Archive for February, 2010

U.S. Supreme Court Upholds Government’s Juror Strike Based on Her Demeanor and Body Language – No Batson Violation

Wednesday, February 24th, 2010

 

 On Feb. 22, 2010, the U.S. Supreme Court reversed a 5th U.S. Circuit Court of Appeals decision regarding the “demeanor-based” rejection of a potential juror in a death penalty case. Thaler v. Haynes involves a defense objection under Batson v. Kentucky (pdf) (1986) to the prosecution’s peremptory strike of a potential juror; Batson forbids striking potential jurors from a panel solely based on race.

The prosecution explained that it had struck the potential juror because she appeared not to be serious during questioning and her “body language” belied her “true feeling” about the death penalty, according to the opinion. The state trial court judge upheld the strike because the prosecution provided a race-neutral reason, but that judge did not observe the potential juror’s behavior.

The 5th Circuit in its Batson analysis ruled that it couldn’t defer to the state trial court’s decision because the judge didn’t see the potential juror’s demeanor. The 5th Circuit reversed a federal district court decision that had denied habeas relief, and it ordered a new trial.

The per curiam Supreme Court found that the 5th Circuit got it wrong when it looked at Batson and its progeny to arrive at the decision. “The Court of Appeals read far too much into those decisions, and its holding, if allowed to stand, would have important implications,” according to the high court decision, which reversed the 5th Circuit and remanded for proceedings consistent with its own opinion.

U.S. Supreme Court rules that a two-year break in interrogation nullifies 5th. Amendment Demand to Remain Silent made two years prior to current interrogation

Wednesday, February 24th, 2010

 

 

Feb. 2010

The US Supreme Court on Thursday ruled 9-0 in Maryland v. Shatzer that the Edwards v. Arizona [opinion text] prohibition against interrogation of a suspect who has invoked the Fifth Amendment right to counsel does not require suppression of statements if, after the suspect asks for counsel, there is a break of more than two years before resuming interrogation. The Court of Appeals of Maryland had ruled that there was no break in custody and that the Edwards prohibition against interrogation still applied. Delivering the opinion of the Court, Justice Antonin Scalia explained:
“It is easy to believe that a suspect may be coerced or badgered into abandoning his earlier refusal to be questioned without counsel in the paradigm Edwards case…in which the suspect has been arrested for a particular crime and is held in uninterrupted pretrial custody while that crime is being actively investigated. After the initial interrogation, and up to and including the second one, he remains cut off from his normal life and companions…[If] a suspect has been released from his pretrial custody and has returned to his normal life for some time before the later attempted interrogation, there is little reason to think that his change of heart regarding interrogation without counsel has been coerced….In these circumstances, it is far fetched to think that a police officer’s asking the suspect whether he would like to waive his Miranda rights will any more “wear down the accused,” than did the first such request at the original attempted interrogation — which is of course not deemed coercive.”
Justice Clarence Thomas filed an opinion concurring in part and concurring in the judgment, while Justice John Paul Stevens filed an opinion concurring in the judgment.

LawReader Welcomes South Carolina Basketball Whiz Devan Downey to Kentucky

Wednesday, February 24th, 2010

 

By Judge Stan Billingsley (Ret.)

The Wildcats only loss this year was to South Carolina.  That game featured the remarkable play of Devan Downey.  He is only about 5′ 10″ tall and is said to be able to dribble the ball no higher than the top of his shoes, making it almost impossible for tall opponents to steal the ball from him.

During the Kentucky loss, he scored 30 points and made some moves I thought I would never see unless I was watching Kentucky’s John Wall.

We love good basketball in Kentucky, and while we want Kentucky to win this week, we welcome Downey and his team to the Bluegrass.

It was reported in the Lexington Herald that some so called Kentucky Basketball fans have deluged Downey with threats and racist comments.  We condemn those idiots as they don’t represent true basketball fans.  This is the same group of idiots who boo Rick Pitino when he comes to Rupp Arena.

Lets not forget this is a game, and Pitino gave us a national championship.  Many fans like myself root for UofL and Pitino anytime they play except when they play Kentucky.  What a thrill to have two high quality teams to root for.

Lexington Herald:  “After leading South Carolina to an unprecedented three straight victories over Kentucky, Devan Downey has a good idea of the bad reception he’ll receive in Rupp Arena on Thursday night.

“I’m pretty sure I’m going to get a not-too-warm welcome,” he said with comedic understatement on Tuesday. “I know it’s all in fun. But I’ve gotten my share of hate mail and Facebook messages from Kentucky fans.”

Supreme Court Rules That Diversity Jurisdiction of Corporate HQs Is Determined by Corporation’s Nerve Center Where Most Work is Performed

Wednesday, February 24th, 2010
 

 

 

 

 
  SUPREME COURT OF THE UNITED STATES

Syllabus

HERTZ CORP. v. FRIEND ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 081107. Argued November 10, 2009

Decided February 23, 2010

Respondents, California citizens, sued petitioner Hertz Corporation in a California state court for claimed state-law violations. Hertz sought removal to the Federal District Court under 28 U. S. C. §§1332(d)(2),1441(a), claiming that because it and respondents were citizens of different States, §§1332(a)(1), (c)(1), the federal court possessed diversity-of-citizenship jurisdiction. Respondents, however, claimed that Hertz was a California citizen, like themselves, and that, hence, diversity jurisdiction was lacking under §1332(c)(1), which provides that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” To show that its “principal place of business” was in New Jersey, not California, Hertz submitted a declaration stating, among other things, that it operated facilities in 44 States, that California accounted for only a portion of its business activity, that its leadership is at its corporate headquarters in New Jersey, and that its core executive and administrative functions are primarily carried out there. The District Court concluded that it lacked diversity jurisdiction because Hertz was a California citizen under Ninth Circuit precedent, which asks, inter alia, whether the amount of the corporation’s business activity is “significantly larger” or “substantially predominates” in one State. Finding that California was Hertz’s “principal place of business” under that test because a plurality of the relevant business activity occurred there, the District Court remanded the case to state court. The Ninth Circuit affirmed.

Held:

1. Respondents’ argument that this Court lacks jurisdiction under§1453(c)–which expressly permits appeals of remand orders such as the District Court’s only to “court[s] of appeals,” not to the Supreme Court, and provides that if “a final judgment on the appeal” in a court of appeals “is not issued before the end” of 60 days (with a possible10-day extension), “the appeal shall be denied”–makes far too much of too little. The Court normally does not read statutory silence as implicitly modifying or limiting its jurisdiction that another statute specifically grants. E.g., Felker v. Turpin, 518 U. S. 651, 660661. Here, replicating similar, older statutes, §1254 specifically gives the Court jurisdiction to “revie[w] . . . [b]y writ of certiorari” cases that are “in the courts of appeals” when it grants the writ. The Court thus interprets §1453(c)’s “60-day” requirement as simply requiring a court of appeals to reach a decision within a specified time–not to deprive this Court of subsequent jurisdiction to review the case. See, e.g., Aetna Casualty & Surety Co. v. Flowers, 330 U. S. 464, 466467. Pp. 45.

2. The phrase “principal place of business” in §1332(c)(1) refers to the place where a corporation’s high level officers direct, control, and coordinate the corporation’s activities, i.e., its “nerve center,” which will typically be found at its corporate headquarters. Pp. 519.

(a) A brief review of the legislative history of diversity jurisdiction demonstrates that Congress added §1332(c)(1)’s “principal place of business” language to the traditional state-of-incorporation test in order to prevent corporations from manipulating federal-court jurisdiction as well as to reduce the number of diversity cases. Pp. 510.

(b) However, the phrase “principal place of business” has proved more difficult to apply than its originators likely expected. After Congress’ amendment, courts were uncertain as to where to look to determine a corporation’s “principal place of business” for diversity purposes. If a corporation’s headquarters and executive offices were in the same State in which it did most of its business, the test seemed straightforward. The “principal place of business” was in that State. But if those corporate headquarters, including executive offices, were in one State, while the corporation’s plants or other centers of business activity were located in other States, the answer was less obvious. Under these circumstances, for corporations with “far-flung” business activities, numerous Circuits have looked to a corporation’s “nerve center,” from which the corporation radiates out to its constituent parts and from which its officers direct, control, and coordinate the corporation’s activities. However, this test did not go far enough, for it did not answer what courts should do when a corporation’s operations are not far-flung but rather limited to only a few States. When faced with this question, various courts have focused more heavily on where a corporation’s actual business activities are located, adopting divergent and increasingly complex tests to interpret the statute. Pp. 1013.

(c) In an effort to find a single, more uniform interpretation of the statutory phrase, this Court returns to the “nerve center” approach: “[P]rincipal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. In practice it should normally be the place where the corporation maintains its headquarters–provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corporation holds its board meetings. Pp. 1319.

(i) Three sets of considerations, taken together, convince the Court that the “nerve center” approach, while imperfect, is superior to other possibilities. First, §1332(c)(1)’s language supports the approach. The statute’s word “place” is singular, not plural. Its word “principal” requires that the main, prominent, or most important place be chosen. Cf., e.g., Commissioner v. Soliman, 506 U. S. 168, 174. And the fact that the word “place” follows the words “State where” means that the “place” is a place within a State, not the State itself. A corporation’s “nerve center,” usually its main headquarters, is a single place. The public often considers it the corporation’s main place of business. And it is a place within a State. By contrast, the application of a more general business activities test has led some courts, as in the present case, to look, not at a particular place within a State, but incorrectly at the State itself, measuring the total amount of business activities that the corporation conducts there and determining whether they are significantly larger than in the next ranking State. Second, administrative simplicity is a major virtue in a jurisdictional statute. Sisson v. Ruby, 497 U. S. 358, 375. A “nerve center” approach, which ordinarily equates that “center” with a corporation’s headquarters, is simple to apply comparatively speaking. By contrast, a corporation’s general business activities more often lack a single principal place where they take place. Third, the statute’s legislative history suggests that the words “principal place of business” should be interpreted to be no more complex than an earlier, numerical test that was criticized as too complex and impractical to apply. A “nerve center” test offers such a possibility. A general business activities test does not. Pp. 1417.

(ii) While there may be no perfect test that satisfies all administrative and purposive criteria, and there will be hard cases under the “nerve center” test adopted today, this test is relatively easier to apply and does not require courts to weigh corporate functions, assets or revenues different in kind, one from the other. And though this test may produce results that seem to cut against the basic rationale of diversity jurisdiction, accepting occasionally counterintuitive results is the price the legal system must pay to avoid overly complex jurisdictional administration while producing the benefits that accompany a more uniform legal system. Pp. 1718.

(iii) If the record reveals attempts at jurisdictional manipulation–for example, that the alleged “nerve center” is nothing more than a mail drop box, a bare office with a computer, or the location of an annual executive retreat–the courts should instead take as the “nerve center” the place of actual direction, control, and coordination, in the absence of such manipulation. Pp. 1819.

(d) Although petitioner’s unchallenged declaration suggests that Hertz’s “nerve center” and its corporate headquarters are one and the same, and that they are located in New Jersey, not in California, respondents should have a fair opportunity on remand to litigate their case in light of today’s holding. P. 19.

297 Fed. Appx. 690, vacated and remanded.

BREYER, J., delivered the opinion for a unanimous Court.

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 081107

THE HERTZ CORPORATION, PETITIONER v. MELINDA FRIEND ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[February 23, 2010]

JUSTICE BREYER delivered the opinion of the Court.

The federal diversity jurisdiction statute provides that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U. S. C. §1332(c)(1) (emphasis added). We seek here to resolve different interpretations that the Circuits have given this phrase. In doing so, we place primary weight upon the need for judicial administration of a jurisdictional statute to remain as simple as possible. And we conclude that the phrase “principal place of business” refers to the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities. Lower federal courts have often metaphorically called that place the corporation’s “nerve center.” See, e.g., Wisconsin Knife Works v. National Metal Crafters, 781 F. 2d 1280, 1282 (CA7 1986); Scot Typewriter Co. v. Underwood Corp., 170 F. Supp. 862, 865 (SDNY 1959) (Weinfeld, J.). We believe that the “nerve center” will typically be found at a corporation’s headquarters.

HERTZ CORP. v. FRIEND

Opinion of the Court

I

In September 2007, respondents Melinda Friend and John Nhieu, two California citizens, sued petitioner, the Hertz Corporation, in a California state court. They sought damages for what they claimed were violations of California’s wage and hour laws. App. to Pet. for Cert.20a. And they requested relief on behalf of a potential class composed of California citizens who had allegedly suffered similar harms.

Hertz filed a notice seeking removal to a federal court.28 U. S. C. §§1332(d)(2), 1441(a). Hertz claimed that the plaintiffs and the defendant were citizens of different States. §§1332(a)(1), (c)(1). Hence, the federal court possessed diversity-of-citizenship jurisdiction. Friend and Nhieu, however, claimed that the Hertz Corporation was a California citizen, like themselves, and that, hence, diversity jurisdiction was lacking.

To support its position, Hertz submitted a declaration by an employee relations manager that sought to show that Hertz’s “principal place of business” was in New Jersey, not in California. The declaration stated, among other things, that Hertz operated facilities in 44 States; and that California–which had about 12% of the Nation’s population, Pet. for Cert. 8–accounted for 273 of Hertz’s 1,606 car rental locations; about 2,300 of its 11,230 fulltime employees; about $811 million of its $4.371 billion in annual revenue; and about 3.8 million of its approximately21 million annual transactions, i.e., rentals. The declaration also stated that the “leadership of Hertz and its domestic subsidiaries” is located at Hertz’s “corporate headquarters” in Park Ridge, New Jersey; that its “core executive and administrative functions . . . are carried out” there and “to a lesser extent” in Oklahoma City, Oklahoma; and that its “major administrative operations . . . are found” at those two locations. App. to Pet. for Cert.26a30a.

