Archive for January, 2011

CONGRESS CONSIDERING BILL TO EXTEND PATRIOT ACT TO ALLOW CONTINUED SPYING ON U.S. CITIZENS

Monday, January 31st, 2011

On Civil Liberties, Take 3: Speak Out Against the USA Patriot Act Sunset Extension Act of 2011!

Published 1, January 30, 2011 Congress 10 Comments

by Elaine Magliaro, Guest Blogger
Last February, the U.S. Congress passed a one-year extension of three provisions of the Patriot Act that were due to expire. Although there were bills pending in the House and the Senate to amend those provisions—as well as other sections of the Patriot Act—Congress chose to reauthorize the act without making any changes.
This February, the three “sunset” provisions of the Patriot Act are due to expire again. On January 26th, Congressman Jim Sensenbrenner (R-WI) introduced legislation that calls for reauthorization of the three provisions. Sensenbrenner’s legislation would extend the “sunset” provisions through December 8, 2011.
Sensenbrenner said: “As the author of the USA PATRIOT Act and its reauthorization in 2005, I fully understand the intense legal scrutiny these provisions have undergone over the last several years and support making them permanent. These three provisions have helped thwart countless potential attacks since the bill was signed into law and are critical to helping ensure law officials can keep our nation safe from attack.”
From Reform the Patriot Act (ACLU):
The three expiring provisions of the Patriot Act give the government sweeping authority to spy on individuals inside the United States, and in some cases, without any suspicion of wrongdoing. All three should be allowed to expire if they are not amended to include privacy protections to protect personal information from government overreach.
Section 215 of the Patriot Act authorizes the government to obtain “any tangible thing” relevant to a terrorism investigation, even if there is no showing that the “thing” pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person’s privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire.
Section 206 of the Patriot Act, also known as “roving John Doe wiretap” provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called “Lone Wolf” provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization. Such an authorization, granted only in secret courts is subject to abuse and threatens our longtime understandings of the limits of the government’s investigatory powers within the borders of the United States. This provision has never been used and should be allowed to expire outright.
The ACLU is also concerned that the proposed bill will not amend other sections of the Patriot Act that should be reformed—most notable of which is the section that relates to the issuance and use of NSLs (national security letters). Click here to get more information about national security letters.
Senator Patrick Leahy (D-VT), chairman of the Judiciary committee, has also introduced an extension that includes some restrictions of the “library” provisions in the Patriot Act. The ACLU doesn’t think those restrictions are sufficient.
I recommend you watch the following Washington Journal interview with Chipp Pitts on the subject of the Patriot Act and civil liberties. Pitts is a Board Member of the Bill of Rights Defense Committee and former chairman of Amnesty Intl USA
Washington Journal: Civil Liberties and the Patriot Act (C-SPAN, 1/29/2011)

Ky. Circuit Judge Cited for sending e-mails on his private account, and for purchasing a campaign item online. Judicial Conduct Commission Charges Judge Dan Ballou with misconduct.

Sunday, January 30th, 2011

 

What are limits of Judges Right to Free Speech? 

Circuit Court judge Daniel Ballou has been charged with two counts of judicial misconduct for contributing money to U.S. Sen. John McCain’s presidential campaign and for sending campaign material touting U.S. Sen. Rand Paul to other judges via e-mail. Judge Ballou represents McCreary and Whitley counties.

Ballou of Williamsburg was charged by the Judicial Conduct Commission in November for contributing $562 to McCain’s campaign in 2008. Ballou also sent out an e-mail in January 2010 about Rand Paul’s stance on the 2nd Amendment. The e-mail was sent to dozens of people.

The Judicial Code of Conduct  mandate that a sitting judge “shall refrain from inappropriate political activity.”  The prohibition against political activity includes soliciting funds or making contributions to a political organization or candidate. The Conduct Code prohibit a judge from publicly endorsing or opposing a candidate for public office.

Judge Ballou denied the allegation.

 He explained in pleadings that the “campaign donation” to presidential candidate John McCain occurred while Ballou was deployed on military duty in Iraq. He said he purchased several items that included McCain’s likeness via the Internet. Apparently that online purchase has been alleged to be a campaign contribution.  

In prior cases the JCC has reviewed the purchase of tickets for campaign events and held that if the fee was excessive and if it exceeded the value of the meal provided at the event, that the excess value of the ticket was a “contribution”. Contributions to other candidates is forbidden by the Code.

The Conduct Code permits Judges to attend political rallies for other candidates.  Judges are also allowed to speak to such groups, and may identify their party affiliation “if asked”.

Ballou said the e-mail regarding Paul’s 2nd Amendment stance was not intended as an endorsement or to take a political position.

Ballou said in documents that he had “forwarded an e-mail from his personal computer to a limited number of fellow judges, none of whom could be reasonably expected to be subject to improper political persuasion or influence.”

Ballou sent the e-mail from his personal e-mail account to judges and dozens of other people. The message was identified in the heading of the email:  “FYI Rand Paul and the 2nd amendment.”

Judge Ballou filed a defense in which he says he has a First Amendment right to express his opinion.

FLORIDA’S HIGHEST COURT UPHOLDS BA SOURCE CODE DISCOVERY

Friday, January 28th, 2011

 Herald Tribune -Sarasota Florida -  Published: Friday, January 28, 2011 at 1:00 a.m.

Drunken driving cases across the state could be thrown into limbo now that the Florida Supreme Court has declined to review an argument over alcohol breath-test machines that originated in Sarasota County.

Related Links:

The state’s highest court said it will not consider past decisions that essentially halted Sarasota and Manatee county prosecutors from using alcohol breath-test results during DUI trials over the past few years.

Local prosecutors were hoping for a high court reversal because in recent years they have had to reduce charges or abandon hundreds of DUI cases where the breath tests were the most compelling evidence.

The company that makes the Intoxilyzer 8000, Kentucky-based CMI, also hoped the high court would overturn a 2nd District Court of Appeal ruling on a Sarasota case that required the firm to give DUI defendants and their attorneys information about how the machine works.

CMI has refused to comply with past subpoenas for the Intoxilyzer 8000′s computer code, allowing defense attorneys an avenue to attack the machine’s admissibility.

On Wednesday, the Florida Supreme Court handed a final blow to CMI, which now faces a choice: Either give defense attorneys the machine’s code, or risk more attacks on its product, the only machine approved for use in Florida.

Defense lawyers across the state are planning to use the same argument that was successful here, said Venice defense attorney Robert Harrison, who has led the fight against the Intoxilyzer 8000.

“The state has a real big mess on their hands,” Harrison said. “If they don’t give it to us, it’s going to be difficult to impossible for the state to use the breath test.”

Judges in Sarasota and Manatee counties have ruled that defendants have the right to examine the evidence against them, including the computer code inside the Intoxilyzer 8000. The 2nd District Court of Appeal upheld that ruling in June for defendants who want to make sure the machine being used to convict them is the same one the state has approved.

Manufacturer CMI says the code is a trade secret and has so far refused to comply with the subpoenas.

The Florida Supreme Court declined on Wednesday to accept CMI’s appeal, ending any hope of avoiding the subpoena. CMI and its attorney did not return calls for comment on the company’s next move.

Prosecutors in Sarasota county say the breath tests are still usable and reliable — with a legal workaround. But that involves a cost of $1,000 a case to fly in an expert and requires more time for each trial, said Assistant State Attorney Erica Arend.

“In the end, we still get there; it’s just more time-consuming and expensive to do it,” Arend said. For now, the state has yet to use that method because defendants have been pleading out before trial, she said.

Breath-test results are a key piece of evidence in DUI cases, but even in cases where the results are not usable, prosecutors can still try to prove the case using testimony from law enforcement officers who administer field sobriety tests.

Law enforcement agencies in Sarasota and Manatee counties have continued to use the Intoxilyzer 8000 as a way to back up their other evidence of driver impairment. They do not have an alternative machine to use when combating drunk drivers because the Intoxilyzer 8000 is the only breath-test machine approved for use in Florida.

The Florida Department of Law Enforcement says the Intoxilyzer 8000 is accurate, and there are no plans to change to a different machine at this point.

The department did not comment on the latest Supreme Court ruling.

FDLE rolled out the new Intoxilyzer 8000 in 2007, a breath test machine touted as the answer to defense attorneys’ relentless attacks on the reliability of an older model.

( page 2 of 2 )

Drunken driving cases across the state could be thrown into limbo now that the Florida Supreme Court has declined to review an argument over alcohol breath-test machines that originated in Sarasota County.

Related Links:

The state’s highest court said it will not consider past decisions that essentially halted Sarasota and Manatee county prosecutors from using alcohol breath-test results during DUI trials over the past few years.

Local prosecutors were hoping for a high court reversal because in recent years they have had to reduce charges or abandon hundreds of DUI cases where the breath tests were the most compelling evidence.

The company that makes the Intoxilyzer 8000, Kentucky-based CMI, also hoped the high court would overturn a 2nd District Court of Appeal ruling on a Sarasota case that required the firm to give DUI defendants and their attorneys information about how the machine works.

CMI has refused to comply with past subpoenas for the Intoxilyzer 8000′s computer code, allowing defense attorneys an avenue to attack the machine’s admissibility.

On Wednesday, the Florida Supreme Court handed a final blow to CMI, which now faces a choice: Either give defense attorneys the machine’s code, or risk more attacks on its product, the only machine approved for use in Florida.

Defense lawyers across the state are planning to use the same argument that was successful here, said Venice defense attorney Robert Harrison, who has led the fight against the Intoxilyzer 8000.

“The state has a real big mess on their hands,” Harrison said. “If they don’t give it to us, it’s going to be difficult to impossible for the state to use the breath test.”

Judges in Sarasota and Manatee counties have ruled that defendants have the right to examine the evidence against them, including the computer code inside the Intoxilyzer 8000. The 2nd District Court of Appeal upheld that ruling in June for defendants who want to make sure the machine being used to convict them is the same one the state has approved.

Manufacturer CMI says the code is a trade secret and has so far refused to comply with the subpoenas.

The Florida Supreme Court declined on Wednesday to accept CMI’s appeal, ending any hope of avoiding the subpoena. CMI and its attorney did not return calls for comment on the company’s next move.

Prosecutors in Sarasota county say the breath tests are still usable and reliable — with a legal workaround. But that involves a cost of $1,000 a case to fly in an expert and requires more time for each trial, said Assistant State Attorney Erica Arend.

“In the end, we still get there; it’s just more time-consuming and expensive to do it,” Arend said. For now, the state has yet to use that method because defendants have been pleading out before trial, she said.

Breath-test results are a key piece of evidence in DUI cases, but even in cases where the results are not usable, prosecutors can still try to prove the case using testimony from law enforcement officers who administer field sobriety tests.

Law enforcement agencies in Sarasota and Manatee counties have continued to use the Intoxilyzer 8000 as a way to back up their other evidence of driver impairment. They do not have an alternative machine to use when combating drunk drivers because the Intoxilyzer 8000 is the only breath-test machine approved for use in Florida.

The Florida Department of Law Enforcement says the Intoxilyzer 8000 is accurate, and there are no plans to change to a different machine at this point.

The department did not comment on the latest Supreme Court ruling.

FDLE rolled out the new Intoxilyzer 8000 in 2007, a breath test machine touted as the answer to defense attorneys’ relentless attacks on the reliability of an older model.

DUI SOURCE CODE DISCOVERABLE Florida appellate decision issued June 2010, allows discovery of Intoxilyzer Source Code.  See more about the ruling that was upheld by the Florida Supreme Court in Jan. 2011.

TEXAS JUDGE SUES LAWYER OVER PUBLICATION OF JUDICIAL CONDUCT COMPLAINT AND DEFAMATORY STATEMENTS

Thursday, January 27th, 2011

A Texas state court judge recently filed a lawsuit against a prominent plaintiffs’ attorney. The original petition [PDF] filed by Judge Carlos Cortez, of Dallas County’s 44th Civil District Court, included defamation and extortion claims against the attorney. Judge Cortez later substantially narrowed [PDF] the facts alleged in his petition and dropped the extortion claim. The lawsuit stems from an earlier complaint against Judge Cortez that the attorney filed with the Texas State Commission on Judicial Conduct.

