Archive for September, 2009

U.S. Supreme Court Cases to be Heard During October Term which starts Oct. 5th.

Monday, September 28th, 2009

Major cases and pending appeals that justices will consider in the new term, which starts Oct. 5.

RELIGION

Can the government erect a cross in a national park? The American Civil Liberties Union sued over the long-standing cross in California’s Mojave National Preserve and won a ruling that the display of a Christian symbol on public land violated the 1st Amendment’s ban on an “establishment of religion.” (Salazar vs. Buono. To be heard Oct. 7.)

ANIMAL CRUELTY

Can Congress make it a crime to sell videos of dogfights and other acts of animal cruelty? Last year, this law was struck down on free-speech grounds. (U.S. vs. Stevens. To be heard Oct. 6.)

MUTUAL FUNDS

Can shareholders sue to contest the high fees charged by investment advisors? In rejecting such a claim, a U.S. appeals court said that as long as the fees were disclosed, they were not subject to a legal challenge. (Jones vs. Harris Associates. To be heard Nov. 2.)

PRO SPORTS

Are the 32 teams in the National Football League shielded from antitrust claims because they operate as a single business? A Chicago-area maker of sports apparel sued after it was shut out from selling caps with a team logo. (American Needle vs. NFL. To be heard in January.)

GUN RIGHTS

Can municipal gun-control ordinances be challenged under the 2nd Amendment and its “right to keep and bear arms”? In the past, the court has said the 2nd Amendment applies only to the federal government. (Appeal pending in NRA vs. Chicago and McDonald vs. Chicago.)

PRISONER PHOTOS

Does the Freedom of Information Act require the U.S. military to release more photos of prisoners being abused in Iraq and Afghanistan? Judges ordered the release of photos, but President Obama appealed, arguing that the adverse publicity could endanger U.S. troops. (Appeal pending in U.S. Department of Defense vs. ACLU.)

House Speaker Greg Stumbo files “Amanda’s Bill” in effort to reduce domestic violence

Thursday, September 24th, 2009

 

FrankfortHouse Speaker Greg Stumbo pre-filed legislation Thursday Sept. 24th.  that he said would give domestic-violence victims “a fighting chance” if an offender violated a court order to stay away.

            The proposed legislation is named in honor of Amanda Ross, whose Sept. 11th murder in Lexington is being investigated as a domestic-violence case.  Her mother, Diana Ross, attended the press conference announcing the legislation in the chamber of the Kentucky House of Representatives.

            “Those who fear for their life like Amanda need to know if they are in imminent danger,” Speaker Stumbo said.  “This bill would give them that knowledge.”

            “Shortly after Amanda’s death, our family decided that we would use our loss to help protect others,” Diana said.  “Nothing we can do here will bring Amanda back to us. 

            “Today with this proposal bearing Amanda’s name, we begin our effort to honor her life while working to help others,” she added.  “This legislative proposal is a good first step.  Our prayer is that once enacted that it will keep other families from losing a loved one.  Perhaps it will bring the needed attention, discussion and changes to improve the plight of all victims of domestic violence.”

            If the legislation becomes law during the 2010 Regular Session, judges would have the authority to require offenders named in domestic violence orders to wear an electronic monitor that would let victims know if they were approaching.

            Speaker Stumbo, D-Prestonsburg, noted that more than a dozen states already have similar laws.  “Based on their experiences, we believe that the monitors would be used in about 15 percent of the cases,” he said.  “This would be targeted at those who have met several risk factors, such as violently threatening or stalking the victim.”

            The cost would be paid by the offender.  A current program being run in Fayette County to track prisoners on probation costs the offender $7.50 per day.

            “Cost is certainly a factor, but let’s not forget the tremendous costs already caused by domestic violence,” Speaker Stumbo said.  “Nationwide, domestic violence victims lose $2 million a day in wages because they cannot go to work.  Hundreds of millions of dollars more are spent on medical care.  One murder trial alone can cost $185,000, and a year in jail costs more than $19,000.  This monitoring system has the potential to save not only lives, but a substantial amount of money as well.”

            Several law-enforcement officials have come out in favor of the proposed legislation.

            “The Lexington Division of Police strongly supports any effort to provide additional levels of safety for the victims of domestic abuse,” said Lexington Police Chief Ronnie J. Bastin.  “Our Division recognizes this technology as having the potential of being a strong step towards notifying victims and law enforcement in a way that the current system cannot otherwise accomplish.  We would be glad to partner with other agencies in exploring the use of technology to make our community safer.”

            Martin Scott, the president of the Kentucky State Fraternal Order of Police, added, “I support the Speaker’s efforts to prevent victims of domestic violence from being re-victimized.  Any time you have the ability to monitor the accused, it makes it safer for all those involved.”

            “The Kentucky Sheriffs’ Association supports Speaker Stumbo’s efforts 100 percent,” Executive Director Jerry Wagner said.  “We will be actively involved in writing, passing, and implementing the legislation.

Scott Co. Family Court Judge Tamra Gormley faces multiple complaints before JCC

Wednesday, September 23rd, 2009

Based on an article by Shawntaye Hopkins of the Herald Lerader-

GEORGETOWN — The state’s Judicial Conduct Commission has charged a family court judge with misconduct in relation to three incidents in Scott and Woodford counties.

Family Court Judge Tamra Gormley, who was appointed in 2007 to a district that covers Scott, Woodford and Bourbon counties, is scheduled to appear in Fayette Circuit Court for a hearing at 9 a.m. Sept. 28.

The three sets of charges could result in separate or collective penalties including public or private reprimand, suspension without pay or removal or retirement from judicial office, according to documents obtained from the Judicial Conduct Commission. The commission, which investigates and reviews complaints against judges, is the only entity authorized to discipline a sitting Kentucky judge, according to state law.

(Gormley said): “I’m a hard-working judge who presides over 7,500 court proceedings each year, and we are one of the busiest courts in the state, and most people who come before me recognize these qualities and are appreciative of the positive impact our court has on families”.

“These are complaints, and I’m confident that I conducted myself appropriately in each of these.”

The commission says that on Feb. 20, 2007 Gormley denied due process rights to a man who appeared in Scott Family Court with his wife when she held him in contempt of court for violating a domestic violence order. Gormley sentenced the man to six months in jail, according to documents.

The couple appeared in court that day about a motion filed by the wife to modify the no-contact portion of the domestic violence order. (This indicates that the parties had made up and were seeking dismissal of the no contact provision…if that is correct the court’s intervention to impose more protection for the petitioner than the petitioner wanted is unusual.)

Gormley did not witness the man talking to his wife in the hallway outside the courtroom, according to the commission’s report, and she did not witness him at his wife’s house the night before.

No lawyer was present and the husband was not notified that he was facing a contempt charge, the documents say. And Gormley is accused of questioning the man without informing him that his answers might subject him to criminal contempt sanctions.

The commission says that Gormley demeaned the man as he stood in the courtroom with his wife and at one point said, “No contact means no contact, and you stop looking at her. You turn around and look at the wall.”

The response, filed by Gormley’s attorneys, said the man was staring at his wife “in a manner that was causing her to be visibly upset — she was crying and shaking.” Gormley said her direction for the husband to look at the wall, on his left, instead of his wife, standing on his right, was appropriate.

The commission’s second charge stems from incidents between July 15 and Sept. 11, 2008, in Woodford County. Gormley issued a domestic violence order and a temporary change of custody to remove a child from her father’s care and deny him visitation, according to documents.

The commission says Gormley disregarded jurisdictional or venue requirements and pleading and notice requirements for such orders and custody proceedings. Documents say Gormley acted as an advocate for the mother.

Gormley’s response said those allegations “are not legally or factually accurate.” She said the matter is pending in the Kentucky Supreme Court, so it would be inappropriate for the commission to pursue sanctions against her.

The commission’s third charge stems from a child-custody hearing on Sept. 24, 2008 in Scott Family Court, during which a mother was in an Indiana courtroom with her attorney, and the child’s paternal grandmother and paternal step-grandfather were in Gormley’s court with their attorneys and with the child’s father.

The commission says that not all communication was shared with the Indiana court, including instances when the people in Indiana were unaware that documents or notes were presented to the judge.

The Indiana court had audio from Scott Family Court, but no video.

The commission says that the Indiana court had continuing exclusive jurisdiction and that Gormley disregarded jurisdictional requirements by entering custody orders.

Gormley’s attorneys have requested that all the charges against the judge be dismissed.

ADDITIONAL CHARGES LEVIED AGAINST JUDE GORMLEY:

Gormley said she was confident she conducted herself appropriately.

According to a written notice of formal proceedings and charges, dated Sept. 2, Gormley held closed court in proceedings that should have been open. She allegedly denied Toyota employees access to the court by issuing an order, which the commission rescinded in July, saying modifications of child support would not be considered for Toyota employees until Dec. 31. She delayed deposition in a custody case for more than six months, the commission said. And she did not follow proper procedures in terminating parental rights to two fathers, according to the commission.

In a written response dated Sept. 21, Gormley denied being in violation for open court proceedings, saying she only closed court when the law supported such a decision. She also said the commission is aware of family courts that conduct proceedings in the same manner, and the Kentucky Supreme Court has recognized inconsistencies among family courts in open and closed sessions.

As for Toyota, Gormley’s response said she was worried short-term concerns about Toyota’s production had led to numerous requests to the Scott County attorney to modify child support obligations of its employees. And employees, who were paid a bonus in May, were unable to establish a substantial and continuing change in income.

The judge’s response said no affected party requested relief from the standing order. Gormley said she did not issue the order to deny anyone access to the court.

Gormley said in her response that the inadvertent delay in the custody case, in which she denied the father visitation, did not affect the welfare of the children or delay their return with the father. Her response also said the final order was entered within mandated time frames.

In regard to the fourth count, in which the commission says Gormley did not follow proper procedures in terminating parental rights to a father in Bourbon County and another in Woodford County, Gormley said the allegations were inaccurate and did not reflect her interpretation of the law.