The District Court of the Northern District of California accepted Hertz’s statement of the facts as undisputed. But it concluded that, given those facts, Hertz was a citizen of California. In reaching this conclusion, the court applied Ninth Circuit precedent, which instructs courts to identify a corporation’s “principal place of business” by first determining the amount of a corporation’s business activity State by State. If the amount of activity is “significantly larger” or “substantially predominates” in one State, then that State is the corporation’s “principal place of business.” If there is no such State, then the “principal place of business” is the corporation’s “‘nerve center,’” i.e., the place where “‘the majority of its executive and administrative functions are performed.’” Friend v. Hertz, No. C075222 MMC (ND Cal., Jan. 15, 2008), p. 3 (hereinafter Order); Tosco Corp. v. Communities for a Better Environment, 236 F. 3d 495, 500502 (CA9 2001) (per curiam).

Applying this test, the District Court found that the “plurality of each of the relevant business activities” was in California, and that “the differential between the amount of those activities” in California and the amount in “the next closest state” was “significant.” Order 4. Hence, Hertz’s “principal place of business” was California, and diversity jurisdiction was thus lacking. The District Court consequently remanded the case to the state courts.

Hertz appealed the District Court’s remand order. 28 U. S. C. §1453(c). The Ninth Circuit affirmed in a brief memorandum opinion. 297 Fed. Appx. 690 (2008). Hertz filed a petition for certiorari. And, in light of differences among the Circuits in the application of the test for corporate citizenship, we granted the writ. Compare Tosco Corp., supra, at 500502, and Capitol Indemnity Corp. v. Russellville Steel Co., 367 F. 3d 831, 836 (CA8 2004) (applying “total activity” test and looking at “all corporate activities”), with Wisconsin Knife Works, supra, at 1282 (applying “nerve center” test).

II

At the outset, we consider a jurisdictional objection. Respondents point out that the statute permitting Hertz to appeal the District Court’s remand order to the Court of Appeals, 28 U. S. C. §1453(c), constitutes an exception to a more general jurisdictional rule that remand orders are “not reviewable on appeal.” §1447(d). They add that the language of §1453(c) refers only to “court[s] of appeals,” not to the Supreme Court. The statute also says that if “a final judgment on the appeal” in a court of appeals “is not issued before the end” of 60 days (with a possible 10-day extension), “the appeal shall be denied.” And respondents draw from these statutory circumstances the conclusion that Congress intended to permit review of a remand order only by a court of appeals, not by the Supreme Court (at least not if, as here, this Court’s grant of certiorari comes after §1453(c)’s time period has elapsed).This argument, however, makes far too much of too little. We normally do not read statutory silence as implicitly modifying or limiting Supreme Court jurisdiction that another statute specifically grants. Felker v. Turpin, 518 U. S. 651, 660661 (1996); Ex parte Yerger, 8 Wall. 85, 104105 (1869). Here, another, pre-existing federal statute gives this Court jurisdiction to “revie[w] . . . [b]y writ of certiorari” cases that, like this case, are “in the courts of appeals” when we grant the writ. 28 U. S. C. §1254. This statutory jurisdictional grant replicates similar grants that yet older statutes provided. See, e.g., §1254, 62 Stat. 928; §1, 43 Stat. 938939 (amending §240, 36 Stat. 1157); §240, 36 Stat. 1157; Evarts Act, §6, 26 Stat. 828. This history provides particularly strong reasons not to read §1453(c)’s silence or ambiguous language as modifying or limiting our pre-existing jurisdiction. We thus interpret §1453(c)’s “60-day” requirement as simply requiring a court of appeals to reach a decision within a specified time–not to deprive this Court of subsequent jurisdiction to review the case. See Aetna Casualty & Surety Co. v. Flowers, 330 U. S. 464, 466467 (1947); Gay v. Ruff, 292 U. S. 25, 2831 (1934).

III

We begin our “principal place of business” discussion with a brief review of relevant history. The Constitution provides that the “judicial Power shall extend” to “Controversies . . . between Citizens of different States.” Art. III, §2. This language, however, does not automatically confer diversity jurisdiction upon the federal courts. Rather, it authorizes Congress to do so and, in doing so, to determine the scope of the federal courts’ jurisdiction within constitutional limits. Kline v. Burke Constr. Co., 260 U. S. 226, 233234 (1922); Mayor v. Cooper, 6 Wall. 247, 252 (1868). Congress first authorized federal courts to exercise diversity jurisdiction in 1789 when, in the First Judiciary Act, Congress granted federal courts authority to hear suits “between a citizen of the State where the suit is brought, and a citizen of another State.” §11, 1 Stat. 78.The statute said nothing about corporations. In 1809, Chief Justice Marshall, writing for a unanimous Court, described a corporation as an “invisible, intangible, and artificial being” which was “certainly not a citizen.” Bank of United States v. Deveaux, 5 Cranch 61, 86 (1809). But the Court held that a corporation could invoke the federal courts’ diversity jurisdiction based on a pleading that the corporation’s shareholders were all citizens of a different State from the defendants, as “the term citizen ought to be understood as it is used in the constitution, and as it is used in other laws. That is, to describe the real persons who come into court, in this case, under their corporate name.” Id., at 9192. In Louisville, C. & C. R. Co. v. Letson, 2 How. 497 (1844), the Court modified this initial approach. It held that a corporation was to be deemed an artificial person of the State by which it had been created, and its citizenship for jurisdictional purposes determined accordingly. Id., at 558559. Ten years later, the Court in Marshall v. Baltimore & Ohio R. Co., 16 How. 314 (1854), held that the reason a corporation was a citizen of its State of incorporation was that, for the limited purpose of determining corporate citizenship, courts could conclusively (and artificially) presume that a corporation’s shareholders were citizens of the State of incorporation. Id., at 327328. And it reaffirmed Letson. 16 How., at 325326. Whatever the rationale, the practical upshot was that, for diversity purposes, the federal courts considered a corporation to be a citizen of the State of its incorporation. 13F C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3623, pp. 17 (3d ed. 2009) (hereinafter Wright & Miller).

In 1928 this Court made clear that the “state of incorporation” rule was virtually absolute. It held that a corporation closely identified with State A could proceed in a federal court located in that State as long as the corporation had filed its incorporation papers in State B, perhaps a State where the corporation did no business at all. See Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co., 276 U. S. 518, 522525 (refusing to question corporation’s reincorporation motives and finding diversity jurisdiction). Subsequently, many in Congress and those who testified before it pointed out that this interpretation was at odds with diversity jurisdiction’s basic rationale, namely, opening the federal courts’ doors to those who might otherwise suffer from local prejudice against out-of-state parties. See, e.g., S. Rep. No. 530, 72d Cong., 1st Sess., 2, 47 (1932). Through its choice of the State of incorporation, a corporation could manipulate federal-court jurisdiction, for example, opening the federal courts’ doors in a State where it conducted nearly all its business by filing incorporation papers elsewhere. Id., at 4 (“Since the Supreme Court has decided that a corporation is a citizen . . . it has become a common practice for corporations to be incorporated in one State while they do business in another. And there is no doubt but that it often occurs simply for the purpose of being able to have the advantage of choosing between two tribunals in case of litigation”). See also Hearings on S. 937 et al. before a Subcommittee of the Senate Committee on the Judiciary, 72d Cong., 1st Sess., 45 (1932) (Letter from Sen. George W. Norris to Attorney General William D. Mitchell (May 24, 1930)) (citing a “common practice for individuals to incorporate in a foreign State simply for the purpose of taking litigation which may arise into the Federal courts”).Although various legislative proposals to curtail the corporate use of diversity jurisdiction were made, see, e.g.,S. 937, S. 939, H. R. 11508, 72d Cong., 1st Sess. (1932), none of these proposals were enacted into law.

At the same time as federal dockets increased in size, many judges began to believe those dockets contained too many diversity cases. A committee of the Judicial Conference of the United States studied the matter. See Reports of the Proceedings of the Regular Annual Meeting and Special Meeting (Sept. 2426 & Mar. 1920, 1951), in H. R. Doc. No. 365, 82d Cong., 2d Sess., pp. 2627 (1952). And on March 12, 1951, that committee, the Committee on Jurisdiction and Venue, issued a report (hereinafter Mar. Committee Rept.).

Among its observations, the committee found a general need “to prevent frauds and abuses” with respect to jurisdiction. Id., at 14. The committee recommended against eliminating diversity cases altogether. Id., at 28. Instead it recommended, along with other proposals, a statutory amendment that would make a corporation a citizen both of the State of its incorporation and any State from which it received more than half of its gross income. Id., at 14 15 (requiring corporation to show that “less than fifty per cent of its gross income was derived from business transacted within the state where the Federal court is held”). If, for example, a citizen of California sued (under state law in state court) a corporation that received half or more of its gross income from California, that corporation would not be able to remove the case to federal court, even if Delaware was its State of incorporation.

During the spring and summer of 1951 committee members circulated their report and attended circuit conferences at which federal judges discussed the report’s recommendations. Reflecting those criticisms, the committee filed a new report in September, in which it revised its corporate citizenship recommendation. It now proposed that “‘a corporation shall be deemed a citizen of the state of its original creation . . . [and] shall also be deemed a citizen of a state where it has its principal place of business.’” Judicial Conference of the United States, Report of the Committee on Jurisdiction and Venue 4 (Sept. 24, 1951) (hereinafter Sept. Committee Rept.)–the source of the present-day statutory language. See Hearings on H. R. 2516 et al. before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 1st Sess., 9 (1957) (hereinafter House Hearings). The committee wrote that this new language would provide a “simpler and more practical formula” than the “gross income” test. Sept. Committee Rept. 2. It added that the language “ha[d] a precedent in the jurisdictional provisions of the Bankruptcy Act.” Id., at 23.

In mid-1957 the committee presented its reports to the House of Representatives Committee on the Judiciary. House Hearings 927; see also H. Rep. No. 1706, 85thCong., 2d Sess., 2728 (1958) (hereinafter H. R. Rep. 1706) (reprinting Mar. and Sept. Committee Repts.); S. Rep. No.1830, 85th Cong., 2d Sess., 1531 (1958) (hereinafter S. Rep. 1830) (same). Judge Albert Maris, representing Judge John Parker (who had chaired the Judicial Conference Committee), discussed various proposals that the Judicial Conference had made to restrict the scope of diversity jurisdiction. In respect to the “principal place of business” proposal, he said that the relevant language “ha[d] been defined in the Bankruptcy Act.” House Hearings 37. He added:

“All of those problems have arisen in bankruptcy cases, and as I recall the cases–and I wouldn’t want to be bound by this statement because I haven’t them before me–I think the courts have generally taken the view that where a corporation’s interests are rather widespread, the principal place of business is an actual rather than a theoretical or legal one. It is the actual place where its business operations are coordinated, directed, and carried out, which would ordinarily be the place where its officers carry on its day-to-day business, where its accounts are kept, where its payments are made, and not necessarily a State in which it may have a plant, if it is a big corporation, or something of that sort.

“But that has been pretty well worked out in the bankruptcy cases, and that law would all be available, you see, to be applied here without having to go over it again from the beginning.” Ibid.

The House Committee reprinted the Judicial Conference Committee Reports along with other reports and relevant testimony and circulated it to the general public “for the purpose of inviting further suggestions and comments.” Id., at III. Subsequently, in 1958, Congress both codified the courts’ traditional place of incorporation test and also enacted into law a slightly modified version of the Conference Committee’s proposed “principal place of business” language. A corporation was to “be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” §2, 72 Stat. 415.

IV

The phrase “principal place of business” has proved more difficult to apply than its originators likely expected. Decisions under the Bankruptcy Act did not provide the firm guidance for which Judge Maris had hoped because courts interpreting bankruptcy law did not agree about how to determine a corporation’s “principal place of business.” Compare Burdick v. Dillon, 144 F. 737, 738 (CA11906) (holding that a corporation’s “principal office, rather than a factory, mill, or mine . . . constitutes the ‘principal place of business’”), with Continental Coal Corp. v. Roszelle Bros., 242 F. 243, 247 (CA6 1917) (identifying the “principal place of business” as the location of mining activities, rather than the “principal office”); see also Friedenthal, New Limitations on Federal Jurisdiction, 11 Stan. L. Rev. 213, 223 (1959) (“The cases under the Bankruptcy Act provide no rigid legal formula for the determination of the principal place of business”). After Congress’ amendment, courts were similarly uncertain as to where to look to determine a corporation’s “principal place of business” for diversity purposes. If a corporation’s headquarters and executive offices were in the same State in which it did most of its business, the test seemed straightforward. The “principal place of business” was located in that State. See, e.g., Long v. Silver, 248 F. 3d 309, 314315 (CA4 2001); Pinnacle Consultants, Ltd. v. Leucadia Nat. Corp., 101 F. 3d 900, 906 907 (CA2 1996).But suppose those corporate headquarters, including executive offices, are in one State, while the corporation’s plants or other centers of business activity are located in other States? In 1959 a distinguished federal district judge, Edward Weinfeld, relied on the Second Circuit’s interpretation of the Bankruptcy Act to answer this question in part: “Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective. The test applied by our Court of Appeals, is that place where the corporation has an ‘office from which its business was directed and controlled’–the place where ‘all of its business was under the supreme direction and control of its officers.’” Scot Typewriter Co., 170 F. Supp., at 865. Numerous Circuits have since followed this rule, applying the “nerve center” test for corporations with “far-flung” business activities. See, e.g., Topp v. Compair Inc., 814 F. 2d 830, 834 (CA1 1987); see also 15 J. Moore et al., Moore’s Federal Practice §102.54[2], p. 102112.1 (3d ed.2009) (hereinafter Moore’s).

