! 

Alito’s argument here is not free from problems. At most, his argument simply highlights a possible inconsistency between the two parts of the Court’s Booker opinion: the substantive portion that strikes down the binding guidelines (for violating the Apprendi rule), and the remedial portion that upholds the advisory guidelines (even though they appear to transgress the same rule). Some dissenters to the remedial portion of Booker themselves highlighted this same tension. But this potential inconsistency does not mean that the Apprendi rule should be discarded; it could be taken to mean simply that the Court was wrong in its remedial order to validate the advisory sentencing guidelines. 

In any event, Alito is far too quick to assume an inconsistency exists between the substantive and remedial portions of the Booker opinion. A reconciliation might be possible – and this potential reconciliation, as we will explain, raises further questions about Alito’s arguments in support of the California sentencing scheme. 

The Error of Justice Alito’s Ways 

Justice Alito’s claim that the two parts of the Booker opinion are inconsistent ignores some potentially salient distinctions between the binding guideline regime struck down in Booker‘s substantive opinion and the advisory system validated in the Court’s remedial order: 

One distinction concerns the way that a verdict is translated into a specific sentencing outcome. Under binding guidelines, the verdict generate a determinative sentencing range based on formal, explicit, publicly-articulated sentencing rules prescribed in advance by a legislative body. As a result, in a binding guideline system, it is obvious when judicial fact-finding leads to an increase in the sentence beyond the maximum determined solely by the verdict. 

In contrast, under an advisory guideline system, the sentencing range associated with a verdict remains obscured (at least, until the appellate courts develop formal sentencing dispositions that define categories of reasonableness for different offenses). Under an advisory system, therefore, the effect of judicial fact-finding is much less overt, and possibly less troubling for that reason. 

According to this distinction, the Apprendi rule should properly apply only to maximum sentences defined as the highest sentence that can be imposed without further judicial fact- finding conducted pursuant to explicit, formal and publicly ascertainable sentencing rules

Such a reformulation (or clarification) of the Apprendi rule would explain why the binding federal guideline system was unconstitutional: because it allowed judicial fact-finding to exceed the maximum, under this definition. 

It would also explain why the advisory system is constitutional. Since that system does not at this time contain any formal sentencing rules to establish a maximum sentence, the judicial fact- finding does not transgress the constitutional rule. Of course, if the appellate courts, in the future, formalize explicit rules to determine the maximum “reasonable” sentence for an offense, the advisory system might ultimately face similar problems. But that seems a long time away. 

The problem with this reconceptualization of the Apprendi rationale is that the reason we would want to make a distinction between formal, overt and publicly-ascertainable judge-found facts, on the one hand, and informal, under-the-radar judicial fact-finding, on the other, is far from obvious. While the effect of judicial discretion is no doubt obscured in an advisory system, it continues to operate sub silentio. If judicial discretion is problematic, the exercise of that discretion perhaps ought to be problematic whether its effect is clearly visible or not. 

Public ignorance of what the courts are doing shouldn’t make judicial fact-finding constitutionally acceptable, should it? 

Is the Problem Too Much Legislative Prescription? A Distinction With Strong Explanatory Power 

But perhaps there is another distinction that could serve to reconcile the two parts of the Booker opinion. Maybe the problem with the prior, binding guidelines was not their public openness, but rather the institutional role played by the legislature or U.S. Sentencing Commission in formulating the standards. 

In the previous, binding system, these two institutions determined the maximum sentence that could be imposed based solely on the verdict, and determined which facts should be taken into account to deviate from this maximum. 

By contrast, in the current advisory guideline system, the judiciary makes these ultimate determinations. As a result, one could reconcile the two parts of Booker by clarifying that the maximum sentence, for Apprendi purposes, means the most severe sentence that the legislature or commission determines can be imposed based on the fact of conviction (or based on facts stipulated by the defendant in a plea agreement). 

This reformulation would explain why (as the Court held) a binding guidelines system violates the Constitution, but an advisory guidelines system does not: A binding guideline system (such as the prior federal sentencing system) would violate Apprendi because – and to the extent that — it allows the judiciary to increase the sentence beyond the maximum sentence established by the legislature or Commission, pursuant to facts the legislature or Commission has prescribed as important. 

