Archive for May, 2011

Retired Judge Stan Billingsley Calls on Supreme Court to Appoint Commission To Study Amendments of Attorney Discipline Rules.

Tuesday, May 31st, 2011

The following recommendations have been sent to the Ky. Supreme Court Committee on Rules for their consideration.

If you have any comments on this subject we suggest that you should refer them to Justice Dan Venters, Chairman of the Supreme Court Rules Committee.

His address is:

Justice Daniel Venters                                                 Pulaski County Court of Justice, Suite 3500
50 Public Square
P.O. Box 1569
Somerset, Ky. 42502-1569

 

RECOMMENDED AMENDMENTS FOR SUPREME COURT REFORM OF CURRENT ATTORNEY ETHICS AND DISCIPLINE RULES.

By Judge Stan Billingsley (Ret.)

1. Create a sliding scale of punishments to fit the crime following the model of the Penal Code and classifying ethical offenses into three classes.  The most severe offenses would be designated as Class A offenses, mandating Suspension of five years or permanent expulsion.

Class B offenses would allow suspensions of from 1 month to 5 years.

Class C offenses would allow private or public reprimands.

The purpose of this classification system is to prevent the Ministry from threatening attorneys charged with minor violations with permanent suspension.

2.  Mandate a statute of limitations on ethical complaints.  There shall be a ten year statute of limitations for a Class A ethical offense, a five year statute of a Class B ethical offense, and a one year statute for a Class C ethical offense.  Currently it is possible that the Bar Counsel can pursue a complaint for a violation which occurred years before and which was not easily defended after such a passage of time.  The current system allows the Bar Counsel to review an attorney’s or judge’s entire career looking for ancient violations to harass them.

3.  Impose transparency to the discipline process.  Outlaw the use of secrecy rules.  No right for government secrecy is authorized by the constitution.  Government secrecy is the fig leaf of tyrants.  Mandate that all complaints filed with the Ministry be public records.  Make the names of persons filing complaints public.  This will better alert the public and allow them to protect themselves from bad lawyers..  Just as criminal charges are public records, ethics complaints accepted by the Ministry for prosecution shall be made public records.  Our judicial system must be transparent.  Transparency is a means of holding all judicial branch officials accountable.  It is effective in helping to prevent corruption.  Court actions including civil settlements should be available for review by anyone.  The only confidentiality should be in cases involving minors who are victims, and divorce property settlements and division order if approved by the court.  When rules, decisions and proceedings by ethics enforcers are open to public view, there is less opportunity for them to abuse the system in their own interest.  We should let the sun shine upon all ethics proceedings against attorneys and judges.

We should also mandate that a complete listing of all Supreme Court Rules and Codes of Conduct for lawyers and judges should be accurately and completely published by the Bar Association’s website. 

The Kentucky Supreme Court has ruled that open-records acts don’t apply to the courts, Florida’s high court has adopted a rule specifically saying the same principles apply to every judicial branch, including those entities that regulate lawyers and judges.  We propose that the Supreme Court adopt the Florida rule and impose Open Records rights to the Ministry of Ethics, and for all administrative acts of the judiciary.

4.  Limit restrictions against lawyer’s free speech to statements which are libelous of slanderous regarding judges and prosecutors and public officials and statements which are in the presence of the court or which are made during a pending trial with the intent to affect the outcome of the trial.  This shall apply to prosecutors.

Forbid any free speech limitations in the Code to be used to protect comments regarding actions of the Executive or Legislative branch officials short of libel or slander.

5.  Repeal the rules regarding absolute immunity of complainants who recklessly make false claims.  The highest degree of immunity granted to complainants or Ethics Discipline officials shall be a qualified immunity.  An ethics violation which is maliciously prosecuted should only enjoy qualified immunity.  This should allow the victim to pursue civil damages if the prosecution was malicious.  Ethics Discipline Prosecutors should have no more immunity than regular prosecutors.

6.  Apply of the 5th.  Amendment of the Constitution to ethics proceedings.  Establish that any attorney who is charged with an ethical violation has the right to remain silent.  The burden to prove a charge should always remain on the state.  There should be a presumption of innocence in all Ministry of Ethics disciplinary proceedings.

7.  Application of the 4th.  Amendment of the Constitution to Ethics investigations.  Require that all search warrants sought by the Bar Counsel must be approved by a sitting Circuit Judge or other impartial magistrate, having no connection to the Ethics Discipline officials.  Require probable cause to be a material requirement of all search warrants.

8.  Establish specific due process rights of all lawyers being prosecuted.  All ethics complaints shall be heard within 90 days.  Any complaints held longer than that without a hearing should be dismissed.  Federal and State criminal law places a similar speedy trial requirement on the government, and there is no justification for failing to impose this same standard on the Bar Counsel’s Office.

9.  Outlaw the Bar’s overreaching of the Judicial Conduct Commission and require that any ethics prosecutions or disbarment actions against Judges by the Bar Counsel, must first be recommended by the Judicial Conduct Commission.  The only exception should be situations where the complaint involves criminal charges against the judge.

Expand to the KBA the rule adopted for the Judicial Conduct Commission which outlaws any prosecution of a judge by the Bar Counsel regarding a ruling later deemed to be incorrect or erroneous.