Scot’s analysis, however, did not go far enough. For it did not answer what courts should do when the operations of the corporation are not “far-flung” but rather limited to only a few States. When faced with this question, various courts have focused more heavily on where a corporation’s actual business activities are located. See, e.g., Diaz-Rodriguez v. Pep Boys Corp., 410 F. 3d 56, 6061 (CA1 2005); R. G. Barry Corp. v. Mushroom Makers, Inc., 612 F. 2d 651, 656657 (CA2 1979); see also 15 Moore’s§102.54, at 102112.1.

Perhaps because corporations come in many different forms, involve many different kinds of business activities, and locate offices and plants for different reasons in different ways in different regions, a general “business activities” approach has proved unusually difficult to apply.

Courts must decide which factors are more important than others: for example, plant location, sales or servicing centers; transactions, payrolls, or revenue generation. See, e.g., R. G. Barry Corp., supra, at 656657 (place of sales and advertisement, office, and full-time employees); Diaz-Rodriguez, supra, at 6162 (place of stores and inventory, employees, income, and sales).

The number of factors grew as courts explicitly combined aspects of the “nerve center” and “business activity” tests to look to a corporation’s “total activities,” sometimes to try to determine what treatises have described as the corporation’s “center of gravity.” See, e.g., Gafford v. General Elec. Co., 997 F. 2d 150, 162163 (CA6 1993); Amoco Rocmount Co. v. Anschutz Corp., 7 F. 3d 909, 915 (CA10 1993); 13F Wright & Miller §3625, at 100. A major treatise confirms this growing complexity, listing Circuit by Circuit, cases that highlight different factors or emphasize similar factors differently, and reporting that the “federal courts of appeals have employed various tests”–tests which “tend to overlap” and which are sometimes described in “language” that “is imprecise.” 15 Moore’s §102.54[2], at 102112. See also id., §§102.54[2], [13], at 102112 to 102122 (describing, in 14 pages, major tests as looking to the “nerve center,” “locus of operations,” or “center of corporate activities”). Not surprisingly, different circuits (and sometimes different courts within a single circuit) have applied these highly general multifactor tests in different ways. Id., §§102.54[3][7], [11][13](noting that the First Circuit “has never explained a basis for choosing between ‘the center of corporate activity’ test and the ‘locus of operations’ test”; the Second Circuit uses a “two-part test” similar to that of the Fifth, Ninth, and Eleventh Circuits involving an initial determination as to whether “a corporation’s activities are centralized or decentralized” followed by an application of either the “place of operations” or “nerve center” test; the Third Circuit applies the “center of corporate activities” test searching for the “headquarters of a corporation’s day-to-day activity”; the Fourth Circuit has “endorsed neither [the 'nerve center' or 'place of operations'] test to the exclusion of the other”; the Tenth Circuit directs consideration of the “total activity of the company considered as a whole”). See also 13F Wright & Miller §3625 (describing, in 73 pages, the “nerve center,” “corporate activities,” and “total activity” tests as part of an effort to locate the corporation’s “center of gravity,” while specifying different ways in which different circuits apply these or other factors).

This complexity may reflect an unmediated judicial effort to apply the statutory phrase “principal place of business” in light of the general purpose of diversity jurisdiction, i.e., an effort to find the State where a corporation is least likely to suffer out-of-state prejudice when it issued in a local court, Pease v. Peck, 18 How. 595, 599 (1856). But, if so, that task seems doomed to failure. After all, the relevant purposive concern–prejudice against an out-of-state party–will often depend upon factors that courts cannot easily measure, for example, a corporation’s image, its history, and its advertising, while the factors that courts can more easily measure, for example, its office or plant location, its sales, its employment, or the nature of the goods or services it supplies, will sometimes bear no more than a distant relation to the likelihood of prejudice. At the same time, this approach is at war with administrative simplicity. And it has failed to achieve a nationally uniform interpretation of federal law, an unfortunate consequence in a federal legal system.

V

A

In an effort to find a single, more uniform interpretation of the statutory phrase, we have reviewed the Courts of Appeals’ divergent and increasingly complex interpretations. Having done so, we now return to, and expand, Judge Weinfeld’s approach, as applied in the Seventh Circuit. See, e.g., Scot Typewriter Co., 170 F. Supp., at 865; Wisconsin Knife Works, 781 F. 2d, at 1282. We conclude that “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its headquarters–provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).

Three sets of considerations, taken together, convince us that this approach, while imperfect, is superior to other possibilities. First, the statute’s language supports the approach. The statute’s text deems a corporation a citizen of the “State where it has its principal place of business.” 28 U. S. C. §1332(c)(1). The word “place” is in the singular, not the plural. The word “principal” requires us to pick out the “main, prominent” or “leading” place. 12 Oxford English Dictionary 495 (2d ed. 1989) (def. (A)(I)(2)). Cf. Commissioner v. Soliman, 506 U. S. 168, 174 (1993) (interpreting “principal place of business” for tax purposes to require an assessment of “whether any one business location is the ‘most important, consequential, or influential’ one”). And the fact that the word “place” follows the words “State where” means that the “place” is a place within a State. It is not the State itself.

A corporation’s “nerve center,” usually its main headquarters, is a single place. The public often (though not always) considers it the corporation’s main place of business. And it is a place within a State. By contrast, the application of a more general business activities test has led some courts, as in the present case, to look, not at a particular place within a State, but incorrectly at the State itself, measuring the total amount of business activities that the corporation conducts there and determining whether they are “significantly larger” than in the next ranking State. 297 Fed. Appx. 690.

This approach invites greater litigation and can lead to strange results, as the Ninth Circuit has since recognized. Namely, if a “corporation may be deemed a citizen of California on th[e] basis” of “activities [that] roughly reflect California’s larger population . . . nearly every national retailer–no matter how far flung its operations–will be deemed a citizen of California for diversity purposes.” Davis v. HSBC Bank Nev., N. A., 557 F. 3d 1026, 10291030 (2009). But why award or decline diversity jurisdiction on the basis of a State’s population, whether measured directly, indirectly (say proportionately), or with modifications?

Second, administrative simplicity is a major virtue in a jurisdictional statute. Sisson v. Ruby, 497 U. S. 358, 375 (1990) (SCALIA, J., concurring in judgment) (eschewing “the sort of vague boundary that is to be avoided in the area of subject-matter jurisdiction wherever possible”).Complex jurisdictional tests complicate a case, eating up time and money as the parties litigate, not the merits of their claims, but which court is the right court to decide those claims. Cf. Navarro Savings Assn. v. Lee, 446 U. S. 458, 464, n. 13 (1980). Complex tests produce appeals and reversals, encourage gamesmanship, and, again, diminish the likelihood that results and settlements will reflect a claim’s legal and factual merits. Judicial resources too are at stake. Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it. Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 583 (1999)). So courts benefit from straightforward rules under which they can readily assure themselves of their power to hear a case. Arbaugh, supra, at 514.

Simple jurisdictional rules also promote greater predictability. Predictability is valuable to corporations making business and investment decisions. Cf. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 621 (1983) (recognizing the “need for certainty and predictability of result while generally protecting the justified expectations of parties with interests in the corporation”). Predictability also benefits plaintiffs deciding whether to file suit in a state or federal court.

A “nerve center” approach, which ordinarily equates that “center” with a corporation’s headquarters, is simple to apply comparatively speaking. The metaphor of a corporate “brain,” while not precise, suggests a single location. By contrast, a corporation’s general business activities more often lack a single principal place where they take place. That is to say, the corporation may have several plants, many sales locations, and employees located in many different places. If so, it will not be as easy to determine which of these different business locales is the “principal” or most important “place.”

Third, the statute’s legislative history, for those who accept it, offers a simplicity-related interpretive benchmark. The Judicial Conference provided an initial version of its proposal that suggested a numerical test. A corporation would be deemed a citizen of the State that accounted for more than half of its gross income. Mar. Committee Rept. 1415; see supra, at 8. The Conference changed its mind in light of criticism that such a test would prove too complex and impractical to apply. Sept. Committee Rept.2; see also H. Rep. 1706, at 28; S. Rep. 1830, at 31. That history suggests that the words “principal place of business” should be interpreted to be no more complex than the initial “half of gross income” test. A “nerve center” test offers such a possibility. A general business activities test does not.

B

We recognize that there may be no perfect test that satisfies all administrative and purposive criteria. We recognize as well that, under the “nerve center” test we adopt today, there will be hard cases. For example, in this era of telecommuting, some corporations may divide their command and coordinating functions among officers who work at several different locations, perhaps communicating over the Internet. That said, our test nonetheless points courts in a single direction, towards the center of overall direction, control, and coordination. Courts do not have to try to weigh corporate functions, assets, or revenues different in kind, one from the other. Our approach provides a sensible test that is relatively easier to apply, not a test that will, in all instances, automatically generate a result. We also recognize that the use of a “nerve center” test may in some cases produce results that seem to cut against the basic rationale for 28 U. S. C. §1332, see supra, at 6. For example, if the bulk of a company’s business activities visible to the public take place in New Jersey, while its top officers direct those activities just across the river in New York, the “principal place of business” is New York. One could argue that members of the public in New Jersey would be less likely to be prejudiced against the corporation than persons in New York–yet the corporation will still be entitled to remove a New Jersey state case to federal court. And note too that the same corporation would be unable to remove a New York state case to federal court, despite the New York public’s presumed prejudice against the corporation. We understand that such seeming anomalies will arise. However, in view of the necessity of having a clearer rule, we must accept them. Accepting occasionally counterintuitive results is the price the legal system must pay to avoid overly complex jurisdictional administration while producing the benefits that accompany a more uniform legal system.

The burden of persuasion for establishing diversity jurisdiction, of course, remains on the party asserting it. Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 377 (1994); McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 189 (1936); see also 13E Wright & Miller §3602.1, at 119. When challenged on allegations of jurisdictional facts, the parties must support their allegations by competent proof. McNutt, supra, at 189; 15 Moore’s §102.14, at 10232 to 10232.1. And when faced with such a challenge, we reject suggestions such as, for example, the one made by petitioner that the mere filing of a form like the Securities and Exchange Commission’s Form 10K listing a corporation’s “principal executive offices” would, without more, be sufficient proof to establish a corporation’s “nerve center.” See, e.g., SEC Form 10K, online at http://www.sec.gov/about/forms/ form10-k.pdf. (as visited Feb. 19, 2010, and available in Clerk of Court’s case file). Cf. Dimmitt & Owens Financial, Inc. v. United States, 787 F. 2d 1186, 11901192 (CA71986) (distinguishing “principle executive office” in the tax lien context, see 26 U. S. C. §6323(f)(2), from “principal place of business” under 28 U. S. C. §1332(c)). Such possibilities would readily permit jurisdictional manipulation, thereby subverting a major reason for the insertion of the “principal place of business” language in the diversity statute. Indeed, if the record reveals attempts at manipulation–for example, that the alleged “nerve center” is nothing more than a mail drop box, a bare office with a computer, or the location of an annual executive retreat–the courts should instead take as the “nerve center” the place of actual direction, control, and coordination, in the absence of such manipulation.

VI

Petitioner’s unchallenged declaration suggests that Hertz’s center of direction, control, and coordination, its “nerve center,” and its corporate headquarters are one and the same, and they are located in New Jersey, not in California. Because respondents should have a fair opportunity to litigate their case in light of our holding, however, we vacate the Ninth Circuit’s judgment and remand the case for further proceedings consistent with this opinion.

It is so ordered.

 

U.S. Supreme Court Weakens Miranda Warning

Wednesday, February 24th, 2010

Feb. 22, 2010

The U.S. Supreme Court this week sided with the Tampa Police Department over a disputed Miranda rights form, a decision likely to benefit the state in some high-profile prosecutions, including a notorious sex torture case.

 

The high court’s 7-2 ruling reinstated the conviction of 10-time felon Kevin DeWayne Powell, which had been set aside by the Florida Supreme Court.

Tampa police spokeswoman Andrea Davis said the department is pleased with the ruling.

 

“Of course we always want to ensure a suspect’s constitutional rights are protected,” she said. “We will continue to uphold the constitutional rights of all citizens.”

 

When police interrogated Powell in a 2004 weapons case, they read him his rights using a Miranda form that had been a department standard for years. He confessed.

Powell was convicted of being a felon in possession of a firearm. His attorney appealed, saying the Miranda form was inadequate.

 

Although the form advised suspects they had a right to talk to a lawyer before questioning and a right to invoke any of their rights at any time, it did not say they had a right to have a lawyer present during questioning.

 

The defense won in a state appeals court and at the state high court, which said the form’s wording did not meet the requirements of the Florida Constitution or the landmark 1966 U.S. Supreme Court ruling Miranda v. Arizona.

 

“The Miranda court unequivocally said that ‘an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation,’” the Florida Supreme Court wrote. Thus, “the right ‘to talk to a lawyer before answering any … questions’ constitutes a narrower less functional warning than that required by Miranda.”

 

The U.S. high court disagreed.

 

“Although the warnings were not the clearest possible formulation of Miranda’s right-to-counsel advisement, they were sufficiently comprehensive and comprehensible when given a common sense reading,” Justice Ruth Bader Ginsburg wrote for the majority.

