Archive for October, 2007

Cincinnati Post give Kudoes to Supreme Court and UK Law for Live Webcast of Oral Arguments

Wednesday, October 31st, 2007

 The Cincinnati Post praised the Live Webcast of Oral Arguments.

Oct. 31, 2007 – It’s good to see the Kentucky Supreme Court launch its surfboard on the digital seas.

The court last week began using a technology known as streaming video (sometimes referred to as webcasting) to allow computer users to watch live oral arguments. By all accounts it went smoothly, with about 1,700 viewers logged on to watch the first case – a request for a new trial in a steamy Lexington homicide.

 

The courts in Kentucky and elsewhere have historically been open to the public (except, say, in cases involving juveniles). But judges have been wary about allowing cameras, either still or video, into the courtroom, primarily for fear of disrupting the proceedings within.

 

Experience has shown, however, that even in cases being tried before juries, the presence of cameras – when properly managed by the court – is not necessarily disruptive. And whatever harm cameras might do in terms of encouraging theatrics or distracting participants is generally offset by their value in opening the courts to the larger public and giving taxpayers a more robust picture of how the legal system is performing.

The appeals courts, and particularly the state supreme courts, have always been the most remote, the most mysterious of them all. That’s all the more reason to applaud the introduction of video cameras into these chambers. As Kentucky Chief Justice Joseph E. Lambert noted in a release announcing the Supreme Court LIVE project, “Broadcasting Supreme Court oral arguments live gives every citizen access to our proceedings and an opportunity to see their highest court doing its work.”

 

The technology required for the webcasts is not minimal. Eight fixed cameras were mounted inside the court’s chambers, one for each justice and one trained on the podium from which the attorneys speak. The University of Kentucky College of Law is hosting the website responsible for the webcast itself, which makes sense, given that once the novelty wears off the chief audience for these productions will most likely be law students.

 

At least 16 other states also broadcast their Supreme Court’s oral arguments. Ohio is among them, and also offers something that Kentucky hopes to do a little later: archived webcasts of prior sessions.

 

As much as we applaud the idea of being able to watch lawyers and judges in action without having to drive to Frankfort or Columbus, we confess that the technological revolution that we most care about came to pass years ago when the courts began putting their opinions and other documents online. Instant and archived access to those words has been a godsend for print journalists and anyone else with an interest in the courts.

Still, we’ll cheerfully acknowledge that video images convey types of information not found in words. So if you want to get a schedule of upcoming cases to be argued before the Kentucky Supreme Court, navigate to www.courts.ky.gov or the UK College of Law’s website, www.uky.edu/law.

 

Fair warning, though. The next scheduled case seems a bit dry: Lach vs. Man o War LLC at 9 a.m. Nov. 14, involving issues surrounding the conversion of a limited partnership to a limited-liability company. Hey, if you want entertainment, check your TV guide. This is the real deal here.

 

This is a direct link to the oral arguments. Supreme Court LIVE 
Live stream of oral arguments being presented to the Supreme Court of Kentucky
Check schedule:
Supreme Court Minutes

 

Court of Appeals Minutes

This may be the longest play in the history of football…62 seconds with l3 laterals

Wednesday, October 31st, 2007

Oct. 31, 2007

We invite you to watch an amazing video of a 62 second long football play where Trinity College was down with only 2 seconds to play.  The quarterback passed the ball, and then there were l3 laterals that followed ending up with a touchdown which allowed Trinity to come from behind and win the game.  This is truly amazing.

Click: . Trinity University College Football Finish
series of 15 laterals to win the game in a Trinity University college football game, 2007.…Trinity University Texas laterals finish college football game
 

Beshear lead grows in latest Poll

Wednesday, October 31st, 2007

Oct. 31, 2007

 

The latest SurveyUSA Poll released on Oct. 30th. shows Steve Beshear with  a 24 point lead over incumbent Ernie Fletcher, with only 4% undecided.

 

This poll was the most accurate poll in last May’s Primary election.  Once must say that things are looking bleak for Republicans this fall.

What to do with all the Law Students..

Wednesday, October 31st, 2007

Jonathan Glater New York Times Oct. 31, 2007 

Forget all the jokes about what should be done with the lawyers. What should be done with the law students?

 

That question is being tackled — seriously — at a variety of law schools around the country as they undertake a broad series of changes to their curriculums. The changes range from requiring new courses for first-year students to expanding clinical programs to adding electives in the later years to encouraging law students to take courses in other graduate-level programs at their universities.

 

Harvard Law School announced last year that it would modify its venerable curriculum, and its cross-country rival, Stanford Law School, has begun making changes, too.

Columbia Law School began modifying its curriculum in 2003, and the University of New Mexico School of Law made a series of changes starting three years ago and is weighing more.

 

“When you haven’t changed your curriculum in 150 years, at some point you look around,? said Elena Kagan, the dean of Harvard Law.

 

The impetus for the changes is the sense that what has been taught and how it has been taught may be “embarrassingly disconnected from what anybody does,? Ms. Kagan said.

Those concerns were highlighted in a report on legal education published this year by the Carnegie Foundation. The report found that law schools generally stressed analytic training over ethical, interpersonal and other skills that could help them practice law after graduation.

 

“What certainly stands out is that the dominant model in law school education is focused almost entirely on the development of thinking like a lawyer,? said William Sullivan, a senior scholar at the Carnegie Foundation and the lead author of the report. “And by that, what they mean is being able to be good at legal analysis.?

 

The report has galvanized reflection at many law schools. In December, Stanford Law will be the host of a meeting of representatives from 10 schools that have designed innovative curriculums, including the City University of New York School of Law, New York University School of Law and the University of Dayton School of Law.

After the meeting, the group will continue working toward a goal of producing a report in 2010, said Lawrence C. Marshall, a professor at Stanford Law who is coordinating the initiative.

 

For years, law students have focused on judicial opinions, explaining why a case was decided in a particular way. But many lawyers today must read laws and regulations that have not been explained by a judge and advise clients on how to comply with them.

So both Harvard Law and Vanderbilt University Law School have modified their traditional first-year requirements, like contracts, civil procedures and torts, to include a class that teaches students how to interpret statutes and regulations.

 

Stanford Law and other schools are also making it easier for students to take courses in other graduate-level programs at their universities, recognizing that lawyers often need specialized knowledge in areas like business, technology, biology, international relations, engineering and medicine. Many lawyers today practice across international borders and must be familiar with foreign laws and legal systems.

 

“Globalization means you have to better prepare lawyers to work in a global context,? said Larry Kramer, dean of Stanford Law.

 

Some of the changes at elite schools seem to be following the example set by lesser-known institutions.

 

For example, the law schools at the University of New Mexico and CUNY have for many years required students to participate in clinical programs, in which law students represent real clients under the supervision of professors who are practicing lawyers.

Michelle J. Anderson, the dean at CUNY, said the school, which is less than 30 years old, “wanted to take the best of the traditional, doctrinal teaching and add to it practical lawyering skills.?

 

Now, Harvard Law and Stanford Law are expanding their clinical offerings. At Harvard, over the past three years, the number of students participating in clinics has nearly doubled.

 

For years, medical schools have tried to address a similar concern by giving students intensive clinical experience in dealing with real and simulated patients during the last two years of their programs, said Mr. Sullivan of the Carnegie Foundation. Most law schools do not have such a practical focus.

 

“There is a mode of practical reasoning, of reasoning in situations, which requires that knowledge be constructed and reconstructed to deal with the situation at hand,? said Mr. Sullivan, who is not a lawyer but at times sounds like one. “And that’s the kind of reasoning that good practitioners develop, and it’s something that we know can be taught, but we know it’s not taught very much.?

 

The efforts of some schools to make curriculum changes is constrained by the bar exam, which students almost always must pass in the state where they plan to practice. So even as faculty try to better prepare students for the complexity of practice, they must make sure they can handle the exam.

 

“It’s a balancing act,? said Lisa Kloppenberg, dean at the University of Dayton School of Law. To help better prepare students for practice, the law school in 2005 introduced a requirement that all students participate in an “externship,? an apprenticeship with a practicing lawyer, as part of its “lawyer as problem solver? program.

 

Given the constraints — financial and otherwise — facing law schools, and given the different ways that they are trying to refashion what they teach, it will take time to determine whether the changes have made any difference, said Catherine Carpenter, a law professor at Southwestern Law School in Los Angeles, who worked on the Carnegie report. “I would love to be able to do this survey again in 2010 and really see what has changed.?

Texas Judge known as Killer Keller, Refused to Keep Court Open for 20 minutes for Filing of Death Penalty Appeal.

Tuesday, October 30th, 2007

Associated

Attorneys had computer glitch and asked Judge to wait 20 minutes to receive appeal.  Judge Keller refused to keep court open after 5 p.m. Defendant executed 4 ½ hours later on same day U.S. Supreme Court granted stay in Ky. Death Penalty case questioning lethal injection.  She has previously voted against a def. cleared by DNA evidence who was subsequently pardoned by then Gov. George W. Bush.