Gormley is scheduled to appear in court on Sept. 29 for a hearing.

AOC changed personnel policy re: seniority four days before layoffs

Tuesday, September 22nd, 2009

AOC and state court officials changed policies regarding layoffs so those with the most seniority no longer were protected.

Some employees who were laid off Sept. 15 had more than 20 years’ experience in the courts or state government.

Leigh Anne Hiatt, a spokeswoman for the court system, said the Administrative Office of the Courts and state Supreme Court Chief Justice John D. Minton had to change the personnel policy because the previous policy did not cover the court’s current fiscal problems.

In its decision to cut staff, the court system looked at what it was supposed to perform by statute. The office decided that various departments within the court system — including mediation and training — were not part of its mandate. Those positions and others were abolished, Hiatt said.

The 47 layoffs were part of a larger cost-cutting measure at the Administrative Office of the Courts, which oversees the state’s court system. Because of declining state revenues, the state’s judicial branch faced a deficit of about $35 million. The job cuts resulted in a savings of $2.1 million, and additional cuts to supplies and reimbursements brought total reductions to $4.5 million.

The revised Sept. 11 order allowed employees to apply for jobs in any county, not just the county they were in. Those with the most seniority were given first preference on jobs, Dudgeon said.

It is rumored that similar job cuts may be necessary in other state agencies in 2010 as the budget crisis worsens in state government.

Kentucky DUI fatalities Decrease by 59% Since 1982 – Kentucky DUI Statistics Include Non-drivers and Do Not Indicate if the Fatality was Caused by a Drunk Driver. – Kentucky leads the nation in ATV accident deaths.

Tuesday, September 22nd, 2009

By LawReader Senior Editor Stan Billingsley    Sept. 22, 2009

Statistics released by the US Dept. of Transportation, National Highway Traffic Safety Administration  shown a marked decline in DUI related deaths since 1982 both nationally and in Kentucky.  In 2006 Kentucky had the 2nd.  lowest per cent of DUI fatalities in the nation.  (DUI fatalities vs. all traffic fatalities in state.)

Kentucky DUI statistics reported to the U.S. Department of Transportation regarding DUI fatalities defines “alcohol related death” as any traffic incident in which any person involved, including non-drivers were impaired.

“It is important to note that the Kentucky drunk driving statistics, as shown (below), include data from individuals who were in an alcohol-related crash, but not driving a motor vehicle at the time.” – US Dept. of Transportation, National Highway Traffic Safety Administration

This statistical method of reporting DUI traffic deaths by Kentucky means that the actual number of Kentucky traffic fatalities actually caused by a drunk driver are actually less than reported.

Kentucky statistics do not report the number of cases in which the drunk driver was the cause of the collision or wreck vs. instances in which the impaired person was only a passenger, pedestrian, or bicyclist. The word “related” is used in the statistics. The investigating police officer makes the call if a collision was “alcohol related” and his accident report is the data from which the national statistics are compiled.  These accident reports are not allowed to be introduced into evidence in Kentucky due to their unreliability.

 It is possible that a driver who was impaired may have been driving properly and a “sober” driver or pedestrian caused the wreck or collision. Such incidents are classified as a “alcohol related fatality.” Even if the wreck or collision was caused by a non-drinking party.  Thus the reported DUI fatality statistics are skewed in favor of making the actual number of fatalities “caused by drunk drivers” appear higher.

The statistics, by including non-drivers, paint a false positive picture of the actual number of traffic fatalities caused by a drunk driver, and incorrectly imply to the public that all “alcohol related” reported fatalities were caused by a drunk driver.

ATV Fatalities

Kentucky leads the nation so far in 2009 in deaths caused by ATV’s (all terrain vehicles).  Through Sept. 17, 2009 there have been 14 ATV related deaths in Kentucky. None of the persons killed wore a helmet. 

There are 4 million people in Kentucky.  If each citizen averaged 3,000 miles of driving per year, that would indicate 12 billion miles of travel.   Divided by 200 DUI related traffic deaths that means that there is one DUI traffic related fatality per 60,000,000 miles driven.

 Assuming that there are 100,000 ATV’s in Kentucky and each driver travels 100 miles per year on their ATV, this means that there is one ATV fatality for every 714,000 miles driven.  This indicates that a person is 84 times more likely to be killed on an ATV than killed by a drunk driver.

 

YEAR

TOTAL TRAFFIC FATALITIES in KENTUCKY

DUI RELATED FATALITIES

%  OF DUI FATALITIES TO ALL TRAFFIC FATALITIES

1982

822

482

59

1983

778

435

56

1984

754

389

52

1985

712

343

48

1986

805

398

49

1987

844

407

48

1988

838

411

49

1989

772

341

44

1990

849

371

44

1991

826

380

46

1992

815

333

41

1993

871

338

39

1994

779

309

40

1995

849

302

36

1996

843

317

38

1997

857

301

35

1998

858

306

36

1999

813

300

37

2000

820

280

34

2001

845

251

30

2002

915

302

33

2003

928

276

30

2004

964

308

32

2005

985

313

32

2006

913

257

28

2007

864

212

25

2008

826

200

24

 Kentucky Drunk Driving Statistics

“In Kentucky, the total number of traffic fatalities actually increased since 1982, however, both the number and percentage of alcohol related deaths decreased. The highest year for both was 1982. In 2006, out of all traffic fatalities, 24% involved a blood alcohol concentration (BAC) of 0.08 or higher.

All 50 states in the US now apply two statutory offenses to operating a motor vehicle while under the influence of alcohol. The first (and original) offense is known either as driving under the influence (DUI), driving while intoxicated/impaired (DWI), or operating while intoxicated/impaired (OWI). This is based upon a police officer’s observations (driving behavior, slurred speech, the results of a roadside sobriety test, etc.)

The second offense is called “illegal per se”, which is driving with a BAC of 0.08% or higher. Since 2002 it has been illegal in all 50 states to drive with a BAC that is 0.08% or higher.

It is important to note that the Kentucky drunk driving statistics, as shown above, include data from individuals who were in an alcohol-related crash, but not driving a motor vehicle at the time. The U.S. Department of Transportation defines alcohol-related deaths as “fatalities that occur in crashes where at least one driver or non-occupant (pedestrian or bicyclist) involved in the crash has a positive Blood Alcohol Concentration (BAC) value.”

The fatality rates shown above refer to the number of people killed in all traffic accidents and, separately, in alcohol related traffic accidents, per 100 million vehicle miles traveled.

Criminal status of DUI laws in Kentucky

In Kentucky, 1st offense is a class B misdemeanor, 2nd offense within 5 years is a class A misdemeanor, 3rd offense within 5 years with a BAC under .18 is a class A misdemeanor, 3rd offense with a BAC of .18 or higher is a class D felony; 4th and subsequent offenses are class D felonies. Citation:§§189A.010(5), 532.020 & 532.060 (2)

Sources for Kentucky drunk driving information and statistics US Dept. of Transportation, National Highway Traffic Safety Administration, 12/02

National drunk driving statistics in the US

Alcohol related deaths in the US since 1982:

 

Total fatalities

Alcohol related fatalities

       

Year

Number

Number

Percent

1982

43,945

26,173

60

1983

42,589

24,635

58

1984

44,257

24,762

56

1985

43,825

23,167

53

1986

46,087

25,017

54

1987

46,390

24,094

52

1988

47,087

23,833

51

1989

45,582

22,424

49

1990

44,599

22,587

51

1991

41,508

20,159

49

1992

39,250

18,290

47

1993

40,150

17,908

45

1994

40,716

17,308

43

1995

41,817

17,732

42

1996

42,065

17,749

42

1997

42,013

16,711

40

1998

41,501

16,673

40

1999

41,717

16,572

40

2000

41,945

17,380

41

2001

42,196

17,400

41

2002

43,005

17,524

41

2003

42,643

17,013

40

2004

42,518

16,919

39

2005

43,443

16,885

39

2006

42,532

15,829

37

2007

41,059

15,387

37

Drinking and driving fatalities by state in 2006 (ranked by highest number of alcohol related deaths):

State

Total Fatalities

Alcohol-Related Fatalities

Number

Percent

Texas 

3,466

1,544

45%

California 

4,229

1,509

36%

Florida 

3,363

1,111

33%

Pennsylvania 

1,517

556

37%

Illinois 

1,254

540

43%

Georgia 

1,688

539

32%

Arizona 

1,280

502

39%

North Carolina 

1,558

490

31%

New York 

1,454

483

33%

Tennessee 

1,286

478

37%

South Carolina 

1,037

477

46%

Missouri 

1,087

469

43%

Ohio 

1,235

451

37%

Alabama 

1,206

445

37%

Louisiana 

982

425

43%

Michigan 

1,081

390

36%

Mississippi 

911

358

39%

Wisconsin 

722

352

49%

Virginia 

961

347

36%

Indiana 

896

290

32%

New Jersey 

771

285

37%

Washington 

630

269

43%

Kentucky 

913

257

28%

Arkansas 

665

245

37%

Oklahoma 

765

243

32%

Maryland 

651

235

36%

Colorado 

533

207

39%

Oregon 

477

177

37%

Minnesota 

493

175

36%

Nevada 

432

168

39%

Kansas 

466

162

35%

Massachusetts 

422

159

38%

New Mexico 

484

155

32%

West Virginia 

408

155

38%

Iowa 

439

142

32%

Connecticut 

301

121

40%

Montana 

255

114

45%

Idaho 

267

102

38%

Nebraska 

266

86

32%

South Dakota 

191

78

41%

Wyoming 

195

78

40%

Hawaii 

160

77

48%

Maine 

188

70

37%

Utah 

284

63

22%

New Hampshire 

127

51

40%

Delaware 

148

50

34%

North Dakota 

111

47

42%

Rhode Island 

81

37

46%

Vermont 

86

28

33%

Alaska 

73

23

31%

Dist of Columbia

37

14

36%

       
National

42,532

15,829

37%

Puerto Rico

507

176

35%

 The number of traffic fatalities in 2008 reached its lowest level since 1961. There was a 9.7-percent decline in the number of people killed in motor vehicle crashes in the United States, from 41,259 in 2007 to 37,261, according to NHTSA’s 2008 Fa-tality Analysis Reporting System (FARS) (see Figure 1). This decline of 3,998 fatalities is the largest annual reduction in terms of both number and percentage since 1982. More than 90 percent of this reduction was in passenger vehicles, which make up over 90 percent of the fleet of registered vehicles. Passenger car occupant fatalities declined for the sixth con-secutive year, and are at their lowest level since NHTSA be-

gan collecting fatality crash data in 1975. Light-truck occu-pant fatalities dropped for the third consecutive year, and are at their lowest level since 1998. However, motorcyclist fatalities continued their 11-year increase, reaching 5,290 in 2008, accounting for 14 percent of the total fatalities. Data from previous years has shown that while motorcycle registrations have increased, the increase in motorcyclist fatalities has increased more steeply. The data shows a decrease in fatalities for all person types except motorcyclists and pedalcyclists.