 

 

 

 SUPREME COURT OF THE UNITED STATES

Syllabus

FLORIDA v. POWELL

CERTIORARI TO THE SUPREME COURT OF FLORIDA

No. 08–1175. Argued December 7, 2009—Decided February 23, 2010

In a pathmarking decision, Miranda v. Arizona, 384 U. S. 436, 471, this Court held that an individual must be “clearly informed,” prior to custodial questioning, that he has, among other rights, “the right to consult with a lawyer and to have the lawyer with him during interrogation.”After arresting respondent Powell, but before questioning him, Tampa Police read him their standard Miranda form, stating, inter alia: “You have the right to talk to a lawyer before answering any of our questions” and “[y]ou have the right to use any of these rights at any time you want during this interview.” Powell then admitted he owned a handgun found in a police search. He was charged with possession of a weapon by a convicted felon in violation of Florida law. The trial court denied Powell’s motion to suppress his inculpatory statements, which was based on the contention that the Miranda warnings he received did not adequately convey his right to the presence of an attorney during questioning. Powell was convicted of the gun-possession charge, but the intermediate appellate court held that the trial court should have suppressed the statements. The Florida Supreme Court agreed. It noted that both Miranda and the State Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning. The advice Powell received was misleading, the court believed, because it suggested that he could consult with an attorney only before the police started to question him and did not convey his entitlement to counsel’s presence throughout the interrogation.

Held:

1. This Court has jurisdiction to hear this case. Powell contends that jurisdiction is lacking because the Florida Supreme Court relied on the State’s Constitution as well as Miranda, hence the decision 2 FLORIDA v. POWELL

Syllabus

rested on an adequate and independent state ground. See Coleman

v. Thompson, 501 U. S. 722, 729. Under Michigan v. Long, 463 U. S. 1032, 1040–1041, however, when a state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law,and the adequacy and independence of any possible state-law ground is not clear from the face of its opinion, this Court presumes that federal law controlled the state court’s decision. Although invoking Florida’s Constitution and precedent in addition to this Court’s decisions, the Florida court did not expressly assert that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda. See Long, 463 U. S., at 1044. The state-court opinion consistently trained on what Miranda demands, rather than on what Florida law independently requires. This Court therefore cannot identify, “from the face of the opinion,” a clear statement that the decision rested on a state ground separate from Miranda. See Long, 463 U. S., at 1041. Because the opinion does not “indicat[e] clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent [state] grounds,” Long, 463 U. S., at 1041, this Court has jurisdiction. Pp. 4–7.

2. Advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time . . . during th[e] interview,” satisfies Miranda. Pp. 7–13.

(a) Miranda requires that a suspect “be warned prior to any questioning . . . that he has the right to the presence of an attorney.” 384 U. S., at 479. This Miranda warning addresses the Court’s particular concern that “[t]he circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege [to remain silent] by his interrogators.” Id., at 469. Responsive to that concern, the Court stated, as“an absolute prerequisite to interrogation,” that an individual held for questioning “must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” Id., at 471. While the warnings prescribed by Miranda are invariable, this Court has not dictated the words in which the essential information must be conveyed. See, e.g., California v. Prysock, 453 U. S. 355, 359. In determining whether police warnings were satisfactory, reviewing courts are not required to “examine [them] as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’ ” Duckworth v. Eagan, 492 U. S. 195, 203. Pp. 7–9.

(b) The warnings Powell received satisfy this standard. By informing Powell that he had “the right to talk to a lawyer before an

3 Cite as: 559 U. S. ____ (2010)

Syllabus

swering any of [their] questions,” the Tampa officers communicated that he could consult with a lawyer before answering any particular question. And the statement that Powell had “the right to use any of [his] rights at any time [he] want[ed] during th[e] interview” confirmed that he could exercise his right to an attorney while the interrogation was underway. In combination, the two warnings reasonably conveyed the right to have an attorney present, not only at the outset of interrogation, but at all times. To reach the opposite conclusion, i.e., that the attorney would not be present throughout the interrogation, the suspect would have to imagine the counterintuitive and unlikely scenario that, in order to consult counsel, he would be obliged to exit and reenter the interrogation room between each query. Likewise unavailing is the Florida Supreme Court’s conclusion that the warning was misleading because the temporal language that Powell could “talk to a lawyer before answering any of [the officers’] questions” suggested he could consult with an attorney only before the interrogation started. In context, the term “before” merely conveyed that Powell’s right to an attorney became effective before he answered any questions at all. Nothing in the words used indicated that counsel’s presence would be restricted after the questioning commenced. Powell suggests that today’s holding will tempt law enforcement agencies to end-run Miranda by amending their warnings to introduce ambiguity. But, as the Federal Government explains, it is in law enforcement’s own interest to state warnings with maximum clarity in order to reduce the risk that a court will later find the advice inadequate and therefore suppress a suspect’s statement. The standard warnings used by the Federal Bureau of Investigation are admirably informative, but the Court declines to declare their precise formulation necessary to meet Miranda’s requirements. Different words were used in the advice Powell received, but they communicated the same message. Pp. 9–13.

998 So. 2d 531, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, THOMAS, ALITO, and SOTOMAYOR, JJ., joined, and in which BREYER, J., joined as to Part II. STEVENS, J., filed a dissenting opinion, in which BREYER, J., joined as to Part II. _________________

Respected Covington Attorney Thomas R. Willenborg Passes

Tuesday, February 23rd, 2010

 

We sadly must share with you the passing of  the Hon. Thomas R. Willenborg (1951 – 2010).

If one thing is to be said about Tom is that he was a gentleman in all respects.  He was a passionate and dedicated advocate for his clients.  We will miss him.

 His services are as follows:

 Visitation:   Saturday, February 27, 2010    2:00 – 5:00 p.m.  

                   Stith Funeral Home   7500 Highway 42   Florence, Kentucky 40142

 Service:     Saturday, February 27, 2010     5:00 p.m.  Immediately following the visitation  in the funeral home

 Memorial pending announcement at http://www.stithfuneralhome.com/

 To send a note to the Willenborg family or sign their guestbook please visit http://www.stithfuneralhome.com/

CITY ATTORNEY DON BYROM’S CONTRACT NOT RENEWED WITH THE CITY OF RUSSELL SPRINGS DUE TO COURT ORDERED DISQUALIFICATION

Tuesday, February 23rd, 2010

 

Posted by Amy Mischler

During this past week it has been published in the Russell Register that the City of Russell Springs decided “not to renew” local Attorney Don Byrom’s contract as the city attorney. As in all of Mayor DeHart’s statements, he was not completely candid with the public. DeHart stated that an untenable situation arose in a recent court ruling.

First, the ruling was not recent. It was issued in July 2009. Second, the DeHart left out a critical part of what the “ruling” was. He also made a scathing report to the City Commission and the public regarding what he called “frivolous” and “Scandalous” allegations against Russell Springs Chief of Police Joe Michael Irvin.

Police Chief Irvin filed a lawsuit against Leon Grider and James Faller. Both filed counter suits, all of which is set to go to trial early this summer in 2010.

What DeHart failed to mention is that the City of Russell Springs intentionally hired Don Byrom as their city attorney, because he previously represented Faller. Such representation for the City would give the City and Irvin and advantage on Faller and is a clear violation of the attorney client privilege between Faller and Byrom.

In 2005, Faller noticed Byrom of his concerns that Byrom had a conflict of interest representing the City, and would violation the attorney client privilege between Faller and Byrom. Attorney Don Byrom wrote back stating that he would not be involved in Russell Springs cases concerning Faller. Without notifying Faller, sometime after that 2005 letter, Attorney Don Byrom “changed his mind” as he states in the accompanying video.

In 2009, an issue arose where Faller filed to depose Mayor DeHart in the numerous lawsuits that have been filed. Byrom appeared to represent DeHart, despite his 2005 letter promising Faller that he, Byrom would not get involved in city matters involving Faller.

Faller petitioned special Judge Gary Payne to prohibit Byrom from violating the Kentucky Supreme Court Rules which prohibit conflict of interest representations. As our viewers learned from the video; Byrom “changed his mind” and decided violate the conflict of interest rule.

Byrom gave varying versions of what he promised Faller, until Faller actually produced the letter and federal court transcripts. Special Judge Gary Payne granted Fallers request and entered an order against Byrom requiring him to withdraw from representing the city and Police Chief Joe Michael Irvin in lawsuits involving Faller and Grider.

Louisville Bar Association Releases Judicial Evaluation Poll – Four Judges Score Below Average

Tuesday, February 23rd, 2010

 

 You can find this poll at:

 Judicial Evaluation Results

 

The results of the LBA’s annual judicial evaluation of local sitting judges are now available for download.

The judicial evaluation, which has been conducted since 1979, is designed to provide constructive criticism to sitting judges in order to allow them to improve their performance and maintain the high quality of justice delivered throughout Jefferson County. A total of 29 judges from the U.S. District Court, U.S. Bankruptcy Court and Magistrates for the Western District of Kentucky and the Jefferson District Court (including Senior Status judges) were evaluated in 2009.

To view the evaluation results, follow the links listed below:
Report of Findings
Comparison of Judges Summary Report

For additional information about the evaluation or to obtain a bound copy of the results and/or presentation, please contact the LBA Communications Director at (502)583-5314 or svaldez@loubar.org.

 
–All but four Jefferson County district judges finished in the average to exceptional range based on their job performances in the last year, according to a recent Louisville Bar Association survey.

The 20 judges, who were evaluated by lawyers, had an average score of 83 percent in generally doing well in their positions. But four scored below the mid-70s, putting them in the below-average range, said Jim Lunger of the Thoroughbred Research Group, which conducted the survey for the bar association.

Those judges were Katie King, at 69 percent; Annette Karem, 65 percent; William Ryan, 66 percent; and Paula Fitzgerald, 36 percent. Ryan and Fitzgerald both have senior status.

Their scores are out of a possible 100 percent.

Rules for Olympic Curling – Scoring

Saturday, February 20th, 2010

 The competition begins with two teams at a time who compete on the ice. The curling teams push 19.1kg stones while they are aiming for a series of rings. The object of curling is for the stones to reach as close to the middle of the rings as possible. Every member of the 4 person curling teams will throw (slide) 2 stones in each of the 10 ends that comprise a game. The curling part of curling is that 2 members of each team sweep the ice in front of the stone to try to direct where it goes and how fast it gets there. The team with the most stones near the rings’ center wins the curling match.  

 

Curling is a team Olympic sport in which stones are slid across a sheet of carefully prepared ice towards a target area. It is related to lawn bowling, boule and shuffleboard.

Two teams of four players take turns to slide heavy, polished granite stones across the ice towards the house (a circular target marked on the ice). The purpose is to complete each end (delivery of eight stones for each team) with the team’s stones closer to the centre of the house than the other team’s stones.

Two sweepers with brooms or brushes accompany each stone and use stopwatches and their best judgment, along with direction from their teammates, to help direct the stones to their resting place, but without touching the stones.

 

On the sheet, a 12-foot (3.7 m) wide set of concentric rings, called the house, is placed (painted or by laying down vinyl rings) near each end of the rink. The centre of the house, known as the button, is marked by the junction of two lines that divide the house into quarters. The two lines are the centre line, which is drawn lengthwise down the centre of the sheet, and the tee line, drawn 16 feet (4.9 m) from the backboard and parallel to it. Two other lines—the hog lines—are drawn parallel to each backboard and 37 feet (11 m) from them.

The rings that surround the button are defined by their diameter as the four-foot, eight-foot, and twelve-foot rings. They are usually distinguished by colour. The inner rings are merely a visual aid for judging which stone is closer to the centre; they do not affect scoring. However, a stone that is not at least touching the outside of the 12-foot (3.7 m) ring (i.e., more than 6 feet (1.8 m) from the centre) is not in the house and therefore does not score (see below).

Scoring

After both teams have delivered eight stones, the team with the stone closest to the button is awarded one point for each of its own stones that is closer than the opponent’s closest stone.

Stones that are not in the house (further from the centre than the outer edge of the 12-foot (3.7 m) ring) do not score even if no opponent’s stone is closer. A stone is considered in the house if any portion of its edge is over any portion of the 12-foot (3.7 m) ring.

 Since the bottom of the stone is rounded, a stone just barely in the house will not have any actual contact with the ring, which will pass under the rounded edge of the stone, but it still counts. This type of stone is known as a “biter”.

“Zero-Tolerance DUI Bill Makes Zero Sense”

Friday, February 19th, 2010

“Zero-Tolerance Bill Makes Zero Sense”

By Nathan Miller

 Once again, a bill that seeks to punish prior use of a controlled substance with an automatic DUI conviction is making its way through the Kentucky Legislature.

 

Like its predecessors, SB 5 cleverly attempts to bootstrap an ill-advised rule regarding all drugs onto a rule created for the purpose of measuring alcohol impairment. Under the provisions of SB 5, a driver who tests positive for traces of marijuana can be convicted of “driving under the influence” even if that driver is unimpaired at the time of arrest.

 

While such laws do little to actually make roadways safer, they do send many innocent people to jail and saddle them with criminal records for the rest of their lives. Current Kentucky DUI law requires prosecutors to prove that a suspect was impaired while driving. SB 5 seeks to circumvent current evidentiary standards by removing this requirement under the guise of public safety. If lawmakers want to make it tougher than it already is for Kentuckians to find and retain employment, clog court dockets, and cost taxpayers more money, then this is the bill to support.

 

SB 5 attempts to create the appearance of scientific reliability by requiring blood tests to be administered within two hours of operating a vehicle using a “scientifically reliable test.” However, the two hour standard was developed decades ago for measuring impairment caused by alcohol, not drugs like marijuana. Moreover, the test referred to in SB 5 is not a test for marijuana impairment, but merely a test for marijuana’s presence, which is not what DUI laws are supposed to punish.