Assoc. Press
AUSTIN, Texas – The path to the nation’s busiest death chamber winds through a court of last resort where the presiding judge recently refused to keep her office open past 5 p.m. to accept a last-minute appeal from an inmate about to be executed.
Judge Sharon Keller’s relentless tough-on-crime approach earned her the nickname “Killer Keller,” and condemned prisoners in Texas know she is unlikely to spare them from a lethal injection.
Keller, 54, cultivates her reputation, distributing campaign literature showing a shadowy figure behind bars and the headline: “He won’t be voting for Judge Sharon Keller.”
Keller is “clearly not the friend of the criminal defendant, and she is active and aggressive in espousing her view of the law, which is very often – almost always – very pleasing to the prosecutors and not to the defense lawyers,” said John Wright, a Huntsville defense attorney who has represented death-row clients before the state Court of Criminal Appeals.
On the night Keller refused to keep the court open, Michael Richard’s lawyers had asked to file a last-minute appeal. They appealed through the federal system instead, and the Supreme Court turned down his case. Richard was put to death at 9:30 p.m. Sept. 25 for the rape and murder of a Houston-area woman.
Just hours earlier, the high court had agreed to review the constitutionality of lethal injection. Richard, 49, is the only person in the nation to have been executed since that day.
After Richard’s execution, conservatives praised the judge for treating Richard like the killer he was. Civil rights activists vilified her as a cold-blooded jurist who denied a condemned man a final appeal.
Keller, who declined requests from The Associated Press for an interview, was elected as a Republican to the Court of Criminal Appeals in 1994, becoming the first woman on the nine-member panel. Her decisions have made headlines before.
In 1998, she and four other judges on the court refused to grant a retrial to a man sentenced to 99 years for the rape and murder of a 16-year-old girl. DNA tests determined that semen found on the victim did not belong to Roy Criner.
In her opinion, she speculated that the absence of Criner’s semen may signal “a failure to ejaculate … or it may establish a condom was used.” Keller also noted that the victim was promiscuous.
Fellow Republican Judge Tom Price, who ran against Keller to be the court’s presiding judge, said she made the court a “national laughingstock.”
“You could not deal with them on arguments that made any sense,” said Mike Charlton, who represented Criner and is now an assistant federal defender in Nevada.
“If you’re a criminal defense attorney in Texas, you expect to lose a majority of cases. But there are some cases that you’re supposed to win, and the Roy Criner case is one of those cases. He was so obviously innocent.”
Gov. George W. Bush pardoned Criner in 2000.
“Even a conservative governor like George Bush and his conservative staff recognized that this was an obvious miscarriage, a transparent miscarriage that nobody could explain,” Charlton said.
Keller grew up in Dallas and served as a prosecutor in the Dallas County district attorney’s office, working in the appellate section. Her parents own a Dallas hamburger chain.
Supporters describe her as a soft-spoken, charming woman whose decisions are well reasoned and principled.
In the Criner case “there were a lot of issues that went back and forth,” said Rob Kepple, executive director of the Texas District and County Attorneys Association. “She came down on one side of it, but it was a principled answer … she’s very intellectually honest.”
Because judges in Texas are elected, experts say a law-and-order platform is the only way to win a seat on the bench.
“What are they going to say? I promise to be soft on crime and let criminals go? No, they’re going to say just the opposite and they do,” said Jim Marcus, a clinical professor in the capital punishment clinic at University of Texas School of Law.
The Court of Criminal Appeals has been made up entirely of Republicans since 1994, but some observers believe Keller’s anti-crime fervor has been infectious, helping to push the panel farther to the right.
“It’s hard not to recognize that this was someone who wanted to chart an agenda,” Charlton said. “And she had more than enough people willing to go along with her.”
 

Poll Shows Secretary of State Race a Toss Up.

Tuesday, October 30th, 2007

Mark Nickolas has reported on BluegrassReport.org, that the latest Democratic internal polling shows Secretary of State Trey Grayson with only a 1 per centage point lead over Bruce Hendrickson with seven days to the election.  This poll is weighted to reflect the correct registration of Democrats and Republicans in Kentucky. 
 

The poll has Grayson with 36% and Hendrickson with 35%.  That leaves 29% undecided.
 

The margin of error for most polls is between 3% and 4%.  That means that the Secretary of State race is a toss up.  It could go either way.
This race will be probably be determined by turnout.  The large 29% undecided may suggest that Hendrickson may be swept in with a Democratic Gubernatorial landslide, as the undecided usually go with the wind, and the wind appears to be Democratic with Steve Beshear having a 20 point lead over incumbent Ernie Fletcher.
 

Many Democrats have expressed the thought that they like Grayson, but they remember how the Republican Sec. of State in Florida interfered with the Presidential Election in 2000, and they don’t want to have a Republican Sec. of State on the State Election Board for the 2008 Presidential Race.
 

One would think that Grayson would address this critical issue and pledge impartiality or do something to assuage Democratic fears on this issue.  Grayson cannot be elected without Democratic votes…and this issue by itself might make the difference.
 

U.S. Supreme Court to Review Whistleblower Fraud Case. Effectiveness of False Claims Act at Stake.

Tuesday, October 30th, 2007

The Sixth Circuit first rejected the “Totten” rule articulated by Chief Justice John Roberts.  The rule created a massive loophole in the False Claims Act, potentially permitting corrupt contractors to escape civil liability for fraud.

WebWire  Oct. 30, 2007 

Washington, D.C. October 29, 2007. Today the U.S. Supreme Court granted certiorari in the False Claims Act/Whistleblower case of Allison Engine Company, Inc. et. al. v. United States ex rel Roger Sanders, Supreme Court Docket No. 07-214.

The Court granted a petition filed by the defendants, including the General Motors Corporation, and its former division Allison Engine Company, challenging the ability of the United States to potentially recover billions of dollars in damages as a result of government contractor fraud. The alleged fraud concerned subcontracts for building parts for the Navy’s Arleigh Burke-Class Guided Missile Destroyers. Each of the fifty destroyers in question cost the taxpayer approximately one billion dollars.

The Court granted the defendants’ motion to hear the case based on the “Totten” rule. This rule, first articulated by Chief Justice John Roberts (while serving as a member of the U.S. Court of Appeals for the D.C. Circuit), created a massive loophole in the False Claims Act, potentially permitting corrupt contractors to escape civil liability for fraud.

The loophole, known as the “presentment requirement” could permit subcontractors to escape liability if they were not the party who formally “presented” their claim to the government for payment.

The lower court (i.e. the U.S. Court of Appeals for the Sixth Circuit) supported the whistleblower claims and explicitly rejected the Totten rule. The Sixth Circuit reasoned that contractor liability should not depend on who made the technical presentment, but whether “government money was used to pay the false or fraudulent claim”

“The False Claims Act is under attack by unscrupulous contractors for a very simple reason — it has worked. Billions of dollars have been recovered by the taxpayer, and over the past five years the majority of civil fraud recoveries obtained by the United States were a result of whistleblower disclosures under the FCA” said Stephen M. Kohn, President of the National Whistleblower Center.

“This Supreme Court will decide whether subcontractors can rip off taxpayers and pocket their profits. Since the law was first enacted under Abraham Lincoln’s administration the only purpose of the False Claims act was to catch all the crooks. The idea was to hold not only the people who presented a bill to the government liable, but also anyone who caused such a false claim to be created to be liable to the government for their fraud.

 We are hopeful that the United States Department of Justice will once again support this basic principle and file a brief in support of the whistleblower before the Supreme Court in this case” Kohn added.

State Department offered Blackwater guards Immunity: But only Justice Department authorized to grant immunity from prosecution.

Tuesday, October 30th, 2007

By DAVID JOHNSTON New York Times  October 30, 2007

 

WASHINGTON, Oct. 29 — State Department investigators offered Blackwater USA security guards immunity during an inquiry into last month’s deadly shooting of 17 Iraqis in Baghdad — a potentially serious investigative misstep that could complicate efforts to prosecute the company’s employees involved in the episode, government officials said Monday.

 

The State Department investigators from the agency’s investigative arm, the Bureau of Diplomatic Security, offered the immunity grants even though they did not have the authority to do so, the officials said. Prosecutors at the Justice Department, who do have such authority, had no advance knowledge of the arrangement, they added.

 

Most of the guards who took part in the Sept. 16 shooting were offered what officials described as limited-use immunity, which means that they were promised that they would not be prosecuted for anything they said in their interviews with the authorities as long as their statements were true. The immunity offers were first reported Monday by The Associated Press.

 

The officials who spoke of the immunity deals have been briefed on the matter, but agreed to talk about the arrangement only on the condition of anonymity because they had not been authorized to discuss a continuing criminal investigation.

 

The precise legal status of the immunity offer is unclear. Those who have been offered immunity would seem likely to assert that their statements are legally protected, even as some government officials say that immunity was never officially sanctioned by the Justice Department.

 

Spokesmen for the State and Justice Departments would not comment on the matter. A State Department official said, “If there’s any truth to this story, then the decision was made without consultation with senior officials in Washington.?

 

A spokeswoman for Blackwater, Anne E. Tyrrell, said, “It would be inappropriate for me to comment on the investigation.?

 

The immunity deals were an unwelcome surprise at the Justice Department, which was already grappling with the fundamental legal question of whether any prosecutions could take place involving American civilians in Iraq.