The seven page complaint filed by Judge Cortez alleged defamation due to allegations that the attorney published false information that he had hired prostitutes and had taken drugs.  The complaint is available at:  http://pdfserver.amlaw.com/tx/cortez_11-2.pdf 

Lawsuit Alleges Attorney Motivated by Politics
According to Judge Cortez’s original petition, the attorney’s complaint to the Commission was intended “to diminish” the judge’s “chances of re-election.” Judge Cortez alleged that the attorney hoped “to attract a political opponent” to run against and defeat him. He further alleged, based on a pre-suit deposition of the attorney, that the attorney did not base the complaint on firsthand knowledge of the judge’s behavior. Instead, the attorney apparently relied on events reported to him by other sources, including other state court judges.

Judge Cortez asserted that “[m]onths passed without any publicity” after the attorney filed his complaint with the Commission. Then, “just weeks before the filing deadline for judicial candidates,” the attorney gave copies of the complaint to media outlets, such as the “Texas Lawyer, Dallas Observer, WFAA Channel 8 News, and the Dallas Morning News.”

The “malicious and defamatory attack” allegedly continued when the attorney emailed a copy of the complaint to more than 100 members of the local chapter of the American Board of Trial Advocates. Judge Cortez contended that “judicial investigations of filed complaints are required by the Judicial Conduct Commission to be kept confidential” unless “formal proceedings are instituted.”

According to a report in the Texas Lawyer, which was provided with a copy of the attorney’s complaint, the complaint filed with the Commission asserts that Judge Cortez belittles, berates, and ridicules his colleagues both to the public and to other judges. Along with his complaint, the attorney submitted a series of emails allegedly exchanged between Judge Cortez and several Dallas judges and lawyers.

In one of the emails provided to the Texas Lawyer and attributed to Judge Cortez, he called his fellow judges “a f—ing joke.” He described one judge as “Car Wreck Craig” and also accused another judge of falling asleep at the bench.

Candor or Misconduct?
When evaluating the attorney’s complaint, the Commission will have to decide whether Judge Cortez’s pointed emails about his colleagues rise to the level of misconduct or even require additional investigation.

Judges “emailing amongst themselves should be able to discuss issues with a level of candor” says Theresa M. House, New York City, vice-chair of the ABA Section of Litigation’s Trial Practice Committee. They “have an obligation to balance,” however, this interest “with respect for their colleagues,” she maintains.

Regardless of the Commission’s conclusion about Judge Cortez’s conduct, some have noticed a decrease in courtesy throughout the bar. “The reality is there is a growing lack of civility” in the legal profession “that we have to deal with,” says Nash E. Long III, Charlotte, cochair of the Section of Litigation’s Trial Practice Committee.

Reactions to the Attorney’s Actions
Judge Cortez’s lawsuit calls into question the opposing attorney’s motives for filing the complaint and making his accusations public. If the attorney was acting in good faith and has knowledge of judicial misconduct, he “has an obligation to come forward,” House says. That is “exactly what he is supposed to do.”

On the other hand, if the attorney acted with “reckless disregard” as to the truth or falsity of the information he released to the public about the qualifications or integrity of the judge, “it is an absolute violation” of Model Rule of Professional Conduct 8.2, Long notes.

Election an Important Factor in Dispute
Long believes that Texas’ system for electing judges cannot be ignored when examining the circumstances of Judge Cortez’s lawsuit and the attorney’s complaint filed with the Commission. This situation “seems like it was driven by the fact that the judge was in a re-election campaign” Long says. He worries about “forcing judges to be part of the political process.” Disputes like this one “might be an outgrowth of electing judges,” Long notes.

Kenton District Judge Ken Easterling Blasts Health and Family Services for Secrecy and Lack of Protection to Endangered Children

Thursday, January 27th, 2011

Ja. 27, 2011

Kenton County District Judge Ken Easterling blasted the state agency assigned to protect Kentucky’s children Wednesday during a preliminary hearing for a mother whose child died after becoming wedged between a mattress and wall atop a baseboard heater.

Gray, 26, was in an alcohol- and prescription drug-induced sleep when her child died,

Easterling said “The cabinet is a very closed, shrouded in secrecy, agency. You don’t have the opportunity to find out what they do.”

Easterling said it was “like asking Richard Nixon to review what happened in Watergate.” “It is self-serving, and it leaves the community with very little confidence. It leaves me with very little confidence,” Easterling said. His concerns appeared to be more aimed at policy makers in Frankfort than local social workers.

“There are some very dedicated child support workers, who work day and night,” Easterling said.

He said that when he was a prosecutor several years ago, cabinet officials discouraged the placement of children in state care because Kenton County had a disproportionate number of children being removed from their homes compared to Lexington and Louisville.

Easterling said the state once declined to take custody of children living in a home with no heat or electricity. He said the water pipes had broken and there was an ice waterfall down the steps of the family’s home.

Easterling said Northern Kentucky needs a “function­al child protection agency” in order to reduce its infant mortality rate – one of the highest in Kentucky. He called it “repulsive” that he has to “beg the cabinet to do anything.” “We are woeful in what that state gives us, and it is criminal,” Easterling said. “This is a thriving community.” Easterling then challenged the cabinet to become more transparent.

“I ask the cabinet to step outside the shield of secrecy, confidentiality,” he said.

Easterling said the community deserves answers on what cabinet officials in Frankfort are doing to reduce infant deaths such as Anthia’s.

U.S. Supreme Court Rules for Third-Party Retaliation Claims in Case From Carrollton, Ky.

Tuesday, January 25th, 2011

A decision by the U.S. Supreme Court to reactivate a lawsuit — based on a claim that a company retaliated against one employee by firing her fiancee — should result in more lawsuits being filed by spouses and significant others. But the unanimous decision did not define just how expansive the “zone of interests” is, leaving HR leaders in the dark about where to draw the line.

By Tom Starner    Jan. 25, 2011

When the Supreme Court of the United States unanimously reversed an appeals court’s decision on a ground-breaking employer retaliation case on Monday, it gave employers something extra to ponder when thinking about firing anyone.

In the case, Thompson vs. North American Stainless LP, the plaintiff, Eric Thompson, claimed he was fired because his fiancee filed a charge with the Equal Employment Opportunity Commission against their common employer.

A trial court granted the employer’s motion for summary judgment and the U.S. 6th Circuit Court of Appeals agreed. But the Supreme Court reversed that decision and sent the case back to the lower court, in effect giving Thompson the chance to prove his case in court.

The High Court’s 8-0 decision, say employment lawyers, may lead to more litigation alleging similar circumstances — and it could take a long time and many lower court decisions for a consensus to emerge as to who can sue based on this specific type of retaliation. Justice Elena Kagan took no part in the case.

In the majority opinion (PDF), Justice Antonin Scalia writes that “injuring [Thompson] was the employer’s intended means of harming [the fiancee, Miriam] Regalado.”

“Hurting him was the unlawful act by which the employer punished her,” Scalia writes. “In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII [of the 1964 Civil Rights Act].”

Thompson’s fiancee filed a charge with the EEOC in September 2002, alleging her supervisors discriminated against her based on her gender. About five months later, the EEOC notified North American Stainless of the charge, and less than a month later, North American Stainless fired Thompson, saying it was for performance-based reasons.

According to Steve Hurd, a partner and co-head of Proskauer Rose’s employment-litigation and arbitration group in New York, Monday’s decision creates the potential for additional retaliation claims because it expands the class of workers who can file such complaints under Title VII.

The key question in the case, he says, was how Title VII protection is extended to those close to the complaining worker.

In the opinion, Hurd says, Scalia noted that that broad wording of the law made it difficult to define a “comprehensive set of clear rules” about who is covered by the law. Scalia also wrote, however, that it is “obvious that a reasonable worker might be dissuaded from” filing a complaint “if she knew that her fiancee would be fired.”

“The decision,” Hurd says, “wasn’t a major surprise because of the facts in this specific case. But in this decision, the Court didn’t establish where this line is in terms of who can be considered to be in what the High Court calls the ‘zone of interests.’ And because they don’t define who that is, employers can be in a difficult spot.”

That definition will initially be left to the lower courts as they hear this and similar cases — which will leave the law unsettled for employers, he says.

“I expect courts will be inundated with these types of cases, until it gets sorted out,” he says. “It certainly creates a chilling effect on employers who want to fire someone, because now they don’t know where the line is.”

Ron Chapman Jr., a Dallas-based shareholder in the law firm Ogletree, Deakins, Nash, Smoak and Stewart, says that, while the new ruling makes it easier for employees and former employees to sue companies, it is just another in a line of Supreme Court decisions that have made it easier to sue for retaliation.

“It is unusual for one employee toallege he was retaliated against because of the actions of another employee, so the factual scenario presented in this case will not arise very often,” Chapman says. “But the Court’s recent decisions make it is easier to sue for retaliation than for discrimination, even though the same statute makes both illegal.”

Chapman says that, when reading the statute literally, the employer should have won. However, the conservative Supreme Court unanimously ruled the spirit of the statute permitted the claim being asserted, even though the actual text of the statute did not.

“Considering many members of the Court frequently chastise those who interpret statutes broadly, this ruling is ironic and flies in the face of a strict constructionist philosophy,” he says. “On the other hand, based on the allegations in the case, it is not surprising.”

According to EEOC statistics, retaliation became the most frequently cited form of on-the-job discrimination in 2009 (33,613 charges), overtaking race discrimination (33,579 charges) by a slim margin.

Chapman says employers need to re-examine policies and procedures for dealing with internal complaints, so as to minimize the risk of a retaliation complaint.

“These days, employers face numerous complaints from current employees, not just former employees,” he says. “Dealing with the current employee who has lodged a complaint can be tricky.”

In theory, Chapman explains, the law allows an employer to hold an employee accountable for his or her performance, regardless of whether they previously filed a complaint. In reality, however, when the employer tries to hold that employee accountable, he is likely to claim retaliation.

“Whether the employer can defeat that claim of retaliation is going to depend in large part on the policies the employer has in place and the degree to which it followed its standard procedures,” Chapman says. “Employers should make sure those policies and procedures are up to date, thereby creating the best legal defense possible.”

John Quinn, a Philadelphia-based employment attorney at Eckert Seamans, says it comes down to the Supreme Court’s determination of “zone of interests.” According to the Court’s opinion, Thompson was not “an accidental victim” and “injuring him” was the way the company opted to retaliate against the fiancee who had filed the EEOC complaint.

“If you are going to fire someone, make sure you have a valid reason, a nondiscriminatory reason,” Quinn says, adding that Justice Ruth Bader Ginsburg, in a concurring opinion, points to the manual of the EEOC, which prohibits retaliation against someone closely related to the person filing a claim.

“Employers just need to follow basic guidelines, the old truisms apply,” he says. “What did you do and why did you do it? And, most of all was it fair, consistent and documented? This case is not as shocking as it might seem. Not being ‘an accidental victim’ is the key phrase.”

Simon Sandoval-Moshenberg, a Washington-based attorney, represents an ex-employee in a similar case that has yet to be resolved.

Sandoval-Moshenberg’s client alleges he was fired from an Alexandria, Va., car dealership five days after his wife sued the company in an EEOC complaint based on pregnancy discrimination (she lost her job while recovering from a pregnancy-related medical procedure).

The case had been on hold until the High Court’s decision in the Thompson case.

“Of course, we are thrilled with Monday’s decision,” says Sandoval-Moshenberg, who, along with his client, sat in on the Supreme Court’s oral arguments. “But based on the questioning, it could have come down in a different way, because many of the questions from the justices wondered where to draw the line on which employees deserve protection.”

Sandoval-Moshenberg says that, from an HR perspective, this decision doesn’t change much. That is, if employers are doing things properly.

“The EEOC always considered this an unlawful practice, and HR managers should be guided by that,” he says. “But even without the EEOC, you would think this would be illegal because it conforms with the sense of what the law ought to be.”