Kentucky lawyer, Bill Robinson of Frost, Brown & Todd in Florence, is unopposed for Presidency of the American Bar Association

Sunday, September 20th, 2009

 William “Bill” Robinson III, one of the hardest working lawyers you will ever meet, has for years held two full time jobs, one as a practicing lawyer and another as a community leader. 

 Robinson a member of the famous UK College of Law Class of 1971, is running unopposed for the office of President-Elect, and this will automatically move him into office as President of the 400,000 member association in August of 2011.

He is one of two members of the UK Law Class of ’71 to have also served as President of the Kentucky Bar Association.

CASTING DIRECTOR LOOKING FOR CLEAN CUT ADULT MALE PROFESSIONALS AS EXTRAS FOR KENTUCKY MOVIE “SECRETARIAT”

Sunday, September 20th, 2009

 The casting director of Fast Track Productions is looking for specialized extras for the movie “Secretariat” which will be shot in Kentucky soon.

 If you are interested send your application to e-mail :  secretariatcasting@gmail.com

 Include your height, weight, clothing and shoe size.  Also send a recent photo.

 They are particularly looking for:

 “adult males of all types, golfers, businessmen, and other clean cut professionals.  They are also looking for men with special skills, such as military experience, law enforcement background, jockeys, horse handlers and other specialized track positions.

 This could be the big break you have been waiting for!!

The Washington state Supreme Court threw out a 2006 law that requires an injured patient to get a certificate of merit from an expert before suing for medical malpractice.

Friday, September 18th, 2009

OLYMPIA, Wash. — Sept 17, 2009

 The state Supreme Court on Thursday unanimously threw out a 2006 law that requires an injured patient to get a certificate of merit from an expert before suing for medical malpractice.

The high court ruled that the law violates the separation of state powers, saying that allowing the Legislature to set rules about filing a lawsuit “conflicts with the judiciary’s inherent power to set court procedures.”

Seven of the justices also said that the law was unconstitutional because it unduly burdened the right of access to courts.

“Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed,” wrote the majority, led by Justice Susan Owens. “Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs’ right of access to courts.”

Justices Barbara Madsen and James Johnson wrote in a separate concurring opinion that while they agreed that the law was unconstitutional on the basis of separation of powers, it did not unduly interfere with access to the courts.

The case stems from a lawsuit filed by Kimme Putman of Wenatchee, whose 2007 lawsuit against Wenatchee Valley Medical Center was dismissed by a Chelan County Superior Court because she didn’t file the certificate.

Putman’s attorney, Ron Perey, said the law requiring the certificate created an impossible situation for patients.

“You couldn’t get reputable doctors to sign such a thing without first finding out what happened in the operating room,” he said. But under such a system, “the doctors and nurses wouldn’t talk,” the certificate of merit would never be issued, leading courts to dismiss the cases.

Because the law only applied to doctors, it “created a situation where doors to plaintiffs were closed because they couldn’t get the certificate of merit.”

Attorneys for the medical center did not immediately return calls seeking comment Thursday.

The case is Putman v. Wenatchee Valley Med. Ctr., docket number 80888-1.

To read text of case go to Supreme Court of Washington: http://www.courts.wa.gov

Indiana Court of Appeals Strikes Down Voter ID Law

Thursday, September 17th, 2009

 

September 17, 2009

 An Indiana appellate court on Thursday struck down a state law requiring voters to show identification — a law that the United States Supreme Court declared constitutional just last year.

 The court said the law violated the Indiana constitution by not treating all voters impartially.

 The state legislature passed the voter ID law in 2005, and it was challenged in federal court. The Supreme Court found the law constitutional in April 2008. In July of that year, however, the League of Women Voters brought a new suit in state court.

 The major difference between Thursday’s state court decision and the Supreme Court’s decision in Crawford v. Marion County Election Board is that the state court was interpreting the state constitution, while the Supreme Court interpreted the Constitution of the United States. Generally, state courts are given the last word in interpreting their own constitutions.

Indiana’s “Equal Privileges and Immunities Clause” is similar to the Equal Protection clause of the United States Constitution. But the unanimous three-judge panel of the Indiana Court of Appeals found that the voter ID law violated the guarantee of equal protection for all citizens because it did not require mail-in voters and residents of some nursing homes to produce state-approved identification.

 Under Indiana law, the court said, it could be reasonable to regulate absentee balloting more stringently than in-person balloting. But the voter ID law does the opposite, the court argued, and “imposes a less stringent requirement for absentee voters than for those voting in person.”

 Voter ID laws have been a contentious issue in state legislatures around the country. They are largely supported by Republican lawmakers and conservative groups, who say the laws are necessary to combat voter fraud. Critics of voter ID legislation, including many Democratic lawmakers, say that the laws are designed to reduce the participation of low-income voters, and argue that while fraudulent names on voter rolls in registration drives may not be uncommon, few instances of actual fraud at the polls by imposters have been detected.

 Professor Hasen said the decision, and a similar case in Missouri in 2006, suggests that the federal courts, once a bastion of voters’ rights, could be taking a back seat to more liberal state courts as the Supreme Court hardens along conservative lines.

Governor Beshear appoints Administrative Law Judges

Wednesday, September 16th, 2009

 

FRANKFORT, Ky. – Gov. Steve Beshear has appointed the following Administrative Law Judges in the Department of Workers Claims to serve for terms expiring Dec. 31, 2013.  The appointments are effective Jan. 1, 2010.

  • Robert L. Swisher, of Lexington, is an attorney with Jones Diestz & Swisher, PLLC.  Swisher received his Juris Doctor from the University of Kentucky College of Law and his bachelor’s degree from the University of Notre Dame.  The appointment replaces Donna H. Terry.
     
  • Jeanie Owen Miller, of Owensboro, is an attorney in private practice.  Miller received her Juris Doctor from the University of Kentucky College of Law and her bachelor’s degree from the University of Kentucky.  The appointment replaces Irene C. Steen.  

Former Justice Sandra Day O’Connor: Flawed education leaving Americans ignorant of government

Wednesday, September 16th, 2009

 
SEATTLEPI.COM

Public schools in America have largely abandoned teaching civics and history, leaving a public largely ignorant of government and young people “disengaged from our civic life,” according to retired U.S. Supreme Court Justice Sandra Day O’Connor.

“Rather than being revamped, civics education has been all but removed from our public schools,” O’Connor told a packed house at Town Hall Seattle on Monday.

Tests measure students’ levels of achievement in mathematics, science and reading “but not on civics or history,” added the first woman to serve on the high court.

O’Connor noted that “the civic mission” was the very reason why America’s public schools were founded in the first place. “(Thomas) Jefferson believed only an educated citizenry would recognize and thwart tyranny,” she said.

She received a standing ovation at Town Hall, and nary a mention was made of the Supreme Court ruling that decided the 2000 presidential election ruling in favor of George W. Bush. O’Connor was the deciding vote in a 5-4 decision.

On Monday night, however, O’Connor argued: “Our democratic discourse has to begin in our schools . . . Self-government cannot survive unless young people engage .”

She praised Washington for a new law — written and advocated by a Vancouver, Wash., high school class — that requires schools to offer education in state government and history.

In O’Connor’s view, civics education and American history should be high school graduation requirements. She noted the 2008 election and signs that young people “might be reengaging in civic life.”

“Only about one-third of Americans can even name the three branches of government, let alone what each one does,” O’Connor said in her Town Hall talk, sponsored by the Seattle Public Library Foundation.

She voiced particular concern at ignorance of the judicial system. “The public knows least about the third branch of government,” said O’Connor.

A new Web site — www.ourcourts.org — has been set up to remedy public ignorance

AOC Director Cuts 47 Employees

Tuesday, September 15th, 2009

Laurie K. Dudgeon, executive director of the Administrative Office of the Courts on Tuesday announced a cut of 47 jobs from the MillCreek office campus in Frankfort.

The Judicial Branch is facing a deficit of about $35 million. The state’s judicial branch also made. Additional cost-cutting measures may be necessary next spring, she said.

The job cuts occurred at the AOC’s Millcreek campus in Frankfort.

Affected employees were in the divisions of clerk services, mediation, real property, records and statistics, and training.

Elected judges and circuit court clerks and their personnel were not affected.

The AOC has 970 employees statewide. Of that, 273 are at the Millcreek campus.

Federal Jury In Louisville Awards $101 Million dollar verdict for unfair business competition

Tuesday, September 15th, 2009

 U.S. District Judge John G. Heyburn II presided over a jury trial in Louisville this week which resulted in a jury verdict of $101,000,000 in favor of the Ventas corporation.  Ventas alledged that California based HCP, Inc. interfered in a business deal and mislead the shareholders of Sunrise Senior Living Real Estate Trust which was in negotiations with Ventas for the sale of their properties.  This verdict is believed to be the second largest jury verdict in Kentucky.  In 2002 a Knott Circuit Court jury awarded $270 million to a coal miner.