10.  Separate the jobs of Bar Counsel to the Board of Governors from the prosecutorial function of the Ethics Discipline officials. The Bar Counsel and the Discipline Prosecutors office shall be administered by separate persons with separate duties.  Limit the influence of the Chief Justice in selecting the Bar Counsel.  The Bar Counsel should be clearly hired and fired by the Board of Governors.

11.  Strike the power of the Chief Justice to appoint four citizen members to the Board of Governors to assist in hearing ethics cases.  If citizen members are deemed necessary or advisable they should be selected by the Governor, in the manner that the citizen members of the Judicial Conduct Commission are appointed.

12.  Provide the Board of Governors with a monthly case report on all investigations so they can properly perform their administrative oversight role of the Ministry.  The Board of Governors shall annually report all case load statistics to the Supreme Court and these reports shall be published as a public record on the Bar’s website.  We can’t administer the Bar Counsel’s office if they are allowed to keep all their work secret from the Board of Governors and the public.

13.  Adopt a rule which would authorize Rule 11 sanctions allowing reimbursement for legal fees and court costs to those who are wrongfully prosecuted by the Bar Counsel.  Rule 11 as found in the civil rules, provides the template for this rule.  This rule should clearly include frivolous prosecutions by the Bar Counsel.

14.  Eliminate the Trial Commissioner.  The trial of all ethics complaints will be heard by a panel of three retired judges nominated by the Chief Justice and approved by the Supreme Court.  One of the three judges shall be from the defendant lawyers Supreme Court District.

15.  Qualify all Bar Counsel employees assigned to prosecute complaints.  All who actually prosecute complaints should have the qualifications of a Circuit Judge which consists of the requirement that all have a law license, and eight years of legal experience.  The eight years of legal experience must include at least two years in private practice.

16.  Adopt a rule where ethics complaints against the President of the Bar or the Vice President or the President-Elect shall be heard directly by the Board of Governors and shall be subject to the speedy trial rule.

17.  Adopt a rule that requires that all ethics re-education programs shall be operated by the Administrative Office of the Courts, and all fees paid shall be paid to the Clerk of the Supreme Court and kept in the judicial budget.  This would generate an estimated $2 million dollars to the income to be administered through the judicial budget.  This rule should also bring DUI schools under the umbrella of the Administrative Office of the Courts as is done in Nevada.

18.  Rewrite the Squeal Rule to limit it to a duty to report any act which would constitute probable cause to believe that a crime has been committed or is about to be committed by an attorney.  A failure to comply with the squeal rule shall be limited to a Class C violation and only punished by a private or public reprimand for the first offense, and by a fine not to exceed $500 on subsequent offenses.  However, if the unreported crime results in bodily harm or financial harm greater than $500, a violation could be elevated to the highest classification.

19.  Adoption of the provision of the ABA Code of Professional Conduct Rules regarding duties of prosecutors to report to the appropriate court any evidence that tends to support a claim of innocence by a person convicted of a crime.  Kentucky has failed to adopt these recommendations which are in the ABA model code.

20.  Adopt a Supreme Court rule mandating punishment for prosecutorial misconduct.  Any finding by a trial or appellate judge that a prosecutor has improperly lied to the court about material issues, or who has knowingly withheld exculpatory evidence, shall be reported by the presiding judge to the Bar Counsel for investigation and said report shall be part of the public record.  This rule shall apply to Bar Counsel prosecutors, and also to criminal prosecutors.

“The penalty for a prosecutor improperly withholding exculpatory evidence shall result in a minimum loss of the prosecutors law license for not less than 30 days.  It may include permanent expulsion from the Bar.  Failure of a prosecutor who violates the squeal rule and fails to report a violation of the Code of Professional Conduct by another prosecutor shall result in a finding that they are conspirators and both shall be subject to a penalty equal to the sentence imposed on the defendant who was wrongfully convicted.  The burden of proof shall be upon an prosecutor on the issue of whether or not the information withheld was exculpatory.  Withholding exculpatory evidence may not be excused by the Harmless Error Rule.

“The Criminal Rules should be amended to require that any exculpatory evidence required to be provided to the defendant shall be provided within two business days of it becoming subject to the control of the police or the prosecutor.  Any such evidence coming into the knowledge of the prosecutor or those under his control, within two weeks prior to trial shall result in the right of the defendant to obtain an automatic continuance of at least two weeks.

          “U.S.  District Judge Emmet Sullivan, who dismissed the Federal prosecution against Alaska Senator Ted Stevens, has urged a change in the national judicial rules to establish consequences for prosecutors who don’t follow the rules on turning over evidence to defendants.  Current rules leave it up to the Justice Department to deal with prosecutors’ actions.”

21.  Adopt an “open file” discovery policy for all prosecutors in Kentucky, including the Bar Counsel prosecutors.  This shall not include a duty to allow discovery on those items currently protected from discovery by the Criminal Rules or the Rules of Evidence.

22.  Adopt Public financing of Judicial Elections.  The recent decision of the U.S.  Supreme Court in Citizen United, allows corporations to directly contribute to elections.  In 2000 the Chamber of Commerce spent $5 million dollars in the election of an Ohio Appellate Judge.  Three states have subsequently adopted public financing of judicial elections to protect the independence of the judiciary from the influence of groups like the Chamber of Commerce and Insurance companies.  This might require an act of the legislature, but the Judiciary should adopt a resolution in support of public financing.”