He says the Supreme Court did a very good job of taking a step back, closely looking at the nature of the employment relationship and the realities on the ground.

“They didn’t get bogged down in technicalities,” he says. “Defense attorneys tried to say this would open the litigation floodgates, but the true takeaway message is, ‘Don’t retaliate.’ If you want to fire someone for cause, document it.”

Proskauer’s Hurd reiterates that there will be added lawsuits, and justified or not, employers will carry the costs and the angst of dealing with that ever-increasing trend.

“This will mean another analysis employers will have to do before they fire someone,” he says. “The first half the decision I agree with … completely, because it was retaliation. But extending it to third parties without defining where the line is drawn will be the issue. Spouses are one thing, but how far will it be pushed is another.”

Justice Antonin Scalia’s Closed Door Speech to Tea Party Raises Eyebrows

Saturday, January 22nd, 2011

Jan. 22, 2011

 Justice Antonin Scalia, a popular and entertaining speaker at various forums around the world, has one of the busiest schedules off the bench. But a closed-door address the conservative justice is scheduled to give Monday afternoon has attracted controversy, partly because of who is sponsoring the event.

 The Tea Party Caucus, an informal congressional body, had invited the 74-year-old Scalia to talk informally with legislators, the first in what leaders are billing as regular “conservative constitutional seminars.”

 The event was designed as a “teaching event” only for members of Congress, and no cameras or reporters would be allowed to cover it. Scalia’s scheduled one-hour topic will be “separation of powers.”

 ”It is a special privilege to have him address the first of what will be regular seminars featuring constitutional scholars,” Rep. Michele Bachmann, R-Minnesota, chairwoman of the Tea Party Caucus, said last December. “In his 24 years of service on the high court, Justice Scalia has distinguished himself by his ‘originalist’ approach to constitutional interpretation.

 Her office said Friday that about 40 members were expected to attend.

Bachmann promised the seminars would be held at least twice monthly for members of Congress. They are being organized in conjunction with the caucus, which she founded last July, and the Congressional Constitution Caucus, which is chaired by Reps. Scott Garrett, R-New Jersey, and Rob Bishop, R-Utah.

 Political sources say Bachmann personally came to see Scalia in his chambers late last year, and offered the invitation, which he accepted.

 The Tea Party movement, a populist grassroots coalition with mostly politically conservative members, has seen growing popularity in the past few years. The various affiliated groups had some success electing members of Congress in the November midterms who shared many of the positions on taxation, budget deficits and constitutional interpretation.

 Many Tea Party activists find Scalia’s “originalist” views on the Constitution to be especially appealing. As he once explained his views, “It’s simple: Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning it bore when it was adopted by the people.” He has rejected suggestions that abortion and gay rights — among other things — were “guaranteed” in the Constitution. That view had left him often in dissent in his early years on the high court, when it was a mostly moderate-left bench.

 Scalia was nominated to the high court in 1986 and has been among its most conservative, and articulate, members.

 Bachmann has said all members of Congress, including Democrats, are invited to the Scalia event, even though it is billed as a “conservative constitutional seminar.”

 Neither the Supreme Court nor the justice’s chambers had any comment on the upcoming event. It was unclear if other members of the high court would be invited to future seminars.

 Critics of Scalia’s appearance said it could raise the appearance of impropriety and lead to political polarization over the high court.

The speech “suggests an alliance between the conservative members of the court and the conservative members of Congress,” Jonathan Turley, a law professor at George Washington University, said on his legal blog. He said the justice was showing “exceedingly poor judgment.”

A New York Times editorial called the arrangement “outlandish” and “dismaying.”

But Edward Whelan, a former Scalia law clerk, and head of the Ethics & Public Policy Center, downplayed any concern.

 ”Does he think it’s improper for any justice ever to speak to any group of members of Congress who might be perceived as sharing the same general political disposition?,” he asked in a posting on the National Review’s Bench Memos blog. “My guess is that, schedule permitting, Scalia would be happy to speak on the same topic to any similar group of members of Congress who invited him.”

Substantive meetings between members of the high court and legislators are not unusual. Justice Stephen Breyer just this week addressed a private bipartisan retreat for House Judiciary Committee members. The justice had been chief counsel to the Senate Judiciary Committee from 1979 to 1980 under then-Chairman Edward Kennedy, D-Massachusetts.

 The House committee is now chaired by conservative Rep. Lamar Smith, R-Texas, who invited Breyer to talk about achieving bipartisan success.

 Scalia’s views on separation of powers may leave some fellow conservatives uneasy when he addresses them Monday. In past remarks, he has voiced concern about congressional interference in federal judicial matters.

 In a May 2006 speech on Capitol Hill, he said it was not proper for Congress “to direct the Supreme Court” in how it does its job. In particular, Scalia said lawmakers should not pass bills forbidding judges from using foreign law in its decision-making.

 ”It’s none of your business,” he said, referring to Congress. “No one is more opposed to the use of foreign law than I am, but I’m darned if I think it’s up to Congress to direct the court how to make its decisions.”

 At the same time, the justice added that he has long opposed trying to legislate from the bench, and that courts sometimes have taken on too much regulatory power best left to Congress.

“All you have to do is pass the statute, and it’s not up to us to tell you otherwise,” he added. “Let us make our mistakes just as we let you make yours,” which brought heavy laughter from the crowd.

After taking over the House of Representatives this month, one of the first orders of business for GOP leaders was to set aside time for a full public reading of the U.S. Constitution, on the chamber floor. Tea Party-backed Republicans in Congress have also proposed a measure requiring that all bills submitted for approval be accompanied by a statement that explains why they are constitutional.

 The State of the Union address by President Obama is set for the day after Scalia’s remarks to the Tea Party Caucus. Scalia has been a regular no-show to the speech.

DOJ Creates Professional Misconduct Review Unit

Friday, January 21st, 2011

Amid the national dialogue on prosecutorial malfeasance, the U.S. Justice Department today announced the creation of a team of lawyers that will review cases of intentional and reckless attorney misconduct.

The Professional Misconduct Review Unit will examine misconduct findings made by the department’s Office of Professional Responsibility. Kevin Ohlson, who stepped down as Attorney General Eric Holder Jr.’s chief of staff recently, will lead the unit. Ohlson will report to the office of the deputy attorney general.

Holder said in a statement this afternoon that the creation of the unit flows from a review of the department’s disciplinary procedures. DOJ set up the unit to create a more “efficient and uniform” system for the fair and prompt resolution of misconduct allegations.

“The current procedures for resolving these disciplinary matters consume too much time, and risk inconsistent resolutions, but this new Unit will help change that by providing consistent, fair, and timely resolution of these cases,” the attorney general said. Holder said he wants the new unit to “further the department’s mission of meeting its ethical obligations in every case.”
The new unit, he said, will be responsible for all disciplinary and state bar referral actions tied to OPR findings of professional misconduct. Ohlson’s team is reviewing OPR decisions to determine whether the evidence and the law support the conclusion in any given case of intentional or reckless misconduct.

The announcement comes amid personnel changes at OPR, the department unit that investigates allegations of professional misconduct involving DOJ lawyers. In December, Holder announced the appointment of career prosecutor Robin Ashton to serve as counsel for OPR, replacing Mary Patrice Brown. Brown moved to a front-office post in the Criminal Division under Assistant Attorney General Lanny Breuer.

Ohlson served as Holder’s chief of staff and counselor since February 2009. Previously, he served as director of the Executive Office for Immigration Review

IMPORTANT NEW RULING- SUPREME COURT RECOGNIZES THE INNOCENT POSSESSION DEFENSE AND REQUIREMENT FOR AN INSTRUCTION – CONVICTION REVERSED

Thursday, January 20th, 2011

On January 20, 2011 the Ky. Supreme Court recognized that a defendent who innocently possessed a controlled substance was entitled to a jury instruction on this defense.  Defendant claimed he picked up a sock containing drugs and wanted to keep it away from his child.  He attempted to call Sheriff and report it.  Trial Court denied instruction, and he was convicted on mere possession.

Read full case at LawReader Supreme Court decisions for jan. 20 2011, LawReader Case No. l8.

“We agree with Adkins, therefore, that these statutes implicitly recognize an innocent possession or innocent trafficking defense, and whenever the evidence reasonably supports such a defense-where there is evidence that the possession was incidental and lasted no longer than reasonably necessary to permit a return to the owner, a surrender to authorities, or other suitable disposal-the instructions should reflect it.”

Herald Leader Reports that Family Court Judge Tamra Gormley Agrees to Ten Day Suspension – An Appeal is still pending of prior 45 day suspension.

Wednesday, January 19th, 2011

 By Beth Musgrave  

FRANKFORT — A family court judge has agreed to serve a 10-day suspension without pay in connection with judicial misconduct charges stemming from a child custody case.

This is the second disciplinary proceeding against Judge Tamra Gormley, whose district includes Scott, Woodford and Bourbon counties. In November 2009, Gormley was given a 45-day suspension without pay. She has asked the state Supreme Court to reconsider that case, and she has not yet served that suspension.

According to a Jan. 12 order from the Judicial Conduct Commission, the commission dismissed five counts relating to orders that Gormley entered in all three of her assigned counties that prohibited parents with drug problems from contacting their children until the parents had four successive weeks of clean drug screens. The Judicial Conduct Commission had alleged that Gormley had failed to hold hearings to determine whether there was abuse or neglect in those cases.

Read more: http://www.kentucky.com/2011/01/19/1602538/family-court-judge-tamra-gormley.html#ixzz1BVKDV55X

U.S. State Secrets Privilege Debated. Justice Scalia Suggests a ‘Go Away’ Rule

Wednesday, January 19th, 2011

  By ADAM LIPTAK   Jan. 18, 2011

 WASHINGTON — It has been almost 60 years since the Supreme Court last had a hard look at the state secrets privilege, which can allow the government to shut down litigation by invoking national security. In the years since the attacks on Sept. 11, 2001, the government has invoked the privilege frequently to scuttle cases, saying they would frustrate its efforts to combat terrorism.

The privilege was at the center of an argument at the court on Tuesday. But the justices did not seem inclined to use the opportunity to give the lower courts guidance about its contours.

The case arose from a 1988 contract between the Navy and two companies, General Dynamics and McDonnell Douglas, to develop a stealth aircraft called the A-12 Avenger.

Three years later, dissatisfied with the contractors’ progress, the Navy declared them in default and demanded the return of $1.35 billion.

The contractors sued, asking to keep the money and seeking $1.2 billion more. They said their work had been frustrated by the government’s failure to share classified technology. The government disputed that, but would not explain why, invoking the state secrets privilege.

An appeals court repeatedly ruled against the companies, saying at one point that national security interests trumped the companies’ rights under the Constitution’s due-process clause.

There was no dispute during the argument on Tuesday that the government was entitled to invoke the privilege. The question was what should have happened when it did.

The two sides also seemed to agree that the answer to that question could be found in a passage in the leading state-secrets decision, United States v. Reynolds. That decision, from 1953, dismissed a case brought by the widows of men who died when a B-29 bomber crashed in Waycross, Ga., during a secret mission.

But the court in Reynolds said the case might have turned out differently if the government had been using the privilege as a litigation shield rather than as a sword. Writing for the majority, Chief Justice Fred M. Vinson said that in criminal cases, for instance, it would be unconscionable to allow the government “to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.”

“Such rationale,” Justice Vinson continued, “has no application in a civil forum where the government is not the moving party.”

At the argument on Tuesday, Neal K. Katyal, the acting United States solicitor general, said the government was not the moving party referred to in Reynolds here because of the way the contract was designed and the way claims against the government must be litigated.

Chief Justice John G. Roberts Jr. told Mr. Katyal that the government’s proposed approach “is a pretty convenient rule for you.”

Justice Elena Kagan agreed, saying “that really does sound like a tails you win, heads you win.”

Carter G. Phillips, a lawyer for the contractors, said the passage in Reynolds meant that the government was not free both to demand money from his clients and to invoke the privilege when they sought to present a defense.