 

Ventas alleged that HCP entered a bid to purchase the property when a deal was close between Ventas and Sunrise.   Ventas claimed that HCP was not a legitimate bidder.

 

HCP argued that even if the claims were true, the victims were the HCP shareholders not Ventas.  Ventas said the intent was to ruin the deal to hurt Ventas.

 

Ventas’s  lawyer team included Lead Counsel David Bradford,  Eric Ison and Holland McTyeire V.   HCP indicated that they would appeal the verdict.

The Kentucky Attorney Generals Office refuses court order to release exculpatory evidence. Fayette Circuit Judge dismisses criminal charges. –Attorney General fails to obtain indictment from Russell County Grand Jury, so he resubmits the case to a Franklin County Grand Jury

Monday, September 14th, 2009

 Because the Prosecution refused to comply in order to allow Leon Grider a fair trial to start on September 21, 2009 by turning over the documents;  Judge Payne of Lexington dismissed the charges against Leon Grider.

Franklin Circuit Court Judge Phillip Shepherd, assigned to Eric Griders case ordered the Attorney Generals office to turn over those over 100 boxes of documents seized and under the custody of the Kentucky Attorney Generals office.  However after that order was issued, the Attorney Generals office filed a writ of mandamus to the Kentucky Court of Appeals to keep Judge Shepherds order from being enforced.

It is also claimed in a Justice Watch website article that Leon Grider refused to plead guilty to the 05-CR-00074 action;  the Attorney Generals office in retaliation began an investigation against his son Eric Grider.  KBI Agent Kelly Hensley took charges against Eric Grider to the Russell County Grand Jury who refused to indict Eric Grider.  The Attorney Generals Office simply turned around and took the same charges to the Franklin Circuit Grand Jury.

 

See: INDICTMENTS DISMISSED AGAINST LOCAL RESPECTED BUSINESSMAN

ATTORNEYS CAN BE SANCTIONED FOR CRITIZING A SITTING JUDGE – KENTUCKY HAS LONG ZIPPED LAWYERS LIPS….

Saturday, September 12th, 2009

September 12, 2009  New York Times

Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days: he blogged about her, saying she was an “Evil, Unfair Witch.”

But Mr. Conway is a lawyer. And unlike millions of other online hotheads, he found himself hauled up before the Florida bar, which in April issued a reprimand and a fine for his intemperate blog post.

Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs, but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.

“When you become an officer of the court, you lose the full ability to criticize the court,” said Michael Downey, who teaches legal ethics at the Washington University law school.

And with thousands of blogs and so many lawyers online, legal ethics experts say that collisions between the freewheeling ways of the Internet and the tight boundaries of legal discourse are inevitable — whether they result in damaged careers or simply raise eyebrows.

Stephen Gillers, an expert on legal ethics at New York University Law School, sees many more missteps in the future, as young people who grew up with Facebook and other social media enter a profession governed by centuries of legal tradition.

“Twenty-somethings have a much-reduced sense of personal privacy,” Professor Gillers said. Younger lawyers are, predictably, more comfortable with the media than their older colleagues, according to a recent survey for LexisNexis, the legal database company: 86 percent of lawyers ages 25 to 35 are members of social networks like Facebook, LinkedIn and MySpace, as opposed to 66 percent of those over 46. For those just out of law school, “this stuff is like air to them,” said Michael Mintz, who manages an online community for lawyers, Martindale-Hubbell Connected.

In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge Cheryl Aleman, and appeared on a rowdy blog created by a criminal defense lawyers’ group in Broward County. The judge regularly gave defense lawyers just one week to prepare for trials, when most judges give a month or more. To Mr. Conway, the move was intended to pressure the lawyers to ask for a delay in the trials, thus waiving their right under Florida law to have a felony trial heard within 175 days, pushing those cases to the back of the line.

“All I had left were my words,” Mr. Conway said, adding that he decided to use the strongest ones he had.

Mr. Conway initially consented to a reprimand from the bar last year, but the State Supreme Court, which reviews such cases, demanded briefs on First Amendment issues. The American Civil Liberties Union of Florida argued that Mr. Conway’s statements were protected speech that raised issues of legitimate public concern. Ultimately the court affirmed the disciplinary agreement and Mr. Conway paid $1,200.

That penalty is light compared with the price paid by Kristine A. Peshek, a lawyer in Illinois who lost her job as an assistant public defender after 19 years of service over blog postings and who now faces disciplinary hearings as well.

According to the complaint by officials of the state’s legal disciplinary body, Ms. Peshek wrote posts to her blog in 2007 and 2008 that referred to one jurist as “Judge Clueless” and thinly veiled the identities of clients and confidential details of a case, including statements like, “This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because ‘he’s no snitch.’ ”

Another client testified that she was drug free and received a light sentence with just five days’ jail time, and then complained to Ms. Peshek that she was using methadone and could not go five days without it. Ms. Peshek wrote that her reaction was, “Huh? You want to go back and tell the judge that you lied to him, you lied to the presentence investigator, you lied to me?”

The complaint, first noted by the Legal Profession Blog, said that not only did Ms. Peshek seem to reveal confidential information about a case, but that her actions might also constitute “assisting a criminal or fraudulent act.”

Ms. Peshek declined to comment, citing the pending inquiry “for which I am currently seeking representation.”

Frank R. Wilson, a lawyer in San Diego, caused a criminal conviction to be set aside and sent back to a lower court because of his blog postings as a juror. According to a decision published recently in the California Law Journal and picked up by the Legal Profession Blog, Mr. Wilson, while serving on a jury in 2006, posted details of the case on his blog. Any juror who blogs about the details of a trial risks trouble and even civil contempt charges. But lawyers like Mr. Wilson also face professional penalties that can threaten their livelihood.

Mr. Wilson received a 45-day suspension, paid $14,000 in legal fees and lost his job. He said that warnings not to discuss the case did not ban blogging; the bar disagreed. Mr. Wilson also had not disclosed during jury selection that he was a lawyer. In an interview, Mr. Wilson said he had not been working as a lawyer at the time and had only been asked his occupation.

Judges, too, can get into trouble online. Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in California, was investigated for off-color humor that was accessible on his family’s Web server, though not intended to be public. He was cleared of wrongdoing, but a three-judge panel admonished him for not safeguarding the site, which they said was “judicially imprudent.”

Of course, some lawyers’ online problems are the same as everyone else’s, like getting caught in a fib. Judge Susan Criss of the Texas District Court in Galveston recalled in an interview a young lawyer who requested a trial delay because of a death in the family. The judge granted the delay, but checked the lawyer’s Facebook page.

“There was a funeral, but there wasn’t a lot of grief expressed online,” Judge Criss said. “All week long, as the week is going by, I can see that this lawyer is posting about partying. One night drinking wine, another night drinking mojitos, another day motorbiking.” At the end of the delay, the lawyer sought a second one; this time the judge declined, and disclosed her online research to a senior partner of the lawyer’s firm.

Judge Criss, who first told the story at a panel during an American Bar Association conference, said that the lawyer has since removed her from her friends list.

For his part, Mr. Conway noted that the judge he criticized was reprimanded last year by the Florida Supreme Court, which affirmed a state panel’s criticism of what it called an “arrogant, discourteous and impatient” manner with lawyers in another case. (Judge Aleman did not return calls seeking comment.) Mr. Conway said his practice was “probably enhanced by the experience” of going public.

But the State Supreme Court ultimately concluded that his online “personal attack” was “not uttered in an effort to expose a valid problem” with the judicial system. And so, the court concluded, the statements “fail as protected free speech under the First Amendment.”

****

Kentucky has established a standard of conduct for lawyer which restricts their comments about a sitting judge.

Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165 (Ky., 1980)

   We have previously, yet infrequently, had occasion to review charges of professional misconduct by attorneys who by their conduct and comments chip away at public confidence in the integrity of the judicial system. Kentucky State Bar Association v. Lewis, Ky., 282 S.W.2d 321 (1955) the attorneys involved charged in pleadings and in the local newspaper that a change in the assignment of special judges was politically motivated. We recognized that an attorney, just as any citizen, has the right to criticize the courts and their decisions, but charges of corruption or unethical conduct must be made only in good faith supported by substantial competent evidence. The attorney “owes it to himself as an attorney, to his profession, and to the Court to help maintain the dignity and decorum of the Court, and thus maintain the respect of the people for judicial processes.” KSBA v. Lewis, supra, at 324. Recently, in KBA v. Nall, supra, we applied this rule to an attorney who described a proceeding before a hearing officer of an administrative body as a “mere farce” and a “Kangaroo court” during a radio station interview. Insolent, impudent, and derogatory conduct can only serve to bring the judicial system into discredit in the public mind. Kentucky Bar Association v. Getty, Ky., 535 S.W.2d 91 (1975) cert. denied, 423 U.S. 1048, 96 S.Ct. 773, 46 L.Ed.2d 636.

        We are not alone in our opinion that by coming to the bar an attorney incurs the ethical obligation not to bring the bench and bar into disrepute by unfounded public criticism. “Our system of justice rests upon the mutual regard of the bench and bar.” Matter of Frerichs, supra at 766. “(I)n the case of a lawyer an abuse of the right of free speech may be some index of his character or fitness to be a lawyer.” In re Lacey, S.D., 283 N.W.2d 250, 252 (1979) quoting In re Gorsuch, 76 S.D. 191, 75 N.W.2d 644, 57 A.L.R.2d 1355 (1956). “Nor does free speech give a lawyer the right to openly denigrate the court in the eyes of the public.” In re Raggio, 87 Nev. 369, 371, 487 P.2d 499, 500 (1971). See also, In re Glenn, 256 Iowa 1233, 130 N.W.2d 672, 12 A.L.R.3d 1398 (1964); ABA Code of Professional Responsibility, EC 8-6; Annot., 12 A.L.R.3d 1408; Annot., 56 L.Ed.2d 841, 855-69. But see, Justices of the Appellate Division v. Erdmann, 33 N.Y.2d 559, 347 N.Y.S.2d 441, 301 N.E.2d 426 (1973); State Bar v. Semaan, Tex.Civ.App., 508 S.W.2d 429 (1974); Polk v. State Bar of Texas, N.D.Tex., 374 F.Supp. 784 (1974).