Blackwater employees and other civilian contractors cannot be tried in military courts, and it is unclear what American criminal laws might cover criminal acts committed in a war zone. Americans are immune from Iraqi law under a directive signed by the United States occupation authority in 2003 that has not been repealed by the Iraqi Parliament.

 

A State Department review panel sent to investigate the shootings concluded that there was no basis for holding non-Defense Department contractors accountable under United States law and urged Congress and the administration to address the problem.

 

The House overwhelmingly passed a bill this month that would make such contractors liable under a law known as the Military Extraterritorial Jurisdiction Act. The Senate is considering a similar measure.

Some legal analysts have suggested that the Blackwater case could be prosecuted through the act, which allows the extension of federal law to civilians supporting military operations.

 

But trying a criminal case in federal court requires guarantees that no one has tampered with the evidence. Because a defendant has the right to cross-examine witnesses, foreign witnesses would have to be transported to the United States.

Several legal experts said evidence gathered by Iraqi investigators and turned over to the Americans, even within days, would probably be suspect.

 

Another law that may be applicable covers contractors in areas that could be defined as American territory, like a military base or the Green Zone. But the Blackwater security contractors in the Sept. 16 shootings were in neither place.

The government has transferred the investigation from the diplomatic service to the Federal Bureau of Investigation, which has begun reinterviewing Blackwater employees without any grant of immunity in an effort to assemble independent evidence of possible wrongdoing.

 

Richard J. Griffin, the chief of the Bureau of Diplomatic Security, resigned last week, in a departure that appeared to be related to problems with his supervision of Blackwater contractors.

In addition, the Justice Department reassigned the investigation from prosecutors in the criminal division who had read the statements the State Department had taken under the offer of immunity to prosecutors in the national security division who had no knowledge of the statements.

 

Such a step is usually taken to preserve the government’s ability to argue later in court that any case it has brought was made independently and did not use information gathered under a promise that it would not be used in a criminal trial.

 

The episode began as a convoy carrying American diplomats and staffed by Blackwater guards approached Nisour Square in Baghdad at midday on a Sunday. A second Blackwater convoy, positioned on the crowded square in advance to control traffic, opened fire, killing 17 people and wounding 24.

 

Blackwater’s original statement on the shooting said the company’s guards had “acted lawfully and appropriately in response to a hostile attack,? and initial assertions by the State Department stated that the convoy had come under small-arms fire.

But subsequent accounts from witnesses and Iraqi investigators indicated that the convoy had not been attacked and that the Blackwater guards fired indiscriminately around the square. Americans soldiers investigating the scene afterward also found no evidence of an attack.

 

F.B.I. agents have been at the Blackwater compound in the Green Zone interviewing guards involved in the shooting.

 

Immunity is intended to protect the Fifth Amendment right against self-incrimination while still giving investigators the ability to gather evidence. Usually, people suspected of crimes are not given immunity and such grants are not made until after the probable defendants are identified. Even then, prosecutors often face serious obstacles in bringing a prosecution in cases in which defendants have been immunized.

John M. Broder contributed reporting.

 

Top Law Grads Are Blackballing Firms with low Diversity Hiring records.

Tuesday, October 30th, 2007

Law grads are turning down $160,000 starting salaries, if firms have low per centage of females, blacks, and gays.
By ADAM LIPTAK  New York Times – October 29, 2007

 

A bunch of law students at Stanford have started assigning letter grades to their prospective employers, which pretty much tells you who holds the power in the market for new associates. It’s not easy to persuade new lawyers from the top schools to accept starting salaries of only $160,000.

 

The students are handing out “diversity report cards? to the big law firms, ranking them by how many female, minority and gay lawyers they have.

“Many of the firms have atrocious, appalling records on diversity,? said Michele Landis Dauber, a law professor at Stanford and the adviser for the project, called Building a Better Legal Profession. The rankings are at www.betterlegalprofession.org.

 

In New York, Cleary Gottlieb Steen & Hamilton got the top grade, an A-minus. At Cleary, the project says, 48.8 percent of the associates are women, 8.7 percent are black, 8.3 percent are Hispanic and 4.5 percent are openly gay.

Herrick, Feinstein, by contrast, got an F. Its numbers: 37.7 percent women, 4.9 percent black, 1.6 percent Hispanics, and no openly gay people.

 

In Washington, no firm got an A. But seven scored in the D range, including Gibson, Dunn & Crutcher; Kelley Drye Collier Shannon; Baker Botts; and Mayer Brown.

The numbers were provided to a central clearinghouse by the firms themselves. “Our process is simple,? the student group said in explaining its methodology. “Cut, paste and rank.?

 

Firms in the top fifth received A’s, in the second fifth B’s, and so on. Overall grades were arrived at by averaging grades for partners and associates in five categories: women, blacks, Hispanics, Asians and gay people.

 

The firms with low rankings did not dispute the basic numbers, with one exception. Herrick Feinstein said it reported that it had no openly gay lawyers “because, at the time of the filing, we did not ask for that information.? There are, the firm said in a statement, openly gay lawyers working there, “including one on the diversity committee.?

 

The students have ambitious plans, including asking elite schools to restrict recruiting by firms at the bottom of their rankings. They also plan to send the rankings to the general counsels of the Fortune 500 companies with the suggestion that they be used in selecting lawyers.

 

“Firms that want the best students will be forced to respond to the market pressures that we’re creating,? said Andrew Bruck, a law student at Stanford and a leader of the project.

Roger Clegg, the president of the Center for Equal Opportunity, a research group that supports colorblind policies, said the whole thing was pernicious.

 

“Diversity is all too frequently a code word,? he said, “for preferential treatment on the basis of race, ethnicity or sex, or lower standards, or being opposed to assimilation.?

Vikram Amar, a professor at Hastings College of the Law in San Francisco, added that law firms might well be violating employment discrimination laws in the process of trying to improve their rankings.

 

“As bad as their numbers are,? Professor Amar said of the firms, “the relevant applicant pool of law students with top grades is more white and Asian still.?

Whatever their consequences, the numbers the students have collected offer a fascinating snapshot of the profession.

 

In New York, a third of the big firms had no black partners, and an overlapping third no Hispanic ones. Half the firms in Boston had no black partners, and three-quarters no Hispanic ones.

 

“This is 2007,? Professor Dauber said. “If you can’t find a single black or Hispanic partner, that’s not an accident.?

 

The students also found relatively few female partners in New York, ranging from 7 percent at Fulbright & Jaworski to 23 percent at Morrison & Foerster. Those numbers are “a bit of a canary in the coal mine,? said Deborah L. Rhode, another Stanford law professor. “The absence of women as partners often says something about how firms deal with work-family issues.?

 

I asked the firms with particularly poor rankings for comments, and most of them responded, generally with quite similar statements. The issues are serious and difficult ones, they said, but they are working hard to make progress.

 

Some questioned the grading system. Paul C. Rosenthal, a partner at Kelley Drye, called it “totally ridiculous,? for instance, because the firm’s Washington office received an A for the number of black associates and yet a D overall.

 

Others pointed to offices at their firms with better numbers, to particular partners of color, to expanded recruiting efforts and to “affinity groups? and “diversity coordinators? and a “diversity protocol.? None questioned the essential premise of the report, which is that numbers matter.

 

The report cards seem to be having an impact. Mr. Bruck said a second-year student at Stanford had recently turned down an offer from one firm “as soon as he saw that it got an F on our diversity report card.? Professor Dauber said the student, who is white and male, “is the poster boy for our effort.?

But the student did not get into Stanford by being stupid enough to pick a fight with a prominent law firm at the start of his career. He would not discuss the matter.

Shades of Dick Cheney…Fletcher shot Bambi!!

Monday, October 29th, 2007

The Ky. Post carried a story on Oct. 29th, that shows the ridiculous things that can come up in a campaign debate.  We appreciate the willingness of both candidates for Gov. to appear on so many debates around the state.
 

But the Governor has been trying to appeal to hunters and gun people by proving what a great hunter he is.  Steve Beshear has appeared in hunting gear on a tv commercial as he also wants to target this vote rich audience.
 

But everytime the Governor tries to claim he is a better hunter (he recently killed a wild turkey in Shelby County) he seems to step in doo doo. 
But Gov. Fletcher not being an attorney, just can’t leave well enough alone.  He keeps pushing Beshear claiming he is the better hunter, and in Mitch McConnell style he makes fund of Beshear for wearing a funny hat and hunting foxes.
 

Well the sleuths at the Ky. Post did some checking and they found out that Beshear has held hunting licenses for the last ten years and Fletcher has only held hunting licenses for five of the last ten years, but wait, this gets better.
 

The Post reported that Fletcher shot a seven month old baby deer in 2004.  Fletcher’s spokesman, Jason Keller, said, “the governor thought the deer he was aiming at was an adult doe.  He didn’t realize it was a yearling buck (without horns) until afterward.?
 

Once again Fletcher went into areas he should have avoided.  We rarely see a sharp doctor take on a sharp attorney in a debate without getting handed his head on a platter.
 

As terrible as it is to shoot Bambi it is still better than the practice of Vice President Chaney (one of my old classmates at Natrona County High School in Casper, Wyoming) who visits hunting ranches where they clip the wings of birds and then toss them out in front of the shotgun bearing “hunters?.  At least Bambi could run away.
 