By contrast, an advisory guideline system survives constitutional review, because the legislature and the commission haven’t determined the maximum sentence that can be imposed based solely on the verdict. As a result, the advisory system doesn’t have a maximum sentence at all (short of the ultimate statutory maximum). Nor has the legislature tried to identify all the additional facts a judge must weigh in ultimately rendering a sentence. 

Why the Distinction Is Not Only Explanatory, But Logically Defensible 

This approach does a good job of explaining why binding guidelines are unconstitutional and advisory guidelines are lawful, and so it offers a plausible way to reconcile the two parts of the Booker opinion. But does this distinction make any sense? 

Perhaps it does. The distinction is premised on the view that the defendant’s liberty interests are threatened when a legislature (or Commission ) attempts to determine the effect of a specific fact on the defendant’s ultimate sentence. The danger, as recent history suggests, is that the legislature will opt for long sentences based upon facts of questionable reliability. 

To counteract that danger, the Apprendi rule says that any time the legislature (or Commission) gives a specific fact a weight, that fact must be submitted to the jury and proved beyond a reasonable doubt. 

By contrast, judicial discretion over sentencing does not seem to pose a similar danger, perhaps because of an assumption that the judiciary will in general be more sympathetic to the liberty interests of the defendant. Thus, the rule suggests a certain way to understand the Apprendi line of cases. These cases represent a distrust of legislative (and Commission) power in the sentencing realm, not a distrust of judicial discretion per se. 

Though this might be a profitable way to harmonize the two parts of the Booker opinion, the approach does not necessarily support California’s sentencing scheme reviewed in Cunningham. Rather, the reformulated Apprendi rule suggests that Cunningham may have, in fact, been correctly decided. 

After all, under California law, the middle term was deemed by the legislature to be the presumptively reasonable sentence. As such, it represents the “maximum” sentence under the reformulated rule. By allowing judges to sentence above the legislatively-identified maximum pursuant to their own fact-finding – some of which facts, at least, were themselves listed by the legislature as relevant — the system might still implicate at least to some extent the constitutional rule. (Since only some of the aggravating facts on which a judge could rely were legislatively-identified, however, an argument can be made that the California scheme should have been less troubling to the Court than the laws struck down in the earlier cases in this line.) 

Maybe Justice Alito Is Right, As to His Bottom Line, After All 

Whether our various (re)formulations of the rule in Apprendi justify the Court’s actions in this line of cases might depend on what the federal and state legislatures choose to do after their chosen determinate sentencing scheme is called into constitutional question. 

To the extent that legislatures respond by giving more power to juries, or by moving towards indeterminate sentencing regimes that give judges more discretion, perhaps the end results will redound to the benefit of criminal defendants whose interests are supposedly being vindicated by the Sixth Amendment doctrine. 

But to the extent that the legislatures respond to the judicial invalidation of sentencing schemes by imposing tougher sentences on offenders, or by creating legislative presumptions in favor of harsher sentences (with judges being empowered to find facts only to reduce, rather than increase, the punishments), the Court’s rulings in the Apprendi line of cases might backfire. 

These possibilities are underscored by two potential responses to the Cunningham decision itself – one hypothetical, and the other currently under legislative consideration: 

First, consider a hypothetical. What if, as our colleague Michael Dorf has suggested, California were to keep its scheme of allowing three possible sentencing options – say, 16, 12 or 6 years — for a given offense. Instead of establishing the middle term as the presumptive sentence, suppose the legislature set the presumption at 16 years, rather than 12. Under this scheme, unless and until the trial judge finds one or more specified facts of mitigation (and perhaps mitigation could include a finding of no legislatively identified aggravating facts), then the judge must choose 16 years. But if such mitigation (or lack of aggravation) is found by the court, the judge could reduce the sentence to 12 or 6 years. 

Such a system would be similar to the one struck down by the Court in Cunningham, but also presumably immune from the Court’s rationale for invalidation. Such a response by the legislature would presumably be worse for defendants, and yet it would seem to pass constitutional muster. 