        We conclude as did the Board of Governors that Respondent’s public attribution of “highly unethical and grossly unfair” behavior to a named sitting judge, a charge that Respondent knew, or should have known, was unwarranted, was unethical and unprofessional conduct tending to bring the bench and bar into disrepute and to undermine public confidence in the integrity of the judicial process. If the Respondent had had reason to believe in good faith that the trial judge had engaged in proscribed conduct, then the proper forum in which to have made his claim was the Judicial Retirement and Removal Commission as provided in our Constitution, Section 121, and in our rules of court, SCR 4.000-4.300.

Taking into account the sincerity of the Respondent, his relative inexperience at the bar, the emotional issue involved, and our recent disposition of a similar case, we concur with the recommendation of the Board of Governors that Respondent be publicly reprimanded. However, while two recent instances such as this one may be a coincidence, three would certainly indicate an unwelcome trend. It is enough to say that in the future a stiffer penalty may be imposed. See KSBA v. Lewis, supra.

Page 169

        ”(E)very lawyer, worthy of respect, realizes that public confidence in our courts is the cornerstone of our governmental structure, and will refrain from unjustified attack on the character of judges, while recognizing the duty to denounce and expose a corrupt or dishonest judge.” KSBA v. Lewis, supra, at 326.

        This court finds the Respondent, Robert L. Heleringer, guilty of unprofessional and unethical conduct which tended to bring the bench and bar of the Commonwealth of Kentucky into disrepute. He is hereby publicly reprimanded and directed to pay the costs of these proceedings.

        All concur.

 

Ex-Governor’s son, Steve Nunn, Suspect in Death of His Girlfriend

Friday, September 11th, 2009

Ex-State Representative Steve Nunn of Glasgow was charged Friday with several counts of Wanton Endangerment in Hart County.  Nunn who is a suspect in the shooting death of a former girlfriend was located seated behind a tombstone in the cemetery where his mother and father (former Gov. Louie B. Nunn) are buried.  It has been reported that his wrists were slit.  Police reported that he fired a shot at them.

 He was subdued by State Police and transported to a hospital in Bowling Green where he is listed as being in fair condition.

Problems with Intoxilyzer 5000 Breath Test Results

Thursday, September 10th, 2009

 

LawReader thanks Lexington attorney Steve Isaccs for reference to the following articles which  show some issues being raised about the accuracy of the BA machine. 

 

The Ky. Supreme Court recently denied access to the source code on the Intoxilyzer 5000 (House v. Commonwealth) but did so on the basis that the defendant did not provide a sufficient foundation to justify a subpoena for the source code, and they said they would not condone a “fishing expedition”.   Steve Isaccs suggests that the following resources might provide the “foundation” required by the Ky. Supreme Court before they would look favorable on a subpoena for the BA source code.

 

See excerpts from West Publishing Book:

http://www.azduiatty.com/legal-attack-breath-testing.htm

 

 

Intoxilyzer 5000 DUI breath test attack in Connecticut

San Diego DUI criminal defense attorney news http://www.sandiegoduihelp.com/duiblog/2008/02/intoxilyzer-5000-dui-breath-test-attack.html

DUI Intoxilyzer inaccurate when used by women, blacks

A genius Connecticut defense attorney said he has found further evidence of problems with a device used by police to measure DUI blood alcohol levels.

Hearings before the state Department of Motor Vehicles have revealed that the Intoxilyzer 5000 can give inaccurate results when used by women and African-Americans, said Jay Ruane of Shelton, whose practice focuses on DUI defense.

Ruane hopes that the evidence will eventually cause the state to cease using the Intoxilyzer because, he said, the accuracy issues mean that the device violates the equal protection clause to the state Constitution. He said the state should not use a machine that is “inherently biased towards a percentage of the population.”

“This is something of national significance I would think,” said Ruane. “It could be the start of a national trend.”

There are about 170 Intoxilyzers in use in Connecticut, with each one costing about $5,000. The manufacturer, CMI, a Kentucky-based corporation, acknowledges an overall margin of error of up to 10 percent, but does not concede that the variations can be explained by the gender or race of the user. Connecticut State Police have repeatedly defended the accuracy of the device.

New Britain Superior Court Judge George Levine ordered the DMV hearings in 2006 while presiding over a drunken driving case involving two men, represented by Ruane, who failed Intoxilyzer tests.

Most the hearings took place in the fall. In covering one of them, the Law Tribune reported on testimony that the device was less accurate when used by shorter people and people with asthma and other lung disorders. An expert also testified that the way a person breathes into the machine could affect the reading.

Attorneys for both sides had until Feb. 15 to submit final briefs. In doing so, Ruane emphasized evidence that he said showed the machines have accuracy issues when used by women and blacks.

Dr. Michael Hlastala, of the University of Washington, who does forensic consulting in physiology of breath testing and alcohol in the body, testified at one hearing that a woman who ingests the exact same amount of alcohol as a man will produce a breath reading that exceeds the man’s by 5.6 percent.

“Thus, a 5.6 percent margin of error is implicit in every case where a woman is the arrestee giving the breath sample,” argues Ruane.

Further, Hlastala testified that the lung capacity of an African-American male is approximately 3 percent smaller than a Caucasian. “Because of the smaller capacity, an arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3 percent,” Hlastala concluded.

Dr. Robert Powers, the state’s chief toxicologist, did not rebut any of the newfound evidence during the hearings, Ruane said. Attorneys handling the matter for the DMV could not be reached for comment as of press time Thursday.

The DMV hearing officer, attorney William Grady, will take all of the evidence submitted by both sides and submit the findings to Levine. Ruane estimates that it will be two or three months before any further action is taken.

He said the losing side would likely appeal the decision in the state Appellate Court. He said the dispute is, at this point, “one-third to halfway through a very long process.” •

INTRODUCTION

Galileo Galilei has something to say about this case.

In 1632, Galileo published his scientific research confirming the scientific fact that the Earth revolved around the sun. This work supported the prior work of Nicolaus Copernicus, but directly contradicted the scientific belief originally developed by Aristotle (383-322 BC) that the sun revolved around the Earth. The Catholic Church, and especially the Pope and Vatican authorities, summoned Galileo to the Inquisition (1231-1820) to confront him and demand a retraction of his “heresy”. Galileo eventually succumbed to the threat of death and pleaded guilty to “vain glorious ambition and pure ignorance and inadvertence”. He died in Arceti in 1642, but not before inscribing the following in the margin of his copy of the Dialogue:

“When people of whatsoever competence are made judges over experts and are granted authority to treat them as they please…these are the novelties that are apt to bring about the ruin of commonwealth and the subversion of the State.”

Santillana, G. de, The Crime of Galileo (1961)

In 1992, 350 years later, Pope John Paul II acknowledged that Galileo was correct. In the course of these proceedings, Michael Hlastala, Ph. D. testified for the Petitioners and expressed the same idea as Galileo:

Cross Examination by Attorney Parker-Bair

Q Okay. And in keeping with that line of questioning if I may, Doctor Hlastala – strike that. Let me restate the question. Doctor Hlastala, have you engaged in any discussions with the forensic community with regards to these beliefs with respect to your positions and views?

A You bet. And I have expressed that to the forensic people and in our state, and I’ve also indicated that here in Connecticut. I have testified in individual trials related to that. I mean this is a paradigm shift; it takes time for that to be learned. You know when we talked about the Sun rotating and going around the Earth it took years and years, if not hundreds of years for that finally to be accepted.

(T 2B, p 61)

The instant cases expose the scientific weaknesses and biases of the Intoxilyzer 5000 EN, and demonstrate how and why the test results do not establish the true blood alcohol content of the suspect. The evidence from Dr. Hlastala stands unchallenged and unrebutted by the Department of Motor Vehicles, and fully answers many of the Court’s questions on remand.

QUESTION 1

WHAT DOES THE INTOXILYZER 5000 MEASURE? SPECIFICALLY WHAT DO THE TEST STRIPS PRODUCED BY THE INTOXILYZER 5000 MEAN IN TERMS OF THE RATIO OF ALCOHOL IN A PERSON’S BLOOD?

The Intoxilyzer 5000 measures the amount of organic material in an air sample (T2, p 45). The test strips produced by the Intoxilyzer 5000 indicate, according to Dr. Powers, an amount of alcohol stated in grams (weight) in a volume of 210 liters of breath which is equivalent to the volume of 100 milliliters of blood (T2, p 42, 46).2 These results are not 100% accurate in every case (T2a, p 29). The Department contends that this reading, if accurate, is equal to the amount of alcohol in the arrestee’s blood because there is a “general expectation of equivalency” (T2, p 46). The Petitioners claim that for multiple reasons, the Intoxilyzer 5000 does not measure the alcohol in the arrestee’s blood. The paradigm upon which the Intoxilyzer 5000 is based relies on a number of assumptions:

That the machine measures only alveolar air.
That any alcohol in the mucosa of the trachea and bronchi does not affect the alveolar air as it leaves the body.
That the mathematical ratio (Partition ratio) used to calculate the blood alcohol content is the same for all people.
ALVEOLAR AIR

The old paradigm believes that in the deepest part of the human lung, a thin membrane separates the inspired air from the blood flow. It is at this point that the alcohol in the blood flows through the membrane and into the air in the alveolar sacs. If the alcohol in the alveolar sacs is measured by a factor called the partition ratio, the amount of alcohol in the blood can be quantified (T2 p 50). Thus, in order to make the measurement, it is required that the machine measure the breath from the alveolar sacs, and Regulation 14-227a (10)(b)(1)(a) requires that the air sample be alveolar in nature (T2 p 51). This alveolar air quickly overwhelms the air in the trachea and the bronchi, and because it has the highest value, is the most practical basis for a determination of breath alcohol content (T2 p 54).