 

UCLA School of Law, RAND Corp. form alliance for law and public policy

Monday, October 29th, 2007

Why aren’t Ky. Law Schools doing something like this?

Partnership begins with conference on transparency in civil justice system

By  Lauri Gavel   10/29/2007  http://www.newsroom.ucla.edu/portal/ucla/

The UCLA School of Law and the RAND Corp. have formed a strategic alliance to improve public policy through the marriage of rigorous policy analysis and outstanding legal scholarship. The partnership kicks off with a conference at the law school on Friday, Nov. 2, which will explore the potential costs and benefits of increased secrecy in the nation’s civil justice system.
 
Ronald M. George, chief justice of the California Supreme Court, and attorney Ken Feinberg, who oversaw payments made to victims of the Sept. 11 terrorist attacks, will be the highlighted speakers.
 
“We are thrilled to be joining with RAND, whose extensive policy analysis and expertise is unparalleled,” said Michael H. Schill, dean of the law school. “Together we will build on our capabilities and leverage UCLA School of Law’s tradition of deep legal and empirical research to find innovative ways for policymakers to further public policy.”
 
“We are delighted to bring the empirical work of RAND’s Institute for Civil Justice together with the academic resources of UCLA School of Law,” said Michael Rich, executive vice president of RAND. “The upcoming conference for leaders in the civil justice field is just the first product of what we expect will be a fruitful collaboration between RAND and UCLA School of Law.”
 
The daylong conference, sponsored by the law school and the RAND Institute for Civil Justice, a division of RAND, is titled “Transparency in the Civil Justice System” and will feature a series of panel discussions by leaders from the civil justice community. Panelists will discuss recent trends toward greater secrecy in the civil justice system and will explore whether the benefits of reduced transparency — including a reduction in litigation costs and less congestion in the courts — outweigh the move toward less public scrutiny.
 
George, who has served as chief justice since 1996, will deliver the keynote address, while Feinberg, who was special master of the September 11 Victim Compensation Fund and is managing partner and founder of The Feinberg Group, LLP, will present the opening remarks.
 
Panelists will include academics, leading attorneys from both the plaintiffs’ and defendants’ side of the bar, insurance industry leaders, and other experts from the civil justice system. Scheduled participants include Thomas V. Girardi (Girardi & Keese), Sheila Birnbaum (Skadden Arps), Richard Thomas (AIG) and the Honorable Terry J. Hatter (U.S. District Court, Central California), among others. Panel topics will include how transparency in the civil justice system affects mass settlements, the influence of private dispute resolution and confidentiality agreements, and how and whether public policies should increase transparency of the system.
 
For additional conference information, including a list of panelists, and to register for the event, please visit www.rand.org/events/2007/11/02/.
 
Founded in 1949, the UCLA School of Law is the youngest major law school in the nation and has established a tradition of innovation in its approach to teaching, research and scholarship. With approximately 100 faculty and 970 students, the school pioneered clinical teaching, is a leader in interdisciplinary research and training, and is at the forefront of efforts to link research to its effects on society and the legal profession.
 
The RAND Corp. is a nonprofit research organization providing objective analysis and effective solutions that address the challenges facing the public and private sectors around the world.
 
The RAND Institute for Civil Justice helps make the civil justice system more efficient and equitable by supplying government leaders, private decision-makers and the public with the results of objective, empirically based analytic research. For more information, visit www.rand.org/icj/.
 

PIKE COMMONWEALTH ATTORNEY SUES FOR DECLARATION OF RIGHTS CONCERNING EXECUTIVE BRANCH ETHICS COMMISSION ASSUMPTION OF AUTHORITY OVER PROSECUTORS

Monday, October 29th, 2007

Commonwealth Attorneys are fighting the attempt of the Executive Branch Ethics Commission to enlarge their jurisdiction to review the conduct of prosecutors.

LawReader Senior Editor Stan Billingsley – Oct. 29, 2007

Rickey L. Bartley, the Commonwealth Attorney for 35th. Judicial Circuit (Pike County) has filed a declaratory judgment action to seek a determination of the authority of the Executive Branch Ethics Commission (EBEC) to regulate the ethical conduct of Commonwealth Attorneys by applying the Executive Branch Code of Ethics.

In  Advisory Opinion 06-03 –  an opinion issued by the EBEC in April of 2006, the EBEC determined that they now have jurisdiction to regulate the ethical conduct of Commonwealth Attorneys by application of the Executive Branch Code of Ethics.

In  that Advisory Opinion the EBEC reasoned that their statutory authority found in KRS Chapter 11A covered Commonwealth Attorneys since they were “state officers? and that County Attorney were not subject to regulation by EBEC since they were “county officials? and counties had their own ethics review procedures.

In l993 the EBEC had issued an Advisory Opinion 93-7 which held that the EBEC did not have jurisdiction over Commonwealth Attorneys via the Executive Branch Code of Ethics.  Therefore the Opinion 06-03 overrules Opinion 93-7. 

In Advisory Opinion 93-7 issued in April of l997, the EBEC held that :

“In most of their duties, they are not accountable to the executive branch of state government. Therefore, it is our opinion that commonwealth’s and county attorneys are not subject to KRS Chapter 11A’s prohibitions against holding state contracts.?
 

Bartley joined all other Kentucky Commonwealth Attorneys as defendants in his lawsuit so that any ruling would protect their interests.

Bartley states in his complaint that the ruling in Opinion 06-03 conflicts with the ruling in 93-7 and conflicts with an opinion of the Attorney General issued November 28, 2005 the Attorney General Opinion 05-009 (see below) held that Chapter 11A and the Executive Branch Code of Ethics did not apply to Commonwealth and County Attorneys.

The five members of the Executive Branch Ethics Commission are appointed by the

Governor.  All five current members were appointed or reappointed by Gov. Ernie Fletcher. 

The Commission has recently instigated an investigation of an anonymous complaint filed against the Attorney General Greg Stumbo, in which it is alleged that he and two of his deputies may have violated the Executive Branch Code of Ethics by investigation Governor Ernie Fletcher for Merit System violations.

Previously this year, the EBEC issued a warning letter to the Attorney General that it would be a conflict of interest for him to participate in an investigation of Governor Fletcher at a time the Attorney General was himself a candidate for Governor in the Democratic Primary.   General Stumbo agreed to withdraw from direct participation in the Merit System investigation.  The Commission indicated that the basis for their letter to the Attorney General was based on the reasoning that the Executive Branch Code of Ethics forbade any state officer from using his office to incur a “private benefit?.

LawReader has previously noted that there is no statutory definition of the term “private benefit? as stated in the Code of Ethics, and no court has every ruled that running for office is a “private benefit? in violation of the Ethics Code.   The definition apparently being advanced by the EBEC is that “private benefit? is broad enough to cover the winning of an election.  Such a definition would mean that no state officer could ever rule on any issue if it involved someone whom the officer might run against in the future.

That definition would also allow a person being prosecuted by the Attorney General or a Commonwealth Attorney to have to withdraw from a prosecution if the subject of the prosecution merely filed for office to run against the prosecutor.  

Prosecutors are subject to KRS Chapter l5.733 which sets out procedures for the creation of  The Prosecutors Advisory Council. In that statute the council and the Attorney General are given the duties of monitoring conflicts of interest by prosecutors.  Further all prosecutors are licensed lawyers and are subject to the Rules of Conduct for Attorneys which are investigated and sanctioned by the Kentucky Bar Association.

One provision of Chapter 11A exempts any officials who have their own legislatively mandated Code of Ethics.  All prosecutors are by law subject to the Supreme Court Rules regarding the conduct of all attorneys.

See: KRS 11A.015 Agency exempt from chapter if law or administrative regulation creates its code of ethics.
An agency that is directed by statute to adopt a code of ethics shall be exempt from KRS Chapter 11A upon the effective date of an Act of the General Assembly creating the agency’s code of ethics or upon the effective date of an administrative regulation that creates the agency’s code of ethics.
  The EBEC advisory opinions do not explain how KRS 11A.015 does not apply to prosecutors including the Attorney General.

The Bartley lawsuit says that the EBEC, is :

“…Attempting to rewrite the statute which must be done by a legislative body not a legislatively created agency.? 

The lawsuit points out that:

“…KRS Chapter 11A …does not list Commonwealth’s Attorneys as covered entities.?

“The Commission is attempting to enlarge the scope of its function beyond the specific language of KRS 11A contrary to law.?

Barley requests that the reviewing court:

 “…declare that Executive Branch Ethics Commission Advisory Opinion 06-03 be declared void and that the Executive Branch Ethics Commission be estopped and restrained from enforcing it…?.

The following Attorney General’s Opinion does not have the force of law inherent in a statute of a court decision, but it is equal in status with an Advisory Opinion of the Executive Branch Ethics Commission.

See OAG 05-009:

OAG 05-009
 

November 28, 2005

Subject:                       Whether Commonwealth’s Attorneys are covered by the provisions of KRS 11A

Requested by:              Hon. Linda Tally Smith, Commonwealth’s Attorney, 54th Judicial Circuit, President of the Commonwealth’s Attorneys Association

Written by:                  Janet M. Graham

                                    Assistant Deputy Attorney General

Syllabus:                      Commonwealth’s Attorneys are not covered by the provisions of KRS 11A.

