Archive for February, 2009

Ct. of Appeals topics discussed this week:

Friday, February 27th, 2009

Read the topics discussed by the Ky. Court of Appeals.  Subscribers can access the full keywords, synopsis and access the full text of all 39 decisions issued on Feb. 20th.
LawReader subscribers can read the synopsis and full text of each case by going to:
 
COURT OF APPEALS DECISIONS FOR FEB. 27, 2009
 Subscribers can read the most current Ky. Supreme Court rulings at: KY. SUPREME COURT DECISIONS FOR FEBRUARY 2009

Non subscribers can sign up for lawreader  at:  SIGN UP – PRICING 
 
 

 

CORRECTION OF DEED- LAW OF THE CASE DOCTRINE APPLIES TO APPEAL
 

Marital division of property-attorney fees-multi-million dollar division of marital and non-marital property
 

statute of limitations for trespass-statute of limitations for negligence in construction-directed verdict
 

modification of settlement agreement-reimbursement for mortgage payments-modification of child support
 

modification of settlement agreement-reimbursement for mortgage payments-modification of child support
 

acceptance of service by attorney-jurisdiction and standing for appeal-discharge of state employee
 

breach of warrant-revocation of acceptance
 

findings of fact required for finding of underemployment for child support-material change in circumstances
 

necessary party to prison discipline appeal
 

dismissal of complaint alleging  abuse of process-intentional infliction of emotional harm by famed country singer who made complaint against police office
 

exclusion of deposition from worker’s comp. hearing –jury instructions
double dipping after retirement-job classification
oral statement of judge not final judgment – written order
 

commingling of non-marital property with marital property-transmutation
 

uim insuance statute allows worker to claim benefits even when worker’s compensation benefits awarded and injury caused by co-worker covered by act
 

necessary party to prison discipline appeal
 

mutual mistake for reformation of contract
 

child abuse-continuance of hearing-
 

de facto custodian-waiver of custody by parent standards
 

paystubs are proof of income for child support calculation-formula for split custody arrangement for child support
 

definition of possession – comment on silence of defendant after reading of Miranda rights not error when admonition given…and not used as prosecutorial tool
shaken baby syndrome – blunt force trauma to child-limitation of cross-examination of expert
11.42 motion – 60.02 motion
 

child custody dispute between lesbian mothers-de facto custodian-waiver
 

mention of defendant’s immigrant status cured by admonition
before plea of juvenile can be made, he must be expressly informed of consequences of waiving right to trial – 11.42 motion
discussion of traffic roadblock standards
confidential informant found sufficient to provide probable cause for warrant  
 

failure to object to number of jurors on panel, Kentucky law now allows accomplish testimony to convict, all victims not required to be called by commonwealth
 

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Is a Buddist subdivision development in works for Carroll County, Ky.?

Friday, February 27th, 2009

 

It is interesting to read the small print in newspapers that show property transfers.  In January four lots in the Zen Village Subdivision were sold by the Bodhidhama Zen Monastery, Inc. of Turner’s Stations, Ky. to four different individuals with Vietnamese sounding names.  The lot purchasers were: Nguyett Truong of Northville, Mich, Thanh Le of Royal Oak, Mich., Noi Thanh Pham of Troy, Mich., and Tran Thi Tien of Turners Station, Ky.

 

LawReader headquarters are located in Carroll County, and we certainly welcome new members of our growing international community.   In the l970’s Carrollton had a migration of Michigan residents move here and open the large Dow Corning facility.  They have been good citizens and we have no doubt that our Buddist newcomers from Michigan will also be welcomed.

Wm. T. “Bill” Robinson seeks American Bar Association Presidency

Thursday, February 26th, 2009

 

 Kentucky attorney Wm. T. (Bill) Robinson III of Florence, Ky., UK Law School class of 1971, recently filed as a candidate for the presidency of the American Bar Association (ABA), which provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public.  

Robinson serves as member-in-charge of the Northern Kentucky offices of Frost Brown Todd LLC, a regional law firm with offices in Kentucky, Ohio, Tennessee, West Virginia and Indiana. He recently completed his term as ABA Treasurer and has served the association for more than 20 years in various leadership roles including seven years on its Board of Governors.  

If elected in February, 2010, Robinson would serve as president-elect of the association August 2010-2011 before his one-year term as president began in August 2011. With more than 400,000 members, the ABA is the largest voluntary professional association in the world with headquarters in Chicago and a branch office in Washington, D.C. 

Robinson has also served as president of the Kentucky Bar Association (KBA), chairman of its House of Delegates and president of the Kentucky Bar Foundation. He is a past chairman of the Greater Cincinnati –Northern Kentucky International Airport and a past chairman of the Kentucky Chamber of Commerce.  

Robinson has received numerous prestigious awards and recognitions including the Judge Learned Hand Human Relations Award from the American Jewish Committee, the Lincoln Award from Northern Kentucky University, the Themis Award from the Cincinnati Bar Association, the Outstanding Lawyer Award from the KBA and in 2006, the Oak Award as Outstanding Alumnus of Kentucky from the Kentucky Advocates for Higher Education. He is a graduate of Thomas More College and the College of Law at the University of Kentucky where in 2004, he was inducted into the Alumni Hall of Fame.  

Past ABA presidents from Kentucky have included John W. Stevenson of Covington, 1884, and L. Stanley Chauvin, Jr., of Louisville, 1989-90. Other officers from Kentucky have included Robinson, as ABA Treasurer, 2005-2008, and ABA Secretary Herbert P. Sledd of Lexington, 1975-1979.  

For more information about the American Bar Association, visit www.abanet.org; for more information about the Kentucky Bar Association, visit www.kybar.org. 

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Statement from Chief Justice of Kentucky John D. Minton Jr. re. inquiry into bonding practices of AOC Court facilities construction program

Thursday, February 26th, 2009

February 26, 2009 The following statement by Chief Justice John Minton was released by AOC today:

Kentucky Court of Justice to launch audit of court facilities construction program
 “In light of questions that have arisen regarding the court system’s bonding practices, today I authorized the Administrative Office of the Courts to conduct a comprehensive audit of the Kentucky Court of Justice court facilities construction program. I am committed to ensuring that all aspects of this program are in complete compliance with state statutes and our own Administrative Procedures. The AOC will be retaining counsel with expertise in construction law to carry out this intensive review. This audit will begin immediately and its findings will be made public upon completion.
 