Yet despite this theoretical foundation for the operation of the Intoxilyzer 5000, Dr. Powers could not guarantee definitively that the machine actually does measure alveolar air (T3 p 58) which is required by the Regulation (T2 p 58). Similarly, despite Power’s testimony that on expiration alveolar air would “quickly overwhelm” tracheal and bronchial air, (T2 p 54) he conceded that upon expiration the tracheal and bronchial air would be the first to leave the airway (T2 p 56). Thus, how the tracheal air can be overwhelmed if it leaves the expiration track first remains a mystery.

The onward march of science has created a new paradigm as explained by Dr. Hlastala, an expert in lung physiology (T2B p 6, 8). The old paradigm believed that upon expiration the breath alcohol content would eventually level off, and this leveling would indicate that it was alveolar air that was being sampled ( T2B, p15,17. Exhibits 5 and 6). However, later studies have shown that the breath alcohol content does not level off, but continues to rise (T2b, p 18). This finding contradicted the old paradigm, and called for further study. Such study revealed that the alcohol measured by the Intoxilyzer 500 EN was alcohol from the mucous in the trachea (T2B, p 21). Because the alcohol from the mucous already saturated the breath, it is impossible to pick up any alcohol from the alveolar air (T2B p 22). The old paradigm relies on a belief that the amount of alcohol does not change because it is from the alveoli. However, because breathing pattern can affect the amount of alcohol in the breath, the old paradigm simply is not scientifically sound (T2B p 22, 23, 24, 25). In addition, while the old paradigm is premised upon an analysis of alveolar air, the new paradigm demonstrates that you can never reach alveolar air (T2B, p 27) without it interacting with the mucous (T2B, p 34).

PARTITION RATIO

A crucial factor in the assessment of breath alcohol content is the blood/breath ratio – also known as the partition ratio. Both Dr. Powers and Dr. Hlastala agree that:

1. The Intoxilyzer 5000 EN does not determine the partition ratio of the arrestee.

2. The machine is programmed at a partition ratio of 1: 2100.

3. Scientific studies have shown that the partition ratio in the human being can range from 1:900 to 1:3700 (T2B, p 59).

Exhibit 15 offered through the testimony of Dr. Hlastala demonstrates the scientifically acceptable partition ratio for breath alcohol, based upon the work of A W Jones in 1982 ( T2B, p 38-39). The number 1 represents one molecule of alcohol in the gas per 1756 molecules of alcohol in the blood, at a constant temperature. ( T2B, p 40)

Dr. Power’s credibility is strained, if not demolished, on this very point. He could not even properly define what the partition ratio was. When asked to explain the ratio he said:

“So it would be twenty four hundred liters of air or one liter of blood”

(T2, p 60)

“Volume of blood to volume of air each containing the same amount of alcohol. So we’re saying that the amount of alcohol that one would find in one liter of blood, we would expect to find that same amount of alcohol in twenty one hundreds of air. (T2, p 61).

This testimony clearly demonstrates that Dr. Power’s has the definition of partition ratio completely reversed. Such a glaring ignorance of a basic principle of breath testing impeaches anything he says about the science of breath testing. Combined with the undisputed evidence that he is neither a certified operator of an Intoxilyzer 5000 (T2a, p 28, 29) nor has attempted to obtain same (T2a, p 28 29); has no idea who wrote the first scientific paper on the old paradigm; cannot name any article as to the amount of time necessary to obtain an alveolar air sample (T2, p 58); cannot name any scientific article on breath testing (T2, p 58); has never read any article on the effect of ranitidine on breath testing ( T2a , p8), there remains no credible evidence that the old paradigm should retain any validity or that his testimony should be valued over the testimony of Dr. Hlastala.

WHAT DO THE TEST STRIPS MEAN IN TERMS OF THE RATIO OF ALCOHOL IN A PERSONS BLOOD?

Based upon the testimony of Dr. Hlastala, the simple answer is that the readings on the test strips do not indicate the true blood alcohol content of the arrestee. At best, they measure the breath alcohol that originates in the tracheal and bronchial mucous, and is deposited and re-deposited during the dynamic process of breathing (T2B, p 21-22). That is why the amount of breath alcohol continues to rise, and also why the reading can be substantially affected by the manner of breathing ( T2B p, 22-23). In short, the test strip readings do not accurately reflect any blood alcohol content of the arrestee, and in this – at least- Dr. Powers concurs. ( T2a, p 27,29).

QUESTION 2

IF THE INTOXILYZER 5000 MEASURES THE PERCENTAGE OF ALCOHOL IN TERMS OF A WEIGHT BY VOLUME RATIO OF ALCOHOL TO THE BLOOD, DOES THE INTOXILYZER 5000 HAVE THE CAPACITY TO CONVERT THAT WEIGHT BY VOLUME MEASUREMENT INTO A WEIGHT BY WEIGHT MEASUREMENT? IF YES, IS THERE A MARGIN OF ERROR IN THE CONVERSION BY AN INTOXILYZER 5000 FROM A WEIGHT BY VOLUME TO A WEIGHT BY WEIGHT MEASUREMENT?

CAPACITY OF INTOXILYZER 5000 TO CONVERT

Dr. Powers testified that the Intoxilyzer 5000 EN does not, as presently programmed, have the capacity to convert its weight by volume measurement of the grams of alcohol found to a grams of alcohol per grams of blood reading. (T 2a, p20-48; 25.) This is the fact despite the certification in Exhibit F that alleges that the machine is capable of a result consistent with Section 14-227a in its definition of elevated blood alcohol content (T 2, p 38). Powers acknowledged that the statutory definition has never been changed (T2, p 42) and remains grams of alcohol per 100 grams of blood. Thus, a measurement of grams of alcohol per 210 liters of breath still must undergo a conversion to satisfy the statutory definition. Thus, the simple answer to the Court’s question is “No”, as it is presently configured.

MARGIN OF ERROR

The second part of the Court’s question arguably encompasses two issues. The first is the mathematical conversion of a blood volume reading to a blood-weight reading. The second is the range of error inherent in the machine readings. The plaintiff’s will discuss these issues seriatim.

While the Intoxilyzer 5000 does not make a conversion to a weight to weight reading, it is beyond dispute that an expert can do so by subtracting five percent (5%) from the breath alcohol reading (T2, p 69; T2a, p 9, 15, 22; T2 p9.) This assumes that the machine reading is one hundred percent accurate. Dr. Powers, however, cannot even swear that the machine is so accurate at all times. (T 2a, p 27, 29). In addition, the Intoxilyzer 5000 publication itself concedes that it operates at a 3% margin of error. (Exhibit 2). Thus, to be minimally reliable under perfect conditions with a sample from a Caucasian male, the result would be reduced by 3%, based on the inherent margin of error of the machine and an additional 5% based on the conversion factor from breath to blood. At its very best, the machine is at least 8% too high when analyzing a breath alcohol sample for the perfect arrestee.

ADDITIONAL MARGINS OF ERROR ESTABLISHED BY THE EVIDENCE

An explained heretofore in Question 1, the Intoxilyzer 5000 is based on a scientific theory at odds with the present scientific understanding of the dynamics of breath alcohol. Even putting to one side the petitioner’s claim that the machine does not accurately measure a breath alcohol sample that is equal to a blood alcohol content, the machine functions in a way that is biased on grounds of gender, race, temperature and weight. Each of these said categories has been shown to affect the breath alcohol readings by a scientifically recognized factor, or a margin of error. (Exhibits 11,12,13,14,17,19,20) These grounds must be considered as additional factors that impact the reliability of the Intoxilyzer results:

GENDER MARGIN OF ERROR (FACTOR OF 5.6%)

Dr. Hlastala testified that the Intoxilyzer 5000 is biased against women by a factor of 5.6%. This is based upon the scientific studies compiled by AW Jones and I. Anderson in its 2002 study in Forensic Science International and reflected in Petitioner Exhibit 17 which is based on a lower partition ratio for females than males. It is quite apparent that, based on the old paradigm which underlies the Intoxilyzer 5000, a woman who ingests the exact same amount of alcohol as a man will produce a breath reading that exceeds the man’s by 5.6% (T2B, p. 43). Thus, a 5.6% margin of error is implicit in a every case where a woman is the arrestee giving the breath sample.

It is important to note that the scientific research has been peer reviewed, and is thereby accepted in the scientific community (T2B, p. 43). Yet, despite the presence of this research in the public domain, Dr. Powers, the defender of the Intoxilyzer 5000, has never heard of such a bias, (T2C, 27) and offers no rebuttal to this information(T2C, 28). He can point to no study that contradicts the bias inherent in the different partition ratios.

RACE MARGIN OF ERROR (Factor of 3%)

Dr. Hlastala further testified that the Intoxilyzer 5000 is biased against African Americans in that the lung capacity of the African American male is approximately 3% smaller than the Caucasian(T2B p. 37). Because of the smaller capacity an arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3%. With the racial bias of 3%, and the factor in the 5% conversion from breath to blood, it appears that the African American’s loses any adjustment based on the breath-blood conversion while the Caucasian male does not. Again, Dr. Powers offers no rebuttal.

The constitutionally of biases based on gender and race will be addressed infra.