But Justice Stephen G. Breyer said the statement in Reynolds did not fit the circumstances of the new case particularly well.

“If we accept as a principle of law what was said in Reynolds, a criminal case or whatever, and apply it to government contracting, where sophisticated contractors are perfectly capable of negotiating their own contract, we are not just throwing a monkey wrench into the gears of government contracting,” Justice Breyer said. “We’re throwing the whole monkey.”

Justice Antonin Scalia proposed to resolve the case based on what he called “the ‘go away’ principle of our jurisprudence.”

That principle means, he explained, that the courts should do nothing when they cannot determine which side is right because of the state-secrets privilege.

“So to say ‘go away’ means everybody keeps the money he has,” Justice Scalia said.

Mr. Phillips, representing the contractors, seemed open to Justice Scalia’s approach. “Maybe to some extent you could say we’re sort of being a little greedy,” he said, in asking for $1.2 billion on top of the $1.35 billion his clients hope to keep.

Justice Sonia Sotomayor seemed both intrigued by Justice Scalia’s proposal and uncertain about whether it represented a principled way to resolve the two consolidated cases, General Dynamics v. United States, No. 09-1298, and the Boeing Company v. United States, No. 09-1302. (Boeing has merged with and is the corporate successor to McDonnell Douglas.)

“Mr. Phillips,” Justice Sotomayor said, “give us a way, a reasoned way, to reach the result Justice Scalia is suggesting, because you are being greedy. You admitted it.”

He did not respond directly, but Justice Kagan expressed doubts about having multibillion-dollar disputes turn on the happenstance of which side was holding the other’s money.

Your New Horoscope Signs – This changes everything!!

Tuesday, January 18th, 2011

Your New Horoscope Signs – This changes everything!!

According to the Minnesota Planetarium Society, here is where the real signs of the Zodiac should fall. Get ready for your world to change forever.

Capricorn: Jan. 20-Feb. 16.
Aquarius:
Feb. 16-March 11.
Pisces:
March 11-April 18.
Aries:
April 18-May 13.
Taurus:
May 13-June 21.
Gemini:
June 21-July 20.
Cancer:
July 20-Aug. 10.
Leo:
Aug. 10-Sept. 16.
Virgo: Sept. 16-Oct. 30.
Libra:
Oct. 30-Nov. 23.
Scorpio: Nov. 23-29.
Ophiuchus:
Nov. 29-Dec. 17.  (Yep, this one is new — read all about the Ophiuchus way of life here)
Sagittarius: Dec. 17-Jan. 20.
Read more: http://newsfeed.time.com/2011/01/13/horoscope-hang-up-earth-rotation-changes-zodiac-signs/#ixzz1BS5PAyCC

Courts are required to keep their rulings in abortion matters secret

Tuesday, January 18th, 2011

This week the Courier-Journal reported an appellate decision that was ordered to be kept “secret”.  The decision concerned an abortion request that was denied by the Jefferson Family Court.  Several LawReader users have asked us about this procedure.

 We suggest that KRS 311.732 requires all courts, including appellate courts to keep their rulings anonymous.

 

Abortion proceedings by minor in District Court

 

KRS 311.732 Performance of abortion upon a minor — Definitions — Consent

requirement — Petition in District or Circuit Court — Medical emergencies.

(1) For purposes of this section the following definitions shall apply:

(a) “Minor” means any person under the age of eighteen (18);

(b) “Emancipated minor” means any minor who is or has been married or has by court order or otherwise been freed from the care, custody, and control of her parents; and

(c) “Abortion” means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant with intent other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.

(2) No person shall perform an abortion upon a minor unless:

(a) The attending physician or his agent secured the informed written consent of the minor and one (1) parent or legal guardian;

(b) The minor is emancipated and the attending physician or his agent has received the informed written consent of the minor; or

*(c) The minor elects to petition any Circuit or District Court of the Commonwealth pursuant to subsection (3) of this section and obtain an order pursuant to subsection (4) of this section granting consent to the abortion and the attending physician or his agent has received the informed written consent of the minor.

*(3) Every minor shall have the right to petition any Circuit or District Court of the Commonwealth for an order granting the right to self-consent to an abortion pursuant to the following procedures:

*(a) The minor or her next friend may prepare and file a petition setting forth the request of the minor for an order of consent to an abortion;

*(b) The court shall insure that the minor prepares or her next friend is given assistance in preparing and filing the petition and shall insure that the minor’s identity is kept anonymous;

*(c) The minor may participate in proceedings in the court on her own behalf or through her next friend and the court shall appoint a guardian ad litem for her. The court shall advise her that she has a right to court-appointed counsel and shall provide her with such counsel upon her request;

*(d) All proceedings under this section shall be anonymous and shall be given preference over other matters to insure that the court may reach a decision promptly, but in no case shall the court fail to rule within seventy-two (72) hours of the time of application, provided that the seventy-two (72) hour limitation may be extended at the request of the minor; and

*(e) The court shall hold a hearing on the merits of the petition before reaching a decision. The court shall hear evidence at the hearing relating to the emotional development, maturity, intellect, and understanding of the minor; the nature, possible consequences, and alternatives to the abortion; and any other evidence that the court may find useful in determining whether the minor should be granted majority rights for the purpose of consenting to the abortion or whether the abortion is in the best interest of the minor.

*(4) The court shall enter a written order, making specific factual findings and legal conclusions supporting its decision as follows:

(a) Granting the petition for an abortion if the court finds that the minor is mature and well informed enough to make the abortion decision on her own;

(b) Granting consent to the abortion if the court finds that the performance of the abortion would be in the minor’s best interest; or

(c) Deny the petition, if the court finds that the minor is immature and that performance of the abortion would not be in the minor’s best interest.

*(5) Any minor shall have the right of anonymous and expedited appeal to the Court of Appeals, and that court shall give precedence over other pending matters.

*(6) No fees shall be required of any minor who declares she has no sufficient funds to pursue the procedures provided by this section.

*(7) The Supreme Court is respectfully requested to promulgate any rules and regulations it feels are necessary to ensure that proceedings under this section are handled in an expeditious and anonymous manner.

*(8) The requirements of subsections (2), (3), and (4) of this section shall not apply when, in the best medical judgment of the physician based on the facts of the case before him, a medical emergency exists that so complicates the pregnancy as to require an immediate abortion. A physician who does not comply with subsection (2), (3), or (4) of this section due to the utilization of this exception shall certify in writing the medical indications upon which his judgment was based.

(9) A report indicating the basis for any medical judgment that warrants failure to obtain consent pursuant to this section shall be filed with the Cabinet for Health and Family Services on a form supplied by the cabinet. This report shall be confidential.

*(10) Failure to obtain consent pursuant to the requirements of this section is prima facie evidence of failure to obtain informed consent and of interference with family relations in appropriate civil actions. The law of this state shall not be construed to preclude the award of exemplary damages in any appropriate civil action relevant to violations of this section. Nothing in this section shall be construed to limit the common-law rights of parents.

Effective: June 20, 2005

History: Amended 2005 Ky. Acts ch. 99, sec. 588, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 542, effective July 15, 1998. — Amended 1994 Ky. Acts ch. 253, sec. 1, effective July 15, 1994. — Amended 1986 Ky. Acts ch. 375, sec. 1, effective July 15, 1986. — Amended 1984 Ky. Acts ch. 111, sec. 132, effective July 13, 1984. — Created 1982 Ky. Acts ch. 342, sec. 6, effective July 15, 1982.

 

 

U.S. District Judge Danny Reeves, Dismisses Eric Deters Petition for Injunctive Relief Against KBA and Chief Justice Minton

Sunday, January 16th, 2011

Jan. 15, 2011

In a 27 page opinion issued less than three hours after the hearing, Federal Judge Danny Reeves dismissed the petition for injunctive relief sought by attorney Eric Deters.  Deters sought an order required the Chief Justice of the Kentucky Supreme Court to consider his recusal motion. The ruling stated that Deters motion was “interlocutory” in nature and the Federal Court had no jurisdiction of the issue.

The court ruled that due to its interlocutory nature Deters petition was premature.  He pointed out that if the Trial Commissioner who Deters sought to have recused ruled against him, then he would still have a review by the KBA Board of Governors, and would have the right to an appeal to the Kentucky Supreme Court.

Deters sought the recusal of KBA Trial Commissioner Frank Doheny.   It was revealed by Doheny that a law partner of his was now representing the client who had filed an excessive fee complaint against Deters. 

Deters pleadings argue that the client paid Deaters $1500 to file an answer in a foreclosure action, and he did so.  A year later the client fired him and paid another attorney in the Trial Commissioners law firm, $25,000 to handle the case.   Deters says in his pleadings that the complaint against him alleges he charged an excessive fee.  He asked Doheny to recuse himself but he refused. 

Deters then filed a recusal petition and affidavit directed to the Supreme Court, but  the clerk of the Supreme Court returned the pleading without delivering it to the Chief Justice.  The relevant statute on recusal motions require them to be filed with the Chief Justice, and states that the Chief Justice shall “immediately consider the facts”.

Deters stated in his petition that the Chief Justice did not comply with his statutory duty to consider the petition.

A Legal Fight Is Pending Between the Ky. Bar Association and Attorney Eric Deters Over An Attorneys Right to Seek Recusal of A Bar Association Trial Commissioner – Federal Judge Danny Reeves Threatens Rule 11 Sanction for Attorney Seeking Injunctive Relief

Saturday, January 15th, 2011

    On Monday Jan. 10th. Deters filed a pleading in Federal Court seeking injunctive relief due to the refusal of the Supreme Court Clerk to deliver Deters recusal motion to the Chief Justice for his consideration.

   Deters cites as grounds for his recusal motion, the allegation that the Trial Commissioner who was assigned to rule on six ethics complaints pending against him, should have disqualified himself.  Deters alleges in his Federal pleading, that Frank Doheny an attorney in Dinsmore and Shohl refused to remove himself from ruling on the complaints against Deters. 

   One of the complaints listed in the Deters pleading, charges that the client who complained about an excessive fee being charged by Deters ($1500) is now represented in the same case by a law partner of Trial Commissioner Doheny.  The law partner of Doheny at Dinsmore and Shohl is alleged to have charged $25,000 to complete the civil defense of a foreclosure motion in which Deters had been hired to defend.  (Deters filed a defensive pleading for the client, and says the client never returned Deters calls.

Deters says he offered to enter into a fee arbitration and offered to return the entire fee, but the Bar refused his offers.

   Deters alleges that the Trial Commissioner as a law partner of the attorney for the client who filed the complaint, will benefit from a censure of Deters.

   U.S. District Judge Danny Reeves is said in an article published today in the Kentucky Enquirer, to have verbally attacked Deters for filing the injunction motion, and he ordered Deters to show cause why he shouldn’t be sanctioned with a Rule 11 sanction.

   Deters in his complaint says that the Clerk of the Supreme Court refused to deliver his recusal petition to the Chief Justice.  Deters then sent another copy of the Recusal motion directly to the Chief Justice, but it was returned with a note that it was an “unauthorized pleading”.

   LawReader has reviewed the applicable law, and concludes that the KBA Trial Commissioner is defined as a Judicial Officer.  There is some lack of clarity about whether or not the Rules of Civil Procedure apply to discipline hearings of the Bar Association.  The Rules mention application of the Civil Rules but only in limited areas.  There is no specific procedure in the Supreme Court Rules governing the conduct of discipline hearings regarding a recusal process.  While it is a logical assumption that the Civil Rules and statutes on recusal procedures apply, one must wonder from the Supreme Court Clerk’s refusal to deliver the pleading to the Chief Justice if the Supreme Court is taking the position that there is no recusal procedure applying to KBA Trial Commissioners.

    If the Civil Rules apply, and if prior court rulings (cited below) apply, then the KBA Trial Commissioner would appear to be automatically barred from issuing a ruling in Deter’s case, until the Chief Justice has granted or denied the Recusal Motion.

   Under the Rules of Civil Procedure, when a recusal motion is filed, the Circuit Court is automatically deprived of the right to act until the Chief Justice rules on the recusal motion.