Statutes construed:     KRS 11A et seq.

Opinion of the Attorney General
In 1993, the Executive Branch Ethics Commission (the “Commission?) issued Advisory Opinion 93-7 that held that Commonwealth’s Attorneys are not subject to the provisions of KRS 11A.  In this opinion, the Commission stated, “[A]s elected officials under the state constitution, neither Commonwealth nor County Attorneys are deemed employees or public servants of the executive branch.?

In the spring of 2005, the Commission gave notice that it proposed to reverse this prior opinion and adopt draft Ethics Advisory Opinion 05-03.  This draft advisory opinion states that Commonwealth’s Attorneys are subject to the provisions of KRS Chapter 11A.  A group of Commonwealth’s Attorneys met with the Commission staff and the full Commission to discuss the issues surrounding the reversal of the prior opinion. On March 29, 2005, Commonwealth’s Attorney Linda Tally Smith requested an Attorney General’s opinion regarding the following two questions:

1.      Whether Commonwealth’s Attorneys are Executive Branch employees that should be subject to the provisions of KRS Chapter 11A; and

2.      Whether the jurisdiction of the Executive Branch Ethics Commission extends to entities such as Commonwealth’s Attorneys that are not specifically named in KRS Chapter 11A.

During the meeting with the full Commission, the Commission members expressed an interest in receiving the Attorney General’s opinion on these issues prior to final agency action on this matter. 
 

In order to answer both of the questions posed, it is necessary to determine the General Assembly’s intent regarding whether Commonwealth’s Attorneys are covered by the provisions of KRS 11A.  Determining the legislative intent involves an examination of applicable statutes in conjunction with applying traditional rules of statutory construction.  

The requirements of KRS 11A are imposed upon “officers? and “public servants? in the executive branch of state government.[1]  KRS 11A.010 provides an exhaustive list of who are considered officers and public servants.  Nowhere are Commonwealth’s Attorneys mentioned.  If the General Assembly meant to include Commonwealth’s Attorneys in this list of covered officers, it clearly could have done so.  The fact that it did not evidences an intent that Commonwealth’s Attorneys are not covered. 

There is a longstanding rule of statutory construction that provides that the enumeration of particular items excludes other items that are not specifically mentioned.  See Commonwealth of Kentucky Board of Claims v. Harris, 59 S.W.3d 896 (Ky. 2001).  According to Kentucky’s highest court, “Logic and experience developed the maxim expressio unius est exclusion alterius,–‘The enumeration of particular things excludes the idea of something else not mentioned.’ This is a primary rule of statutory construction.?  Bloemer v. Turner, 137 S.W.2d 387, 390 (Ky. 1939) quoting Hughes v. Wallace, 118 S.W. 324 (Ky. 1909).  By specifically naming a long list of persons who are covered by 11A but excluding Commonwealth’s Attorneys from this list, the General Assembly clearly did not intend these provisions to apply to Commonwealth’s Attorneys.

Moreover, by attempting to include Commonwealth’s Attorneys under KRS 11A.010, the Commission would, in effect, have to rewrite the statute to include them.  This is something not even a Court is empowered to do.  A Court “is not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used.?  City of Covington v. Kenton County, 149 S.W.3d 358 (Ky. 2004) (emphasis added).  The statute is plain on its face and does not list Commonwealth’s Attorneys as covered entities under the statute. 

Also, the addition of language to a statute is particularly improper if it expands the power of an administrative agency.  The Executive Branch Ethics Commission is an administrative agency with certain enumerated powers. As with any administrative agency, the legislature has delegated discrete and specific powers to the Commission and has withheld powers that it did not wish to delegate. An administrative agency cannot amend, alter or enlarge the terms of a legislative enactment. See Roppel v. Shearer, 321 S.W.2d 36 (Ky. 1959).  By attempting to cover Commonwealth’s Attorneys within the Executive Branch Ethics Code, the Commission would be attempting to enlarge the scope of its enabling statute.

There is longstanding authority in Kentucky that courts will strictly construe the authority granted to administrative agencies as expressed in their enabling statutes.  “Administrative agencies are creatures of statute, and as such the statute must warrant any exercise of authority which they claim.?  Curtis v. Belden Electronic Wire & Cable, 760 S.W.2d 97, 99 (Ky. App. 1988).   “Any doubts concerning the existence or extent of an administrative agency’s power should be resolved against the agency.?  United Sign, Ltd. v. Commonwealth, 44 S.W.3d 794, 798 (Ky. App. 2000). 

In Custard Insurance Adjusters v. Aldridge, 57 S.W. 3d 284 (Ky. 2001), the Kentucky Supreme Court adjudicated a case involving the jurisdiction of another administrative agency, the Department of Workers Claims.  The question presented to the Court was whether the Department of Workers Claims properly exercised jurisdiction in a case involving a resident of Indiana that was injured while working in Kentucky. Id. at 285-286.  In holding that the Department did not have jurisdiction, the Court noted, “The jurisdiction of an administrative agency extends only to those matters that are delegated to it by the legislature.?  Id. at 287.

Moreover, another factor weighing against KRS 11A’s application to Commonwealth’s Attorneys is the fact that the legislature provided for specific direction regarding conflicts of interest and ethical considerations in KRS Chapter 15.  In contrast, the more general provisions in KRS 11A, which relate to all executive branch employees, are inapplicable to the specific prosecutorial duties of Commonwealth’s Attorneys.  It is a longstanding rule of statutory construction that “[a] specific statute controls over a more general statute.?  Commonwealth Board of Examiners of Psychology v. Funk, 84 S.W.3d 92 (Ky. 2002).

 When it enacted KRS 15.700 et seq., the General Assembly built safeguards into the prosecutorial system both in its administrative framework and its specific statutes directed toward conflict of interest situations.  KRS Chapter 15 establishes the Unified Prosecutorial System (“UPS?), comprised of independently elected Commonwealth’s Attorneys and County Attorneys and their staffs. The administration of the UPS system is handled by the Prosecutors Advisory Council and its staff.  KRS 15.705.  The Prosecutors Advisory Council consists of nine members, eight of whom are appointed by the Governor.  The members are: the Attorney General, three (3) Commonwealth’s Attorneys, three (3) County Attorneys and two (2) citizen members.  KRS 15.705 (2).  The Attorney General serves as Chairman of the Council and is denominated the “chief prosecutor? of the Commonwealth. The Unified Prosecutorial System was created “to encourage cooperation among law enforcement offices and to provide for the general supervision of criminal justice throughout the Commonwealth.?  KRS 15.700. 

In addition to the protections created by the involvement of the Prosecutors Advisory Council and the Attorney General, the General Assembly also enacted a detailed and intricate system to deal with potential conflicts of interest that may confront prosecutors in their handling of criminal cases. Specifically, KRS 15 provides detailed guidelines on how prosecutors, the Prosecutors Advisory Council and the Attorney General are to address these ethical issues.  First, KRS 15.733 provides a series of criteria that mandate when a prosecutor must disqualify himself/herself from prosecuting a case on the basis of a conflict of interest.[2]  Among these mandatory disqualifications are when the prosecutor, his spouse or his immediate family has a financial interest in the proceeding, is an officer, director or trustee of a party to the proceeding or has an interest that could be substantially affected.  If the prosecutor is disqualified, the Attorney General appoints a special prosecutor to handle the proceeding.  KRS 15.733(4).  Additionally, if the prosecutor fails to disqualify himself, there is still another safeguard built into the statutory scheme.  If the Prosecutors Advisory Council believes that a prosecutor has a conflict of interest, the Council may itself disqualify the prosecutor and authorize the Attorney General to supersede him for the purpose of prosecuting criminal cases.  KRS 15.715(1).[3].
  In addition to the powers denominated above, the Prosecutors Advisory Council has the power to hold hearings on any matters within its jurisdiction, including any prosecutorial ethics issues that it chooses to address.  KRS 15.707 grants the Council the authority to issue subpoenas and require the attendance of witnesses and the production of such records for investigation of any matter reasonably necessary.  The subpoenas may be signed and oaths administered by any member of the Council.  KRS 15.707.[4]  Thus, KRS 15 contains specific statutory directives regarding ethical consideration related to prosecutorial practice. 

For the reasons outlined above, Commonwealth’s Attorneys are not subject to the provisions of KRS 11A or the jurisdiction of the Executive Branch Ethics Commission.