 

The effect and perhaps even the aim of legislation like SB 5 is to punish prior drug use – predominantly marijuana use – by convicting drivers of DUI without scientifically reliable evidence that they were operating a vehicle while under the influence of anything.

 

“Zero-tolerance” laws are more than simply unjust; they are scientifically unsound, which is exactly why not one single state applies such a rule to alcohol. Furthermore, these laws are even less suited for marijuana, the traces of which are detectable by drug tests long after its intoxicating effects have worn off. In short, marijuana and alcohol affect the body in different ways and leave the body at different intervals. Marijuana impairment, for example, peaks within minutes of use and is seldom severe or long lasting. Conversely, alcohol impairment peaks much later after consumption and lasts for several hours, meaning there’s a true correlation between high alcohol levels detected in the blood and driver impairment.

 

A driver with high levels of THC (the active psychotropic ingredient in marijuana) in the blood may not be impaired in any manner if time has passed since the substance was last used. The person is most certainly not impaired days or weeks later, even though THC metabolites are still detectible. The inability to accurately measure marijuana impairment with a blood test is why both the National Highway Traffic Safety Administration and the National Institute on Drug Abuse have stated that marijuana impairment testing via blood sampling is unreliable.

 

Proponents of SB 5 will argue that Kentucky must maintain a zero-tolerance policy for any level of drugs in a driver’s blood in order to save lives. However, if that is the case, then why does Kentucky law tolerate blood alcohol levels of up to .08 percent?

 

The truth is, zero-tolerance laws aren’t about making roadways safer; they’re a disingenuous attempt to create a powerful, intrusive tool to root out those who use controlled substances such as marijuana, regardless of whether they operate an automobile under its influence. This type of justice is cruel, unusual and bad public policy.

 

If proponents believe granting authorities easier and more arbitrary access to your fluids enhances public safety, then let them argue that point on its merits. If, however, this isn’t just an underhanded ploy to legislate morality and really is about highway safety, how about introducing a bill that seeks to establish a task force comprising physicians, phlebotomists, researchers, state police, prosecutors and defense attorneys to identify real solutions to the problems associated with detecting impaired driving caused by marijuana use? Not only would this be real progress, it could position Kentucky as a national leader in the development of scientifically reliable, marijuana-specific impairment testing, which is still in its infancy.

 

Driving under the influence of any substance is dangerous and should not be tolerated, but sending innocent people to jail for DUI using methods incapable of accurately measuring impairment is not the answer. Lawmakers should reject SB 5 as they have done in the past, and instead focus on finding real, scientifically valid ways to detect impaired drivers and get them off Kentucky highways.

 

(Nathan Miller is a Kentucky native, an attorney and legislative analyst for the Marijuana Policy Project in Washington, D.C., and a graduate of the University of Louisville Brandeis School of Law.)

ARIZONA FEDERAL JUDGE FINDS GROUNDS TO SANCTION TOUGH GUY SHERIFF JOE ARPAIO

Friday, February 19th, 2010

By JACQUES BILLEAUD – ap

 A federal judge has found grounds for sanctioning an Arizona sheriff’s office for its acknowledged destruction of records in a lawsuit that accuses deputies of racially profiling countless Hispanics in immigration patrols.

U.S. District Judge Murray Snow held off on imposing the sanctions against the office of Maricopa County Sheriff Joe Arpaio in the Friday ruling, but indicted he would do so at a later date once related issues were ironed out.

Since early 2008, Arpaio has run 13 immigration and crimes sweeps consisting of deputies and posse volunteers who flood an area of a city — in some cases heavily Latino areas — to seek out traffic violators and arrest other offenders.

The handful of Latinos who filed the lawsuit against Arpaio’s office alleged that officers based some traffic stops on the race of Hispanics who were in vehicles, had no probable cause to pull them over and made the stops so they could inquire about their immigration status.

Arpaio is known for tough jail policies, including housing inmates in canvas tents, and pushing the bounds for how local law enforcement agencies can confront illegal immigration.

The U.S. Justice Department said it’s investigating his office for alleged discrimination and for unconstitutional searches and seizures, but won’t provide any details of its examination. The sheriff believes the inquiry is focused on his immigration efforts.

Some sheriff’s officials have acknowledged deleting their e-mails about the patrols and throwing away and shredding officers’ records of traffic stops made during the sweeps.

Snow said the sheriff’s office was negligent for not holding onto the documents and that the failure to preserve them is enough to justify sanctions. The judge asked plaintiff’s attorneys to suggest unspecified “adverse inferences” that could be drawn from the destruction of officers’ records of traffic stops made during the sweeps.

Peter Kozinets, one of those attorneys, said Saturday that the document destruction deprived his clients of records that would have shown deputies were selective in whom they approached during the sweeps.

Snow also said that plaintiff’s attorneys can again depose Arpaio to question him about his own 800-page immigration file, which was covered by a documents request but wasn’t handed over before his first deposition in mid-December.

Hundreds of Ohio Defendants Arrested On Court Clerks’ Orders – Prosecutors and Judges bypassed

Friday, February 19th, 2010

 By Dan Horn • enquirer.com • February 13, 2010

Police in Hamilton County have arrested hundreds of people in the past year because of a criminal complaint system that the county’s top prosecutor says is bad public policy and some judges say violates Ohio law.

 

The system has allowed court clerks – rather than prosecutors or judges – to approve and issue arrest warrants based on complaints from private citizens.

Those complaints have sent people to jail for domestic violence, theft and other misdemeanor offenses despite a 2006 Ohio law that requires a judge or prosecutor to review complaints before someone is arrested.

Some law enforcement officials say the lack of a review led to weak criminal cases that are more likely to be thrown out of court and to abuses by people looking to settle personal scores.

In some cases, Hamilton County Prosecutor Joe Deters said, people could end up in jail and be forced to defend themselves in court against “baseless charges.”

“You don’t know if they have an ax to grind or if it’s a neighborhood squabble, and then somebody gets arrested for it,” Deters said. “My feeling is, before someone is subjected to a physical arrest, someone in law enforcement should look at it and sign off on it.”

Officials at the Hamilton County Clerk of Courts office, which issues the arrest warrants, say they changed their policy on the complaints Jan. 14, a move they say came after months of discussion and about one week after The Enquirer requested public records about the system.

They say the previous warrant policy, which had been in place for at least a decade, was legal. But they now will require a judge or prosecutor to sign off on the complaints before a warrant is issued.

“This is just better procedure,” said John Williams, the county’s deputy clerk. “We want cases that are appropriately investigated to be filed with this office. It all relates back to having some level of investigation before it comes to us.”

An Enquirer review of the clerk’s records shows that hundreds of cases were filed under the old system in the past six months, and that dozens of them are still pending in Hamilton County Municipal Court.

Several municipal court judges have thrown out charges based on citizen complaints after concluding they violate the 2006 law that requires a prosecutor, judge or magistrate to review them.

The purpose of the law is to ensure “probable cause” exists to justify an arrest and there is enough evidence to go ahead with criminal prosecution.

“The law was changed so private citizens couldn’t cause a person to be arrested without a proper review,” said Municipal Court Judge Brad Greenberg. “Absolutely, it concerns me. Your concern is that someone has been charged or arrested with a crime and there is no basis for it.”

Christo Lassiter, a University of Cincinnati law professor, said that happened to him in 2008 when he spent several hours on Thanksgiving Day in jail because his ex-girlfriend, Devon Dullaghan, filed a citizen complaint that accused him of violating their child-custody agreement.

Dullaghan said she filed the complaint because Lassiter violated the agreement many times and she felt she had no other choice. Lassiter blamed Dullaghan for the dispute and said the “interference with custody” charge should never have been filed because he has custody of their 3-year-old daughter.

But because there was no review by a judge or a magistrate, he said, none of that information came out until he faced a criminal trial that threatened his reputation and career.

“In this system, until you get to trial, you have no way to get anyone to say, ‘Let’s take a look at this.’ It’s ridiculous,” said Lassiter, who last month sued the clerk’s office and other county officials over the citizen complaint system. “Any citizen who has a personal gripe could get an arrest warrant.”

Greenberg, the judge in Lassiter’s case, dismissed the charge last year after concluding it was without merit.

“I find absolutely no shred of evidence of any criminal behavior here,” Greenberg said at the time. “In fact, I think it’s outrageous that the criminal justice system would be used as a weapon between parents in a custody dispute.”

‘Not a lot of evidence’

As in Lassiter’s case, most citizen complaints filed with the clerk’s office start with a “citizen referral” from a police officer.

Referrals, once widely used throughout the county, gave police another option when dealing with a citizen who complained about being the victim of a misdemeanor crime. If the officer did not witness the alleged crime and didn’t have enough evidence to make an arrest, he or she could refer the person to the clerk’s office to fill out a complaint.

Cases typically involved feuding neighbors or couples accusing each other of harassment, petty theft, custody violations or vandalism.

“Officers get called to a lot of this stuff,” said Steve Barnett, spokesman for Hamilton County Sheriff Simon Leis, whose deputies stopped handing out citizen referrals last year. “It’s he said/she said. There’s not a lot of evidence.”

Even if they were short on evidence, citizens could take referrals from the police to Clerk of Courts Patricia Clancy’s office and sign criminal complaints themselves. The complaints then became the justification for issuing arrest warrants.

The problem, critics say, is that the clerk has issued hundreds of warrants in citizen complaint cases without first submitting them to a judge, magistrate or prosecutor for review. Such a review is not required for complaints signed by police.

“That hasn’t been happening,” said Donald Caster, a Cincinnati defense attorney who has challenged several citizen complaint arrests. “The statute says it must be reviewed.”

Court records show that between July and January the clerk issued warrants without a review almost 1,400 times. In many, the complaints were signed only by private citizens.

In July, the busiest month during the period surveyed by The Enquirer, police signed 16 of the 284 citizen referral complaints that resulted in warrants. The other 268 complaints were signed by a private citizen, but not by an officer.

While county prosecutors say the system needed an overhaul, they disagree with judges who have called it “contrary to law.” They say the rules that govern the courts allow the clerk to determine probable cause, even if the 2006 law says otherwise.

Charlie Rubenstein, the city of Cincinnati’s chief assistant prosecutor, said confusion over the legality should end now that the clerk’s office changed its policy. He said the policy didn’t change earlier because few in law enforcement realized the law changed in 2006.

“It sort of got enacted without anybody noticing,” Rubenstein said. “It doesn’t change anything. It’s more of a question of paperwork.”

More arrests, more worries

Concern over citizen complaints grew in the last year, especially when budget cuts killed a mediation program used to resolve many complaints.

A few years ago, a citizen referral from a police officer might end with the two parties settling their differences out of court. When mediation died, most of those referrals resulted in arrest warrants and criminal cases.

Deters became so concerned about citizen complaints that he sent a letter to police departments in July urging them to stop giving referrals. He said the cases often are weak because police were not willing or able to investigate the complaint themselves.

“Too often citizen referrals are used by officers as a means to end the complaints of citizens regarding the filing of charges that have very little merit,” Deters wrote. “Allowing the issuance of citizen referrals simply leads to the filing of baseless charges.”

The Enquirer’s review of July cases, the month Deters sent his letter, found judges later dismissed slightly more than half of them. Almost 30 percent of the cases are pending, while 19 percent have resulted in convictions.

Some say the problem of weak cases is compounded by the clerk of courts’ willingness to sign off on arrest warrants for almost every citizen complaint. Between July and January, clerks reviewed 1,415 citizen referrals to determine whether enough probable cause existed to issue a warrant.

They found that it did in 1,396 cases – or almost 99 percent of the time.

“The problem with the referral is it was being presented as the keys to the kingdom,” said Paul Laufman, a Cincinnati civil rights attorney. “All you had to do was walk down there and present an affidavit.”

Other large counties handle the cases differently, and get dramatically different results.

In Columbus, a city prosecutor oversees a 19-member “intake team” that reviews every criminal complaint, whether filed by a private citizen or a police officer. The team reviewed 6,529 citizen complaints in 2009 and filed criminal charges in just 620 cases, or less than 10 percent of the total.

“We have them all reviewed by a prosecutor. It’s a good practice,” said Lara Baker, chief prosecutor in Columbus. “I don’t think there’s any authority for a clerk to issue a warrant.”

Lassiter said if that had happened in his case, he would not have been arrested and would not now be suing the county in federal court. He said a judge should review all arrest warrants, even those signed by police.

“There has to be a system to weed that crap out,” he said. “You sure don’t want the criminal process being manipulated into being somebody’s muscle.”

California Prosecutor Disbarred for Ethical Misconduct – Disobeying Court Ordres, Hiding Evidence from Defendant

Friday, February 19th, 2010

By Tracey Kaplan

Calling former Santa Clara County prosecutor Ben Field’s ethical misconduct “inexcusable,” a State Bar appeals panel has upheld a judge’s landmark recommendation that he be suspended from practicing law for four years.

The panel’s decision increases the chances Field will undergo the harshest disciplinary punishment in recent history for a California prosecutor. Field’s attorney, Allen Ruby, said he will appeal the decision to the state Supreme Court. But appeals to the high court are discretionary — meaning the court can decide not to hear the matter.

Field resigned from the district attorney’s office in August after a State Bar judge found he violated a host of ethical rules in four criminal cases, ranging from disobeying judges’ orders to hiding crucial evidence from defense lawyers that could have helped people accused of crimes. He now works for former San Jose City Councilwoman Cindy Chavez at the South Bay AFL-CIO Labor Council and its nonprofit arm.

In the decision filed Friday, the appellate panel found after its own extensive investigation that Field’s misconduct harmed the reputation of the district attorney’s office and the public trust in the criminal justice system.