The importance and scope of our court facilities program cannot be underestimated. Kentucky citizens generate more than 1 million court cases each year, which are heard in courthouses and judicial centers in each of our 120 counties. Kentuckians count on us to provide safe, efficient buildings where they can exercise their constitutional rights. The Judicial Branch’s performance in carrying out this solemn responsibility must inspire confidence and be above reproach.As we move forward during this time of transition, I have named Doug Teague to serve as acting executive officer of the AOC Department of Facilities. Mr. Teague has been employed with the AOC for six years, first as AOC budget director and then as controller. While at the AOC, he has worked extensively on the Department of Facilities budget and has served on several Project Development Boards for court facility projects. Prior to joining the AOC, Mr. Teague worked for the Legislative Research Commission’s budget department for 10 years. He holds a master’s degree in public administration from the University of Kentucky. His appointment is effective today.”
The Lexington Herald reports:

“The Administrative Office of the Courts will be retaining counsel with expertise in construction law to carry out this intensive review,” Minton said in a prepared statement. “This audit will begin immediately and its findings will be made public upon completion.”

The AOC’s chief architect, Garlan VanHook, resigned this week after questions were raised about a job that his brother received last year at Codell Construction of Winchester, which has built the majority of new courthouses in recent years.

Also, in a letter to the AOC this week, national experts raised questions about VanHook’s failure to make sure that courthouse projects are fully insured.”

 

Last week LawReader published the following story about the former executive officer of the AOC Department of Facilities.  Garlan VanHook resigns as head of Kentucky’s court facilities program
 
 
 

 

Stan Chesley drops bomb on fen phen lawyers

Wednesday, February 25th, 2009

During questioning by the government in the trial of William Gallion and Shirley Cunningham,  Class action expert Stan Chesley was shown a breakdown of expenses taken from one of the fen phen claimants  settlement.  Chesley was paid some $20 million in fees after he was hired by the original attorneys to negotiate a $200 million dollar settlement.

Chesley said that it was inappropriate for his fees to have been charged as expenses. Chesley said his money should have came from the other lawyers’ cut, not Ferguson Sr.’s.

“Those are clearly fees,” Chesley said.

Chesley said he did not have any contact with the clients. The disbursement of settlements was left to Gallion, Cunningham and Mills, he said.

Chesley repeated his testimony from the first trial that some of the settlement money had to be set aside for future claimants, which is one of Gallion’s and Cunningham’s primary defenses.

But Chesley said the money should have been placed in an interest-bearing account. When no claimants stepped forward after a year, the money should have been paid with interest to the clients.

“The money belonged to the claimants,” he said.

Justices Rule Sect Cannot Force Placing of Monument – Justice Alito: “First Amendment regulates private speech, not government speech.”

Wednesday, February 25th, 2009

 

 


 
 

 February 25, 2009

 

WASHINGTON — The Supreme Court ruled unanimously on Wednesday, in one of the most closely watched free speech decisions in years, that a tiny religious sect could not force a Utah city to let it erect a monument to its faith in a public park.

 

In a 9-0 decision announced by Justice Samuel Alito, the Supreme Court concluded: “In sum, we hold that the City’s decision to accept certain privately donated monuments while rejecting respondent’s is best viewed as a form of government speech. As a result, the City’s decision is not subject to the Free Speech Clause, and the Court of Appeals erred in holding otherwise. We therefore reverse.”
Skip to next paragraph The fact that there is already a Ten Commandments monument in the park in Pleasant Grove City does not mean that city officials must also allow the religious group called Summum to place a monument there to the Seven Aphorisms of its faith, the justices ruled.

 

We think it is fair to say that throughout our nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity,” and properly so, Justice Samuel A. Alito Jr. wrote for the court.

 

The case has been of keen interest to local and state officials across the country for several reasons. Not least is that officials have been concerned about what kinds of markers and monuments, if any, they might be forced to allow in public areas if Summum prevailed.

 

And while the case of Pleasant Grove City v. Summum, No. 07-665, involves religion, the real issue was free speech, not the separation of church and state, both of which are addressed in the First Amendment to the Constitution.

 

The Summum group has contended that the Pleasant Grove City officials were no more entitled to discriminate among private monuments donated to a public park than they were entitled to forbid speeches and leaflets advocating viewpoints that they found unpalatable.

 

But Justice Samuel A. Alito Jr., writing for the court, said the arguments embraced by Summum were not really the right way to look at the case. The core issue is not private speech in a public forum but, rather, the power of government to express itself, in this case by selecting which monuments to have in a public park, Justice Alito wrote.

“The Free Speech Clause restricts government regulation of private speech,” Justice Alito noted, referring to a clause in the First Amendment. “It does not regulate government speech.”

 

While a government entity is quite limited in its ability to regulate or restrict private speech in traditional public forums, like parks, the government entity “is entitled to say what it wishes,” Justice Alito wrote, citing earlier Supreme Court rulings. If the people do not like what their government officials say or stand for, they can vote them out of office, he wrote.

 

Not that government, through its officials, can say whatever it wants whenever it wants, Justice Alito observed. For one thing, government expressions must not violate the First Amendment’s ban on endorsement of a particular religion. Moreover, what government officials say may be limited “by law, regulation, or practice.”

 

“And of course, a government entity is ultimately ‘accountable to the electorate and the political process for its advocacy,’ ” Justice Alito wrote, quoting from an earlier Supreme Court decision.

 

Justice Stephen G. Breyer emphasized in a concurring opinion that, while the Summum members have been thwarted in their bid to have a monument erected, “the city has not closed off its parks to speech; no one claims that the city prevents Summum’s members from engaging in speech in a form more transient that a permanent monument.” In other words, Summum members, like other citizens, can presumably hand out leaflets or stand on soapboxes and hold forth on the issues of the day.

 

In its ruling on Wednesday, the high court overturned a decision by the United States Court of Appeals for the 10th Circuit, which had sided with Summum and told the city to allow the group’s monument to be erected at once.

 

The Summum group was founded in 1975, and contains elements of Egyptian faiths and Gnostic Christianity. The word Summum derives from Latin, and refers to the sum of all creation.