                                                            Gregory D. Stumbo

                                                            Attorney General

                                                            Janet M. Graham

                                                            Assistant Deputy Attorney General       

#229




 

[1]. 11A.010 (7) “Officer” means all major management personnel in the executive branch of state government, including the secretary of the cabinet, the Governor’s chief executive officers, cabinet secretaries, deputy cabinet secretaries, general counsels, commissioners, deputy commissioners, principal assistants, division directors, members and full-time chief administrative officers of the Parole Board, Board of Tax Appeals, Board of Claims, Kentucky Retirement Systems board of trustees, Public Service Commission, Worker’s Compensation Board and its administrative law judges, the Occupational Safety and Health Review Commission, the Kentucky Board of Education, the Council on Postsecondary Education, and any person who holds a personal service contract to perform on a full-time basis for a period of time not less than six (6) months a function of any position listed in this subsection; 11A.010 (9) “Public servant” means:
(a) The Governor;
(b) The Lieutenant Governor;
(c) The Secretary of State;
(d) The Attorney General;
(e) The Treasurer;
(f) The Commissioner of Agriculture;
(g) The Auditor of Public Accounts; and
(h) All employees in the executive branch including officers as defined in subsection (7) of this section and merit employees;
  

[2]. § 15.733 Disqualification of prosecuting attorney — Appointment of a special prosecutor.
(1) For the purposes of this section the following words or phrases shall have the meaning indicated:
(a) “Proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
(b) “Fiduciary” includes such relationships as executor, administrator, conservator, trustee, and guardian;
(c) “Financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
1. Ownership in a mutual or common investment fund that holds securities, or a proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, or ownership of government securities is a “financial interest” only if the outcome of the proceeding could substantially affect the value of the interest;
2. An office in an educational, religious, charitable, fraternal, or civil organization is not a “financial interest” in securities held by the organization. 
(2) Any prosecuting attorney shall disqualify himself in any proceeding in which he or his spouse, or a member of his immediate family either individually or as a fiduciary:
(a) Is a party to the proceeding, or an officer, director, or trustee of a party;
(b) Is acting as a lawyer in the proceeding;
(c) Is known by the prosecuting attorney to have an interest that could be substantially affected by the outcome of the proceeding;
(d) Is to the prosecuting attorney’s knowledge likely to be a material witness in the proceeding;
(e) Has served in private practice or government service, other than as a prosecuting attorney, as a lawyer or rendered a legal opinion in the matter in controversy;
(f) Has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.
(3) Any prosecuting attorney may be disqualified by the court in which the proceeding is presently pending, upon a showing of actual prejudice.
(4) In the event that a prosecuting attorney is disqualified, he shall certify such fact in writing to the Attorney General who may direct another Commonwealth’s attorney or county attorney or an assistant attorney general as a special prosecutor to represent the Commonwealth in that proceeding.
[3]. 15.715 Intervention in criminal prosecutions by Attorney General — Prosecution of complaint against local prosecutor — Performance of duties of local prosecutor until vacancy filled.
(1) In the event of the incapacity, refusal without sufficient grounds, inability, conflict of interest of the local prosecutor, or his failure to act in a certain case or cases, the council may authorize, by the vote of no less than five (5) of its members, the Attorney General to initiate, intervene, or supersede a local prosecutor for the purpose of prosecuting the criminal business in question of the Commonwealth in that circuit or district after due notice having been given to the local prosecutor.
(2) When the Attorney General shall proceed under subsection (1) of this section, he shall petition the Circuit Court of that circuit to disqualify the county attorney or Commonwealth’s attorney for good cause shown, when the county attorney or Commonwealth’s attorney refuses to disqualify himself. The action of the Circuit Court shall be subject to review according to the Rules of the Supreme Court.
(3) If the Attorney General’s petition to disqualify the local prosecutor was sustained by the Circuit Court, the Attorney General shall file and prosecute a complaint against the local prosecutor pursuant to KRS 61.120.
[4]. 15.707 Subpoena power of Prosecutors Advisory Council.
The Prosecutors Advisory Council shall have the power to issue subpoenas requiring the attendance of such witnesses and the production of such records, books, papers, and documents as it may deem necessary for investigation of any matter that it is authorized to consider or reasonably necessary therefor. Subpoenas may be signed and oaths administered by any member of the council. Subpoenas so issued shall be served by any sheriff, constable, police officer, or other peace officer at the request of the council, and a return of subpoena shall be made to the council in the same manner as similar process in the Circuit Court. Any person who refuses to testify, testifies falsely, or fails to appear when subpoenaed, or fails or refuses to produce documents, records, or other such material when subpoenaed, or fails or refuses to serve a subpoena or execute a return thereon, upon citation by the Franklin Circuit Court and after hearing by the court, shall be subject to the same order and penalties to which persons before that court are subject. Any Circuit Court, upon application of the council or the Attorney General, may compel the attendance of witnesses, the production of documents, records, or other such material, and the giving of testimony before the council.  (Enact. Acts 1990, ch. 419, § 3, effective April 10, 1990.)
  

Supreme Court to Hear Exxon Valdez Punitive Damages Award

Monday, October 29th, 2007

WASHINGTON -(Dow Jones)- The U.S. Supreme Court Monday extended its examination of punitive damages against corporations by taking up a $2.5 billion award against Exxon Mobil Corp. (XOM) over the 1989 Valdez oil spill in Alaska.Although the lawsuit turns on the narrow field of federal maritime law, the appeal presents both the chance for the oil giant to reduce or overturn the award and for the justices to put a finer point on how courts reach financial figures in punitive damages cases.

The punitive award against the oil giant is the largest ever levied in a U.S. federal court proceeding and is the final major litigation left from the Valdez oil spill. It stems from class-action litigation brought by Alaska fishermen and others seeking compensation for lost business due to the oil spill. Exxon Mobil has separately paid more than $3.4 billion in claims and fines relating to the spill, which dumped 258,000 barrels of oil into the Prince William Sound after the Valdez oil tanker ran aground.

Exxon Mobil’s appeal, supported by numerous business groups, challenges the award with several legal arguments. Among other things, the company argued a federal appeals court ignored both recent punitive damages precedent and improperly allowed the damages award under maritime law.

In recent years the Supreme Court has put restrictions on the size of punitive damages awards and limited the use of awards to punish broader conduct outside the scope of a particular case.

In granting the appeal, the court was careful to note it was limiting its review to how punitive damages should be handled under maritime law.

Exxon Mobil, in its appeal, argued its case has broader implications.

“This record punitive award unquestionably raises important issues of constitutional dimension,” the company said. Exxon Mobil argued the $2.5 billion punitive damages award was excessively large when compared with $500 million in actual damages awarded in the case.

Attorneys for the plaintiffs said the award covers 32,677 claimants and grants them reasonable damages from the spill. “The jury awarded punitive damages proportionate to the harm,” the attorneys said. “None of Exxon’s arguments for further review has force.”

Plaintiffs in the case include fishermen, cannery workers, property owners and other businesses in the Prince William Sound area.

The trial in this case began in 1994 and resulted in a $5 billion award against the oil company. The 9th U.S. Circuit Court of Appeals in San Francisco first ruled in the case in 2001 when it upheld damages against Exxon Mobil but ordered the trial court to reduce the award. A second appeal to the Ninth Circuit was decided in 2006 that upheld the $2.5 billion punitive damages figure.

The case is Exxon Shipping Co. and Exxon Mobil Corp. v. Baker, 07-219. Oral arguments will be held in early 2008 and a decision will be released by July, 2008.

Justice Samuel Alito recused himself from the appeal but did not give a reason for doing so.

Appeals Court Shuffle Shields FBI Tactics Post 9-11

Monday, October 29th, 2007

It sounded good: Egyptian student helps 9-11 hijackers with airplane radio. Too good, in fact, because Abdallah Higazy is suing an FBI agent because of a coerced a confession in the wake of the 9-11 attack. And the 2nd Circuit Court of Appeals has muddied things by withdrawing its original decision allowing Higazy’s suit to move forward.

 

In the substitute opinion, it has redacted Higazy’s testimony about the forced confession.

Higazy, who had arrived in the States on 27 August 2001 to study computer science at Polytechnic University in Brooklyn, escaped from his room at the Millennium Hotel on 9-11-2001 with only his student ID and cash. He was arrested in December 2001 after an ex-cop-turned-security-guard (falsely) claimed to have found an aviation radio and Egyptian passport in Higazy’s hotel room.

 

The FBI believed the security guard, not Higazy, and put him in the same maximum security jail as Zacarias Moussaoui. In January 2002, the FBI charged Higazy with “making false statements” after his interrogation with Agent Templeton, even though he did not sign a confession; the court denied bail. Higazy was released two days after “a private pilot who was staying one floor below Higazy at the Millennium on Sept. 11, returned to the hotel looking for his aviation radio.”

 

But the story does not end here. The original Court decision provided online (pdf) included this language:

 

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny? and would “make sure that Egyptian security gives [his] family hell.? Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.?

Higazy later said, “I knew that I couldn’t prove my innocence, and I knew that my family was in danger.? He explained that “[t]he only thing that went through my head was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.?

 

The District Court had dismissed Higazy’s claims because “Templeton’s conduct and threats as a matter of law cannot be classified as conscience-shocking or constitutionally oppressive.”

 

The second version of the decision redacted the section that obscures these claims about the FBI agent’s actions, because, the Court writes, “[f]or the purposes of the summary judgment motion, Templeton did not contest that Higazy’s statements were coerced.” However, the original decision acknowledges this, almost verbatim, on page 16.

Two bloggers broke the story about the Appeals Court Shuffle on the publicly-accessible decision. There has been little MSM coverage; apparently we have 9-11 burnout. Or torture burnout. Or something. The one exception is the WaPo:

 

The fresh details about his interrogation in December 2001 illustrate how an innocent man can be persuaded to confess to a crime that he did not commit, and the lengths to which the FBI was willing to go in its terrorism-related investigations after the Sept. 11 attacks.