23.  Eliminate the Right of the Bar Counsel to Appeal Rulings of the Board of Governors.

Currently the Bar Counsel has the right to appeal rulings of the Board of Governors.  The Bar Counsel works for the Board of Governors but may overrule the findings of the Board of Governors by seeking an appeal to the Supreme Court.   In criminal cases, the Commonwealth is not entitled to appeal an acquittal except to certify the law.  This same doctrine should apply to the rulings of the Board of Governors.  The defendant attorney or judge would still have the right to appeal to the Supreme Court.

24.  Advisory Ethics Opinions relied upon by attorneys should be given weight.

Current rules allow an attorney or judge to seek an advisory ethics opinion, but the rules give no weight to these advisory opinions.   This makes the procedure worthless and of little use by attorneys who try to understand what they can and cannot do in certain ethics situations.

25.  CLE records posted on the KBA website should be credible.

Several years ago the Supreme Court allowed sanction against an attorney who relied on the KBA web site regarding the number of CLE hours he had earned.  The KBA readily admitted they had made a mistake and over reported his actual CLE hours.  Nevertheless the attorney was sanctioned.  This issue is even more urgent since the recent adoption of a rule that written notices will no longer be sent out to Bar members, and they must obtain notice from the KBA web site.

The Court should either continue the requirement for written notices to be mailed to attorneys or should make KBA web site postings regarding CLE hours a defense.

CONCLUSION

Recent events call for a comprehensive review of Kentucky attorney discipline procedures. The Supreme Court should be aware of the growing number of federal lawsuits being filed in Kentucky and nationally with regard to the harsh and often unconstitutional application of ethics rules against attorneys and judges. 

We recommend that the Supreme Court appoint a study commission to review these and other recommendations for reform of our attorney and judicial discipline rules and procedures.

The Commission should be directed to report their findings in time for consideration by the Supreme Court in 2012.

The recent ruling of U.S. District Judge Reeves which held that lawyers could be sanctioned for “true but reckless” statements calls for urgent clarification of SCR 3.130 (8.2).  It is reported that ten other states have already made adjustments in this rule which was originally recommended only as a guideline by the ABA.

The main role of the Commission should be to assure members of the legal profession that they have at least the same due process rights of a common criminal.

DEBTOR REPRESENTATION – CAN IT BE DONE SUCCESSFULLY?

Tuesday, May 31st, 2011

 By Hon. Kurt K. Mohnsam

 For some unknown reason, my law practice seems to have always centered around representing the little guy.  The guy who couldn’t afford to pay me my full retainer all at once, but maybe a little bit every week. For the next fifty years.  So when I started to think about doing collections, it just seemed like I wasn’t in my comfort zone representing a huge banking corporation against some guy who ran up his credit card paying for his kid’s medication when he lost his job and medical insurance in the recent recession.  As usual, fate had a hand in what would happen next.

While I was spending time checking out books on collection law and practices at the local law school, I got a call from a friend of a friend, who was not a lawyer and had an ongoing debt settlement business.  Not exactly sure what to think about our initial phone conversation, I decided to meet with this fellow and see what it was he was trying to do. To make a long story short, a great deal of research and discussions with other lawyers eventually led me to take on the clients of what had been a debt settlement company in an attempt to provide these debtors with some sort of help in working out a deal with their creditors that both the debtor and creditor could live with.  That’s it.  That was my goal, and it remains so to this day.  It all seemed so simple.  And why shouldn’t it?  Banks are run by people who should have the human capacity to be reasonable, and debtors are people who should have that same capacity.  Reason dictates that the debtor cannot pay the full amount of what he owes, and will be forced to file bankruptcy if pushed too hard, and further dictates that the bank, which lent the money to the debtor in the first place, deserves to be repaid so much as is possible.

I could not have been more wrong.  Simply put, people are not reasonable, in any sense of the word, and seem to lose all comprehension of what reason might have been in any case where money is involved.  Most of my clients are stressed to the breaking point, and for reasons unknown, often decide to take that stress out on me.  Banks, on the other hand, absolutely hate the idea that a debtor may have some actual help in an arena where the banks are accustomed to having limitless resources and bullying those who have fallen on hard times into working out a payment plan on a debt that has long ago passed the statute of limitations for suit on it.  So, for my efforts, I am rewarded with clients who hate me because I am generally unable to make their debts go away completely, and with banks who hate me because I am trying to show them that my client cannot pay the debt completely.  Now, I am beginning to catch a great deal of fallout from some lawyers in Florida, about whom many of you may by now have read.  These fellows decided to make a quick buck by basically pretending to represent the best interests of their debtor “clients.”  They did things like telling the debtors to stop paying their creditors, and instead, pay the debt settlement company.  They “represented” people from across the country with no local counsel in the state where their clients resided.  Worst of all, they collected fees from those already in financial dire straits, and did nothing to attempt to resolve the issue with creditors.  Basically, a scheme of “Take the Money and Run,” and now, every lawyer who is actually attempting to help debtors while working out settlements that recognize the rights of creditors is being crucified.  Banks, of course, are jumping on the “crucifixion” bandwagon, because they see it as a chance to do away with all legal opposition to bulldozing the debtor into an unreasonable and impossible “settlement.”  They are doing everything they can to scare lawyers away from representing any debtor who would stand up to them, and, quite frankly, after a full year of trying to represent the unreasonable against the less reasonable, I would not blame any lawyer for avoiding the representation of anyone who owes a bank money. Nevertheless, this is an area of legal confrontation in which one side continues to go sorely underrepresented.  Banks have lawyers and law firms by the thousands, yet few debtors can afford legal representation, and some of the people who had been holding themselves out as helping the debtor have been doing as much harm to the debtor as any bank.  What, then, do we, as lawyers, do?