 

The issues raised by the Summum lawsuit have been of interest to legal scholars as well as government officials. “No prior decision of this court has addressed the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments for installation in a public park,” Justice Alito noted.


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Garlan VanHook resigns as head of Kentucky’s court facilities program

Wednesday, February 25th, 2009

 

   

FRANKFORT, Ky., Feb. 25, 2009 — Chief Justice of Kentucky John D. Minton Jr. announced today that Garlan VanHook has resigned as executive officer of the Department of Facilities for the Kentucky Administrative Office of the Courts. VanHook, an architect, is leaving the court system to return to private practice with VanHook Architectural Services in Stanford, Ky. The resignation is effective Feb. 25, 2009.  

  

“Helping craft the overhaul of Kentucky’s court facilities program is a milestone in my career and a part of my life I will remember fondly,” said VanHook. “I’m incredibly honored and grateful to have had the privilege to serve Kentucky during this unique time in the life of the court system.” 

  

VanHook headed the AOC Department of Facilities, which is responsible for overseeing construction, maintenance and operations for court facilities in all of Kentucky’s 120 counties, leasing space for court-related programs, providing furnishings to court facilities and managing the Judicial Inventory Control System. 

  

Under VanHook’s leadership, the AOC attracted attention nationwide for the Facilities Management System implemented in 2000 to objectively set priorities for court facility needs in Kentucky. VanHook helped develop the FMS as an objective audit system to identify the greatest needs for new construction, renovation, expansion and adaptation of court facilities. 

  

VanHook was instrumental in overseeing 70 new judicial centers that have been completed, authorized or begun during his tenure. He began employment with the AOC as an architect in 1998 and was promoted to his current position in 2000. 

  

“Since the early days of the Commonwealth, Kentucky courthouses have held a special place as the center of our communities,” said Chief Justice Minton. “Today thousands of Kentuckians have secure, efficient, high-tech buildings in which to carry out court business and seek access to justice. These new judicial centers have become a reality in large measure because of Garlan’s passion and expertise. He is highly regarded by legislators, county judge-executives and county officials throughout the state. 

  

“We will benefit from this strong foundation as we enter a new phase of meeting Kentucky’s needs for improved court facilities,” he said. 

  

As the administrative and fiscal agent for the Judicial Branch of state government, the AOC provides oversight and administration of court facilities in accordance with House Bill 734, which was passed by the 2000 General Assembly. The AOC also supports the activities of 4,000 court system employees, including the elected justices, judges and circuit court clerks.    

 

There may be 100 billion Earth-like planets in the Milky Way – universe full of life may not be that far-fetched.

Wednesday, February 25th, 2009

Galaxy may be full of ‘Earths,’ alien life

 

Astronomer: There may be 100 billion Earth-like planets in the Milky Way

If any of them have liquid water, they are likely to have some type of life, he says

Analysis: Thousands of intelligent civilizations may have emerged in the Milky Way

NASA’s Kepler mission to search for habitable planets in our corner of the galaxy

 (CNN) — As NASA prepares to hunt for Earth-like planets in our corner of the Milky Way galaxy, there’s new buzz that “Star Trek’s” vision of a universe full of life may not be that far-fetched.

 

An artist’s impression shows a planet passing in front of its parent star. Such events are called transits.

Pointy-eared aliens traveling at light speed are staying firmly in science fiction, but scientists are offering fresh insights into the possible existence of inhabited worlds and intelligent civilizations in space.

There may be 100 billion Earth-like planets in the Milky Way, or one for every sun-type star in the galaxy, said Alan Boss, an astronomer with the Carnegie Institution and author of the new book “The Crowded Universe: The Search for Living Planets.”

He made the prediction based on the number of “super-Earths” — planets several times the mass of the Earth, but smaller than gas giants like Jupiter — discovered so far circling stars outside the solar system.

Boss said that if any of the billions of Earth-like worlds he believes exist in the Milky Way have liquid water, they are likely to be home to some type of life.

“Now that’s not saying that they’re all going to be crawling with intelligent human beings or even dinosaurs,” he said.

“But I would suspect that the great majority of them at least will have some sort of primitive life, like bacteria or some of the multicellular creatures that populated our Earth for the first 3 billion years of its existence.”

Putting a number on alien worlds

Other scientists are taking another approach: an analysis that suggests there could be hundreds, even thousands, of intelligent civilizations in the Milky Way.

Researchers at the University of Edinburgh in Scotland constructed a computer model to create a synthetic galaxy with billions of stars and planets. They then studied how life evolved under various conditions in this virtual world, using a supercomputer to crunch the results.

Galaxy Quest

• The Milky Way is believed to be more than 13 billion years old.

• It is just one of billions of galaxies in the universe.

• The Milky Way has a circumference of about 250,000-300,000 light years.

• It is about 100,000 light years in diameter.

• There are three types of galaxies: ellipticals, spirals and irregulars.

• The Milky Way is a large disk-shaped barred spiral galaxy. (A barred galaxy has a bar-shaped structure in its middle.)

Source: Space.com

In a paper published recently in the International Journal of Astrobiology, the researchers concluded that based on what they saw, at least 361 intelligent civilizations have emerged in the Milky Way since its creation, and as many as 38,000 may have formed.

Duncan Forgan, a doctoral candidate at the university who led the study, said he was surprised by the hardiness of life on these other worlds.

“The computer model takes into account what we refer to as resetting or extinction events. The classic example is the asteroid impact that may have wiped out the dinosaurs,” Forgan said.

“I half-expected these events to disallow the rise of intelligence, and yet civilizations seemed to flourish.”

Forgan readily admits the results are an educated guess at best, since there are still many unanswered questions about how life formed on Earth and only limited information about the 330 “exoplanets” — those circling sun-like stars outside the solar system — discovered so far.

The first was confirmed in 1995 and the latest just this month when Europe’s COROT space telescope spotted the smallest terrestrial exoplanet ever found. With a diameter less than twice the size of Earth, the planet orbits very close to its star and has temperatures up to 1,500° Celsius (more than 2,700° Fahrenheit), according to the European Space Agency. It may be rocky and covered in lava.