The following cited cases hold that the trial judge is immediately required to hold his ruling in abeyance until the Chief Justice acts on the recusal petition.

The statute says that the Circuit Clerk is required to deliver the petition to the Chief Justice. The statute cited below on recusal procedure, does not mention the Clerk of the Supreme Court. The statute requires the Chief Justice to “immediately review the facts”.

If the Circuit Clerk fails to deliver the recusal petition to the Chief Justice then the proper relief would in normal civil actions be injunctive relief. That is the action taken by Deters.

The statute discussing recusal motions does not provide the Chief Justice the right to refuse to hear the motion.  He can of course grant or deny the motion, but he has no leeway in the statute to refuse to consider the petition for recusal of the trial judge.

The other five pending charges against Deters involve free speech issues regarding statements he has alleged to have made against a sitting judge.

Diaz v. Barker, 254 S.W.3d 835 (Ky. App., 2008)

   We agree with Diaz that under the recusal remedy set out in KRS 26A.020(1), the trial judge is not to make the recusal determination and the case is to be held in abeyance pending the Chief Justice’s determination. Jackson, 806 S.W.2d at 645.

 

Jackson v. Com., 806 S.W.2d 643 (Ky., 1991)

   We agree with the Court of Appeals that Judge Jackson may not enforce his judgment of January 11. But we also agree with Judge Jackson that after the filing of an affidavit to disqualify, the trial judge is without further jurisdiction to proceed in the matter until the Chief Justice acts or until a special judge is designated.

Top of Form

STEPHENS, C.J., and LAMBERT, LEIBSON, REYNOLDS and SPAIN, JJ., concur.

        WINTERSHEIMER, J., concurs in result only.

THE RECUSAL STATUTES:

KRS  26A.015 Disqualification of justice or judge of the Court of Justice, or master commissioner.

 (2) Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding:

 c) Where he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a pecuniary or proprietary interest in the subject matter in controversy or in a party to the proceeding;

(d) Where he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

1. Is a party to the proceeding, or an officer, director, or trustee of a party;

2. Is acting as a lawyer in the proceeding and the disqualification is not waived by stipulation of counsel in the proceeding filed therein;

3. Is known by the judge or master commissioner to have an interest that could be substantially affected by the outcome of the proceeding;

4. Is to the knowledge of the judge or master commissioner likely to be a material witness in the proceeding.

(e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.

KRS  26A.020 Designation of retired justice or judge as special judge.

(1) When, from any cause, a judge of any Circuit or District Court fails to attend, or being in attendance cannot properly preside in an action pending in the court, or if a vacancy occurs or exists in the office of circuit or district judge, the circuit clerk shall at once certify the facts to the Chief Justice who shall immediately designate a regular or retired justice or judge of the Court of Justice as special judge. If either party files with the circuit clerk his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the circuit clerk shall at once certify the facts to the Chief Justice who shall immediately review the facts and determine whether to designate a regular or retired justice or judge of the Court of Justice as special judge. Any special judge so selected shall have all the powers and responsibilities of a regular judge of the court.

(2) A retired justice or judge serving as a special judge shall be compensated as provided by KRS 21A.110.

History: Created 1976 (1st Extra. Sess.) Ky. Acts ch. 22, sec. 5.

Cincinnati Newspaper Mentions Federal Lawsuit Against Ky. Bar Association

Wednesday, January 12th, 2011

The following newstory was posted on Jan. 12, 2011 on www.cincinnati.com, the website of the Kentucky Enquirer.  It will be published in the newspaper on Jan. 13th.

Deters suit seeks halt to Ky. Bar discipline

By Jim Hannah • jhannah@nky.com • January 12, 2011

  • COVINGTON – Lawyer and WLW radio personality Eric Deters has filed a federal lawsuit against the Kentucky Bar Association in an attempt to stop it from moving forward with disciplinary proceedings against him.

 

He asked for a restraining order to prevent a trial commissioner from issuing a public recommendation on the disciplinary charges, a recommendation that could be released as early as next week. Deters also asked for an injunction staying the bar proceedings against him, an order that would allow Deters to seek a new trail commissioner and a ruling that the bar’s Rules of Professional Conduct stifles free speech.

Read the lawsuit

U.S. District Judge Danny Reeves has set a hearing Friday in Frankfort on the suit.

The suit, filed Jan. 6 in federal court in Covington, claims Deters already rejected a 30-day suspension offered by the bar association. The defendants also include bar association President Bruce K. Davis of Lexington and Kentucky Supreme Court Chief Justice John Minton Jr. of Bowling Green.

While Minton declined to speak about the suit, the bar association issued a written response about the suit and confidential disciplinary proceedings.

“Although it would appear that Mr. Deters has chosen to waive that confidentiality, the KBA has received no specific waiver from him to discuss any details of any cases which may involve a determination whether his conduct conformed to the rules of professional conduct that govern all lawyers,” the statement reads.

Former Kentucky Bar Association President David Sloan, a lawyer in Covington, said he hadn’t reviewed the suit but said it was unusual for a lawyer to file suit against the bar association.

“I don’t recall anything like that while I was president or when I was on the board of governors, for that matter,” said Sloan, who was president in 2005 and on the board of governors for six years.

The suit states the bar association filed six charges against Deters for violating the rules of professional conduct. Some of the charges involved Deters, on his radio program, calling Grant Circuit Judge Stephen Bates an unfair judge after he ruled against him in litigation involving the January 2007 Grant County school bus crash that critically injured two students.

Deters claims his First Amendment right to free speech is violated by a professional conduct rule that states “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 lawyer.

“The Kentucky Bar Association has charged (Deters) for speaking candidly about what he believes could be a potentially politically corrupt situation and as such he has been penalized …” Deters’ suit said.

The suit attacks a series of public officials, not named as defendants, who Deters has publicly disagreed with over the years. One is a prosecutor Deters once ran for office against while the others are judges who have sanctioned Deters or prosecutors who have prosecuted Deters’ clients.

Deters denies in the suit that he did anything wrong. The suit claims that none of the charges involved dishonesty, moral turpitude, criminal conduct, fraud, theft, malpractice or any shameful act.

“In the history of bar counsel, no one has been more unfairly prosecuted,” Deters wrote in the suit. “This matter involves total dishonesty and lack of integrity by Bar Counsel. Bar Counsel should be above reproach. They should not try to make false statements against lawyers in good standing.”

The suit claims Deters has been a victim of “his enemies,” a collection of lawyers who file serial bar complaints against him. Deters said he was forced to discuss the disciplinary proceedings on radio because a couple lawyers were telling people that Deters was going to be disbarred.

Deters suit claims that the trial commissioner, Frank Doheny, who presided over the tribunal, was biased and refused to recuse himself. The suit claims Doheny used to defend medical malpractice suits and Deters is known for filing medical malpractice suits. In addition, the suit claims Doheny’s law partner, Linda Ash, represented a couple who filed a bar complaint against Deters.

“It’s why (Deters) desires an unbiased lawyer as the Trial Commissioner,” Deters wrote in the suit. “Bar Counsel has shown no integrity. They have filed false statements and false charges.”

Read full text of Deter’s Lawsuit Against KBA

Wednesday, January 12th, 2011

U.S. District Judge Danny Reeves, has set a hearing on the complaint of Eric Deters, for Friday Jan. 14,2011 at Frankfort.

The Dters complaint as published by www.Cincinnati.com

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION AT COVINGTON

ERIC C. DETERS : CASE NO:

:

Plaintiff :

v. : Judge:

:

BRUCE K. DAVIS :

President :

Kentucky Bar Association :

514 West Main Street :

Frankfort, KY 40601 :

:

and :

:

KENTUCKY BAR ASSOCIATION :

514 West Main Street :

Frankfort, KY 40601 :

:

Serve: Bruce K. Davis :

:

and :

:

SUSAN GREENWELL :

Disciplinary Clerk :

Kentucky Bar Association :

514 West Main Street :

Frankfort, KY 40601 :

:

and :

:

SUSAN STOKLEY CLARY :

Clerk of Supreme Court :

700 Capital Ave. :

Room 235 :

Frankfort, Ky 40601-3415 :

:

and :

:

CHIEF JUSTICE JOHN D. MINTON, JR. :

Chief Justice of Kentucky :

Supreme Court :

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 1 of 26 – Page ID#: 1

2700 Capital Ave. :

Room 235 :

Frankfort, Ky 40601-3415 :

:

Defendants. :

VERIFIED COMPLAINT

FOR DECLARATORY AND INJUNCTIVE RELIEF

Comes now, Eric Deters, by and through his own counsel, states as follows:

I. Jurisdiction

1. This is a civil action seeking equitable and declaratory relief, vindicating the

privileges, and immunities guaranteed to the Plaintiff by the Constitution of the

United States.

2. Jurisdiction is conferred upon this Honorable Court and is founded upon 28 U.S.C.

§§ 1331, 1343, and 42 U.S.C. §§ 1983; 1985.

3. Jurisdiction is further conferred upon this Honorable Court and is founded upon the

Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202.

II. Parties

4. Plaintiff, Eric Deters, hereinafter referred to as Plaintiff, is, and was at all times

material hereto, a citizen of the United States, and of the State of Kentucky, and a

resident of the judicial district. He is also a licensed attorney in good standing in the

states of Kentucky, Ohio and Florida.

5. The Defendant, Bruce K. Davis, is the President of the Defendant, Kentucky Bar

Association, and is at all times, upon information and belief, a citizen of the United

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 2 of 26 – Page ID#: 2

3States and State of Kentucky, acting under the color of state law. Said defendant is

being sued individually and in his official capacity. In addition, the Kentucky Bar

Counsel is part of the Bar Association.

6. The Defendant, Susan Greenwell, is the Disciplinary Clerk of the Kentucky Bar

Association, and is at all times, upon information and belief, a citizen of the United

States and State of Kentucky, acting under the color of state law. Said defendant is

being sued individually and in her official capacity.

7. The Defendant, Susan Stokley Clary, is the Clerk of the Kentucky Supreme Court,

and is at all times, upon information and belief, a citizen of the United States and

State of Kentucky, acting under the color of state law. Said defendant is being sued

individually and in her official capacity.

8. The Defendant, John D. Minton, Jr., is the Chief Justice of the Kentucky Supreme

Court, and is at all times, upon information and belief, a citizen of the United States

and State of Kentucky, acting under the color of state law. Said defendant is being

sued individually and in his official capacity.

III. Bar Counsel False Statements

And Charges

Bar Counsel has made the following false statements and charges:

9. Accusing Plaintiff of making false statements concerning Judge Bates. At the

tribunal, through Judge Bates own testimony, Plaintiff proved he made no false

statements.

10. Accusing Plaintiff of naming Henry Fischer a Defendant in the jail battle case. In

their Reply Brief, Bar Counsel finally admitted their mistake.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 3 of 26 – Page ID#: 3

411. Accusing Plaintiff of soliciting representing Richard Clise without his permission.

Plaintiff proved he only represented Stacey Clise and referred Richard Clise to Andy

Busald.

12. Accusing Plaintiff of not having a written understanding/agreement on the fee of

Radokovic and Moberly when Plaintiff produced proof he did.

13. Accusing Plaintiff of making a knowingly false statement in the Kahrs matter, when

Plaintiff proved through Kahrs own affidavit, it was a honest mistake.

Despite the responses to the Bar Complaint disproving the allegations, Bar Counsel filed

charges knowing they were false. The tribunal reinforced proof of the false charges. They

were so severe, Plaintiff filed a Rule 11 against Bar Counsel. (See attached.) It spells out

even more false statements made by Bar Counsel.

14. In addition to these false statements, Plaintiff has, as reflected in the Exhibits to these

Charges, had to endure the following:

A. A leak by bar counsel of the Clise charge. And, a refusal by bar counsel to

respond. Only after a letter to Chief Justice Minton, did bar counsel respond.

B. Slander and libels pertaining to these proceedings on blogs and websites.

C. A private reprimand once made public. (Justice Keller to his credit wrote a

written apology.)