The first thing we must do, if we are going to represent the interests of a debtor, is to explain, in great detail, what we can and cannot do for the client.  It has been my experience that a great many clients do not read the representation contract.  They have an idea in their mind that if they hire a lawyer, no harm can come to them.  In the debt settlement area of law, this translates into a belief that when one hires legal counsel, their debts will go away.  This may stem from the fact that sometimes, I can defend an action on a debt based on the fact that the lender’s statute of limitations has run.  The lay person understands little about such things as statutes of limitation or affirmative defenses in general, and simply sees the dismissal of a suit on grounds such as these to be somewhere in the realm of magic.  One day, debtor owed a large debt to a bank, and the next day, he hired a lawyer, and a judge told this person that he did not have to pay the money that he borrowed from the lender back.  Any attempt at a deeper explanation of the matter to the client is simply wasted effort.  They do not understand, and more importantly, they do not care.  The lawsuit is gone, and it must be because of something that their lawyer did.  This, I have found, is one of those areas in which one can explain the circumstances of the “win” to the client more eloquently than The Bard, himself, but no amount of explaining why this debt “went away” and the rest of the client’s debts will not, is going to be absorbed.  The lawyer has now taken on the role of Shaman, with mystical powers, and as such, he is required by the client to continue to perform his magic, and make all ten of the client’s credit card debts similarly disappear.  It is generally at this point that the client also loses all interest in helping the lawyer to help the client.  Eventually, the client will become angry that the rest of his debts are still owed, and that the best the lawyer can offer in these cases is, perhaps, to have the client pay off forty percent of the total debt, as opposed to the full amount.  It has further been my experience that no amount of explaining and reiteration of the explanation will result in any progress.  Sometimes, the client will hire another attorney to attempt to obtain a refund of the client’s entire fee, paid over the course of possibly two years of representation.  The lawyer he hires will receive a confused story, in which client paid me a certain sum to make his debts go away, and I took the money and ran.  The lawyer hired by ex-client will also hear the terms “settle my debts,” and immediately assume that I am in business with, or at least modeled after, one of those Florida firms mentioned earlier in this article, and threaten every type and sort of criminal action imaginable unless I agree to return the full sum I have charged to represent the client over the last two years.  Often, I have been lucky enough to be called by a lawyer who will let me send him a copy of the client file, and once he actually sees that of my ex-client’s ten credit card debts, I have had one dismissed, and have written settlement offers for between sixteen and fifty percent to settle the other nine accounts.  An apology then ensues, and it next becomes that lawyer’s problem to try to explain to his client that the client did, in fact, have a formidable force working in his best interests, and that he still owes what has now reverted to the full amount on the nine accounts on which the client refused to settle.  This is the best case scenario, and probably the only situation in which the debt settlement attorney is not left having to do the explaining to the confused and angry client.

Along the same lines of explanation, your representation contract should be long enough to reiterate, with plain wording, the terms of the agreement, including what the lawyer can and cannot do, as well as what the client is expected to do in his own behalf.  For example, my debtor representation contract is constantly undergoing changes and improvements such as the addition of a single page that begins with the caption “I Understand That:” with separate one-line statements after that.  This is the area in which I include statements such as something akin to: “I understand that I must continue to pay my creditors the minimum monthly payment required in my agreement with them, or I risk the bank exercising its right to sue me for the full balance of the loan.”  If I can make a client understand this one, simple, fact, we may very well be able to reduce the overall debt of the client on all of his accounts without any creditor filing a single lawsuit. In the end, everyone will be as happy as is possible, given the negative overall situation. This aspect of explanation and understanding is so important that I have implemented a policy under which someone from my office telephones each client on a monthly basis, and in that conversation, asks them whether or not they have been able to pay some minimal payment to each creditor, and if so, how much.  I have even begun keeping copies of the cancelled checks for those clients who are willing to send me copies for my records.  Keeping these cancelled checks can also aid in the client’s defense if he is sued on the debt for failure to make the full minimum payment in a timely manner.