Or consider a proposal that is in fact somewhat likely to pass the California legislature soon: Senate Bill 40 (SB40) would amend the sentencing rules to give the court complete discretion to choose which of the three sentencing points it prefers. That change would avoid any plausible constitutional concerns by eliminating the legislative presumption in favor of any of the three terms at all. In effect, it would result in a discretionary sentencing scheme with three possible sentencing options. 

In all likelihood, this change, too, would seem to make it easier (that is, easier than under the law that the Court struck down in Cunningham) for a judge to impose the higher term. Before, the sentencing judge needed to identify some fact to justify the higher term. Under SB40, it’s not clear the court needs to do so. 

This simply highlights the potential unwisdom of striking down the California system on the basis that it violates the defendant’s Sixth Amendment rights. How can the defendant’s Sixth Amendment rights be promoted by a piece of legislation that makes it easier to sentence to a higher term? 

Thus, even under our various theoretical clarifications or reconceptualizations of the Apprendi line, the Court might not be reaching results that vindicate the values about which it cares, and, at a minimum, has a lot more explaining to do. 

Justice Alito in dissent is certainly justified in his seeming frustration with the Court’s failure (to date) to make clear to the world what this doctrinal line is really all about. 

 

 

JUDGES AND ESTATES OF LAWYERS WHO PURCHASED MALPRACTICE INSURANCE FROM LAWYER’S MUTUAL MAY BE ELIGIBLE FOR REFUND OF $1275 PLUS 6% INTEREST.

Friday, February 16th, 2007

   In a published decision released by the Ky. Court of Appeals on January 16, 2007,

(ALLEN  v. LAWYERS MUTUAL INSURANCE COMPANY OF KENTUCKY, Case No. 2005-CA-002397), it was noted that the Ky. legal malpractice insurer has a policy of refunding Subordinated Surplus Certificates, Series A, which were sold to attorneys in the l980’s upon formation of the insurer.

 

The certificates were sold by Lawyer’s Mutual to enable the company to operate as a mutual insurance company offering professional liability insurance to Ky. lawyers.  The fact amount of the certificates was $1275.  They bear interest at the rate of 6%.

 

In the Allen case, the court ruled that this right of redemption did not apply to attorneys who retired, but did apply to the estates of lawyers who died, and applied to attorneys who had purchased the securities and later became judges.

 

FEDERAL JUDGE LIMITS POLICE VIDEO TAPING OF CROWDS

Friday, February 16th, 2007

By JIM DWYER – N.Y. TIMES
In a rebuke of a surveillance practice greatly expanded by the New York Police Department after the Sept. 11 attacks, a federal judge ruled yesterday that the police must stop the routine videotaping of people at public gatherings unless there is an indication that unlawful activity may occur.

Skip to next paragraph

SEE:  Full Text of the Decision (pdf)

 

Threats & Responses

Four years ago, at the request of the city, the same judge, Charles S. Haight Jr., gave the police greater authority to investigate political, social and religious groups.

In yesterday’s ruling, Judge Haight, of United States District Court in Manhattan, found that by videotaping people who were exercising their right to free speech and breaking no laws, the Police Department had ignored the milder limits he had imposed on it in 2003.

Citing two events in 2005 — a march in Harlem and a demonstration by homeless people in front of the home of Mayor Michael R. Bloomberg — the judge said the city had offered scant justification for videotaping the people involved.

“There was no reason to suspect or anticipate that unlawful or terrorist activity might occur,? he wrote, “or that pertinent information about or evidence of such activity might be obtained by filming the earnest faces of those concerned citizens and the signs by which they hoped to convey their message to a public official.?

While he called the police conduct “egregious,? Judge Haight also offered an unusual judicial mea culpa, taking responsibility for his own words in a 2003 order that he conceded had not been “a model of clarity.?

The restrictions on videotaping do not apply to bridges, tunnels, airports, subways or street traffic, Judge Haight noted, but are meant to control police surveillance at events where people gather to exercise their rights under the First Amendment.

“No reasonable person, and surely not this court, is unaware of the perils the New York public faces and the crucial importance of the N.Y.P.D.’s efforts to detect, prevent and punish those who would cause others harm,? Judge Haight wrote.