Hunt for habitable planets

NASA is hoping to find much more habitable worlds with the help of the upcoming Kepler mission. The spacecraft, set to be launched from Cape Canaveral Air Force Station in Florida next week, will search for Earth-size planets in our part of the galaxy.

Don’t Miss

NASA.gov: Explore the Kepler mission

iReport.com: Stargazers unite! Share your view of the universe

Kepler contains a special telescope that will study 100,000 stars in the Cygnus-Lyra region of the Milky Way for more than three years. It will look for small dips in a star’s brightness, which can mean an orbiting planet is passing in front it — an event called a transit.

“It’s akin to measuring a flea as it creeps across the headlight of an automobile at night,” said Kepler project manager James Fanson during a during a NASA news conference.

The focus of the mission is finding planets in a star’s habitable zone, an orbit that would ensure temperatures in which life could exist. Watch

Watch a NASA scientist explain the search for habitable planets »

Boss, who serves on the Kepler Science Council, said scientists should know by 2013 — the end of Kepler’s mission — whether life in the universe could be widespread.

Finding intelligent life is a very different matter. For all the speculation about the possibility of other civilizations in the universe, the question remains: If the rise of life on Earth isn’t unique and aliens are common, why haven’t they shown up or contacted us? The contradiction was famously summed up by the physicist Enrico Fermi in 1950 in what became known as the Fermi paradox: “Where is everybody?”

The answer may be the vastness of time and space, scientists explained.

“Civilizations come and go,” Boss said. “Chances are, if you do happen to find a planet which is going to have intelligent life, it’s not going to be in [the same] phase of us. It may have formed a billion years ago, or maybe it’s not going to form for another billion years.”

Even if intelligent civilizations did exist at the same time, they probably would be be separated by tens of thousands of light years, Forgan said. If aliens have just switched on their transmitter to communicate, it could take us hundreds of centuries to receive their message, he added.

As for interstellar travel, the huge distances virtually rule out any extraterrestrial visitors.

To illustrate, Boss said the fastest rockets available to us right now are those being used in NASA’s New Horizons mission to Pluto. Even going at that rate of speed, it would take 100,000 years to get from Earth to the closest star outside the solar system, he added.

“So when you think about that, maybe we shouldn’t be worried about having interstellar air raids any time soon,” Boss said.

 

White House launches web site detailing where stimulus money is going

Wednesday, February 25th, 2009

Recovery.gov is a website that lets you, the taxpayer, figure out where the money from the American Recovery and Reinvestment Act is going. There are going to be a few different ways to search for information. The money is being distributed by Federal agencies, and soon you’ll be able to see where it’s going — to which states, to which congressional districts, even to which Federal contractors. As soon as we are able to, we’ll display that information visually in maps, charts, and graphics

Northern Kentucky Volunteer Lawyers will host the Annual 2009 Pro Bono Awards Luncheon on May 14

Wednesday, February 25th, 2009

The Northern Kentucky Volunteer Lawyers will host the Annual 2009 Pro Bono Awards Luncheon on May 14, 2009, from 11:45 AM – 1:30 PM at Summit Hills Country Club in Crestview Hills, KY. 


 Speaker:  The Honorable Michelle M. Keller, Judge Kentucky Court of Appeals.
To register please complete the attached RSVP card and mail or email payment to Julie Jones at juliejones.director@nkybar.com or
NKBA – 529 Centre View Boulevard, Crestview Hills, KY 41017

U.S. Supreme Court upholds ban on gun possession for Domestic Violence offenders

Tuesday, February 24th, 2009

 

David G. Savage – L.A. Tribune Washington Bureau -  February 24, 2009

 

The Supreme Court today upheld a broad federal gun control law which strips gun rights from the many thousands of people who have been convicted of any domestic-violence crime.

In a 7-2 decision, the justices said the federal ban on gun possession was intended to keep “firearms out of the hands of domestic abusers,” said Justice Ruth Bader Ginsburg.

The law covers not only those who have felony convictions, she said, but also misdemeanors involving an assault or beating against a former or current spouse or a live-in partner, as well as a child, a parent or others who live together in the home.

“Firearms and domestic strife are a potentially deadly combination nationwide,” Ginsburg wrote.

 

She cited a report from the National Institute of Justice which found that about 1.3 million women and 835,000 men are physically assaulted by a spouse or partner each year. Many more such offenses are never reported, the report found.

In today’s decision, the court settled a linguistic dispute over how to read the law. Since 1968, federal law has prohibited felons from having a firearm. That ban was extended in 1996 to cover a “misdemeanor crime of domestic violence.”

Some judges read this narrowly to mean the law did not apply to those who were charged with assaulting or physically threatening someone with whom they had once lived. These judges said the law applied only to those who were convicted or who plead guilty to a “domestic violence” crime.

Some states have laws against “domestic violence” and charge offenders under it. Other states and prosecutors routinely charge offenders with assault or battery.

In an earlier ruling, United States vs. Hayes, the court said the gun ban applies to all such offenses, so long as it can be shown there was a domestic relationship between the offender and victim.

The ruling reinstates an illegal gun possession charge against Randy Hayes, a West Virginia man who was found to have three guns in 2004. He also had on his record a 1994 misdemeanor for battery against a woman who “was cohabiting with him.”

Hayes had argued that the federal gun-control law did not apply because he had been convicted of “generic battery,” not a “domestic violence” law. The U.S. 4th Circuit Court of Appeals in Richmond, Va., agreed, limiting the reach of the law.

Bush administration lawyers appealed to the Supreme Court, which reinstated the broad view of the federal law today.

The case did not involve the Second Amendment and the constitutional right to “keep and bear arms.” Last year, the court in a 5-4 decision said Americans have a right to have a gun for self-defense, but its opinion reaffirmed the validity of laws that keep guns out of the hands of criminals.

Chief Justice John G. Roberts and Justice Antonin Scalia dissented in the West Virginia case, but they focused tightly on the words of the law to conclude it was limited to “domestic violence” crimes only.

County Attorney Alan George is just plain wrong on SB5 effect.

Tuesday, February 24th, 2009

Alan George of the Kentucky County Attorneys Association is wrong to state that Senate Bill 5 would not apply to marijuana (“Help keep drug-impaired drivers off roads,” Feb. 23 – Herald Leader). 