D. A false allegation by Deputy Bar Counsel Jay Garrett that the media did not

contact me about the Clise charge.

E. A false allegation that I did not file something timely.

All of these are documented in Exhibits in the bar matters. In the history of bar counsel, no

one has been more unfairly prosecuted.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 4 of 26 – Page ID#: 4

5This matter involves total dishonesty and lack of integrity by Bar Counsel. Bar

Counsel should be above reproach. They should not try to make false statements against

lawyers in good standing. (The Brief attached details how terrible Bar Counsel’s conduct

has been in this matter.)

IV. Factual Allegations

15. The Kentucky Bar Association, acting through Bar Counsel, charged Plaintiff with

six charges. It’s Plaintiff’s position these charges are baseless and he has vigorously

defended himself. None of the charges involve: dishonesty, moral turpitude,

criminal conduct, fraud, theft, malpractice or any shameful act. Plaintiff was “serial

bar complained” by a collection of attorneys who are for lack of a better descriptive

word – his enemies. Plaintiff can prove these lawyers file or threaten Rule 11 in

nearly every case they are involved with Plaintiff. In addition, Plaintiff angered Bar

Counsel when he pointed out Bar Counsel’s misconduct in these matters. Plaintiff

attaches to the Complaint, his entire Brief filed in the bar association to detail before

the Court the charges, the process and the unfairness of the process. He also attaches

Motions and other documents filed which reflect his concerns about the bias of Frank

Doheny, the trial commissioner. Plaintiff has nothing to hide relative to his conduct

as charged. He accepts this filing makes all this public and he is allowed to do so at

his own choosing. Having Bob Carran and Phil Taliaferro telling people he was

being disbarred, caused Plaintiff to discuss these matters on the radio anyway. The

last proposal by the bar counsel was a thirty day suspension. Plaintiff rejected this

proposal. Plaintiff has prepared affidavits to support Carran and Taliaferro

informing people his legal career is over. They are behind one or more of these bar

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 5 of 26 – Page ID#: 5

6charges.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 6 of 26 – Page ID#: 6

716. Pursuant to SCR 3.300 and Kentucky Rules of Civil Procedure 1, the rules of

Civil Procedure apply to Kentucky Bar Association Proceedings. SCR 3.300

states, “The Respondent shall have all the rights secured to a party by the Rules of

Civil Procedure…” Kentucky Rules of Civil Procedure 1 states, “[t]hese Rules

govern procedure and practice in all actions of a civil nature in the Court of

Justice except for special statutory proceedings, in which the procedural

requirements of the statute shall prevail over any inconsistent procedures set forth

in the Rules.”

17. Pursuant to SCR 3.240, after a Trial Commissioner for a tribunal is scheduled, a

Respondent can challenge a Trial Commissioner to sit in judgment. The rule

states: “[a]ny time, not later than ten (10) days after the appointment of a Trial

Commissioner or at such point in the proceeding that facts become known

sufficient for such challenge, the Respondent may, by motion, challenge for cause

the Trial Commissioner. If the challenge is such as might disqualify a Circuit

Judge, the Chief Justice shall relieve the challenged member and direct the

Disciplinary Clerk to immediately fill the vacancy.” This rule recognizes there

could be bias and the importance to provide a lawyer the right to object to the

appointment.

18. Eric Deters did not challenge Frank Doheny after Frank Doheny was named Trial

Commissioner because he had no basis to do so. Eric Deters did google Mr. Doheny

and checked out the Dinsmore & Shohl website prior to making the decision not to

challenge. Quite simply, Eric Deters had no basis to challenge at the appointment

stage. Plaintiff was concerned Frank Doheny was a medical malpractice defense

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 7 of 26 – Page ID#: 7

8attorney since Plaintiff is a Plaintiff’s medical malpractice lawyer, but failed to see

that as a basis to object. In addition, Ben Cowgill, former Kentucky Bar counsel

informed Plaintiff he “heard” Frank Doheny was a very serious individual about

lawyer conduct, even to the extent that when he was a managing partner of a law

firm, he required all lawyers to wear their suit coats when they went out for lunch.

Again, a rumor, and no basis to seek another Trial Commissioner.

19. In the middle of the June 21 and June 22, 2010 tribunal hearing, it was revealed Trial

Commissioner Frank Doheny’s law partner, Linda Ash, took over the representation

of a couple who Eric Deters represented. This couple filed a complaint against Eric

Deters. It became a Bar Charge and the couple testified at the tribunal. The Charge

involved a $1,500 fee dispute which Eric Deters disputes. Linda Ash, it was revealed

at the tribunal, charged $25,000 to complete a legal matter for which Eric Deters was

only charging $1,500. Eric Deters can’t comprehend how this is not a basis for

recusal. Trial Commissioner Frank Doheny received, as a partner of Linda Ash, as

small as it might be, money from the couple who complained and testified against

Eric Deters. The Judge is the partner of the lawyer representing the Plaintiff is a fair

analogy. Frank Doheny has refused to voluntarily recuse himself. It is Plaintiff’s

position the conflict is obvious on its face and not even subject to debate. The

individual sitting in Judgment of Eric Deters at the tribunal is the law partner of the

lawyer representing the couple who filed the bar complaint against him! As spelled

out in the attached Motion to Recuse, there was no legal waiver of the conflict. In

addition, Plaintiff would like to point out that Linda Ash was not a witness at the

tribunal. Upon hearing about the $25,000 and her involvement, it’s prejudicial

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 8 of 26 – Page ID#: 8

9Plaintiff does not have the opportunity to cross examine her. At a new tribunal, this

could take place.

20. In addition to the issue set forth in paragraph thirteen, there were other concerns

which arose during the tribunal. And, in candor, in manner and speech, Frank

Doheny came across as someone who would require lawyers to wear suit coats when

out to lunch. He was very rigid. Yet, no basis for recusal.

21. On June 28, 2010, Eric Deters wrote a letter to Bar Counsel expressing those

concerns. (Attached)

22. After receiving the transcript of the tribunal and the brief of Bar Counsel, Eric Deters

filed a Motion to Recuse Frank Doheny under KRS 26A.015. Frank Doheny refused

to recuse himself. (See Affidavit and Order attached.) This shocked Plaintiff. It

increased the concern about Frank Doheny to sit in judgment of Plaintiff. It is

Plaintiff’s position that no rational unbiased lawyer could review these bar charges

and find he did anything wrong. It’s why Plaintiff desires an unbiased lawyer as the

Trial Commissioner. Bar Counsel has shown no integrity. They have filed false

statements and false charges. (See Brief and Motions attached.)

23. Before a judicial officer may have a conflict waived, written agreement signed by

both parties to the hearing must be entered into the record. The affected judge may

not influence that waiver. The judge may not be present when the affected parties

discuss the waiver of the judge. No such written waiver or time alone has been

entered in the bar matters.

24. Eric Deters also filed a Motion to Suspend the Proceeding pending the resolution of

the recusal issue. This was overruled.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 9 of 26 – Page ID#: 9

1025. After Frank Doheny refused to recuse himself, Eric Deters prepared an Affidavit

pursuant to KRS 26A.020(1) and sent it to the Disciplinary Clerk of the Kentucky

Bar Association for filing. (See attached.) KRS 26A.020(1) is the mechanism used

when KRS 26A.015 fails. Kentucky allows both or either.

26. On December 10, 2010, Eric Deters received the attached letter from the Disciplinary

Clerk, Susan Greenwell, returning the KRS 26A.020(1) affidavit refusing to file it.

27. It is Eric Deters position that Susan Greenwell should have filed it and certified it to

the Chief Justice of Kentucky. A Trial Commissioner sits in the same position as a

Circuit Judge pursuant to the Supreme Court Rules. The Disciplinary Clerk sits in

the same position as a Circuit Clerk.

28. The Commentary to the Kentucky Code of Judicial Conduct defines a Trial

Commissioner as a judicial officer who is subject to the Code of Judicial Conduct.

“Application of the Code of Judicial Conduct, [a]nyone, whether or not a lawyer

who is an officer of a judicial system performing judicial functions, including an

officer such as a court commissioner, is a judge for the purpose of this Code.”

29. The Hon. Frank Doheny, the Trial Commissioner assigned to hear the complaint

against Eric Deters, was appointed by the Chief Justice of the Kentucky Supreme

Court with the consent of the Supreme Court. The discipline process of the

Kentucky Bar Association, is a function of the Supreme Court. Therefore it is

clear that the Trial Commissioner Frank Doheny is subject to the Code of Judicial

Conduct and the method for recusal.

30. KRS 26A.015 (2) states, “[a]ny justice of judge of the Court of Justice or master

commissioner shall disqualify himself in any proceeding: (a) [w]here he has

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 10 of 26 – Page ID#: 10

11personal bias or prejudice concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceedings, or has expressed an opinion

concerning the merits of the proceeding;… (c) Where he knows that he,

individually or as a fiduciary, or his spouse or minor child residing in his

household, has a pecuniary or proprietary interest in the subject matter in

controversy or in a party to the proceeding.

31. SCR 4.010 states, “”[j]udge” means any judge or justice of the Court of Justice or

other officer of the Court of Justice performing judicial functions. In addition, where

context so requires, the term judge shall include lawyer or layperson subject to the

jurisdiction of the Commission.”

32. Further, SCR 5.050, “[a] trial commissioner shall disqualify himself in all matters in

which he has an interest, relationship or bias that would disqualify a judge.”

33. SCR 3.225 states, “[t]he Chief Justice shall appoint, subject to the approval of the

Supreme Court, from among the membership of the Bar Association, a Trial

Commission. Members of the Trial Commission shall be lawyers licensed in the

Commonwealth who possess the qualifications of a Circuit Judge.”

34. The fee of $25,000.00 charged by his law firm by his law partner, gives Trial

Commissioner Doheny a financial interest in the outcome.

35. Further, Canon 2 of the Code of Judicial Conduct imposes on all judicial officers

a duty of impartiality in sitting on cases coming before them, “[a] judge shall

respect and comply with the law and shall act at all times in a manner that

promotes public confidence in the integrity and impartiality of the judiciary…”

36. The Trial Commissioner’s law partner is currently representing the party who has

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 11 of 26 – Page ID#: 11

12filed the complaint before the KBA against Plaintiff Eric Deters.

37. Further, the complaint against Eric Deters alleges an excessive fee. Yet, the Trial

Commissioner’s current law partner has charged the same client a fee that is 16.6

times greater than the fee charged by Eric Deters. ($25,000) The appearance of

impartiality is raised when Eric Deters is alleged to have charged an excessive fee

($1,500) when the Trial Commissioner’s law firm charged a fee that makes his

pale in comparison.

38. The Chief Justice is required to replace the judicial officer when such a

disqualification exists. KRS 26A.015(3)(a) states, “[a]ny justice or judge of the

Court of Justice disqualified under the provisions of this section shall be replaced

by the Chief Justice.”

39. On December 17, 2010, Eric Deters sent the Affidavit to Susan Stokley Clary, the

Clerk of the Kentucky Supreme Court, for filing. It was received on December 20 by

the Clerk. (See attached letter.)

40. Ashley Bolender a lawyer in Eric Deters office, had conversation on the phone with a

clerk in the Clerk’s office to check on the affidavit. (The attached memorializes the

conversation.)

41. On December 27, 2010, Eric Deters sent the Affidavit directly to Chief Justice

Minton when it appeared the Supreme Court Clerk was not going to file it. (See

attached letter.)

42. The December 17 letter and the December 27 letter were sent by Federal Express

next day delivery.

43. On December 28, Chief Justice Minton signed a “Filing of Unauthorized Pleadings”

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 12 of 26 – Page ID#: 12

13and the Affidavit was sent back to Eric Deters. This would have been the same day

the Chief Justice received the filing.