Also of substantial importance is the necessity to explain to the client that you are not a charity.  There will always be a certain percentage of clients who pay you faithfully, a fee, each month, and at some time, add up the total sum they have paid you, and wonder why you have made no payments to their creditors.  To date, I am at a loss for the origins of this myth, but perhaps its inception comes from what used to be debt settlement companies that held a certain portion of the client’s monthly payments in escrow, sometimes making monthly payments to creditors.  I have tried several variations of my representation contract to explain that I am paid a fee for my services, and suggest a certain amount of funds be placed into the client’s savings account each month so that there will be some money available, should a settlement be reached with one of client’s creditors.  Nevertheless, as stated earlier, many clients simply do not read the representation contract, and chose rather to make up the terms of your agreement, whole cloth, from things they may have seen on the internet, or on television, perhaps.  This particular misunderstanding, should it come about, is again, one that will cause the immediate hiring of another lawyer in an attempt to force you to pay all of the fees paid to you over the entire course of the representation, back to the client.  This is true regardless of the number of successful settlements you have reached with the client’s creditors.  For this reason, I recommend most strongly that you make every effort to explain your fees to the client as often as is practicable. If you are making monthly informational calls to each client, and you should be, you can make an effort to either directly or indirectly feel out whether or not the client understands that he must pay you for your services.  This issue can also be stressed at length in the representation contract, but as you will soon discover if you take on any debtor representation work, you will be attacked by other lawyers both because your contract is too short and simple, and because it is too long and complicated, depending on that lawyer’s point of view.

As in any area of practice, some clients will have more success at reducing their total debt than others.  Sometimes, regardless of anything we as lawyers can do, we may not be able to reach as favorable a settlement as we would like to reach.  Often, it is those cases that take the most negotiation time and skill to reach settlement that end in the least favorable terms to the client.  As we all should know, no lawyer can make any guarantee of success, although this is commonly done by those firms that allege to help the client while actually doing nothing.  It is also generally understood that, in a murder case, for example, the lawyer is paid whether his client goes free or serves a life sentence.  For some reason, even experienced lawyers do not hold the same view for those of us who practice in the debt settlement area.  If we spend two years, for example, dealing with a client and his creditors on a daily basis and doing everything in our power to avoid lawsuits on the debts, there are those out there who feel we should only be paid for our efforts if we manage to make the debt go away.  Again, this is an area in which I have never understood the prevailing view on payment for services.  In my representation contract, I make every effort to be unquestionably clear that I will use my best efforts to reduce, so much as is possible, the debts of the client.  I further state that I cannot guarantee any particular outcome.  This seems reasonable in the context of representation on a contract for the sale of a horse, for example, and I would think the clarity of the statements should not be diminished simply because my best efforts are being put forth in order to settle a debt for less than is owed. Once again, however, lawyers and clients seem to have the idea that I am being paid to win the murder trial, and not to put forth my best efforts at reaching a favorable outcome.  Again, this would be an area where it is of paramount importance to explain fully what it is that you are agreeing to do for your client.  The ethical rules of most states require that lawyers do not guarantee any particular outcome for their client.  Why then, is it lawyers, who become the most incensed when the debt settlement attorney is not able to bargain down a $65,000.00 debt to ten thousand dollars?

Why is it, that even lawyers, who are the most keenly aware that no positive outcome can be guaranteed, are the first to complain if I am unable to reach an impressively low settlement figure for my client?  Perhaps, once again, this harkens back to the fact that my representation agreement was not clear to the client, or I, did a poor job explaining to the client that I could not guarantee any particular result, but only that I would put forth my best efforts at reaching one.  Again, clients do not read representation contracts, and if you intend to practice in this area, you will need to verbally instill in the client’s mind, the fact that you can only promise to do your best, and your best efforts are the thing for which the client is paying a fee.  I have had wealthier clients who desired to pay 100% of the debt they had run up, but simply needed some time to get the money together.  They hired me to put forth my best effort at protecting, so much as would be possible, their credit score. They were even willing to pay the excessive interest and penalties in full, but wanted to see if they could have their hard times reflected as positively as possible to the credit bureaus. These have been some of my much more intelligent clients in this area of my practice, and they also took up the most time in discussing the terms and meanings of phrases in their representation contracts, which they understood with amazing ease, as I had hoped any client would understand them. Nevertheless, once a fee is agreed upon, along with a time period over which the fee is to be paid, the client will, so far without fail, cease to pay any fee as soon as the desired end is achieved.  This situation, I believe, is less related to explaining the terms of the contract to the client, than it is to the client simply wanting to avoid paying me the agreed upon fee. In one such case, the client not only failed to pay the agreed upon fee, but then sued me for the refund of her entire fee paid. I suppose this type of behavior should be expected of consumer clients, as I have heard from other lawyers.

One of the most important things you will need to do if you desire to correctly take on any debtor representation work is to begin to build a network of other attorneys with whom to work.  First of all, you will need to have counsel in each state where you have even a single client.  This is so not only to comply with out of state practice requirements, but also, I have found that there are a small number of clients who want to sit down with an attorney face to face, and discuss their financial situation.  For the most part, my clients prefer to deal with me and with their local counsel by email and telephone, but for those few who actually want to speak with an attorney face to face, it does help to calm their nerves if they can walk into a lawyer’s office with a box full of credit card receipts, and get an opinion on whether or not bankruptcy is the only way out.  Many of the out of state lawyers I deal with also work in the bankruptcy field, and having that experience is a big plus in giving the client the straight facts.  I have even had clients telephone me, personally, after working with their local counsel, either face to face or over the telephone, just to double check their understanding of what we can or cannot do for them.  It seems that the vast majority of clients I have represented have come to me with the statement that “I do not deny that I owe these credit cards the money, and I want to pay them back, but I need some help to do this.”  This is the type of client that I like to have.  In the long run, this person will have the best understanding that he or she needs to pay the creditors something while my team is working on coming to a reasonable agreement with the banks. Additionally, they also tend to appreciate the monthly calls to update them on their circumstances, rather than to view these calls as an annoyance.  As I mentioned earlier, these regular informational calls to the client are absolutely necessary. Many times, this is also the area that gets lawyers in any field of practice into trouble.  Clients are often both angry and scared, and sometimes they are not thinking clearly.  If you call the client on a regular basis, even if there is not much to report in their case, you stand a much better chance of understanding what the client really needs.  In my case, it is a chance to determine whether the client’s financial situation is improving and will soon be able to move toward settlement, or, on the other hand, spiraling out of control. If you aren’t making these calls, and your local counsel is not making clear to the client that he or she is there for them should things require a reevaluation of strategy, you could find yourself in a situation in which the client has no idea what you are trying to do for him.