TEMPERATURE MARGIN OF ERROR

Above and beyond the issues of gender and racial bias, the temperature of the person giving the breath sample also injects a percentage of error in breath alcohol analysis. As explained by Dr. Hlastala, the pioneering work of Fox and Hayward on both hyperthermia and hypothermia demonstrate that temperature can play a pivotal role in the accuracy of a breath alcohol analysis. It is also important to note that the Intoxilyzer 5000 manual (Exhibit 2 , p24) contains a “temp check”, but that temperature check is only intended to prevent condensation of sample vapor in the machine – and not to adjust for a higher temperature of the breath sample due to the elevated body temperature of the arrestee. Moreover, in the display messages and commands (pp2-25 et seg) there is no message to alert the operator that the arrestee is producing a breath sample with an elevated temperature.

The conclusion of the Fox and Hayward study demonstrates that:

“… mild hyperthermia in humans does not alter the standard decay curve of BAC…but does significantly distort the BAC decay curve to an extent which would cause serious inaccuracy for prediction of BAC. The magnitude of the distorting effect of core temperature is too large (up to 23% with mild hyperthermia) to be ignored in breath-testing procedures.”

(Exhibit, p8 39)

As a result, Drs. Fox and Hayward counsel at least an 8.6% correction factor for every one degree centigrade (1°C) that exceeds normal body temperature. It is important to note that this work has been extant in the scientific community since at least 1988, well before the State certified the Intoxilyzer 5000 for use in evidence.

Despite the testimony of Dr. Hlastala on the effects of temperature on breath alcohol testing, and the scientific research in support of this testimony, State’s expert Powers denied that temperature could affect a breath sample (T2, p 70). He further opined that an increased temperature would be equilibrated in the intake tube and has no impact on the measurement of alcohol (T2 71). This testimony is wholly suspect because: first, he had never even read the research by Fox and Hayward; second, he was recalled as a witness after Dr. Hlastala testified as to the subject and refused – or was unable – to contradict anything said on the issue (T2a, p7; T2c p 27,28); third, by its very makeup in its manual, the “temperature check” is designed only to “prevent condensation of sample vapor” (Exhibit 2, p24) and NOT to measure the temperature of the breath sample. Dr. Powers’ ignorance of the mechanics of the Intoxilyzer 5000 is understandable given that he has never been certified as an operator thereof, and has never received training on the machine (T2a p28, 29). To repose trust based upon such ignorance would be akin to believing that the sun revolves around the Earth because the State announces it to be so.

QUESTION 3

DOES ONE TAKING A BAC TEST ON AN INTOXILYZER 5000 EXHALE 210 LITERS OF BREATH?

The direct answer to the question is No. The chamber containing the breath sample on the Intoxilyzer 5000 EN cannot accept 210 liters of breath (T2B, p 23) and Dr. Powers argued that a human being cannot exhale 210 liters of breath (T2a, p 23, T2B p 3).

QUESTION 4

UNDER WHAT AUTHORITY DID THE COMMISSIONER OF PUBLIC SAFETY AND MOTOR VEHICLES DETERMINE THAT EIGHT-HUNDRETHS OF ONE PERCENT ALCOHOL IN ONE’S BLOOD IS EQUAL TO THE NUMBER OF GRAMS OF ALCOHOL IN 210 LITERS OF BREATH?

A) Commissioner of Motor Vehicles

On November 28, 2007 John Yacavone, Chief of Motor Vehicles testified as to the Department’s position on this question (T3 p8). The Commissioner of Motor Vehicles did not make the determination set forth in the Court’s question (T3 p9). He believed that the Commissioner of Motor Vehicles did not have the authority to make such a determination (T3 p9). No regulation record as contemplated by Section 4-168b exists (T3, p10, 11).

Most telling of all, for the purposes of the case, was Yacavone’s assertion that the hearing officer is not required to know how the Intoxilyzer determines blood alcohol of an individual (T3 p 34) or to make that determination in each hearing (T3 p34-35). That is precisely the point of this appeal. If the hearing officer is not required to make a determination of blood alcohol content, then no finding of elevated blood alcohol content under Section 14-227b can even be made, and the Petitioners in these cases deserve the reinstatement of their driving privileges.

B) Commissioner of Public Safety.

Attorney Janet Ainsworth testified on behalf of the Commissioner of Public Safety. She was a staff attorney of the Department and assisted in the change in regulations in 2005 (T4, p. 4-5). As to the Court’s question, she testified that her department had the authority to adopt the regulations, and implicit in that authority was the “ability to create definitions” (T4 p16). However, she had no scientific knowledge at all (T4 p18). As a result, it was Dr. Powers who proposed the change in the regulation defining blood alcohol content (Regulation 14-227a 1-b(3)) as grams per volume (T4, p.17-18). Such a definition contradicts the statutory definition of elevated blood alcohol content found in Section 14-227a. Ainsworth agreed that the Commissioner’s authority to adopt regulations was settled as long as the regulations are not in conflict with the statutory law (T4, p.15-16) and she did not see any conflict (T4 p21), only a “clarification” (T4, p14). How a change from a weight/weight regulation to a weight/volume regulation amounts only to a “limited, technical” (T4 p13) revision defies the imagination.

Moreover, it was Ainsworth’s function to merely “plug in language into the draft and take it through the adoption process” (T4 p19). From this testimony it becomes clear that the sole movement for the equivalence between breath alcohol measurements was Dr. Powers.

He provided the language (T4 p 5, 7). He called it a “clarification” (T4 p 13-14). He provided no scientific articles in support of the change (T4, p7). The Commissioner received no other input from the manufacturer or other scientists (T4, p8). Indeed, the only persons consulted were two toxicologists (Dr. Powers and Dr. Pinder) a policeman and an assistant State’s Attorney (T4 p10).

In short, Dr. Powers applied the old paradigm of breath alcohol testing and had the Commissioner of Public Safety amend the regulations under Section 14-227a to fit this paradigm. The Commissioner accepted this change wholesale, and neither sought nor received any scholarly comment on the change. Nevertheless, the statutory definition of elevated blood alcohol content remains as the General Assembly drafted it, and there is absolutely no evidence in writing that the Commissioner of Public Safety even considered the statutory definition in this change (T4 p25).

QUESTION 5

HAS THE COMISSIONER OF PUBLIC SAFETY CERTIFIED THE INTOXILYZER 5000 AS “SUITABLE FOR USE IN TESTING AND ANALYSIS” OF BREATH IN ACCORDANCE WITH BOTH GENERAL STATUES 14-1227A (D) AND 14-227A-10B OF THE PUBLIC SAFETY REGULATIONS? IF YES, INCLUDE THE SUPPLEMENTAL ADMINISTRATIVE RECORD A COPY OF THAT CERTIFICATION.

The Department offered into evidence as Exhibit 7 a letter dated

by Commissioner of Public Safety Arthur Spada. This certified the Intoxilyzer 5000 as suitable for use in testing and analysis of breath for the presence of alcohol.

THE DEPARTMENT’S AMENDMENT OF REGULATION 14-227a (1b) DOES NOT SATISFY THE STATUTORY DEFINITION OF ELEVATED BLOOD ALCOHOL CONTENT.

For the reasons articulated heretofore, the petitioners submit that the amendment of Regulation 14-227a-(1b) clouded rather than clarified the way blood alcohol content is to be calculated under Sec. 14-227a. The Petitioners will demonstrate why Dr. Power’s interpretation is erroneous.

Dr. Power’s claims that in scientific circles, all assessments of breath alcohol content are reported on a weight-volume basis (T2, p 42). No doubt that is true. However, our Legislature has defined elevated blood alcohol content on a weight-weight basis in Section 14-227a, and thus hearings under Section 14-227b are bound by this definition. In order to avoid the clear language of this statute, Dr. Powers states that elevated blood alcohol content is measured on a weight-volume basis, and the amendment of Regulation 14-227-(1b) satisfies the statutory language because it measures, in part only, a weight of alcohol.

Thus, to overcome the statutory definition, Dr. Powers would use the weight of alcohol as the numerator, and the volume (210 liters of air or 100 milliliters of blood) as the denominator. This construction makes no sense because the use of the term “percent” demonstrates that there cannot be different numerators and denominators. It must be all volume or all weight. You cannot determine a percentage if you use 2 different factors because a “percent” implies that there is a uniform factor based on 100 of the same type. For example, how can .08 grams of anything be a percentage of a volume? You would have to convert the weight to a volume, and then determine what percentage that volume occupied based on 210 liters of breath as the “100”. Dr. Power’s testimony never addressed the “percent” issue inherent in the statutory definition, but it is a consideration which cannot be ignored since it totally undermines the logic of Powers’ testimony.

There is, however, a way to resolve the statutory terminology. If we utilize 100 grams of blood as the baseline (as Dr. Powers originally testified (T2 42)) then one percent (1%) of 100 grams is 1 gram. Eight-Hundredths of that one gram equals .08 grams.3 This interpretation is faithful to the statutory language and makes eminent sense. It avoids the thorny issue of trying to figure out how a weight can be a percentage of a volume, and is faithful to the common understanding of being “over .08”.

Petitioners submit that the convoluted description by Dr. Powers of the weight/volume results defy logic and produces bad scientific results. The change of the regulation on this basis hinders rather than clarifies the way that blood alcohol content should be assessed. Moreover, this strained reading of the statute demonstrates that the Department of Public Safety exceeded its regulation-making authority in adopting such a strained interpretation to buttress a breath testing method that fails to satisfy our statutory framework. These sound reasons of science, logic and policy sustain the Petitioner’s position that the regulatory change did not solve a problem inherent in the Intoxilyzer 500 – it only exacerbated it.

THE USE OF THE INTOXILYZER 5000 EN VIOLATES THE CONNECTICUT CONSTITUTION IN THAT IT IS BIASED AGAINST THE ARRESTEE BASED ON RACE AND GENDER. DUE TO THE INHERENT CONSTITUTIONAL VIOLATION, THE INTOXILUYZER 5000 EN SHOULD NOT BE USED IN THE STATE.

Article I, Section 20 of the Connecticut Constitution states unequivocally:

“No person shall be denied the equal protection of the law no be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. “

Thus, any discrimination based on gender or race violates the constitutional provision, and must be disfavored by the judiciary, the executive and the legislative branches of our State government.