“Field’s misconduct began shortly after his admission to the bar, involved moral turpitude, spanned a 10-year period and significantly affected the criminal justice system,” the appellate panel’s 31-page report says. “We find that Field’s misconduct

was inexcusable.”

Field declined Tuesday to comment.

The panel found Field violated court orders in a 1995 juvenile case and defied a judge’s orders and concealed evidence in the 2003 appeal of a rape case. It also found that he withheld a crucial witness’s police interrogation in a 2003 murder case and defied court orders in his closing arguments in a 2005 sex offender case.

Before the decision, there was speculation in the legal community that the panel would impose an even harsher punishment than the State Bar judge. But the panel found three reasons to stick with the judge’s recommendation — Field’s cooperation during the investigation, his previous pro bono service and testimonials by 36 character witnesses, including former District Attorney George Kennedy and retired Judge Ronald Lisk. Current District Attorney Dolores Carr also vouched for Field’s honesty and integrity but conceded he failed to meet the office’s overall ethical standards.

A spokesman for Carr said Tuesday she declined to comment. The State Bar also declined to comment, beyond noting that “Two State Bar courts have now spoken.”

Field’s misconduct has proved costly

Attorney Diana Skaggs Takes Issue With Ct. of Appeals Ruling Which Voids Family Court Arbitration Procedures – Ruling virtually invites Sup. Ct. Review

Friday, February 12th, 2010

 

Editorial by Diana Skaggs published in Louisville Courier-Journal  Feb. 12, 2010

Distressed that arbitration is not a viable alternative to spouses who cannot afford to pay an arbitrator and holding that the approval of the arbitration process by a family court constitutes an improper delegation of its constitutional responsibility, the Kentucky Court of Appeals recently barred arbitration in divorce cases.

Until then, family law arbitration had been available in Kentucky as a voluntary, alternative-resolution process for divorcing spouses wishing to employ a private individual as their neutral decision-maker to determine how their assets should be valued and divided. Spouses opt in to the arbitration process for many reasons. Some have a complex valuation matter best resolved by someone with the specialized expertise of a particular arbitrator; some want a quicker resolution process than the court system can provide; some desire a less formal process than the traditional adjudicatory one; some hope to reduce the trauma and anxiety of marital litigation; and some hope to resolve sensitive matters in a private forum.

Controversy should not accompany the availability of arbitration, a process that allows husbands and wives to resolve disputes which will have significant, long-term and possibly deleterious effects on their lives by choosing the person to resolve those disputes.

In the most worrisome aspect of the decision, the court concluded that arbitration creates a class system where affluent individuals can pay for a private judge while persons of lesser means must have their case heard by elected judges, in perhaps a less speedy manner.

This ignores the benefit of arbitration on the court system itself— if complex cases are removed from the court dockets, more time is available for other persons needing access to the court. While our elected judges are highly competent, their case loads are backbreaking and the wait for resolution of discovery disputes and a final trial of a case can be long. The judicial system is under unconscionable budgetary constraints that limit the courts’ resources. When parties find a path to resolution of their issues without the use of the courts, other parties and the system overall benefit.

Although not explicitly stated in the opinion, the court revealed its concern over the state’s parens patriae power by references to the impropriety of arbitration of child-related matters. This may be a legitimate concern, but the wholesale elimination of arbitration even in matters that are strictly financial “throws out the baby with the bathwater.” Even if legislation or case law does not carve out appropriate, specific exceptions for arbitration processes so that the state’s parens patriae power over children is left intact, there still remains the parties’ ability to enter arbitration agreements only as to financial issues.

 

The court also expressed concern that referring cases for arbitration impermissibly allowed elected judges to delegate their adjudicatory responsibilities. This conclusion impliedly suggests that family court judges have some control over whether a case is arbitrated. They do not. Spouses go to arbitration because they agree to do so and ask the court for permission. I know of no judge in this commonwealth who has ever abrogated responsibility to decide a case by ordering arbitration.

This state made great progress by amending our constitution so that we now have family courts providing “one family, one judge.” Families returning to court now have a judge who is, ideally, familiar with them and with their issues. But the Family Court system and the availability of arbitration can co-exist. By approving arbitrated decisions, judges are not shirking their responsibility to decide disputes before them. They are instead granting the parties’ desire to resolve their disputes outside of the court system.

Banning family law arbitration is a sad, regressive step for this commonwealth.

Were circumstances different, I would patiently wait for one of the parties to move the Kentucky Supreme Court to grant discretionary review of this case, for neither of the parties had contested the validity of their arbitration agreement or the arbitration process in their appeal, and their arbitration contract permitted appeal of the arbitrator’s decision. The Supreme Court would likely grant discretionary review in a case that will impact so many parties and even the family court system. Sadly, however, one of the spouses died a few days before the decision was issued. As it is now unlikely that any disputed personal issues remain to be resolved, a motion to seek discretionary review by the Kentucky Supreme Court may not be forthcoming. The Kentucky Supreme Court may have within its power, without motion of either party, to order the Court of Appeals decision to be unpublished or to order this appellate case transferred to the Kentucky Supreme Court. Because the Court of Appeals decision is of such great import, such action is encouraged if it is possible.

Although not explicitly stated in the opinion, the court revealed its concern over the state’s parens patriae power by references to the impropriety of arbitration of child-related matters. This may be a legitimate concern, but the wholesale elimination of arbitration even in matters that are strictly financial “throws out the baby with the bathwater.” Even if legislation or case law does not carve out appropriate, specific exceptions for arbitration processes so that the state’s parens patriae power over children is left intact, there still remains the parties’ ability to enter arbitration agreements only as to financial issues.

 

The court also expressed concern that referring cases for arbitration impermissibly allowed elected judges to delegate their adjudicatory responsibilities. This conclusion impliedly suggests that family court judges have some control over whether a case is arbitrated. They do not. Spouses go to arbitration because they agree to do so and ask the court for permission. I know of no judge in this commonwealth who has ever abrogated responsibility to decide a case by ordering arbitration.

This state made great progress by amending our constitution so that we now have family courts providing “one family, one judge.” Families returning to court now have a judge who is, ideally, familiar with them and with their issues. But the Family Court system and the availability of arbitration can co-exist. By approving arbitrated decisions, judges are not shirking their responsibility to decide disputes before them. They are instead granting the parties’ desire to resolve their disputes outside of the court system.

Banning family law arbitration is a sad, regressive step for this commonwealth.

Were circumstances different, I would patiently wait for one of the parties to move the Kentucky Supreme Court to grant discretionary review of this case, for neither of the parties had contested the validity of their arbitration agreement or the arbitration process in their appeal, and their arbitration contract permitted appeal of the arbitrator’s decision. The Supreme Court would likely grant discretionary review in a case that will impact so many parties and even the family court system. Sadly, however, one of the spouses died a few days before the decision was issued. As it is now unlikely that any disputed personal issues remain to be resolved, a motion to seek discretionary review by the Kentucky Supreme Court may not be forthcoming. The Kentucky Supreme Court may have within its power, without motion of either party, to order the Court of Appeals decision to be unpublished or to order this appellate case transferred to the Kentucky Supreme Court. Because the Court of Appeals decision is of such great import, such action is encouraged if it is possible.

Diana L. Skaggs is a Louisville attorney and a fellow of the American Academy of Matrimonial Lawyers.

Comment by Diana Skaggs:

“The Kentucky Arbitration Act does not have a comprehensive list of all causes that may be arbitrated. It does have, however, a list of issues that may not  be arbitrated and domestic relations disputes are not on that list. Thus, the legislature did not exclude domestic matters from arbitratable matters.

 The case before the court could have been reversed and remanded to the trial court on the facts of that case alone, thereby restricting the decision to that case.  Instead, the Court chose to use that case to examine the domestic relations arbitration process as a whole.

 This is a matter of private individuals being able to agree to their processes, especially with respect to financial issues.”  

-Diana Skaggs

 

*****

LawReader comments on this decision:

JEFFERSON FAMILY COURT RULE ALLOWING ARBITRATION OF DISSOLUTION ACTIONS RULED UNCONSTITUTIONAL- CASE OF FIRST IMPRESSION – (Court virtually invites appeal to Supreme Court)

Arbitration) a court’s mechanical adoption of a judgment containing findings of fact and conclusions of law made by a third party violates the court’s constitutional decision-making authority and CR 52.01

 

We decline to accept this suggestion as the law in Kentucky and believe there exists no present statutory or constitutional authority to support this hybrid domestic proceeding being conducted by the Jefferson Family Court.

 

We find no authority whatsoever that permits a judge to delegate the inherent power of a court to sanction for contempt, without a hearing or any other due process consideration that is otherwise exclusively reserved to constitutionally elected judges in this state.

 

…since domestic relations commissioners in counties establishing family courts have been abolished, there is no authority that allows family court judges to delegate cases to an arbitrator.

 

For full text of case click case number

2006-CA-001803

 

  

JEFFERSON

 

CAMPBELL, GEORGE W.

 

VS.

 

CAMPBELL, GINGER C.

 

 

OPINION REVERSING AND REMANDING WITH DIRECTIONS

** ** ** ** **

 

BEFORE: ACREE, TAYLOR, AND THOMPSON, JUDGES.

 

TAYLOR, JUDGE: George W. Campbell brings Appeal No. 2006-CA-001803- MR and Ginger C. Campbell brings Cross-Appeal No. 2006-CA-001827-MR from a July 31, 2006, Findings of Fact, Conclusions of Law and Judgment, styled as a judgment of the Jefferson Circuit Court, Family Court Division (family court), but

prepared by an arbitrator. The judgment was signed and entered by the court without independent review.

 

We reverse and remand with directions Appeal No. 2006-CA-001803-MR and Cross-Appeal No. 2006-CA-001827-MR.

 

The “judgment” appealed in this case was the result of an arbitration procedure employed after the case was commenced in Jefferson Family Court.

 

The parties agreed to the arbitration which was endorsed by the Jefferson Family Court purportedly to expedite adjudication of the parties’ underlying domestic dispute.

 

The arbitration award was wholly prepared by the arbitrator but styled as a judgment of the Jefferson Family Court. Therein, the arbitrator made detailed findings of fact and conclusions of law. Without benefit of independent review, the family court signed the judgment, presumably to confirm the arbitration award.

 

The award was entered of record on July 31, 2006, as a judgment of the family court (July 31, 2006, judgment). Both parties undertook an appeal (Appeal No. 2006-CA-001803-MR and Cross-Appeal No. 2006-CA-001827-MR) from the July 31, 2006, judgment.

 

…we question the ability of this Court to review these arguments if, as the parties argue, this was a valid arbitration under KRS Chapter 417. In 3D Enterprises Contracting Corp. v. Lexington-Fayette

Urban County Government, 134 S.W.3d 558 (Ky. 2004), the Kentucky Supreme Court held that a court may only set aside an arbitration award pursuant to the grounds set forth in KRS 417.160(1).

 

If the arbitration statute applies, we would be duty bound to summarily affirm both appeals. Id. However, the parties submit that their “agreement” permits this Court to review the judgment as if the family court had conducted the proceedings and actually made the findings and conclusions on appeal, rather than merely confirming the award under KRS 417.150.

 

the parties suggest that the laws of the Commonwealth of Kentucky can be modified, changed, or interpreted as needed by agreement of the parties to create a hybrid proceeding that may be reviewed accordingly by this Court.

 

 We decline to accept this suggestion as the law in Kentucky and believe there exists no present statutory or constitutional authority to support this hybrid domestic proceeding being conducted by the Jefferson Family Court.

 

Accordingly, our review at this time is limited to the propriety of the arbitration proceedings in a family court case under the current law in Kentucky.

 

…family courts operate in 71 of Kentucky’s 120 counties

 

(Discussion of constitutional authority and jurisdiciton of Family Court)

 

In this case, the arbitration agreement clearly and succinctly states the family court judge has delegated his power to enter findings and conclusions in the family court to the arbitrator. This delegation of decision-making authority is simply improper, in our opinion.

 

 Indeed, it is axiomatic that a court’s mechanical adoption of a judgment containing findings of fact and conclusions of law made by a third party violates the court’s constitutional decision-making authority and CR 52.01. See Ky. Const., § 109; Bingham, 628 S.W.2d 628.

 

The improper delegation of the family court’s duties and powers is further amplified in paragraph 2 of the arbitration agreement which gives the arbitrator the authority to issue sanctions by awarding attorney’s fees as provided for in CR 11, CR 37, and KRS 403.220.

 

These duties and powers are exclusively reserved to the discretion of the family court and not otherwise subject to delegation to some third party. Perhaps, most egregious under the arbitration agreement is that the arbitrator was permitted to sanction George for contempt

which could be purged upon the payment of $5,000 to Ginger within thirty days upon entry of the judgment.

 

Under the arbitration agreement, this sanction for contempt was adopted by the family court without review.

 

We find no authority whatsoever that permits a judge to delegate the inherent power of a court to sanction for contempt, without a hearing or any other due process consideration that is otherwise exclusively reserved to constitutionally elected judges in this state.

 

…since domestic relations commissioners in counties establishing family courts have been abolished, there is no authority that allows family court judges to delegate cases to an arbitrator.

 

Until the Kentucky Supreme Court directs otherwise, we can neither justify nor condone such an invasion of the family court’s jurisdiction.

 

The Arbitration Act clearly requires that a party be given the opportunity to challenge the arbitration award in court and requires the court to consider such challenge before confirming the arbitration award. KRS 417.150; KRS 417.160; KRS 417.170; KRS 417.180.

 

These provisions of the Arbitration Act are mandatory and are an essential prerequisite to the enforceability of an arbitration award.

 

…we hold the family court erred by “confirming” the arbitration award and by converting it to a judgment of the court.