Kentucky law unequivocally allows police to test a person’s blood for marijuana if there is reasonable suspicion to believe they are driving under the influence. Just because urine testing is the “preferred method” doesn’t mean blood tests are unavailable.

 The current version of SB5 as amended states that a person can be convicted of a per se violation of DUI if they have any detectable level of a “controlled substance” in their body.   The last time we checked marihuana was a controlled substance.

 The problem with this theory is that traces of marihuana can remain in a person’s body for up to 30 days.  The ability of marihuana to have any affect on the body is eliminated within a couple of hours or less, but the substance can be detected long after the use of the substance.  This means that a per se violation can have nothing to do with a person’s ability to safely and soberly drive a motor vehicle, and it has everything to do to punish a person for using marihuana.  

 But it gets worse, since a person does not have to “use” marihuana for a high in order to accumulate a trace amount of the substance in his blood.  That is because you merely have to breathe smoke filled air that may have been expelled by a marihuana smoker.  The anti-smoking crowd has obtained laws banning smoking in bars on the scientific claim that even  breathing second hand smoke can harm non-smokers in the same room.

So SB 5 really has very little to do with an alleged problem of marihuana use affecting one’s driving ability and motor functions.  Further, the bill allows the use of a controlled substance if it is prescribed by a physician. So doctors, under SB5 could possibly grant motorists an exemption to drive under the influence of Xanex, Valium, Morphine, etc
 
 It has been our experience that urine testing is the most legally questionable DUI test, since it is almost impossible to conclude from a positive urine test that the driver used the controlled substance was actually under the influence of the drug while in the act of driving. 

County Attorney George’s misrepresentation of the law is not the issue here — he truly seems to think it acceptable to convict people of driving under the influence for simply having traces of a controlled substance in their system.

 George’s reasoning ought to set off alarm bells. He argues that because possession of controlled substances – including marijuana, which can be detected in the blood weeks after use – is a crime, then it shouldn’t matter if those who commit that crime are convicted for another crime they didn’t commit — DUI.

 It’s disingenuous of him to suggest that anybody who objects to this poorly conceived and poorly drafted legislation is somehow pro-drug.  As a former trial judge, I believe that real science should be the basis for criminal laws involving drug use and driving, and the use of “per se” language in this context is a badge of scientific fraud.

Kentucky law already adequately covers any impaired driving, regardless of the substance.  Judge Judy West once authored an opinion that held that even use of “stewed prunes” by a driver could provide the basis for a DUI conviction under Kentucky law, if the use of stewed prunes impaired the driver’s ability to drive.
SB 5 makes a mockery of our current DUI laws, which exist to protect citizens from drivers who are dangerously impaired. You don’t have to be pro-drug to be pro-sense. 

As a retired Judge who has convicted hundreds of people for DUI offenses, I have to conclude that SB 5 is, with the physician’s prescription exemption provision, a pro-drug bill since it will allow drugged driver’s who could be convicted under current Kentucky law to be acquitted, since prescription drugs which are illegal to have in your blood while driving under current law, will become legalized under SB5.  

 This same bill died in the last session of the General Assembly and should die in this session.


 

Liberals Use Supreme Court Gun Case to Bolster Other Rights and Impose Bill of Rights on the States

Tuesday, February 24th, 2009

Liberals Use Supreme Court Gun Case to Bolster Other Rights and Impose Bill of Rights on the States

 

Legal Times Tony Mauro February 24, 2009

 

The Supreme Court’s 2008 ruling in D.C. v. Heller was a constitutional earthquake, breathing life into the Second Amendment as a guarantee of an individual right to bear arms. 

But the aftershock of that decision is beginning to transform the constitutional landscape well beyond gun rights, in ways that have liberals cheering and even joining hands with one-time adversaries like the National Rifle Association

 

In a follow-on case pending before the 7th U.S. Circuit Court of Appeals, a progressive legal group and liberal law professors including Yale Law School’s Jack Balkin earlier this month joined gun-rights advocates in urging that the right established in Heller, which involved only the District of Columbia, be extended to apply against gun restrictions in the 50 states. The case is McDonald v. Chicago, a challenge to that city’s strict gun control law and, no matter what, the outcome is likely to be appealed to the Supreme Court. 

 

But these academics and the liberal Constitutional Accountability Center, which filed a brief in the case, have not suddenly taken up the Second Amendment cause, Charlton Heston-style. Rather, they joined the case to urge the court to adopt a new way of making the rights protected by the federal Constitution apply to the states (a process known as “incorporation”). 

 

That new pathway runs through the long-dormant “privileges or immunities” clause of the 14th Amendment. In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language — “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States” — is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale. It would replace the narrower and more piecemeal way in which the Bill of Rights was usually made binding on the states, right by right, during the 20th century — namely, the 14th Amendment’s due process clause. 

 

Use of the due process clause has led to “the constitutional equivalent of a food fight” with conservative justices increasingly wary of expanding or creating new rights because of the clause’s process-oriented scope, says Douglas Kendall, founder of the D.C.-based Constitutional Accountability Center. Kendall says invoking “privileges or immunities” would have a “lift-all-boats” effect, strengthening free speech, and possibly even abortion and gay rights, at the same time that it bolsters the right to bear arms. 

Kendall had few qualms about joining McDonald on the side of gun-rights advocates. “The conversation on this clause has begun, and there are very important progressive values at stake in the outcome,” Kendall says. “We need to be in that conversation.” 

 

‘MORE THE MERRIER’ 

At a conference in D.C. in January co-sponsored by the American Constitution Society and other civil rights groups, John Payton, president of the NAACP Legal Defense and Educational Fund, endorsed Kendall’s campaign. Pointing to long-cherished individual rights, Payton said, “If you read the history, these rights were supposed to come in as privileges or immunities of being a citizen of the United States.” 

 

So, why does the “privileges or immunities” clause need reviving? Because it was gutted by the Supreme Court in the notorious 1873 Slaughterhouse Cases, which upheld a state-endorsed slaughterhouse monopoly. The Court ruled that the federal immunities clause, which had been invoked to challenge the monopoly, only applies to federal citizenship, not state citizenship. That is a distinction with little meaning today, but at the time had the effect of turning the clause into a dead letter. Dissenting Justice Noah Swayne said the majority in Slaughterhouse had transformed “what was meant for bread into a stone.” The ruling led succeeding justices to turn to the due process clause as the way to bind states to federally declared rights. 