Jethro M. Eisenstein, one of the lawyers who challenged the videotaping practices, said that Judge Haight’s ruling would make it possible to contest other surveillance tactics, including the use of undercover officers at political gatherings. In recent years, police officers have disguised themselves as protesters, shouted feigned objections when uniformed officers were making arrests, and pretended to be mourners at a memorial event for bicycle riders killed in traffic accidents.

“This was a major push by the corporation counsel to say that the guidelines are nice but they’re yesterday’s news, and that the security establishment’s view of what is important trumps civil liberties,? Mr. Eisenstein said. “Judge Haight is saying that’s just not the way we’re doing things in New York City.?

A spokesman for Police Commissioner Raymond W. Kelly referred questions about the ruling to the city’s lawyers, who noted that Judge Haight did not set a deadline for destroying the tapes it had already made, and that the judge did not find the city had violated the First Amendment.

Nevertheless, Judge Haight — at times invoking the mythology of the ancient Greeks and of Harold Ross, the founding editor of The New Yorker — used blunt language to characterize the Police Department’s activities.

“There is no discernible justification for the apparent disregard of the guidelines? in his 2003 court order, he said. These spell out the broad circumstances under which the police could investigate political gatherings.

Under the guidelines, the police may conduct investigations — including videotaping — at political events only if they have indications that unlawful activity may occur, and only after they have applied for permission to the deputy commissioner in charge of the Intelligence Division.

Judge Haight noted that the Police Department had not produced

evidence that any applications for permission to videotape had ever been filed.

Near the end of his 51-page order, the judge warned that the Police Department must change its practices or face penalties.

“Any future use by the N.Y.P.D. of video and photographic equipment during the course of an investigation involving political activity? that did not follow the guidelines could result in contempt proceedings, he wrote.

 

WHY NOT CUT THE JUDGE IN FOR A SHARE OF SEIZED DRUG ASSETS?

Thursday, February 15th, 2007


   We ask, with tongue in cheek, why aren’t judges entitled to benefit from cases in which they permit the assets of persons convicted of controlled substance violations.  Surely they could squeeze say a 10% commission to the trial judge who makes important rulings on the drug case, and maybe the legislature should give 5% to appellate judges reviewing these cases.
   If such a procedure shocks your conscience then maybe you are endowed with a healthy degree of skepticism about a procedure that is supposed to be “fair and impartial’.
While the legislature is not likely to go so far as to provide a financial incentive to judges to obtain drug convictions (thereby bringing their impartiality into question), our legislators have not had a problem in providing such a tempting incentive to local law enforcement agencies and local prosecutors.
  Prosecutors and local police agencies are given a cash incentive to make drug busts and obtain convictions of persons who possess property involved in the illegal sale or possession of controlled substances.  They are likely to benefit when their testimony helps to convict an accused drug dealer.  On the other hand, if they give testimony helpful to the accused drug dealer, and he is acquitted, then the law enforcement agency loses out.
  These agencies are seizing cars, boats, homes and cash in sums believed to annually be valued in the millions. These same agencies are charged with protecting citizens constitutional rights.
One must raise an eyebrow and question whether this cash incentive might be too much of an incentive to those who must support their arrests with testimony required to obtain search and arrest warrants, and who must give testimony at suppression hearings and at trial of the defendant.  “Oh yes judge, while it was dark outside, I could clearly see that he was not wearing his seatbelt…and that is why I pulled him over.?
This cash incentive doesn’t personally go to the police officer or prosecutor, but it does go to his office, and may result in the upgrade of the official vehicle he drives and the upgrade of his equipment and office furniture, and neat swat weapons that are fun to play with.
We noticed the Sheriff of one Northern Ky. County who regularly drove to work a nearly new SUV which had a sign painted on the side which proudly proclaimed ?this vehicle paid for with seized drug funds?.
When the local law enforcement agency makes a drug bust, and valuable property is involved, it can provide a rich payday for his agency.  Their agency may under KRS 218A.435 retain up to 90% of the proceeds derived from the seizure, and may retain 100% of the value of any motor vehicles seized.  The local prosecutor (either County Attorney or Commonwealth’s Attorney) may retain 10% for their office.
We do not suggest that drug dealers should be able to keep the property purchased with their ill gotten gains, but why not legislate that funds derived from seized drug profits go to the General Fund, or to fund increased drug treatment programs?
    SB 88 as Amended would increase by 5% the amount of drug forfeiture funds going to the local prosecutor.  This would allow the prosecutors office to retain 10% of seized drug assets.    The amount of forfeited drug proceeds going to the law enforcement agency making the arrest would go from 90% to 80%.
  