So, what, exactly, are we as lawyers to do with clients who owe money to banks?  First, talk to others in the legal profession who have a great knowledge of the law.  I was lucky enough to be able to take advantage of the generosity of Judge Stan Billingsley (Ret.), who spent many hours researching each and every question I had. I also spoke to other lawyers, who may have had no direct experience in this area, but practiced in the field of business law, in general. You will find that even the most well know attorneys out there can often be far more generous with their time than one might expect. Once you have researched the topic fully, take on a few clients, and make certain to explain, in ordinary terms, what it is that you can and cannot do for your client. There must be a “meeting of the minds” and genuine understanding of this issue before you even begin to contemplate taking on the client’s case.  Next, draft a representation contract that is clear and unambiguous in its terms.  If you are using a “form” contract, you must write it so that the least sophisticated consumer can understand what it says. This is often a challenge, and it will probably lead to a longer agreement than you may truly desire, but any representation contract is there for the client to be able to understand, not just for the lawyer to comprehend.  Then, explain your fee, and make every effort to again make this understandable to the least sophisticated consumer. Of equal importance, is the need to keep constant contact with the client.  If you have the manpower in your firm, assign someone with full knowledge of your representation agreements and how they are meant to work, to call each and every client that you have at least once every month.  This is necessary even if there is very little to report in that client’s case.  It is better to tell someone that “I am still waiting to hear back on our offer to settle with Chase Bank for $5,000.00” rather than to avoid calling the client until something happens.  It also gives the lawyer a chance to get a feel for the overall state of mind of the client.  If you are representing people who owe a great deal of money to credit card companies, you need to be the first one to know if the client begins to fall apart emotionally.  Sometimes, you simply need to know when to pull out and refuse to represent the client further.  Never make guarantees of any kind regarding the success you may have at handling the client’s financial matters.  This should be self explanatory to all of us who have been to law school, but nevertheless, there are lawyers who are tempted to be overzealous in describing the potential benefits of their representation. And finally, make certain that you are following the law.  If you have one client who is out of state, you need to have local counsel in that state to do the real representation in the event things go horribly wrong.  Many states might see what you are doing as merely ADR, acting as a mediator between the bank and your client, but even in those states where you might get by with that interpretation of what you are doing, it is unquestionably the better policy to have local counsel.  It has two important functions: It serves to keep you out of trouble for the unauthorized practice of law in that state, and it gives the client someone, probably within driving distance, with whom he or she can sit down, face to face, and discuss whatever financial issues may be the source of the client’s problem.

Most of all, we need to remember to take at least some of these clients if you have the ability to do so.  It will not make you any friends in the banking industry, but this is a class of people who have, historically, gone woefully underrepresented, and there are those who would like to keep it that way.  These are people who desperately need legal help, and who may have been taken advantage of at every turn. We, as lawyers, need to stop being afraid to represent them, and take a chance on what is, admittedly, a difficult area of practice. Last, but not of least importance, the best move that I made in taking on clients in this area of law, was to consult those who had more experience in general than I did.  I spent hours talking with Judge, Stan Billingsley (Ret.), and even brought it up in a breakfast conversation with someone who has always been very generous with his time, our President Elect of The American Bar Association, Bill Robinson. Should you decide to take some of these cases on, think the matter through, plan out your strategy, and perhaps you can learn from some of my growing pains in this area of practice.    

Kurt K. Mohnsam, Esq.

The Firm, PLLC

203 Alpine Drive

Shelbyville, KY 40065

502-633-2260

kkm@thefirmpllc.com

ATTORNEY ERIC DETERS FILES NEW FEDERAL LAWSUIT AGAINST KBA BAR COUNSEL AND KBA

Saturday, May 28th, 2011

The saga continues

On May 18, 2011  attorney Eric Deters filed a federal lawsuit against the Bar Counsel and the KBA, seeking a declaratory judgment spelling out his rights.

The lawsuit is pending in the Central Division of the U.S. District Court for Eastern Kentucky.  Federal Judge Danny Reeves is presiding over the case.

The main thrust of the lawsuit concerns the denial of consideration of a recusal motion he made against Trial Commissioner Frank Doheny of Louisville.  Doheny heard the ethics complaints against Deters and apparently found him guilty on all issues.

Another issue in the lawsuit involves an ethics claim against Deters for a Rule 11 (frivolous pleading) sanction because he incorrectly identified the Agent for Service of Process of a civil action he filed.  Deters said the KBA claimed he filed the lawsuit against a Henry Fischer but he only named Fischer as an agent to whom the lawsuit should be served.   He says that immediately upon learning that Fischer was not the Agent for Process of the corporation being sued, that he withdrew the designation and named the correct Agent within one day.   