Experts and officials have argued for the past six years about the limits of interrogation techniques and the reliability of what detainees say when they are questioned aggressively. To Higazy’s attorneys and other lawyers who work on terrorism-detainee matters, his experience provides some answers.

“What would it take for an entirely innocent person to confess to participation in one of the most egregious crimes in U.S. history?” asked lawyer Jonathan Abady. “People don’t do that voluntarily. . . . It’s clear that there was significant coercion brought to bear here.”

But what is amazing to me is this: MSNBC ran a story in September of this year which says much the same thing as the redacted opinion. “[Higazy] stuck to the truth, he said, until an FBI agent made veiled threats against his family in Egypt.”

 

So what is it, exactly, about the nature of the specific claims that is “under seal” (ie, “secret”)? Don’t know.

 

The Court says it was its decision and that the decision was not made at the behest of the Justice Department.

 

The Court made it clear that the FBI erred, procedurally: “On January 11, 2002, it was clearly established that the FBI could not coerce a confession and later use that confession in a criminal case, including in a proceeding before a judge after criminal charges had been filed, to impose the penalty of continued detention.” I’m not sure why this decision means Higazy can sue Agent Templeton; to me, it looks like he should be able to sue the FBI itself.

 

This appeals court decision reinstates Higazy’s case (a $20 million lawsuit filed about a year after the fiasco) against Agent Templeton. From The Jurist:

 

Higazy was arrested on the suspicion that he was staying in a hotel across from the World Trade Center on September 11 with a ground-to-air radio capable of guiding the planes into the towers. After five hours of post-polygraph questioning from Templeton, Higazy confessed to owning the radio. This admission – at the time tantamount to being a conspirator in the 9/11 attacks – was then used against Higazy at two subsequent bail hearings: the first to detain him as a material witness, and the second as part of the government’s criminal case against him for lying to federal investigators. After more than a month in solitary confinement fearing a trial on his role in the 9/11 attacks, all charges were dropped against Mr. Higazy when the owner of the radio, a pilot from Ohio, came forward and requested it back.

 

The Court wrote:

 

On January 11, 2002, it was clearly established that the FBI could not coerce a confession and later use that confession in a criminal case, including in a proceeding before a judge after criminal charges had been filed, to impose the penalty of continued detention. The government argues that there was conflicting Supreme Court law as to whether a Fifth Amendment right against self-incrimination was only a trial right, or extended more broadly. We disagree.

 

Oh. In case you, like me, are tuning into this story for the first time: the ex-cop-turned-security-guard was sentenced to six months of weekends in jail and three years probation.

 

Are news organizations really so jaded about how our government treats the accused as their response to this story attests?

 

Bond Funds Will Suffer if Supreme Court Voids Ky. Law

Monday, October 29th, 2007

 

By Greg Stohr and Jeremy R. Cooke 

 

Oct. 29, 2007 – (Bloomberg) — Municipal-bond investors may be owed billions of dollars, and bond funds holding $155 billion rendered obsolete, as the result of a U.S. Supreme Court fight over state tax powers.

And that might be just the beginning of upheavals in the $2.5 trillion market in debt issued by state and local governments to pay for schools, roads, sewers and other civic works.

The justices hear arguments Nov. 5 on whether Kentucky violates the Constitution by taxing income earned on out-of- state bonds while exempting interest on ones issued by its own cities, school districts and other debt-issuing authorities. Barring such preferential treatment would force 42 states, including New York and California, to either tax their own bonds or give identical breaks to out-of-state bonds.

“It would result in a substantial reconfiguration of the municipal-bond market,” says Gerard J. Lian, executive director of the Morgan Stanley/Van Kampen tax-exempt mutual fund group, which manages $15.8 billion. In a career spanning more than two decades in the business, “it would rank up there as the biggest event that I can remember,” he says.

A ruling against Kentucky would let holders of out-of-state bonds demand billions of dollars in tax refunds, according to a brief filed by the other 49 states. New York alone would face $200 million in claims. The court will rule by July.

The securities industry and the states are fighting to preserve the current system, making the potential repercussions a central part of their argument.

Instability and Uncertainty

Nuveen Investments Inc., the largest U.S. closed-end fund company, says banning in-state preferences might cause “serious dislocation” in both markets and government activities. The Securities Industry and Financial Markets Association, which represents the industry in Washington, says such a ruling would usher in a period of “instability and price uncertainty.”

Eric Brunstad, who will argue on behalf of two Kentucky taxpayers, says those predictions are exaggerated and that any changes in the marketplace would benefit investors. A victory for his side, he says, would undermine the attraction of the 481 single-state bond funds, which held $155 billion as of 2006; investors, no longer influenced by the state tax advantages, would then gravitate toward more cost-efficient and diverse national funds.

“It’s just not a good idea to have all of your bond investments in a single state like California,” says Brunstad, a partner at Bingham McCutcheon in Hartford, Connecticut.

The Kentucky taxpayers have the support of a group of economists that includes R. Glenn Hubbard, formerly President George W. Bush’s top economic adviser and now dean of Columbia University’s graduate business school in New York.

`Utterly Anachronistic’

The current system is “completely and utterly anachronistic,” says another member of that group, Alan D. Viard, a scholar at the American Enterprise Institute in Washington. “We live in an era when Treasury-bond money and corporate-bond money flows freely across national boundaries, but we have municipal-bond money trapped inside state lines.”

The disputed practice dates back to 1919, when New York’s first income tax law exempted in-state municipal bonds. Today, all 42 states that tax municipal-bond interest give at least some preferential treatment to their own securities.

The system has given small issuers a ready market. Almost half the 2002 new long-term issues were for less than $1 million, according to the Internal Revenue Service. Single-state funds, eager to diversify, have snapped up local offerings.

“If you lost your single-state funds, that would reduce market access for small issues,” Lian says.

Dormant Commerce

The Supreme Court case affects only state tax laws, not the federal exemption on municipal bonds. The legal question involves the so-called dormant commerce clause, a judge-created rule that bars states from discriminating against out-of-state business without authorization from Congress. The Kentucky Court of Appeals concluded last year that the state was violating that principle.

In April the Supreme Court limited the scope of the dormant commerce clause in a 6-3 decision that let two New York counties direct trash to designated, publicly owned facilities.

Writing for the majority in that case, United Haulers Association v. Oneida-Herkimer, Chief Justice John Roberts said the court should be deferential when states act to help out government entities, as opposed to private business.

`Legitimate Goals’

“It does not make sense to regard laws favoring local government and laws favoring private industry with equal skepticism,” Roberts wrote. Laws that help local government “may be directed toward any number of legitimate goals unrelated to protectionism.”

Some legal experts say that reasoning may foreshadow a victory for Kentucky and the current bond-taxing system.

“Until United Haulers, there was no serious argument that Kentucky’s scheme was constitutional,” says Walter Hellerstein, a tax law expert who teaches at the University of Georgia Law School in Athens and opposes the in-state preference. He says the court may uphold Kentucky’s system to avoid unsettling financial markets.

The tax exemptions let issuers in high-tax states, including California and New York, sell bonds with relatively low borrowing costs. Twenty-year California general obligation bonds, on average, yield 11 basis points less than generic general purpose bonds rated A+, the same ranking as the state, according to data compiled by Bloomberg.

New York and Illinois

Bonds sold by New York’s state and local governments yield 8 basis points less than those for Illinois, where most municipal debt is subject to state tax, according to Lehman Brothers Holdings Inc. indexes. A 10 basis-point difference equals about $1,000 a year on a $1 million investment.

Those spreads are “not enormous, but they’re significant,” says Chris Mier, managing director and municipal strategist at Loop Capital Markets LLC in Chicago. “That’s real money on a large issue.”

Kansas Supreme Court rules – sperm donor does not acquire parental rights unless there is a written agreement with a child’s mother.

Saturday, October 27th, 2007

By Michael Hooper The Capital-Journal, October 26, 2007

The Kansas Supreme Court ruled 4-2 today that a known sperm donor doesn’t acquire parental rights unless there is a written agreement with a child’s mother.

The decision affirming the donor law’s constitutionality was the first of its kind in the nation, arising out of lawsuits involving Samantha Harrington, who conceived twins with sperm donated by Daryl Hendrix.

The mother and the donor, both of Topeka, disagreed on whether they had entered into an oral agreement giving parental rights to the donor. They also disagreed on whether certain documents constituted a written agreement.

Justice Carol A. Beier authored the opinion for the four-person majority, holding the law’s requirement of a written agreement constitutional under both state and federal due process and equal protection provisions.

“All that is constitutional is not necessarily wise,? she wrote. “We are mindful of, and moved by, advocacy for public policy to maximize the chance of the availability of two parents — and two parents’ resources — to Kansas children. We are also aware of continued evolution in regulation of artificial insemination in this and other countries.

“However, weighing of the interests of all involved in these procedures as well as the public policies that are furthered by favoring one or another in certain circumstances is the charge of the Kansas Legislature, not of this court.?

A separate opinion was filed by Chief Justice Kay McFarland, who said the provision requiring written agreement “appears to be aimed at protecting both parties from unwanted duties and/or obligations being imposed without their consent in the very limited factual situation to which it applies.?

Separate dissents were written by Court of Appeals Judges Nancy L. Caplinger and by Stephen D. Hill, who sat on the Supreme Court for this assignment.