AMENDMENT:
“…amend of KRS 218A.435 relating to asset forfeiture to change the formula to 80 to seizing law enforcement agency, 15 to the office of the prosecutor prosecuting the case or to the Attorney General if the Attorney General prosecuted the case; make technical correction relating to proceeds from vehicle sale by a law enforcement agency.?
CURRENT LAW:
KRS 218A.435 Asset forfeiture trust fund — Management — Distribution.
(1) There is created a trust and revolving fund in the executive branch of state
government to be known as the “Asset Forfeiture Trust Fund” referred to in this
section as the “trust fund.”
(2) The trust fund shall consist of proceeds from sale of property forfeited to the
Commonwealth pursuant to KRS 218A.410, any moneys as may be appropriated by
the General Assembly, and any investment interest earned on the fund. The moneys
in this fund are intended to supplement any funds appropriated by the General
Assembly to the agency which will receive disbursements from the trust fund as
provided in this section.
(3) The trust fund shall be managed by the state Office of Financial Management and
all moneys in excess of the amount to be disbursed in a given fiscal year shall be
invested to maximize returns. The principal and any interest earnings of the trust
fund shall at no time lapse to the general fund.
(4) The trust fund shall be administered and audited by the Justice Cabinet. The
secretary of justice or his designee shall promulgate administrative regulations
necessary to further the purposes of KRS 218A.405 to 218A.460.
(5) The trust fund shall be disbursed in accordance with the provisions of subsection (6)
of this section. All interest accumulated on the fund shall immediately be available
for disbursement to the Justice Cabinet for costs associated with administration of
the fund.
(6) The Justice Cabinet shall, upon advice from the Office of Financial Management,
allocate the moneys in the fund quarterly, on a percentage basis, as provided in
subsection (7) of this section.
(7) The principal of the trust fund shall be distributed as follows:
(a) Eighteen percent (18%) of the funds received in any fiscal year shall be
allocated to the unified prosecutorial system to be disbursed by the Attorney
General to those Commonwealth’s attorneys or county attorneys who have
participated in the forfeiture case;
(b) Thirty-six percent (36%) of the funds received in any fiscal year shall be
allocated to the Cabinet for Health and Family Services to be used solely for
the purpose of drug and alcohol abuse education, prevention, and treatment;
(c) Thirty-six percent (36%) of the funds received in any fiscal year shall be
allocated to the Department of Corrections to be used solely for programs
related to drug enforcement and incarceration; and
(d) Ten percent (10%) of the funds received in any fiscal year shall be allocated to
the Justice Cabinet to be used solely for the purpose of: training related to
asset forfeiture; printing program-related training materials, such as manuals
or handbooks; or payments to state or local agencies for programs relative to
crime prevention, drug abuse prevention, general law enforcement purposes,
or other similar purposes relating to drug enforcement.
(8) The Attorney General, the secretary of the Cabinet for Health and Family Services,
the commissioner of the Department of Corrections, and the secretary of the Justice
Cabinet or their designees shall each promulgate administrative regulations which
itemize the programs on which the moneys allocated from the trust fund to their
respective agencies shall be spent and the method by which those moneys shall be
disbursed to local entities.
(9) On July 13, 1990, each state and local law enforcement agency which seizes
property for the purpose of forfeiture under KRS 218A.410 shall, prior to being
eligible for the receipt of grants from the trust fund, adopt policies relating to the
seizure, maintenance, storage, and care of property pending forfeiture which are in
compliance with or which substantially comply with the model policy for seizure of
forfeitable assets by law enforcement agencies published by the Department of
Criminal Justice Training. However, a state or local law enforcement agency may
adopt policies that are more restrictive on the agency than those contained in the
model policy and that fairly and uniformly implement the provisions of this chapter.
(10) On July 13, 1990, each state or local law enforcement agency which seizes property
for the purpose of forfeiture under KRS 218A.410 shall, prior to being eligible to
receive grants from the trust fund, have one (1) or more officers currently employed
attend asset-forfeiture training as approved by the Kentucky Law Enforcement
Council which shall approve a curriculum of study for asset-forfeiture training.
(11) Other provisions of this section notwithstanding, any vehicle seized by a law
enforcement agency which is forfeited pursuant to this chapter may be retained by
the seizing agency for official use or sold within its discretion. Proceeds from the
sale shall remain with the agency and shall not be paid into the trust fund and shall
not be considered for purposes of the limits established in subsection (12) of this
section. The moneys shall be utilized for purposes consistent with KRS 218A.405
to 218A.460. The seizing agency shall be required to pay any bona fide perfected
security interest on any vehicle so forfeited.
(12) Other provisions of law notwithstanding, the first fifty thousand dollars ($50,000)
of forfeited coin or currency or of the proceeds from sale of any property forfeited
pursuant to this chapter which was seized or forfeited by a single order of forfeiture,
shall not be paid into the fund but ninety percent (90%) (SB 88 would Amend to 80% ) shall be paid to the law
enforcement agency or agencies which seized the property to be used for direct law
enforcement purposes
 