It is important to note that the prohibition of discrimination bans both private and public action. While the contours of the effort on private action have not fully been delineated, the restriction on State action is clearly settled. If the Department of Motor Vehicles – as a state agency – employs a scientific method that discriminates based gender, or race, or both, such action is clearly banned by the State constitution. The testimony in this case clearly demonstrates that the Intoxilyzer 5000 EN does fall within this constitutional proscription.

To be sure, instances of state action that discriminate based on gender and race are few and far between. The judiciary has encountered this issue most often in the context of jury selection in criminal trials. In such a forum, the State, represented by the State’s Attorney, is precluded from using a peremptory challenge on gender and racial grounds. Such action violates not only the Federal Constitution, Batson v Kentucky, 476 U.S. 79, 106 S. Ct 1712, 90 L Ed 2cd 69(1986) J.E.B. v Alabama, ex rel T.B, 511 U.S. 127, 114 S. Ct 1419, 128 L Ed 2d 89 (1994) but the State Constitution as well.

This constitutional prohibition is grounded on the guarantee of equal protection of the laws for the venireman. It also implicates the spectre of State discriminatory action which is clearly prohibited since” the perceived fairness of the judicial system as a whole”. State v. Gonzalez 206 Conn. 391, 394 (1988) is of paramount importance. Where the State employs such discriminatory tactics, not only is the venire man the victim of discrimination, but also the judicial system as a whole is compromised. In order to forestall any State discriminatory action, a discriminatory claim can be raised not only by the venireman directly afflicted, but also by a party to the action even if that party does not fit the profile that invokes the discrimination. Powers v Ohio 499 U.S. 400, 111 S. Ct 1364, 113 L. Ed 2d 411 (1991)(White jurors can claim Batson error even though black jurors were the ones improperly excluded.) In light of this holding, Petitioners Pcolka, Stash, and Makela can assert a constitutional claim that would strictly apply to Co-Plaintiff Carole Peck as a female.

The record in this case clearly demonstrates the gender and racial bias inherent in Intoxilyzer 5000 EN. Gender bias arises from the uncontroverted fact that females have a smaller partition ratio than males (Exhibit 17). A smaller partition ratio causes a higher breath alcohol reading (Exhibit 17). A higher breath alcohol concentration is guaranteed by a factor of at least 5.6 % (T2 p 43).

In addition, pre-menstrual or menstrual increases in body temperature also have a distorting effect on a true breath reading by a factor of 8.6% for every 1.8 degrees Fahrenheit of elevated temperature. (Exhibit 19) Such percentage arbitrarily increases the breath alcohol reading to the prejudice of the female arrestee.

Moreover, the issue of racial bias rises to the fore in the use of the Intoxilyzer 5000. Dr. Hlastala opined that the distorting effect based on race was 3%. (T2B, p37) While at first sight this might appear to be de minimis, State should not countenance racial discrimination in any degree whatsoever. If the margin of error of the machine is 3%, one can readily see that the African American’s inflation factor of 3% can be offset by that same margin of error of 3%. As a result, the Caucasion arrestee maintains a claim of 3% margin of error while the African American arrestee loses that claim entirely. Such is the direct effect of the racial bias of the Intoxilyzer 500 EN.

While these proceedings do not address the specific question of gender or racial bias, the evidence demonstrates that these biases are scientifically well founded. As a result, they are pertinent to the Court’s arguing and should be considered.

Gov. Beshear Signs Law to Exempt Military Pay from State Tax

Wednesday, September 9th, 2009

 

FORT CAMPBELL, Ky. — In an effort to boost the number of servicemen and women who call Kentucky home, state lawmakers have enacted legislation that exempts military pay from the Commonwealth’s income tax.

Beginning Jan. 1, 2011, all active duty military pay will be exempt from individual income tax, creating an estimated savings of $18 million for eligible taxpayers.  The income tax exemption applies to all military pay earned by active duty soldiers, reservists and members of the National Guard.  Currently the active duty military pay exemption applies only to active duty military pay for military personnel serving in a combat zone.

“Kentucky has both Fort Knox and Fort Campbell within its borders and many of the soldiers stationed there call other states besides Kentucky home,” says Gov. Beshear. “With this legislation, we’re hoping that more of these service men and women will remain in the Commonwealth to raise their families and keep in Kentucky the experience and expertise they have to offer.”

The military pay exemption provision was included in House Bill 3, a wide-ranging economic development initiative passed by the General Assembly during the 2009 Special Session. Language specific to the military benefit was inserted into the bill during conference committee negotiations thanks to the efforts of senior legislative leaders and members of the Senate and House committees on Veterans, Military Affairs and Public Protection.

“Many of our service men and women have put their lives on the line fighting on foreign soil, protecting our country at home or coming to our aid in times of crisis,” said Sen. Joey Pendleton.  “With this tax exemption, we do more than talk about how much we appreciate their sacrifice.  Instead, we offer them some real support during these tough economic times where they can really feel it – in their pocketbooks.  This tax exemption will not completely eliminate their financial hardship, but it will offer some relief and show a little gratitude for great service.  This will be a real help to military families in Kentucky.”

“The cost of exempting active duty military pay from the state income tax is but a small one for state government but a real boon to military families who are already sacrificing so much for our freedom and well-being,” said Sen. Elizabeth Tori. “I am so pleased, after several years of working on the issue, to finally see our efforts come to fruition.”

Fort Campbell is home to the 101st Airborne Division.  Fort Knox is the home of the Patton Museum, and the site of the U.S. Bullion Depository.

MISSOURI MAY DITCH NONPARTISAN SELECTION OF JUDGES AND GO TO APPOINTMENT BY GOVERNOR W/APPROVAL BY SENATE

Tuesday, September 8th, 2009

Sept. 8, 2009 Constitutional Petition Set for Vote

Secretary of State Robin Carnahan announced today that a new initiative petition met state standards for circulation that would change the state Constitution to repeal the nonpartisan court plan.

The ballot title for the petition relating to the repeal of the nonpartisan court plan reads:

“Shall the Missouri Constitution be amended to repeal the current nonpartisan court plan for the selection of judges of the Supreme Court, Court of Appeals, and Courts in St. Louis City and Jackson, Platte, Clay, St. Louis, and Greene Counties and to create a new method of selecting such judges through appointment by the Governor with advice and consent of the Missouri Senate?”

The petition was submitted by James Harris with the group Better Courts for Missouri.

Before any constitutional changes can be brought before Missouri voters in the November 2010 election, signatures must be obtained from registered voters equal to 8 percent of the total votes cast in the 2008 governor’s election from six of the state’s nine congressional districts.

Signatures are due by 5 p.m. on May 2, 2010.

Before circulating petitions, state law requires that groups must first have the form of their petition approved by the Secretary of State and Attorney General. The Secretary of State then prepares a summary statement of no more than 100 words and the State Auditor prepares a fiscal impact statement, both of which are subject to the approval of the Attorney General. When both statements are approved, they become the official ballot title.

Claim of Prosecutor’s Civil Immunity Denied Nation’s Chief Prosecutor by U.S. Circuit Court of Appeals –

Saturday, September 5th, 2009

 Sept. 4, 2009

AL-KIDD V. ASHCROFT – 06-36059  9th. Circuit Court of Appeals, Sept. 4, 2009  To read full text of this opinion go to:  http://www.ca9.uscourts.gov/opinions/

 A federal appeals court said in a scathing opinion Friday, that former Atty. Gen. John Ashcroft violated the rights of U.S. citizens in the fevered wake of the Sept. 11 terrorist attacks by ordering arrests on material witness warrants when the government lacked probable cause.

The ruling that said Ashcroft could be sued for prosecutorial abuses. A three-judge panel of the U.S. 9th Circuit Court of Appeals denied the former attorney general immunity from liability for how he used the material witness warrants in national security investigations.

 Ashcroft’s claim of prosecutorial immunity from civil claims was rejected.

Members of the panel, all appointees of Republican presidents, characterized Ashcroft’s detention policy as “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Civil liberties advocates cheered the ruling in the case brought by Kansas-born Muslim convert Abdullah Kidd, saying it spotlighted excesses committed by the Bush administration in the post-9/11 scramble to thwart terrorist plots.

“The court made it very clear today that . . . Ashcroft’s use of the federal material witness law circumvented the Constitution,” said Lee Gelernt, the American Civil Liberties Union lawyer who argued Kidd’s case. “Regardless of your rank or title, you can’t escape liability if you personally created and oversaw a policy that deliberately violates the law.”

The ruling could allow Kidd’s suit for damages to proceed to trial if the government doesn’t appeal to a larger 9th Circuit panel or seek Supreme Court review.

Constitutional law scholars applauded the 9th Circuit decision as affirmation of citizens’ rights to be free from illegal detention.

“This is really important,” said Erwin Chemerinsky, dean of the UC Irvine School of Law. “This is a federal court of appeals saying that what was done here under the material witness statute was clearly a violation of the Constitution — that it was not protected by prosecutorial absolute immunity.”

The Supreme Court has made a distinction between using material witness warrants to ensure someone’s appearance at trial and misusing them to detain someone to be investigated for suspected wrongdoing, the panel noted in its 98-page opinion.

The panel also cast the previous administration’s practice of detaining suspects without cause as behavior that the framers of the Constitution would have found abhorrent.

The judges, alluding to the George W. Bush administration, said that although “some confidently assert that the government has the power to arrest and detain” suspects without evidence of wrongdoing, the panel considered such preemptive detentions “an engine of political tyranny.”

The opinion was written by Circuit Judge Milan D. Smith Jr., an appointee of Bush’s, whose practices in the war on terrorism were at the heart of the case.

Circuit Judge Carlos T. Bea, a fellow Bush appointee, wrote a separate opinion partially concurring and partially dissenting. Smith was joined fully by Senior Circuit Judge David R. Thompson, named to the bench by President Reagan