44. Pursuant to the SCR 3.360, Frank Doheny is to make his Recommendation thirty

days from the Reply Brief which was filed on December 17. Therefore, Frank

Doheny is to make his Recommendation between now and January 16, 2011 or

January 18 based upon the calendar for the weekend and MLK, Jr. Day. Therefore,

time is of the essence. This dispute is ripe for review. Plaintiff has exhausted all

processes under state law. Plaintiff asserts the Defendants are refusing to perform

their required duties in the recusal process. This lawsuit and the relief it seeks is

necessary to force the Defendants by Order to perform their duties. Plaintiff is

concerned any moment, Frank Doheny will issue his recommendation and its

Plaintiff’s position he should not be allowed to do so until the recusal is heard. In

addition, if the Recommendation is rendered, this matter still must be heard because

after the Recommendation, the Board of Governors and Kentucky Supreme Court are

involved. The purpose of this filing and injunctive relief now is that the

Recommendation is the first public document in the discipline process.

45. Based upon all of the above paragraphs, Eric Deters finds himself in the position of

despite having a Trial Commissioner with a serious conflict; no one will

independently review that conflict as required by Kentucky law.

V. Violation of 42 U.S.C. Section 1983

46. The Plaintiff has, as a citizen of the United States, the right guaranteed by Fourteenth

Amendment to the Constitution of the United States to pursue his chosen profession,

avocation and occupation free from reprisal for exercising his First Amendment

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 13 of 26 – Page ID#: 13

14rights, to appear before the Kentucky Supreme Court as a member of the bar of that

Court, and to have his tribunal and Bar Charges decided by a fair, independent and

impartial trial commissioner.

47. The Defendants, and all those in active concert or participation therewith, have

deprived, and continue to deprive, the Plaintiff’s rights by refusing to certify the

recusal affidavit and have it reviewed and decided on its merit.

48. No proceeding is pending in State Court, such that any form of abstention would

apply to this case.

49. There is no parallel State proceeding, nor any decision or order of a State Court,

which would divest this Court of jurisdiction under the

50. Plaintiff has the right to bring this suit in his individual capacity in order to preserve

his own constitutional rights.

Rooker-Feldman doctrine.VI. Equity

51. Insofar as the equitable relief sought in this action is concerned, the Plaintiff has no

adequate remedy at law, or will suffer immediate, continuing and irreparable

damage, injury and loss, unless the equitable relief sought in the Plaintiff’s prayer for

relief is granted.

52. Plaintiff submits to the jurisdiction of this Court and, at all times, offers to do equity.

53. Plaintiff comes before this Court with clean hands.

54. Plaintiff alleges that the nature of his injuries, are injuries for which compensation

cannot be made by an award of monetary damages.

55. The threat that the Plaintiff cannot, and will not, receive a fair hearing before an

impartial and independent tribunal is real, immediate, and continuing.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 14 of 26 – Page ID#: 14

15VII. Immunity

56. Judicial immunity does not preclude suit for prospective relief such as an injunction.

Pulliam v. Allen

(1984).

, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 1980-81, 80 L.Ed.2d 565VIII. First Amendment Rights

57. The Plaintiff is an attorney in good standing in the state of Kentucky. He also is the

backup host, weekend host and recent interim night host on Cincinnati, Ohio radio

station known as 700 WLW. He often speaks of political issues while on the air.

One of the bar charges involve statements he made on 700 WLW relative to the

actions of Judge Stephen Bates, the Grant County Kentucky Circuit Court Judge.

(See Brief which details how Judge Bates issued a Summary Judgment and Plaintiff

received a Rule 11 on the same day as the Summary Judgment. Plaintiff believes the

attorneys received inside information from Judge Bates and his office. In the history

of law has a Rule 11 been filed the same day as a Summary Judgment been entered?

The affidavits were already prepared months before the Summary Judgment.)

58. Plaintiff desires, to state his honest, candid and political views of judicial personnel

during his radio broadcasts without the threat of penalty from the Kentucky Bar

Association. The only two Judges Plaintiff has spoken factually about is Judge Bates

and the bias of Judge Summe who has close political connections to Garry

Edmondson and Rob Sanders. Judge Summe worked on Garry Edmondson’s first

campaign; her sister Gabrielle worked there and was involved in his campaign. Her

nephew works in Rob Sanders office. Chris Nordloh works for Garry Edmondson.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 15 of 26 – Page ID#: 15

16Despite these conflicts, she had no problem sanctioning Plaintiff $30,000. Plaintiff

has repeatedly stated on air how outstanding the tri-state judges are and how the

federal court system is something the federal government does well. I don’t trash

judges on the radio. I praise.

59. The Kentucky Bar Association has charged Plaintiff for speaking candidly about

what he believes could be a potentially politically corrupt situation and as such he

has been penalized all of which flies in the face of the First and Fourteenth

Amendments to The Constitution of The United States. The Kentucky Bar

Association seeks to limit such speech all in violation of Mr. Deters guaranteed

rights to free speech under the First and Fourteenth Amendments of the Constitution

of the United States.

60. On its face, SCR 3.130-8.2(a) is an unconstitutional content-based restriction that

does not serve a compelling governmental interest, nor is it narrowly tailored to serve

a governmental interest.

61. Plaintiff desires, to state his honest, candid and political views of judicial

personnel during his radio broadcasts without the threat of penalty from the

Kentucky Bar Association. He is uncertain of the comments he can make,

realizing that all such comments shall be true and not made recklessly or falsely,

without penalty and desires an answer as to what “statements” are acceptable

under SCR 3.130. Plaintiff has proven, as reflected by his Brief, every statement

he made about Judge Bates was true. Plaintiff knows he can’t slander or make

false statements about anyone. And he doesn’t.

62. The Kentucky Bar Association has charged Plaintiff for speaking candidly about

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 16 of 26 – Page ID#: 16

17what he believes could be a potentially politically corrupt situation and as such he

has been penalized all of which flies in the face of the First and Fourteenth

Amendments to The Constitution of The United States. SCR 3.130 encourages

candid opinions while the Kentucky Bar Association seeks to limit such speech

all in violation of Mr. Deters guaranteed rights to free speech under the First and

Fourteenth Amendments of the Constitution of the United States.

63. The SCR 3.130 requirement violates the free speech and association rights of the

attorney. Attorneys are therefore presumed, under SCR 3.130, to not be able to

speak any type of criticism about a judicial officer despite the truthfulness of the

statement. By interpreting that the ban on critical speech is absolute, an attorney

cannot speak while a lay-person can made any such statement even though an

attorney is in a position to far better know facts of truth and provide information

improving the administration of justice. This action places a curtain over the

ability of the attorney to exercise free speech.

64. SCR 3.130 states that a lawyer shall not make a statement that the attorney knows

to be false or with reckless disregard of the truth. Plaintiff has not made any false

statements, yet was still charged.

65. A law is vague if it is not sufficiently defined so that ordinary people exercising

ordinary common sense can understand it and avoid conduct, which is prohibited,

without encouragement of arbitrary and discriminatory encouragement.

66. SCR 3.130 (8.2) does not adequately define its terms as to Plaintiff who wishes to

engage in constitutionally protected speech by giving views on disputed legal

issues, candid personal views and political corruption. The Plaintiff believes that

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 17 of 26 – Page ID#: 17

18such a rule prevents him from making any such comments thereby chilling his

right to free speech and creating an unconstitutional regulation of protected

political speech under the First and Fourteenth Amendments of the Constitution

of The United States.

67. A law is overbroad if it prohibits more speech or less speech than is necessary to

achieve the drafter’s purpose.

68. SCR 3.130 sweeps constitutionally protected comments of personal views on

disputed legal and political issues within the sphere of prohibited speech. This is

overbroad and an unconstitutional regulation of protected political speech under

the First and Fourteenth Amendments.

69. SCR 3.130 (8.2) states that a lawyer shall not make a statement that the lawyer

knows to be false or with reckless disregard as to its truth. However, the rule

does not make a clear provision for protecting a statement that is true and not

made with reckless disregard thereby limiting the protected speech of the First

and Fourteenth Amendments of the Constitution of the United States.

70. Plaintiff wishes to speak his views on disputed truthful legal issues. Such item

about judicial philosophy are protected speech. However, SCR 3.130 (8.2)

sweeps all critical speech into the sphere of unconstitutional.

71. SCR 3.130 sweeps attorneys personal views on disputed legal issues and rulings

into a sphere of speech prohibited by the Kentucky Bar Association and thus

constitutes an unconstitutionally overbroad application of the rules governing

judicial and legal officers’ speech and association, and are in direct violation of

the First and Fourteenth Amendments of the Constitution of The United States.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 18 of 26 – Page ID#: 18

1972. The Plaintiff’s comments on the radio broadcast were not made with any degree

of falsity or recklessness. The Plaintiff had participated in several judicial matters

in Grant County Circuit Court and had a first hand knowledge of what he

reasonably believed had occurred. He did not knowingly make false statements

and continues to believe his statements were fair, well founded and accurate.

(See Brief.)

73. Application of SCR 3.130 (8.2) to the Plaintiff has, however chilled his right to

make such reasonable statements thereby limiting any freedoms under the First

and Fourteen Amendments of the Constitution of The United States.

74. The KBA has charged Plaintiff with violating the “statement” clause of SCR

3.130 (8.2) In fact, Bar Counsel made countless false statements in the charges

against Plaintiff including the allegation Plaintiff made false statements. This is

one of the basis Plaintiff challenges the immunity of Bar Counsel.

75. The Kentucky Bar Association issued a charge against the Plaintiff stating that

speech of the nature propounded by the Plaintiff was in violation of the SCR

3.130. The KBA has issued such a charge without determining if the speech was

truthful and therefore protected even as to the current SCR 3.130.

76. SCR 3.130 has been interpreted, therefore, by the KBA to mean “any speech” in a

judicial criticism is prohibited thereby clearly flying in the face of the First and

the Fourteenth Amendments of the United States Constitution.

77. SCR 3.130 sweeps an attorneys comments in a sphere of speech prohibited by the

KBA and thus constitutes and unconstitutionally overbroad application of the

rules governing the activities of attorneys in the state of Kentucky.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 19 of 26 – Page ID#: 19

2078. This is a civil action for declaratory and injunctive relief arising under the First

and Fourteenth Amendments to the Constitution of the United States. It concerns

various provisions of the Kentucky Supreme Court Rules of attorney conduct as

set forth in Kentucky Supreme Court Rule 3.130 (8.2), including, in particular,

A. SCR 3.130 (8.2) on its face as applied to statements made by the Plaintiff,

wherein he desires to publicly discuss and wants to be permitted to make

political statements, [hereinafter “the statements”];

B. SCR 3.130 as applied to the statements made by Plaintiff is extremely

vague;

C. SCR 3.130 is both facially and overbroad as applied to Plaintiff;

D. SCR 3.130 as interpreted by the KBA, all adopted and interpreted by the

Kentucky Bar Association and all as incorporated by reference into the

Kentucky Rules of Professional Conduct.

79. SCR 3.130 states in relevant part: “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 quoted language is hereinafter referred to as the “Statement

Clause.”

80. Plaintiff complains that the aforesaid provision of SCR 3.130 (8.2) on its face and

as applied to the disciplinary process, is unconstitutional because it infringes upon

constitutionally protected free speech and association; because it chills an

attorney’s free speech by prohibiting an attorney from expressing any negative

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 20 of 26 – Page ID#: 20

21views on legal issues, judicial personnel, actions and political views; and because

it does so through a vague and overly-broad prohibition.

81. SCR 3.130 (8.2) requires, at the cost of harsh attorney discipline from the

Kentucky Bar Association, that an attorney not make a statement that is

“knowingly” false. The rule would seem to indicate that a statement could be

made if it is true. However, the rule as applied to the Plaintiff makes a

prohibition against making any statement other than a complimentary or positive

statement . . . no statement can be made with any hint of negativity.

82. Plaintiff complains that the SCR 3.130 (8.2) requirement as applied to him, chills

and penalizes his constitutional right for making any statement whether true or

false in violation of his First and Fourteen Amendment rights to freedom of

speech and association. Specifically, the knowingly false requirement is not

narrowly tailored to serve a compelling interest so that any statement made will

be subjective in nature and could and usually is randomly be interpreted in a

negative light.