 

based upon our review of applicable law, we note that this is a case of first impression in Kentucky.

 

Accordingly, this opinion is limited to the cases before this Court now on appeal and has prospective application only as to any pending or future arbitration proceedings in the Jefferson Family Court or any other family court in Kentucky.

 

For the foregoing reasons, Appeal No. 2006-CA-001803-MR and Cross-Appeal No. 2006-CA-001827-MR are reversed and this cause is remanded with directions that the family court conduct an evidentiary hearing or trial and render independent findings of fact and conclusions of law as required by law.

 

ALL CONCUR.

 

BRIEFS AND ORAL ARGUMENT

FOR APPELLANT/CROSSAPPELLEE:

Terry W. Holloway

Louisville, Kentucky

 

BRIEFS AND ORAL ARGUMENT

FOR APPELLEE/CROSSAPPELLANT:

Bonnie M. Brown

Louisville, Kentucky

Government Can Track Your Movements by Monitering Your Cell Phone

Friday, February 12th, 2010

Feds push for tracking cell phones

by Declan McCullagh

Two years ago, when the FBI was stymied by a band of armed robbers known as the “Scarecrow Bandits” that had robbed more than 20 Texas banks, it came up with a novel method of locating the thieves.

FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The voluminous records showed that two phones had made calls around the time of all 12 heists, and that those phones belonged to men named Tony Hewitt and Corey Duffey. A jury eventually convicted the duo of multiple bank robbery and weapons charges.

Even though police are tapping into the locations of mobile phones thousands of times a year, the legal ground rules remain unclear, and federal privacy laws written a generation ago are ambiguous at best. On Friday, the first federal appeals court to consider the topic will hear oral arguments (PDF) in a case that could establish new standards for locating wireless devices.

In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no “reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department’s request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans’ privacy deserves more protection and judicial oversight than what the administration has proposed.

“This is a critical question for privacy in the 21st century,” says Kevin Bankston, an attorney at the Electronic Frontier Foundation who will be arguing on Friday. “If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment.”

Not long ago, the concept of tracking cell phones would have been the stuff of spy movies. In 1998′s “Enemy of the State,” Gene Hackman warned that the National Security Agency has “been in bed with the entire telecommunications industry since the ’40s–they’ve infected everything.” After a decade of appearances in “24″ and “Live Free or Die Hard,” location-tracking has become such a trope that it was satirized in a scene with Seth Rogen from “Pineapple Express” (2008).

Once a Hollywood plot, now ‘commonplace’
Whether state and federal police have been paying attention to Hollywood, or whether it was the other way around, cell phone tracking has become a regular feature in criminal investigations. It comes in two forms: police obtaining retrospective data kept by mobile providers for their own billing purposes that may not be very detailed, or prospective data that reveals the minute-by-minute location of a handset or mobile device.

Obtaining location details is now “commonplace,” says Al Gidari, a partner in the Seattle offices of Perkins Coie who represents wireless carriers. “It’s in every pen register order these days.”

Gidari says that the Third Circuit case could have a significant impact on police investigations within the court’s jurisdiction, namely Delaware, New Jersey, and Pennsylvania; it could be persuasive beyond those states. But, he cautions, “if the privacy groups win, the case won’t be over. It will certainly be appealed.”

CNET was the first to report on prospective tracking in a 2005 news article. In a subsequent Arizona case, agents from the Drug Enforcement Administration tracked a tractor trailer with a drug shipment through a GPS-equipped Nextel phone owned by the suspect. Texas DEA agents have used cell site information in real time to locate a Chrysler 300M driving from Rio Grande City to a ranch about 50 miles away. Verizon Wireless and T-Mobile logs showing the location of mobile phones at the time calls became evidence in a Los Angeles murder trial.

And a mobile phone’s fleeting connection with a remote cell tower operated by Edge Wireless is what led searchers to the family of the late James Kim, a CNET employee who died in the Oregon wilderness in 2006 after leaving a snowbound car to seek help.

“This is a critical question for privacy in the 21st century. If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment.”

–Kevin Bankston, attorney, Electronic Frontier Foundation

The way tracking works is simple: mobile phones are miniature radio transmitters and receivers. A cellular tower knows the general direction of a mobile phone (many cell sites have three antennas pointing in different directions), and if the phone is talking to multiple towers, triangulation yields a rough location fix. With this method, accuracy depends in part on the density of cell sites.

The Federal Communications Commission’s “Enhanced 911” (E911) requirements allowed rough estimates to be transformed into precise coordinates. Wireless carriers using CDMA networks, such as Verizon Wireless and Sprint Nextel, tend to use embedded GPS technology to fulfill E911 requirements. AT&T and T-Mobile comply with E911 regulations using network-based technology that computes a phone’s location using signal analysis and triangulation between towers.

T-Mobile, for instance, uses a GSM technology called Uplink Time Difference of Arrival, or U-TDOA, which calculates a position based on precisely how long it takes signals to reach towers. A company called TruePosition, which provides U-TDOA services to T-Mobile, boasts of “accuracy to under 50 meters” that’s available “for start-of-call, midcall, or when idle.”

A 2008 court order to T-Mobile in a criminal investigation of a marriage fraud scheme, which was originally sealed and later made public, says: “T-Mobile shall disclose at such intervals and times as directed by (the Department of Homeland Security), latitude and longitude data that establishes the approximate positions of the Subject Wireless Telephone, by unobtrusively initiating a signal on its network that will enable it to determine the locations of the Subject Wireless Telephone.”

‘No reasonable expectation of privacy’
In the case that’s before the Third Circuit on Friday, the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, said it needed historical (meaning stored, not future) phone location information because a set of suspects “use their wireless telephones to arrange meetings and transactions in furtherance of their drug trafficking activities.”

U.S. Magistrate Judge Lisa Lenihan in Pennsylvania denied the Justice Department’s attempt to obtain stored location data without a search warrant; prosecutors had invoked a different legal procedure. Lenihan’s ruling, in effect, would require police to obtain a search warrant based on probable cause–a more privacy-protective standard.

Lenihan’s opinion (PDF)–which, in an unusual show of solidarity, was signed by four other magistrate judges–noted that location information can reveal sensitive information such as health treatments, financial difficulties, marital counseling, and extra-marital affairs.

In its appeal to the Third Circuit, the Justice Department claims that Lenihan’s opinion “contains, and relies upon, numerous errors” and should be overruled. In addition to a search warrant not being necessary, prosecutors said, because location “records provide only a very general indication of a user’s whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest.”

The Obama administration is not alone in making this argument. U.S. District Judge William Pauley, a Clinton appointee in New York, wrote in a 2009 opinion that a defendant in a drug trafficking case, Jose Navas, “did not have a legitimate expectation of privacy in the cell phone” location. That’s because Navas only used the cell phone “on public thoroughfares en route from California to New York” and “if Navas intended to keep the cell phone’s location private, he simply could have turned it off.”

(Most cases have involved the ground rules for tracking cell phone users prospectively, and judges have disagreed over what legal rules apply. Only a minority has sided with the Justice Department, however.)

Cellular providers tend not to retain moment-by-moment logs of when each mobile device contacts the tower, in part because there’s no business reason to store the data, and in part because the storage costs would be prohibitive. They do, however, keep records of what tower is in use when a call is initiated or answered–and those records are generally stored for six months to a year, depending on the company.

Verizon Wireless keeps “phone records including cell site location for 12 months,” Drew Arena, Verizon’s vice president and associate general counsel for law enforcement compliance, said at a federal task force meeting in Washington, D.C. last week. Arena said the company keeps “phone bills without cell site location for seven years,” and stores SMS text messages for only a very brief time.

Gidari, the Seattle attorney, said that wireless carriers have recently extended how long they store this information. “Prior to a year or two ago when location-based services became more common, if it were 30 days it would be surprising,” he said.

The ACLU, EFF, the Center for Democracy and Technology, and University of San Francisco law professor Susan Freiwald argue that the wording of the federal privacy law in question allows judges to require the level of proof required for a search warrant “before authorizing the disclosure of particularly novel or invasive types of information.” In addition, they say, Americans do not “knowingly expose their location information and thereby surrender Fourth Amendment protection whenever they turn on or use their cell phones.”

“The biggest issue at stake is whether or not courts are going to accept the government’s minimal view of what is protected by the Fourth Amendment,” says EFF’s Bankston. “The government is arguing that based on precedents from the 1970s, any record held by a third party about us, no matter how invasively collected, is not protected by the Fourth Amendment.”

Update 10:37 a.m. PT: A source inside the U.S. Attorney’s Office for the northern district of Texas, which prosecuted the Scarecrow Bandits mentioned in the above article, tells me that this was the first and the only time that the FBI has used the location-data-mining technique to nab bank robbers. It’s also worth noting that the leader of this gang, Corey Duffey, was sentenced last month to 354 years (not months, but years) in prison. Another member is facing 140 years in prison.

Declan McCullagh is a contributor to CNET News and a correspondent for CBSNews.com who has covered the intersection of politics and technology for over a decade. Declan writes a regular feature called Taking Liberties, focused on individual and economic rights; you can bookmark his CBS News Taking Liberties site, or subscribe to the RSS feed. You can e-mail Declan at declan@cbsnews.com.

Toyota Recall Sparks Largest Consumer-fraud case ever – One claim filed in Kentucky

Thursday, February 11th, 2010

Legal troubles for Toyota continue to grow, with dozens of potential class-action lawsuits filed around the country, including in Northern Kentucky.

University of Kentucky law professor Mary Davis was quoted in a Lexington Herald-Leader article as saying the Toyota litigation, in the wake of the Japanese automaker’s recall of more than 8.5 million vehicles worldwide, has the potential to be the biggest consumer-fraud case ever.

In a suit filed Tuesday in Covington, several Toyota owners in Kentucky, Ohio, Indiana and Florida accused the company of knowingly concealing defective, dangerous accelerator systems on its vehicles for years to protect sales so it could become the world’s largest automaker.

The Covington suit might be the first to allege racketeering, mail fraud and wire fraud, based on Toyota’s representation that its cars were safe when they were not.

Robert A. Steinberg, an attorney for the Covington plaintiffs, said about 120 cases have been filed nationwide against Toyota, many in state courts.

Potentially millions of Toyota owners could seek economic damages.

At least 19 deaths have been traced to sudden acceleration in Toyota or Lexus models. In a report released Friday, SRS said it found 2,262 incidents, which resulted in 815 crashes and 314 injuries.

In addition to personal-injury claims, which are likely to be handled separately from consolidated consumer fraud cases, a suit has been filed in California alleging securities fraud.

The Covington lawsuit, the second filed in Kentucky, seeks unspecified compensatory and punitive damages. It also asks that Toyota provide replacement vehicles for drivers until their Toyota vehicles are fixed, and that the company pay for counseling for those who “suffered emotional distress as a result of being forced to drive defective, dangerous vehicles after defendants’ numerous announcements of defects but failure to provide replacement vehicles.”

The Cincinnati law firm of Waite, Schneider, Bayless and Chesley filed the lawsuit. Stan Chesley has been involved in other high-profile class-action cases.

SUPREME COURT’S DECISION ALLOWING CORPORATE CAMPAIGN FREE SPEECH PROVIDES BASIS TO BRING KENTUCKY’S RESTRICTIONS ON FREE SPEECH OF LAWYERS INTO QUESTION

Tuesday, February 9th, 2010

 

In  CITIZENS UNITED v. FEDERAL ELECTION COMMISSION issued in late January, the U.S. Supreme Court indicated that the government has a very difficult burden to overcome before they can limit and punish free political speech. In this case the Supreme Court invalidated campaign finance laws that prohibited political contributions by corporations to political campaigns.  This decision will likely be considered by the Federal Court hearing the Berry ACLU case now pending in Federal Court in Louisville.

The U.S. Supreme Court stated:

 

“Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest…., ”

 

“…the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers”

 

The Kentucky Supreme Court has adopted SCR 3.130 8.2(a) which limits the right of an attorney to bring into question the integrity or qualifications of a judicial officer, prosecutor, adjudicatory official or public defender.

 

“ SCR 3.130 8.2(a)  A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

 

The Ky. rule is limited to “false statements” by an attorney, but the Bar Counsel has apparently applied this rule to any criticism of a member of the protected class of officials.

 

The Kentucky law is currently the subject of a Federal lawsuit pending in Louisville.  The lawsuit was filed by John M. Berry, Jr. of Henry County and the ACLU.   Berry received a warning letter from the KBA Inquiry Commission for writing a letter to the Legislative Ethics Commission criticizing a dismissal the LEC made of a complaint filed against Senate President David Williams.

 

The  Inquiry Commission in their warning letter to Berry stated:

 

 “The Respondent violated (SCR 3.130 8.2(a) ) by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately.”   The warning letter to Berry made no finding that anything he said in his letter was false.

 

The Ky. rule is justified in limiting the free speech of lawyers as “a reasonable sacrifice for attorneys to make in order to uphold public confidence in the administration of justice.”

 

 The unofficial commentary to SCR 3.130 8.2(a) says

 

1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice: Conversely, “false statements by a lawyer can unfairly undermine public confidence in the administration of justice.”

 

Several Kentucky appellate decisions make a distinction about comments made by a lawyer in a pending case, and statements made after the conclusion of a case.  The letter by Berry was written after the conclusion of the Ethics review of Sen. Williams and not while the case was pending.  Therefore it can hardly be said to have affected the outcome of the decision which was already made.

 

See:

 

SUPREME COURT OF THE UNITED STATES

Syllabus

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

No. 08–205. Argued March 24, 2009—Reargued September 9, 2009––Decided January 21, 2010

As amended by §203 of the Bipartisan Campaign

 

syallbus:

 

Held:

1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin. Pp. 5–20.