and ten percent (10%) (SB 88 would Amend to 15%) to the office of the Commonwealth’s
attorney or county attorney who has participated in the forfeiture proceeding. The
moneys are intended to supplement any funds appropriated to the recipient and shall
not supplant other funding of any recipient.

 In addition, forty-five percent (45%) of all proceeds above fifty thousand dollars ($50,000) shall not be paid into the fund but shall be retained by the law enforcement agency or agencies which seized the property to be used for direct law enforcement purposes.
(13) When money or property is seized in a joint operation involving more than one (1)
law enforcement agency, or prosecutorial office, the apportionment of funds to each
pursuant to subsection (7)(a) of this section, or pursuant to subsection (12) of this
section, shall be made among the agencies in a manner to reflect the degree of
participation of each agency in the law enforcement effort resulting in the forfeiture,
taking into account the total value of all property forfeited and the total law
enforcement effort with respect to the violation of law on which the forfeiture is
based. The trial court shall determine the proper division and include the
determination in the final order of forfeiture.
Effective: June 20, 2005
History: Amended 2005 Ky. Acts ch. 99, sec. 552, effective June 20, 2005. — Amended
1998 Ky. Acts ch. 426, sec. 492, effective July 15, 1998. — Amended 1992 Ky. Acts
ch. 211, sec. 80, effective July 14, 1992. — Amended 1990 Ky. Acts ch. 445, sec. 6,
effective July 13, 1990. — Created 1984 Ky. Acts ch. 101, Ky. Acts ch. 6, effective
July 13, 1984.
Legislative Research Commission Note (6/20/2005). 2005 Ky. Acts chs. 11, 85, 95, 97,
98, 99, 123, and 181 instruct the Reviser of Statutes to correct statutory references to
agencies and officers whose names have been changed in 2005 legislation confirming
the reorganization of the executive branch. Such a correction has been made in this section.
ANNOTATION FOR THIS STATUTE:
  
1.
Commonwealth v. Commonwealth, No. 2003-CA-000392-MR (KY 5/28/2004) (KY, 2004) Title to all property, including all interests in the property, forfeit under this section vests in the Commonwealth on the commission of the act or omission giving rise to forfeiture under this section together with the proceeds of the property after the time.
3. Harbin v. Commonwealth of Kentucky, 2000-SC-0730-MR (Ky. 12/18/2003) (Ky., 2003) Following conviction of a defendant for any violation of this chapter, the court shall conduct an ancillary hearing to forfeit property if requested by any party other than the defendant or the Commonwealth. The Commonwealth’s attorney, or the county attorney if the proceeding is in District Court, shall initiate the hearing by filing a motion requesting entry of a final order of forfeiture upon proof that the property was being used in violation of the provisions of this chapter. The final order of forfeiture by the court shall perfect in the Commonwealth or appropriate law enforcement agency, as provided in KRS 218A.435, right, title, and interest in and to the property. The Commonwealth may transfer any real property so forfeited by deed of general warranty.