 

But in recent decades, new scholarship on the 14th Amendment has shown that its authors intended the privileges clause to be a broad, robust way of applying constitutional rights to the states — especially for freed slaves, and especially, it seems, for the right to bear arms. 

 

The high court showed a glimmer of interest in reviving the clause in 1999, when in Saenz v. Roe it struck down a California law that gave lesser welfare benefits to new residents. Justice John Paul Stevens invoked the clause, and though Justice Clarence Thomas dissented, he said in a footnote that he was open to “re-evaluating its meaning.” 

In Heller itself, Justice Antonin Scalia in a footnote said the Court was not addressing the incorporation issue, but noted that a key precedent “did not engage in the sort of Fourteenth Amendment inquiry required by later cases.” That could be a hint that it’s time for a new inquiry. 

 

Gun-rights advocates respond with a “more the merrier” attitude when asked if liberals are hijacking the Chicago gun case for their own purposes. 

 

Alan Gura of Gura & Possessky in D.C. and Virginia, who won the Heller case and filed the McDonald appeal in Chicago, said the participation of liberal groups and scholars did not surprise him. “There are wider consequences than the Second Amendment” in his appeal, he acknowledges. 

 

Adds Stephen Halbrook, a Fairfax, Va., practitioner who is part of the NRA’s team in a companion case to McDonald, “It’s an exciting case, and we’re pleased with all the company we can get.” He notes that the NRA’s brief argues for incorporation of the Second Amendment the old-fashioned way, through the due process clause, not the privileges clause. 

 

On the other side, Dennis Henigan, legal director of the Brady Campaign to Prevent Gun Violence, says of the liberals’ brief, “It’s unfortunate that they would choose to participate in a gun case to grind that particular ax” because of the public safety implications. That said, Henigan added that applying the Second Amendment right to the states may not have major impact, so long as it is the restricted right announced in Heller. 

 

BEYOND ‘HELLER’ 

 

Beyond the Second Amendment, one possible result of a strengthened privileges or immunities clause could be a change in the criminal justice system for some states. The Fifth Amendment’s requirement of indictment by grand jury in major crimes has never been made binding on states, half of which don’t currently require grand juries to bring indictments. That could change. 

 

The libertarian Institute for Justice also says that a stronger foundation for individual rights could benefit business or contract rights, too. The institute filed its own brief in McDonald, asserting that the 14th Amendment was passed to give freed slaves economic as well as personal liberty. “In some states, it was illegal for a black man to leave his employer’s property without permission; in others, blacks could be flogged for breaking a contract,” says Chip Mellor, the institute’s president. 

 

Should the fact that conservatives like Thomas and Scalia are interested in reviving the clause give liberals pause? In the process of strengthening some rights through the privileges and immunities clause, could the Court weaken others? 

Kendall does not see much downside to fortifying basic rights. And he has not gotten pushback from liberal colleagues about joining the gun case or jumping into the debate over the clause at the same time as conservatives. “It’s remarkable how broad a consensus there is that privileges and immunities is the right way to go.” 

  

LawReader agrees with Justice Scalia….New public corruption law is unfair and vague

Tuesday, February 24th, 2009

 

Scalia Urges Court to Take on ‘Chaos’ Spawned by Corruption Law


By Debra Cassens Weiss-  ABA Journal     Feb. 24, 2009
The U.S. Supreme Court refused to hear an appeal yesterday by three former Chicago city officials convicted on corruption charges, and Justice Antonin Scalia wasn’t pleased.
In a dissent  from the court’s cert denial, Scalia took on the law barring honest services fraud, saying it is so broad it could be used against “a salaried employee’s phoning in sick to go to a ball game,” SCOTUSblog reports.
The law was amended in 1988 in response to a Supreme Court decision that held the federal mail fraud law protected property rights but not the intangible right to good government. The amendment bars depriving others of “the intangible right of honest services.”
The three former officials in Sorich v. United States were convicted based on allegations they helped politically connected individuals get city jobs.
In Scalia’s view, the law doesn’t adequately warn what kind of conduct is prohibited. “It is simply not fair,” he wrote, “to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail.”
“There is a serious argument that [the amendment] is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct,” Scalia said. He urged justices to address the law’s meaning and constitutionality. “It seems to me quite irresponsible to let the current chaos prevail.”
Judges differ on the reach of the law. Some courts have interpreted it to require a kickback and some have ruled it requires a violation of state law. The 5th U.S. Circuit Court of Appeals has overturned several Enron convictions based on the honest services theory on the ground that the employees did the company’s bidding and didn’t profit as a result.
But other courts have upheld convictions under the law of students who scheme to turn in plagiarized work, lawyers who paid insurance adjusters to expedite their clients’ claims, and a local housing official with a conflict of interest, Scalia wrote.
In one of the more unusual applications of the law, federal prosecutors in Los Angeles are investigating whether officials in the Catholic church violated the law by covering up priest abuse.

State Senate President David Wiliams reported to be eyeing Bunning Senate Seat

Monday, February 23rd, 2009

State Senate President David Williams, R-Burkesville, met with officials at the National Republican Senatorial Committee on Friday to talk about a potential run for U.S. Senate in 2010, according to The Hill, a Washington-based political newspaper. 

The Hill cited anonymous “sources in Washington and Kentucky” in its report, but did not speak with Williams directly. Williams was in Washington over the weekend attending a meeting of legislative leaders from around the nation. 

The newspaper noted that KyPolitics.org, a Kentucky-based Republican blog, first reported on Saturday that Williams had met with NRSC officials 


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Supreme Ct. Topics for February

Sunday, February 22nd, 2009

Read the topics discussed by the Ky. Supreme Court.  Subscribers can access the full keywords, synopsis and access the full text of all 37 decisions issued on Feb. 19th.

LawReader subscribers can read the synopsis and full text of each case by going to:
 KY. SUPREME COURT DECISIONS FOR FEBRUARY 2009
Non subscribers can sign up for lawreader  at:  SIGN UP – PRICING 
The following topics were discussed this month by the  Ky. Supreme Court.
 