 

(a) Citizen United’s narrower arguments—that Hillary is not an “electioneering communication” covered by §441b because it is not“ publicly distributed” under 11 CFR §100.29(a)(2); that §441b maynot be applied to Hillary under Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (WRTL), which found §441b unconstitutional as applied to speech that was not “express advocacy or its functional equivalent,” id., at 481 (opinion of ROBERTS, C. J.), determining that a communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” id., at 469–470; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has a lower risk of distorting the political process than do television ads; and that there should be an exception to §441b’s ban for nonprofit corporate political speech funded overwhelming by individuals—are not sustainable under a fair reading of the statute. Pp. 5–12.

(b) Thus, this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment’s meaning and purpose. Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and §441b’s facial validity here because the District Court “passed upon” the issue, Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 379; (2) throughout the litigation, Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3) the parties cannot enter into a stipulation that prevents the Court from considering remedies necessary to resolve a claim that has been preserved. Because Citizen United’s narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441b’s facial validity. Any other course would prolong the substantial, nationwide

3 Cite as: 558 U. S. ____ (2010) Syllabus

chilling effect caused by §441b’s corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Government’s litigating position; (2) substantial time would be required to clarify §441b’s application on the points raised by the Government’s position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp. 12–20.

2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled. Pp. 20–51.

(a) Although the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech,” §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the peoplepolitical speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain 4 preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion. Pp. 20–25.

(b) The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 778, n. 14, and extended this protection to the context of political speech, see, e.g., NAACP v. Button, 371 U. S. 415, 428–429. Addressing challenges to the Federal Election Campaign Act of 1971, the Buckley Court upheld limits on direct contributions to candidates, 18

U. S. C. §608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U. S., at 25–26. However, the Court invalidated §608(e)’s expenditure ban, which applied to individuals, corporations, and unions, because it “fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” id., at 47–48. While Buckley did not consider a separate ban on corporate and union independent expenditures found in §610, had that provision been challenged in Buckley’s wake, it could not have been squared with the precedent’s reasoning and analysis. The Buckley Court did not invoke the overbreadth doctrine to suggest that §608(e)’s expenditure ban would have been constitutional had it applied to corporations and unions but not individuals. Notwithstanding this precedent, Congress soon recodified §610’s corporate and union expenditure ban at 2 U. S. C. §441b, the provision at issue. Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that the Government lacks thepower to restrict political speech based on the speaker’s corporate identity. 435 U.S., at 784–785. Thus the law stood until Austin upheld a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest inpreventing “the corrosive and distorting effects of immense aggregations of [corporate] wealth . . . that have little or no correlation to thepublic’s support for the corporation’s political ideas.” 494 U. S., at

 

660. Pp. 25–32.

(c) This Court is confronted with conflicting lines of precedent: a pre-Austin line forbidding speech restrictions based on the speaker’s corporate identity and a post-Austin line permitting them. Neither Austin’s antidistortion rationale nor the Government’s other justifications support §441b’s restrictions. Pp. 32–47.

(1) The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in politicalspeech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form. Political speech is “indispensable to decision

5 Cite as: 558 U. S. ____ (2010)

 

making in a democracy, and this is no less true because the speech comes from a corporation.” Bellotti, supra, at 777 (footnote omitted). This protection is inconsistent with Austin’s rationale, which is meant to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659. First Amendment protections do not depend on the speaker’s “financial ability to engage in public discussion.” Buckley, supra, at 49. These conclusions were reaffirmed when the Court invalidated a BCRA provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. Davis v. Federal Election Comm’n, 554 U. S. ___, ___. Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, supra, at 660. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from §441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views “hav[ing] little or no correlation to the public’s support” for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech. Austin interferes with the “open marketplace”of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations. Pp. 32–40.

(2) This reasoning also shows the invalidity of the Government’s other arguments. It reasons that corporate political speech can be banned to prevent corruption or its appearance. The Buckley Court found this rationale “sufficiently important” to allow contribution limits but refused to extend that reasoning to expenditure limits,424 U.S., at 25, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open, 435 U. S., at788, n. 26, this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials 6

CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Syllabus

are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co., 556 U. S. ___, distinguished. Pp. 40–45.

(3) The Government’s asserted interest in protecting shareholders from being compelled to fund corporate speech, like the antidistortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder. P. 46.

(4) Because §441b is not limited to corporations or associations created in foreign countries or funded predominantly by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nation’s political process. Pp. 46–47.

(d) The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned— counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its announcement. Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consideration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Pp. 47–50.

 

3. BCRA §§201 and 311 are valid as applied to the ads for Hillary and to the movie itself. Pp. 50–57.

(a) Disclaimer and disclosure requirements may burden the ability to speak, but they “impose no ceiling on campaign-related activities,” Buckley, 424 U. S., at 64, or “ ‘ “prevent anyone from speaking,” ’ ” McConnell, supra, at 201. The Buckley Court explained that disclosure can be justified by a governmental interest in providing “the electorate with information” about election-related spending sources. The McConnell Court applied this interest in rejecting facial challenges to §§201 and 311. 540 U. S., at 196. However, the Court 7 Cite as: 558 U. S. ____ (2010)

Syllabus

acknowledged that as-applied challenges would be available if a group could show a “ ‘reasonable probability’ ” that disclosing its contributors’ names would “ ‘subject them to threats, harassment, or reprisals from either Government officials or private parties.’ ” Id., at

198. Pp. 50–52.

(b) The disclaimer and disclosure requirements are valid as applied to Citizens United’s ads. They fall within BCRA’s “electioneering communication” definition: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, and “insure that the voters are fully informed” about who is speaking, Buckley, supra, at 76. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United’s arguments that §311 is underinclusive because it requires disclaimers for broadcast advertisements but not for print or Internet advertising and that §311 decreases the quantity and effectiveness of the group’s speech were rejected in McConnell. This Court also rejects their contention that §201’s disclosure requirements must be confined to speech that is the functional equivalent of express advocacy under WRTL’s test for restrictions on independent expenditures, 551 U. S., at 469–476(opinion of ROBERTS, C.J.). Disclosure is the less-restrictive alternative to more comprehensive speech regulations. Such requirements have been upheld in Buckley and McConnell. Citizens United’s argument that no informational interest justifies applying §201 to its ads is similar to the argument this Court rejected with regard to disclaimers. Citizens United finally claims that disclosure requirements can chill donations by exposing donors to retaliation, but offers no   evidence that its members face the type of threats, harassment, or reprisals that might make §201 unconstitutional as applied. Pp. 52–

55.

(c) For these same reasons, this Court affirms the application of the §§201 and 311 disclaimer and disclosure requirements to Hillary. Pp. 55–56.

Reversed in part, affirmed in part, and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SO-TOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.

Illinois joins six other states which hold that med mal caps are unconstitutional

Saturday, February 6th, 2010

On Feb. 4, 2010 in the case of Lebron v. Gottlief Memorial Hospital, the Supreme Court of Illinois struck down the cap on non-economic damages in medical malpractice cases, holding that the cap, which had limited damages to $500,000 for doctors and $1,000,000 for hospitals, is unconstitutional because the law violates “separation of powers” doctrine.  The Supreme Court noted that such a cap impedes a jury’s right to establish reasonable damages.

Illinois joins Ohio, Alabama, New Mexico, New Hampshire, Wisconsin and Kansas in declaring that caps on non-economic damages are unconstitutional.  Maryland currently allows such caps

Does SB 87 apply to County Law Libraries?

Saturday, February 6th, 2010

The Senate has passed SB 87 which requires financial accounting of funds received and dispursed by the Ky. Assoc. of Counties and the Ky. League of Cities.   An amendment also imposes a reporting duty on affiliated organizations which appear to include County Law Libraries.

The law as it currently exists would require each entity to maintain a web site and monthly report expenditures.    Additional requirements might prove to be burdensome to small entities like County Law Libraries.

We would suggest that if this law passes, and if it indeed includes County Law Libraries, that the various committees might consider forming an association and share the cost of maintaining a web site.

Wisconsin Court Limits Evidence in DUI case

Thursday, February 4th, 2010

Limit on evidence in drunk driving cases upheld

By Alex De Grand, Legal Writer, State Bar of Wisconsin

Feb. 2, 2010 – Evidence of a preliminary breath test (PBT) in a drunk driving case remains inadmissible even if an expert relies on it to form an opinion, the Wisconsin Supreme Court held today.

In State v. Fischer, 207AP1898, the court worked to reconcile Wis. Stat. sec. 343.303, which expressly bars PBT results from prosecuting a motorist accused of operating while intoxicated, with Wis. Stat.sec. 907.03, which permits an expert to testify to an opinion regardless of the admissibility of the opinion’s underlying data. The court concluded that sec. 343.303 creates an exception to sec. 907.03 without impairing a defendant’s constitutional right to present a full defense.

The justices refrained from holding that the PBT results are inadmissible because they are too unreliable, noting that Wisconsin courts routinely use the tests to find probable cause for arresting a motorist.

An absorption curve theory

Richard Fischer’s erratic driving drew the attention of a police officer who stopped Fischer at 1:40 a.m. After Fischer poorly performed field sobriety tests, the officer administered a PBT at an unspecified time, measuring a breath alcohol content of .11 percent. Fischer was arrested and at 2:48 a.m. the officer performed a chemical blood test to find a BAC of .147 percent. Fischer was charged with operating while intoxicated, second offense, and operating with a BAC of .08 or more, second offense.

In preparation for trial, Fischer retained an expert who used data from the two tests, estimates of the precise timing of the breath test, and absorption rate formulas to generate a curve charting the absorption of alcohol by Fischer’s body. Fischer’s blood had yet to contain an impermissibly high level of alcohol when the officer stopped him, in the expert’s opinion.

The state successfully persuaded the trial court to exclude the expert’s report and testimony to the extent that it relied on the PBT result A jury convicted Fischer on both charges and Fischer appealed the ruling to exclude the expert’s evidence. The court of appeals affirmed.

Clear legislative intent

In an opinion authored by Justice N. Patrick Crooks, the court held that the Legislature clearly intended to bar PBT results in prosecutions of drunk drivers and its reasons for doing so outweighed Fischer’s right to present a full defense.

The court noted that the U.S. Supreme Court held that state rules excluding defense evidence are valid “so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve’” in U.S. v. Scheffer, 523 U.S. 303 (1998). Applying Scheffer, the Wisconsin Supreme Court created a two-part test to evaluate excluded evidence in State v. St. George, 2002 WI 50.

In this case, the court said it would assume Fischer had satisfied the first prong of the St. George test, which considers whether the proffered expert testimony meets the standards of sec. 907.02 and it is relevant, necessary, and offers probative value greater than its prejudicial effect.

But the court determined that Fischer could not succeed under the second part of the St. George test, which asks whether the defendant’s right outweighs the state interest in excluding the evidence.

“The legislature’s decision limiting the admissibility of PBT results helps law enforcement officers do their jobs with more cooperation from drivers than they would otherwise be likely to get – cooperation that is especially critical given that a PBT may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest,” the court wrote. In turn, this makes Wisconsin roads safer, the court said.

No detours around the rule

The court considered whether the expert could escape the prohibition of sec. 343.303 by testifying only to his opinion without reference to the PBT result, rather than present a report that includes the actual PBT result.

In this case, the court said there was no meaningful difference between those two options. “The PBT results, whether initially fully disclosed to the jury or not, would inevitably be disclosed to the jury the moment that the expert testified as to the methodology and data that underlie the opinion,” the court said. “[E]ven a limited explanation of the methodology Fischer wanted to have put before the jury would have to include the first data point: the PBT result.”

Likewise, the court said that the PBT result could not become admissible even if sec. 907.02 and sec. 907.03 permit an expert to testify to an opinion based on facts that are otherwise inadmissible if they are “of a type reasonably relied upon by experts.”  Acknowledging this is a “thorny question” that “has proved difficult to answer with a fair and workable rule,” the court said it had to interpret apparently conflicting statutes in a way that gives full force to each.

“[I]n this case, the legislature’s policy decision regarding the absolute inadmissibility of the PBT results under these circumstances simply could not be clearer,” the court wrote. “Reading the statutes together to create an exception to Wis. Stat. 907.03 by excluding expert evidence to the extent that it is based on prohibited PBT results comports with our obligation to give effect to the legislature’s intent.”

The court noted that if it ruled otherwise, PBT results would routinely be used by prosecutors, reversing the legislature’s assurance to drivers that PBT results will be used only to determine if probable cause exists for an arrest. When fewer drivers agree to an investigatory PBT, “an officer could be faced with the constitutional necessity of releasing a driver he or she reasonably believed to be intoxicated,” the court said.

Expressly not held

In an aside, the court noted that it was not holding that all absorption curve opinion evidence is inadmissible. If Fischer had disclosed when and what alcoholic beverages he had been drinking, the court said an expert could have created an absorption curve based on that evidence and it would be admissible.

Further, the court said that it was not evaluating the reliability of an expert opinion based on PBT results, “which after all are routinely relief on to establish probable cause for arrest and have been held admissible for purposes other than those prohibited by statute.” But in a concurring opinion joined by Justices Patience Roggensack and Michael Gableman, Justice Annette Ziegler said that the PBT results are unreliable as a matter of law for the purpose of confirming or refuting a specific alcohol concentration in an OWI or PAC trial.

Standard for expert testimony

Fischer had urged the court to abandon current state law that lets a jury decide the weight and reliability of relevant scientific evidence in favor of the federal Daubert standard. In   Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.

The court said that it did not have to evaluate the reliability of the expert’s opinion in this case and so there was no reason for “such an abrupt departure from established case law.”