83. Plaintiff complaints that the false doctrine portion of SCR 3.130 (8.2) penalizes and

attorney who does speak truthfully about a judicial officer or candidate and

essentially limits all speech while the commentary to the rule sec. (a) states:

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. The rule thereby states

that an honest opinion is acceptable but the Kentucky Bar Association has viewed an

honest opinion as negative.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 21 of 26 – Page ID#: 21

2284. Additionally, SCR 3.130 (8.2) does not adequately define terms, is vague, is

overbroad and has a chilling effect of the right of free speech. The rule facially and

as applied prevents Plaintiff from making any political comments creating an

unconstitutional regulation of protected political speech under the First and

Fourteenth Amendments of the Constitution of The United States.

IX. Injunctive Relief

85. FRCP 65 provides the basis for injunctive relief, including restraining orders.

Plaintiff seeks a restraining order, preliminary and permanent injunctive relief.

86. This Verified Complaint here under RRCP 65(b)(1) states specific facts which

clearly show immediate and irreparable injury, loss, or damage before the adverse

parties can be heard. See paragraph 43 and 44.

87. Based upon the “any minute a decision,” there is no time to give notice for a hearing.

A hearing can be set at a convenient date and time for everyone on the injunction

request. Plaintiff has sent this lawsuit to Sarah Coker, bar counsel handling these

charges and Frank Doheny, the trial commissioner.

88. Connection Distributing Co. v. Reno, 154 F.3

basis for a preliminary injunction and Plaintiff pleads the elements:

A. Plaintiff has a likelihood of success on the merits. A review of the facts and

law make it clear the recusal must be heard.

B. Plaintiff will suffer irreparable harm without the restraining order or

injunction. A trial commissioner with a conflict will issue a recommendation

without the injunction.

C. The granting of the restraining order or injunction will not cause substantial

rd 281, 288 (6th Cir. 1998), provides theCase: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 22 of 26 – Page ID#: 22

23harm to others. Plaintiff is in good standing. He’s been practicing law during the

years these matters have been going through the discipline process. There is no harm

to anyone if the injunction is granted.

D. There is no impact on the public interest by the granting of the injunction.

This is obvious on its face.

X. Bar Counsel Immunity

89. Pursuant to SCR 3.160(4) bar counsel by order of the Supreme Court is granted

immunity. The rule states, “[n]either the Association, the Board, the Director, the

Inquiry Commission, the Trial Commission, the Office of Bar Counsel, nor their

officers, employees, agents, delegates or members shall be liable, to any person or

entity initiating a complaint or investigation, or to any member of the bar or any

other person or entity being charged or investigated by, or at the direction of, the

Inquiry Commission, for any damages incident to such investigation or any

complaint, charge, prosecution, proceeding or trial.”

90. Plaintiff believes immunity must be provided for by the Constitution, legislative act

or Court decision, not by Order. In this matter, Bar Counsel has filed false

statements against Plaintiff and has even admitted one Charge was false. Plaintiff

believes Bar Counsel, as lawyers, should at least be subject to Rule 11 motions.

(Plaintiff has filed one in this case.)

Prayer For Relief

WHEREFORE, Plaintiff prays that this Court grant the following relief:

1. A restraining Order preventing Frank Doheny from making a recommendation.

Case: 3:11-cv-00002-DCR Doc #: 1 Filed: 01/06/11 Page: 23 of 26 – Page ID#: 23

242. An injunction staying the Bar Proceedings against him until this matter is heard on

its merits.

3. A declaratory judgment that the word “judge” in KRS 26A.015 includes the Trial

Commissioner.

4. For an Order requiring the Defendants to perform their duties in the recusal process

and certify and accept the filing under KRS 26A.020 to recuse the Trial

Commissioner, or in the alternative an order recusing the Trial Commissioner.

5. A declaratory judgment that SCR 3.130 (8.2) does not prohibit truthful political

speech, or, in the alternative, that the court rule is unconstitutional, on its face, or as

applied;

6. An order awarding Plaintiff’s costs, and attorneys’ fees;

For all other relief to which he is entitled.

/s/Eric C. Deters

ERIC C. DETERS, ESQ. (#81812)

5247 Madison Pike

Independence, Kentucky 41051

(859) 363-1900 – telephone

(859) 363-1444 – facsimile

eric@ericdeters.com

REVERSAL RATES IN CASES CONSIDERED ON DISCRETIONARY REVIEW by JASON NEMES

Tuesday, January 11th, 2011

REVERSAL RATES IN CASES CONSIDERED ON

DISCRETIONARY REVIEW

 

By Hon. Jason Nemes

 

            One of the most frequent questions I am asked by attorneys preparing a motion for discretionary review is whether their case, if reviewed, is likely to be affirmed or reversed.  While it is difficult to predict particular cases, the statistics do allow for some useful generalizations.

            In 2010 the Kentucky Supreme Court rendered 58 opinions in civil cases that made it to the Court on discretionary review.[1]  43 of these 58 civil cases were reversed, which means that three-fourths of the Supreme Court’s discretionary civil docket results in at least a partial reversal.  The Court affirmed 15 Court of Appeals’ opinions.  Furthermore, of those 58 cases, nearly 20 involved a business versus a non-business; and of that subset of 20 cases the Supreme Court ruled in favor of the plaintiff 63 percent of the time.

The Court’s discretionary criminal docket yields similar results.  There were 33 such opinions, 22 of which were at least partially reversed.

All told, the Kentucky Supreme Court rendered 91 opinions in discretionary review cases.  Of those 91 cases, the Court of Appeals’ opinion was reversed in 65 of those cases.

Therefore, it appears that the Kentucky Supreme Court is exercising its discretion to review cases where it is much more likely than not that the justices believe the Court of Appeals reached the wrong result.

            A 74 percent reversal rate of the Supreme Court’s discretionary civil docket is a rather high clip.  However, this is less surprising when one considers that a handful of the cases that reached the Court were novel questions of law, which, by definition, made it difficult for the Court of Appeals to predict how the justices would have decided the question presented.  And this seemingly high rate of reversal may be explained by the Court’s internal mechanics. 

It is well known that it takes four justices (out of nine) for the United States Supreme Court to grant certiorari.  As such, less than a majority of the justices have the power to place a case on the Court’s docket.  By way of contrast, it takes a bare majority (four of seven) of justices of the Kentucky Supreme Court to grant discretionary review.  Consequently, when the Kentucky Supreme Court takes a case, that case already has a majority of the justices interested in reviewing that case.  This does not necessarily mean that a majority of justices are interested in reversing the case, but a tribunal is more likely to reverse a case it decides—by majority vote—to review.

Knowing this fact should enter the analysis of appellate attorneys in determining how to (indeed, whether to) approach an appeal.  For instance, a lawyer may wish to put more effort and thought into persuading the Court that her particular case is not appropriate for discretionary review.  To that end an advocate should argue (if the facts bear it out) that her case is of little interest to anyone not already a party.  Moreover, knowing that the chances of reversal are very high, an appellate attorney may decide to cross-appeal an issue they may otherwise have left undisturbed.  Or an advocate may wish to pose alternative arguments to give the Court something to fall back on.  Though not ideal, these additional strategies should be analyzed as a way to mitigate harm caused to one’s client by an outright reversal.

So the answer to the oft repeated question—Is the Supreme Court more likely to reverse my case now that it has decided to review it?—is yes.  The statistics indicate that the petitioner will win three out of every four cases reviewed on the Court’s discretion.


[1] These 58 cases are only cases in which the Supreme Court granted discretionary review from a Court of Appeals opinion, and do not include the few cases that were granted transfer, thereby skipping the Court of Appeals.

Study Concludes Drug Dogs Err 50% of the Time in Making Drug Hits – Was Judge Billingsley Correct When He Adopted the Shaw Test For Introduction for Drug Dog Evidence?

Tuesday, January 11th, 2011

Study Concludes Drug Dogs Err 50% of the Time in Making Drug Hits – Was Judge Billingsley Correct When He Adopted the Shaw Test For Introduction for Drug Dog Evidence?

Fox news. Jan. 8, 2011

Chicago – Thursday, an analysis of state data by the Chicago Tribune showed that drug-sniffing dogs are wrong more often then they are right. We were joined now by dog trainer, Alex Rothacker, who said that the study was misleading. We put his dog Thor to the test in our newsroom with help from Lake County Sheriff Officer Tony Fanella.

Rothacker said that the dogs are trained to be so sensitive, they can detect residue of drugs, which can lead to “false positives.”

He also said that dog training takes 100s of hours and they continue to see the dog twice a week to improve the dog’s abilities. According to Rothacker, drug-sniffing dogs have to be retested every year to prove that they are still able to produce accurate results.

The Tribune study concluded that drug-sniffing dogs are wrong over 50 percent of the time.

   In 2004  Senior Status Judge Stan Billingsley, sitting in Boone County, Kentucky Circuit Court, threw out a drug dog search as the officer was not certified and his drug dog was not certified, and that a system to test drug dogs exists but was not followed by the Boone County, Kentucky drug dog handler. 

Expert testimony was given at the suppression hearing to the effect that a dog handler could subtlety suggest to a dog when it should “hit” on a suspect. The expert dog handler who trains dog handlers for the U.S. Air Force said dogs should be independently tested annually.

 Judge Billingsley adopted the “Shaw Balancing Test for Use of Narcotic Detection Dogs” to impose a reasonable standard to qualify a drug dog and to permit his “hits” to be considered as evidence in probable cause hearings.   The test was named after Judge Billingsley’s law clerk, Jan Lee Shaw who did extensive research on the issue. The Defense Attorney who contested the drug search by the uncertified drug dog was Marcus Carey.

The Court of Appeals reversed Judge Billingsley’s ruling, and allowed the uncertified drug dog hit to be the basis for a search of the defendant’s property.

See:

COMMONWEALTH OF KENTUCKY

APPEAL FROM BOONE CIRCUIT COURT

v. HONORABLE STANLEY BILLINGSLEY, SENIOR JUDGE

2004-CA-002528  (link to full text of ruling)

 

JASON THOMAS BALDWIN

LawReader Keywords:

“..regardless of how worthy the concept of state or federal certification of drug detection dogs and handlers might be, the fact remains that such certification did not exist at the time of the search below.  -  We simply cannot agree with the circuit court’s judicial imposition of such certification requirements by means of the “Shaw Balancing Test for Use of Narcotic Detection Dogs” which it unilaterally created and applied to the situation herein. Daubert test does not apply to narcotic detection dogs….”

The expert indicated that although various performance standards exist within the industry, there are no Kentucky or national standards as to drug detection dog training.

The circuit court granted the motion to suppress in a 39-page order which both analyzed drug detection dog standards and certification, and recommended a balancing test for analyzing future cases.

 

The court found:

6) Considering the use of Niko, a dog who was not certified by an independent

certified field test by a recognized testing organization, the fact that the handler of

Niko was not a certified dog handler, the fact that Niko falsely alerted on two out of

three alerts on the day in question, we find that a standardless and unconstrained

discretion was left to the handler to determine the reliability and training of

Niko and this fails the probable cause test.”

The court (of Appeals) concluded that although Kentucky has no certification standard, “our body of law does have requirements for the introduction of evidence which are binding, and which regulate the introduction of evidence.”

Hollywood Calling! This is your chance to be in a George Clooney movie. Casting calls invited

Tuesday, January 11th, 2011

More than two dozen Greater Cincinnati and Northern Kentucky locations will be used by George Clooney’s “Ides of March” film crew next month, the regional film commission director said Monday.

And the film will need “hundreds of extras” while shooting three or four weeks in February and March, said Kristen Erwin, Greater Cincinnati .

A casting call for hundreds of extras and some small roles will be announced “very soon” by Dare to Dream Casting, based Downtown, said Jacquie Loughery, its president and CEO.

Clooney’s production designers started scouting here in October, a month before Clooney himself was seen touring Cincinnati and Oxford.

If you are interested you are invited to e-mail:  daretodreamcastingextras@gmail.com