4 KBA Attorney Discipline Rulings
 

Res judicata does not apply to zoning map amendment     
 

liability of mental health professional regarding threats of harm by a patient to third party
 

elements required for civil claim of fraud and negligent misrepresentation- puffing-
 

business goodwill of surgeon can be personal and non-marital property  as with some professional degrees- methods for valuation of business- average of four methods improper
 

zoning for bar based on measurement of distance between existing bar and proposed bar- methodology used- while crossing may be legal it may not be safe-deference to fact
 

liability of mental health professional regarding threats of harm by a patient to third party
 

waiver of failure to answering interrogatory re: damages when deposition was taken without objection on issue of damages
 

preservation of right to appeal after guilty plea—prosecutorial vindictiveness – requirement of actual prejudice in speedy trial request
 

worker’s compensation – work connected injury
 

worker’s compensation- employers violation of safety rules
 

worker’s compensation- pneumoconiosis vs. traumatic injury standards
 

worker’s compensation- circuit court has jurisdiction to determine if W/C act applies  
Numerous findings of prosecutorial error forgiven by court.- Dissent by Schroder and Noble
 

faretta hearing- defendant’s right to appear as hybrid counsel
 

Youthful offenders may granted parole consideration even though convicted as violent offender
 

fists as dangerous instrument must be proven to have caused the injury- double jeopardy imposed on finding of insufficient proof by appeallate court
 

preservation of objection for appeal – palpable error review-sufficiency of the evidence challenge- operability of firearm presumption
 

statements of deceased rape victim- crawford v. Washington-testimonial statements- excited utterance
 

bifurcated and trifurcation sentencing hearings-use of misdemeanor during penalty phase harmless error-enhancement of penalty is not double jeopardy
 

jury instruction on facilitation not merited-custodial statements-taint-harmless error
 

404-B evidence of prior acts-exceptions-testimony of expert –social worker- failure to preserve error
 

Ct. of Appeals topics for Feb. 20th.

Sunday, February 22nd, 2009

Read the topics discussed by the Ky. Court of Appeals.  Subscribers can access the full keywords, synopsis and access the full text of all 39 decisions issued on Feb. 20th.

LawReader subscribers can read the synopsis and full text of each case by going to:
 COURT OF APPEALS DECISIONS FOR FEB. 20, 2009   
 Subscribers can read the most current Ky. Supreme Court rulings at: KY. SUPREME COURT DECISIONS FOR FEBRUARY 2009
Non subscribers can sign up for lawreader  at:  SIGN UP – PRICING 
 

60.02 motion procedure on appeal- jurisdiction to reopen
 

eminent domain-public utilities-condemnation
 

privacy-attorney privilege to disclose personal data in pleadings – redaction
 

landlord liability to tenant- duty to disclose known danger-URLTA breach limited to cost of repair
 

division of marital property-failure to designate record on appeal fatal to appellate jurisdiction         
division of marital property-maintenance denied
 

statute of limitations for wrongful death action
 

prisoner rights-conditions of confinement-liberty interest
 

Restrictive covenants- wrongful use of civil proceedings-termination in favor
 

improper imputation of income to find father underemployed
 

unadopted child may not recover from wrongful death settlement
 

administrative hearing-exhaustion of administrative remedies
 

review of denial of motion for reversal notwithstanding the verdict
 

intentional infliction of emotional distress-dismissal-lack of damages-summary judgment-conflict of interest claim
 

sudden emergency instruction improper    
disability hearing-appellate standards-substantial evidence supported finding of hearing officer
 

disability hearing-appellate standards-substantial evidence supported finding of hearing officer
 

employment discrimination claim-state and federal avenues of relief-statute of limitations
 

proof of jurisdictional dollar amount in controversy need not be proven, but must be alleged
 

indirect contempt of court requires due process hearing-contempt can be direct and indirect  
INVOLUNTARY UNDEREMPLOYMENT CAUSED BY CRIMINAL LAW VIOLATION – CHILD SUPPORT
 

VACATUR OF SENTENCE REQUIRED-WRONG STATUTE USED BY COURT TO SENTENCE
 

TRAFFICKING WITHIN A1000 YARDS OF SCHOOL DOES NOT REQUIRE MENS REA KNOWLEDGE- ERROR FOR INDICTMENT TO REQUIRE KNOWLEDGE WHEN STATUTE DOES NOT
 

FIRST AMENDMENT DOES NOT PROTECT CHILD SEXUAL PANDERING-MULTIPLE OFFENSES
 

BIGGERS TEST FOR IDENTIFICATION OF SUSPECT
 

CLASSIFICATION OF CUSTODY STATUS FOR SENTENCE CALCULATION-VIOLENT OFFENDER    
 

CORRECTION OF CLERICAL ERROR ALLOWED, NO CORRECTION ALLOWED FOR JUDICIAL ERROR AFTER 10 DAYS- RESTITUTION ORDER NOT SERVED
 

ELEMENTS OF SEXUAL ABUSE IN THE FIRST DEGREE
 

ARRESTEE BRINGING CONTRABAND INTO JAIL-FIFTH AMENDMENT-VOLUNTARY ACT DEFINED   
ARMOR PIERCING AMMUNITION
PROBATIVE VALUE OF PHOTOGRAPHS OF VICTIM OF DUI WRECK-PROSECUTORIAL MISCONDUCT ALLEGED
 

CORRECTION IN ERROR OF JUDGES SENTENCE-CLERICAL ERROR VS. JUDICIAL ERROR
 

Lexington attorney John Meyers named interim head of kba

Friday, February 20th, 2009

FRANKFORT — Lexington attorney John D. Meyers has been named interim executive director for the Kentucky Bar Association by its governing board. 

Meyers, who has been the association’s continuing legal education program director since October 2005, replaces Jim Deckard, who recently announced he will step down to pursue private practice. 

A native of Lexington, Meyers is a graduate of Lafayette High School . He received a bachelor’s degree from Purdue University before graduating from the University of Kentucky College of Law. 

“I am excited about this opportunity to continue my service to the Kentucky Bar Association during this important period of transition,” Meyers said in a statement. “I look forward to working with the Board of Governors, our members and staff in maintaining the day-to-day operation of our Kentucky Bar Center and fulfilling the other duties of the position.” 

Meyers has built a good relationship with Bar members, and surely will be on the short list of nominees for permanent appointment to the position of Executive Director of the KBA. 