During the course of the ethics complaint hearing against Deters, the Trial Commissioner disclosed,  after the hearing had started, the fact that his law partner Linda Ash (Dinsmore & Shohl)  was representing the complainant who filed the pending complaint against Deters.

Linda Ash is employed by Dinsmore & Shohl in their Cincinnati office and Trial Commissioner Frank Doheny is employed by Dinsmore & Shohl in their Louisville office.

It is generally true that the all members of a law firm  would in some manner benefit financially from the fee earned by another law partner of the same firm.  Deters claims that Doheny while serving as a Trial Commissioner appointed by the Chief Justice was acting as a Judicial Official, and was subject to the same ethics code by which regular judges are regulated.

Deters alleges in his lawsuit that he charged a client $1500 for legal work he performed, and the client subsequently filed an ethics complaint alleging that Deter’s fee of $1500 was excessive.  Deters reports that he offered to go to mediation over the fee and the Bar Counsel rejected mediation.  He then says he offered to return the entire $1500 but again the Bar Counsel refused to accept this method of resolving the issue.  The KBA continued their ethics prosecution of Deters.

Deters, who is represented in the lawsuit by former gubernatorial candidate Lawrence Forgy of Lexington,  alleges that it was disclosed that his Trial Commissioner’s law partner was charging $25,000 for the completion of the legal work Deters had agreed to do for $1500.  Yet he says, the Trial Commissioner found that Deters fee was excessive.  He states in the federal lawsuit that the Trial Commissioner’s law partner charged 16.6 times what he charged, yet he is charged with asking or an excessive fee for his services.

Procedural rules permit a defendant to file a motion for recusal of any judicial officer with the Chief Justice of the Ky. Supreme Court.  Deters filed such a motion but it was returned by the Clerk of the Supreme Court, Susan Clary.   Deters then resent his motion for recusal consideration directly to the Chief Justice.

The Chief Justice, John Minton, returned Deters motion identified it as “Filing of Unauthorized Pleadings”.

KRS 26.A.020(1) imposes on the Chief Justice the duty to immediately consider all motions for recusal.

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

Deters reports that he had no further communication from the Chief Justice, and assumes that the Chief Justice did not consider his recusal motion.  It is possible that the Chief Justice read the motion for recusal and has chosen not to disclose his answer.  In any event the Trial Commissioner was not recused, and now Deters is asking a Federal Court to rule on the recusal issue.

The Chief Justice is granted almost unlimited discretion to deny a motion for recusal, but KRS 26A.020 , the foregoing statute, clearly states that he must at least consider all such motions.  Deters argues that his recusal motion was not considered by the Chief Justice.

     The Federal lawsuit also questions the action of the Kentucky Supreme Court in creating a “rule” that grants absolute immunity to Bar Officials.  Prosecutors in Kentucky criminal courts only have qualified immunity from civil actions.

In the lawsuit Deters seeks relief from the Federal court on the following issues:

1.  An Order or Declaratory Judgment that Kentucky Bar Counsel and it’s lawyers can’t be granted absolute immunity by a Supreme Court Rule and clarification whether Bar Counsel can be held responsible under a Rule 11 motion.

2. An Order of Declaratory Judgment that Kentucky Recusal Rules as they apply to a Trial Commissioner of a Tribunal Hearing are unconstitutional because they violate due process in that they do not give Plaintiff and others similarly situated with a fair hearing if a conflict or other basis for recusal arises at any time past the ten days after the Trial Commissioner’s appointment.

The Deters lawsuit seeks relief under the Federal Civil Rights act known as a Section 1983 action.  He does not seek personal damages against the Bar Counsel, but under a l983 action he can be awarded costs and attorney fees if he is successful.

LawReader is advised that the Judicial Budget provides for malpractice insurance to cover any awards granted against the State Judiciary by a Federal Court.

The pending action before the KBA continues.   The Trial Commissioner found against Deters and recommended a very harsh period of a six month and one day suspension against Deters even though the Bar Counsel only asked for a 60 day suspension.  Deters states in his complaint that this action of the Trial Commissioner proves his bias against Deters and supports Deters claim that the Trial Commissioner should have been recused from hearing his case.

FIFTH CIRCUIT COURT OF APPEALS UPHOLDS FREE SPEECH RIGHT OF JUDGEs

Friday, May 27th, 2011

Mary Alice Robbins Texas Lawyer July 27, 2007

The 5th U.S. Circuit Court of Appeals has handed Robert Jenevein, former judge of Dallas County Court-at-Law No. 3, a partial victory in his seven-year fight with the State Commission on Judicial Conduct.

In a July 20 decision in Jenevein v. Willing, et al., a three-judge panel of the 5th Circuit decided unanimously that the commission violated Jenevein’s First Amendment free-speech rights in its January 2003 public censure of him. However, the 5th Circuit held that the commission could censure Jenevein for holding a news conference in his courtroom — while wearing his judicial robes — to criticize a Dallas attorney.

“It means Judge Jenevein’s First Amendment rights have been vindicated,” Mark Donheiser, one of Jenevein’s attorneys, says of the 5th Circuit’s opinion.