Caplinger would have found the law unconstitutional because the donor had a fundamental right to parent and the law’s requirement of a written agreement resulted in a passive waiver of that right.

“Therein lies the constitutional problem,? she said. “Fundamental rights must be actively waived, rather than passively lost to inaction.?

Judge Hill agreed the law was unconstitutional when applied to a known sperm donor. He also questioned whether the best interest of children born as a result of artificial insemination were being served by the statutory design.

The vote on today’s decision was 4-2 with former Justice Donald L. Allegrucci and current Justices Lawton R. Nuss, Marla J. Luckert and Eric Rosen not participating. In addition to Court of Appeals Judges Caplinger and Hill, former Justice Tyler C. Lockett participated in the decision.

Justices Lockett and Robert E. Davis voted with the majority.

“I’m numb,” Hendrix said after hearing the decision. “I’m in disbelief.”

Hendrix has only seen the twins once when they were born, on May 18, 2005, but has never been allowed to hug them.

Hendrix said he would be talking with legal counsel about whether to appeal the case to a higher court.

Attempts to reach Harrington were unsuccessful this morning.

CATTIE LOU MILLER GIVES WORD OF ADVICE TO ANYONE RUNNING FOR GOVERNOR.

Friday, October 26th, 2007

October 26, 2007 –

LawReader will publish a feature article near the end of November directed to the new Governor-elect.  We have invited former aides to past Ky. Governor’s to provide their advice to the new governor on steps he should take in sitting up his office, dealing with the media, dealing with the legislature, selecting a staff etc..  We are excited about the number of former aides of both political parties who have agreed to participate in this project.

We must comment on the wisdom of Cattie Lou Miller who was a top aide to several governors.   She will be contributing to this project by submission of her thoughts, but her first response to our invitation was priceless.  She said she would have one word of advice for anyone planning to be Governor.  That word was “Don’t!?

Cattie Lou is now retired in living in Horse Case, Kentucky. 

SUPREME COURT LIVE WEBCAST OF ORAL ARGUMENTS A SUCCESS

Friday, October 26th, 2007

We have taken the opportunity provided by the Sup. Ct. to watch oral arguments over a three day period.  This effort was extremely informative and we must say interesting. We look forward to future webcasts of the Ct. of Appeals Oral Arguments.

We believe these live webcasts will provide valuable training for those lawyers who have never argued a case before an appellate court.  By studying the questions of the Justices and the presentation of the attorneys, one gains valuable insight into the techniques for oral arguments.

 

We appreciate this project approved by the Chief Justice and managed by the Univ. of Ky. College of Law.  We want more of this!!!

 

LawReader will continue to post dates of future webcasts.

Senate Confirmation Hearings Begin for Amul Thapar for a Federal Judgeship in Ky. There are some questions that should be asked…

Thursday, October 25th, 2007

Yesterday October 24th.  the U.S. Senate held the first of at last two confirmation hearings for Amul Thapar, the current U.S. Attorney for the Eastern Dist. of Kentucky. The next hearing will be an opportunity for questioning of Thapar which may be troubling for Mr. Thapar to answer.

The procedure for the recommendation of a candidate for appointment as a Federal Judge is for a U.S. Senator of the nominee’s home state to send their approval to the White House. This is a tradition and not a mandatory procedural rule. Sen. McConnell and Sen. Bunning both have supported the Thapar nomination.

At yesterdays congenial meet and greet, Thapar was warmly introduced with glowing recommendations by Sen. McConnell and Sen. Bunning.  Sen. McConnell praised the qualifications of Thapar for the judicial position.

The next step in the appointment process is for the Senate Judiciary Committee to investigate the candidate, ask him questions, and then vote in the Committee to send the nomination to the whole Senate with their approval, to disapprove the nomination, or to pass the appointment to the whole Senate with no recommendation. 

We must assume that Mr. Thapar is a very talented lawyer.  Still his nomination on that basis alone doesn’t fly all that well.  Kentucky is full of attorneys who are just as highly qualified. There are graduates of the Univ. of Kentucky College of Law, the Univ. of Louisville College of Law, and Chase Law School, that are equally attractive candidates for this judicial position.  Why Sen. McConnell went to Ohio to find a nominee for Kentucky is a puzzler.  Sure we know that Mr. Thapar, who worked for a Cincinnati Law Firm, maintained a residence in Northern Kentucky.  So technically he is a resident.  And since he was appointed U.S. Attorney in Ky. he has now actually worked here for a year or so.  But why were so many talented Kentucky lawyers bypassed?

One might expect that the Judiciary Committee has a few questions to ask of Mr. Thapar that would seem to be important. They might want to start with these questions which seem obvious:

1.      With your background being mainly from Ohio and Washington, D.C. , and your presence is Kentucky seemingly very weak, do you believe that you will be able to understand the Kentuckians whom will come before your court?

2.      You served as a member of an advisory committee for Attorney General Alberto Gonzalez, and you have publicly offered your support for Gonzalez.                         Does this mean that you support the firing of U.S. attorneys because they weren’t active enough in prosecution Democrats?                                                     

3.       Did you have any part in the attempt by  the attorney general to fire other U.S. Attorneys?      

4.      When the firing plan was exposed did you offer any advice to the Attorney General regarding his plan?  If so what was that advice?

5.      When you were sworn in as a U.S. Attorney, you were quoted as telling the press that “Nobody was above the law.?  The Ky. Attorney General’s Office made available to you over 100,000 pages of documents concerning the Merit System investigation of the Fletcher Administration.  Your Justice Department prosecuted an aide to the Democratic Mayor of Chicago, and obtained a conviction and prison sentence, for doing virtually the same things for which 27 people in the Fletcher administration, including the Gov. himself, were indicted.   Many of the offenses of the Fletcher Administration involved programs which expend federal funds, thereby giving the U.S. Justice Department jurisdiction to investigate and prosecute violations of state Merit System or state Civil Service laws. Why hasn’t your office taken any action in almost a year against the Fletcher administration regarding the Merit System violations? 

6.. This case feel squarely within your jurisdiction as U.S. Attorney.  Time Magazine has called into question the practices of the Justice Department in tolerating the political influence of Carl Rove and other White House officials in Federal investigations and prosecutions.  The allegations that abound about the Justice Department involve claims that U.S. Attorneys were encouraged to prosecute Democrats and to ignore similar offenses committed by Republicans.   What stand have you taken on that practice within the Justice Cabinet?  What actions have you taken to at least review the 100,000 pages of documents made available to your office?

7.. What have you done to cooperate with the White House or other political sources to cover up the alleged wrongs of the Fletcher Administration? 

8.. Have you had any communications with Sen. McConnell or the White House concerning the issues surrounding the Fletcher Administration investigation? If so, what did those communications concern?

 

LawReader news article from May of 2007:

The top federal prosecutor for Eastern Kentucky has been nominated to fill a vacancy on the federal bench.

President Bush on May 24th. nominated U.S. Attorney Amul Thapar to fill the vacancy in the U.S. District Court for the Eastern District of Kentucky when Chief U.S. District Judge Joseph Hood retires in October.
Before his current post, Thapar was an assistant U.S. attorney in the Southern District of Ohio, where he focused on financial crimes, including mortgage fraud.

Thapar now living in Edgewood, Ky.  also worked as an assistant U.S. attorney for the District of Columbia. He has worked in private practice in Cincinnati and Washington, D.C. Thapar is a graduate of Boston College and the University of California.
The nomination was announced by Sen. Mitch McConnell, R-Kentucky, yesterday.
This nomination must be approved by the U.S. Senate.  Now that the Democrats control the Senate it remains to be seen if he can obtain approval. Thapur recently publically offered his support of Attorney General Gonzales.  Members of both parties have called for the resignation of Gonzales over his involvement in the firing of eight U.S. Attorneys and other issues relating to his operation of the Justice Department.
Another issue which might resonate with the Democratic majority in the Senate is the failure of Thapar to pursue the Merit System scandal in Frankfort.  Thapar was sent the records of the Gov. Ernie Fletcher investigation by the Franklin County Grand Jury over six months ago.  When he was appointed during the height of the investigation of Gov. Fletcher, Thapur said that “no official was above the law?. 
The Justice Dept. actively prosecuted an aide to the Democratic Mayor of Chicago for similar civil service violations in 2006.  The charges prosecuted in Illinois resulted in a prison sentence for the Mayors aide. 
In Kentucky, the Justice Department has given no indication of any potential action against Fletcher or others who were indicted in state court.  Fletcher pardoned all of the persons indicated in the scandal.  The law allows prosecution in Federal Court for civil service violations which involve offices that receive Federal funds, and this would include most of the offices involved in the scandal described by Gov. Fletcher as a prosecution for “Noodling? of fish.
 
 

Kentucky Jury Verdicts Posted – See partial listing of October jury verdicts.

Thursday, October 25th, 2007

The October issue of Kentucky Trial Verdicts by Shannon Ragland of Jury Verdict Publications has been released.  By special arrangement he has provided the following link for LawReader users to access. http://juryverdicts.net/KY10-07.pdf 

 This link will show you just the front and page pages and the index.  This information is very useful. If you wish to subscribe to this valuable service and see the entire monthly report e-mail Shannon at sragland@juryverdicts.net