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Chief Justice John Minton Jr. proposes to fill judicial vacancies with Senior Status Judges to save Judicial Budget up to $6,000,000 during 2009 and 2010.

Saturday, February 14th, 2009

Section 118 of the Ky. Constitution allows the Chief Justice to serve as Chairman of all Judicial Nominating Commissions. That role impliedly allows him to call a meeting of the Judicial Nominating Commission for a judicial district in which a judicial vacancy has occurred. There is no time limit spelled out in Section 118 stating when the Chief Justice shall call the nominating commission into session.

This is the basis for the announced plan of Chief Justice John Minton to delay filling vacancies in judicial offices until the next succeeding election (2010). The Chief Justice will allow the existing Senior Status Judges to fill the vacancies. This will save the Judicial Branch about $6,000,000 in salaries that would otherwise have been paid to judges appointed to fill the current vacancies. (30 vacancies x $110,000 in salaries per year per judge x two years). There is no general election in Kentucky during 2009, and the election for judges therefore cannot be held to fill these vacancies until November of 2010.

The judges participating in the Senior Status Judges program will no longer be paid a salary out of the Judicial Branch Budget, as they will be funded through the Judicial Plan Retirement System. Obviously this action doesn’t save the state money, it just shifts the funding from the Judicial Branch to the Judicial Retirement System. Presumably that funding will have to be made up at some point to keep the Judicial Branch Retirement System in the black.

Procedure for filling Judicial Vacancies:

The Chief Justice calls a meeting of the appropriate Judicial Nominating Commission then sends the name of three nominees to the Governor for appointment. Once the names have been sent to the Governor, the Governor has 60 days in which to make an appointment. If the Governor fails to make an appointment during that 60 day period, then the Chief Justice is authorized to fill the vacancy from the list of names provided to the Governor.

So the Chief Justice can effect his plan merely by not calling into session the Judicial Nominating Commission, and there is no time limit involved, other than a requirement that the vacancy if not filled will be filled at the next general election. That will not occur until November of 2010.

Ky. Constitution –Section 118-

1) A vacancy in the office of a justice of the Supreme Court, or of a judge of the Court of Appeals, circuit or district court which under Section 152 of this Constitution is to be filled by appointment by the Governor shall be filled by the Governor from a list of three names presented to him by the appropriate judicial nominating commission. If the Governor fails to make an appointment from the list within sixty days from the date it is presented to him, the appointment shall be made from the same list by the chief justice of the Supreme Court.
(2) There shall be one judicial nominating commission for the Supreme Court and the Court of Appeals, one for each judicial circuit, and one for each judicial district, except that a circuit and district having the same boundary shall have but one judicial nominating commission. Each commission shall consist of seven members, one of whom shall be the chief justice of the Supreme Court, who shall be chairman. Two members of each commission shall be members of the bar, who shall be elected by their fellow members. The other four members shall be appointed by the Governor from among persons not members of the bar, and these four shall include at least two members of each of the two political parties of the Commonwealth having the largest number of voters. Members of a judicial circuit or judicial district nominating commission must be residents of the circuit or district, respectively, and the lawyer members of the commission shall be elected by the members of the bar residing in the circuit or district, respectively. The terms of office of members of judicial nominating commissions shall be fixed by the General Assembly. No person shall be elected or appointed a member of a judicial nominating commission who holds any other public office or any office in a political party or organization.

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Topics discussed by Ct. of Appeals for Feb. 13, 2009

Friday, February 13th, 2009

LawReader subscribers can read the keywords, synopsis and full text of each decision released this week by going to: COURT OF APPEALS DECISIONS FOR FEB. 13, 2009  

 

 

Non-members may sign up to LawReader by going to:  SIGN UP – PRICING

TOPICS DISCUSSED THIS WEEK BY KY. CT. OF APPEALS:

BREACH OF CONTRACT CLAIM RE: INSURANCE POLICY-DISCOVERY OF FRAUD-ORAL CONTRACT-PUNITIVE DAMAGES REMITTAL
  TO BE PUBLISHED EMPLOYMENT DISCRIMINATION-HEARSAY-JUDICIAL NOTICE-SEVERANCE OF TRIALS-PARTIES TO APPEAL-DISQUALIFICATION OF ATTORNEY-PUBLIC RECORDS EXCEPTION-JURY INSTRUCTIONS
 

beneficiary statute of FEGLI insurance policy denies due process
 housekeeping ruling for dismissal of civil cases-with prejudice-without prejudice
 

inheritance) expectancy not yet in existence cannot serve as consideration in contract formation  
TO BE PUBLISHED  settlement agreement interpretation-oral contracts-de nova review by appellate court-agreement to add additional terms to handwritten settlement agreement  
 Trial court did not issue findings of fact as directed upon remand…so case remanded again
 

elements of tort claim- low head dam open and obvious-causation-licensee
 sua sponte court order  modifying child support improper – motion must be filed before court can modify child support
 

TO BE PUBLISHED assignment of legal malpractice claim invalid – proceeds from assignment invalid
 

TO BE PUBLISHED  contingent remainder-vested remainder-life
 TO BE PUBLISHED  worker’s compensation- university evaluators qualifications
 

unfair settlement of claims standards-
 trial court improperly struck pleadings for delay during stay mandated by related bankruptcy
 

TO BE PUBLISHED insurance policy definition of “automobile” ambiguous, court gives its own definition
 TO BE PUBLISHED court erred in reviewing legislative record in overruling smoke free ordinance in absence of ambiguity of ordinance
 

best interests of child-abandonment-de facto custodian
 prison discipline review standards of proof
 

TO BE PUBLISHED  jurisdiction of family court limited when custodial parent lives with children out of state
 fact based award of child custody-findings of fact omission argument must be raised to trial court
 

sufficient evidence to support child abuse finding
 fact based award of child custody-findings of fact omission argument must be raised to trial court
 

termination of parental rights upheld
 award of attorney fees-failure to support income claims by wife in the record – change in financial condition merits modification
 

worker’s compensation-the three multiplie-alj finder of fact
 TO BE PUBLISHED – mistrial-double jeopardy-failure to object –implied waiver of objection
 

11.42 motion
 child witness incompetent to testify