“Judges have free-speech rights that they do not lose when they take office,” says Jenevein, now a shareholder in Vincent Moyé in Dallas.

But San Antonio solo Mark Greenwald, the judicial conduct commission’s special counsel for Jenevein’s case, views the decision as a victory for the commission.

“What the 5th Circuit did here is clearly a win for us, because the sanction stands,” Greenwald says.

Seana Willing, the commission’s executive director, says the 5th Circuit’s decision extends the U.S. Supreme Court’s 2002 opinion in Republican Party of Minnesota v. White beyond the judicial campaign context. If judges are careful, they can say a whole lot about anyone at any time, she says, but a judge just can’t do it in his or her courtroom, dressed in a judicial robe.

“I think the message was sent that you just can’t use the trappings of your office for this kind of agenda,” Willing says.

The incidents that led to Jenevein’s censure occurred while the high-profile case, Universal Image Inc. v. Yahoo.com, et al., was pending in the Dallas County courts-at-law. According to the 5th Circuit’s opinion, in Dec. 23, 1999, Jenevein had granted a motion to dissolve a temporary restraining order the defendants in the Yahoo case had obtained from a visiting judge.

Of the five county court-at-law judges in Dallas County, three had recused themselves from the litigation, leaving only Jenevein and another judge to potentially be assigned to hear the Yahoo case.

Lawrence Friedman, an attorney for Yahoo who is a partner in Dallas’ Friedman & Feiger, subsequently filed a fourth amended petition in the litigation in which the plaintiff alleged, among other things, that David Gibson, then-judge of Dallas County Court-at-Law No. 1 who subsequently recused himself from the case, had made frequent ad litem appointments to Jenevein’s wife, Terrie, a Dallas solo.

After learning of the petition, in July 2000, Jenevein called a news conference accusing Friedman of using the type of judicial intimidation tactics “we normally reserved for the mob.” Jenevein said, “If I were not one of the judges to whom this case could have been assigned, I do not believe my wife would have been mentioned in the filings.”

As noted in the 5th Circuit’s opinion, the commission accused Jenevein of judicial misconduct for holding the news conference in his courtroom, while wearing his judicial robe, and for using a county-owned computer to send e-mails to more than 75 people to explain his reason for holding the news conference. In addition to criticizing Friedman, Jenevein announced at the news conference that he would not preside over the Yahoo case.

Jenevein sought dismissal of both of the commission’s allegations, arguing that the First Amendment protected his statements at the news conference and in the e-mails, but neither the special master who heard the case and made recommendations to the judicial conduct commission nor the commission addressed the constitutional issue, the 5th Circuit noted in the opinion.

The commission found that Jenevein’s actions in holding the news conference and sending the e-mails constituted willful violation of the state’s Code of Judicial Conduct, as prohibited by Article 5, §1-a(6)A of the Texas Constitution. Specifically, the commission found that Jenevein violated Canon 2B of the judicial conduct code, which bars a judge from using the prestige of his office to advance his private interests or those of others.

According to the 5th Circuit’s opinion, Jenevein attempted to appeal the commission’s censure order by asking Texas Supreme Court Chief Justice Wallace Jefferson to appoint a special court of review made up of three appellate judges. However, the special court held in April 2003 that it lacked jurisdiction to consider Jenevein’s appeal.

In July 2003, Jenevein filed a federal suit against the commission under 42 U.S.C. §1983. U.S. District Judge Lee Yeakel of Austin, Texas, upheld the censure order in 2006, granting the commission’s motion for summary judgment, and Jenevein appealed.

The 5th Circuit affirmed Yeakel’s order in part and reversed and remanded the case in part. Although the commission argued to the 5th Circuit that the commission censured Jenevein for his actions of criticizing a lawyer while appearing in a judicial robe in the courtroom, the 5th Circuit found that the commission also censured Jenevein for the content of his speech.

“It was always about his speech,” says Donheiser, a shareholder in Mathis & Donheiser in Dallas.

According to the 5th Circuit’s opinion, the commission’s censure order was not narrowly tailored to meet the state’s compelling interest of protecting the integrity and impartiality of the judiciary.

“To leave judges speechless, throttled for publicly addressing abuse of the judicial process by practicing lawyers, ill serves the laudable goal of promoting judicial efficiency and impartiality,” Judge Patrick Higginbotham wrote for the 5th Circuit. Judges Jacques Wiener Jr. and Edith Brown Clement joined Higginbotham in the decision.

In remanding a portion of the case, the 5th Circuit instructed Yeakel to order the commission to expunge the censure order “to the extent that it reached beyond Judge Jenevein’s use of the courtroom and his robe to send the message.”

Robert Johnson, the assistant state attorney general who represented the commission in the trial court, says the censure stands as long as the commission amends the order to remove any First Amendment implications. However, Johnson says he’s not sure how the commission could have shown that Jenevein used the prestige of his office to advance personal interests without referring to what Jenevein said.

Tom Kelley, spokesman for the Texas Office of the Attorney General, says there has been no decision whether to seek a rehearing or petition the U.S. Supreme Court to hear the case.

Upon remand the 5t. Cirt Ruled:

                   COURT COSTS AND ATTORNEY FEES TO PREVAILING PARTY

ROBERT JENEVEIN v. SEANA WILLING ALLEN III ELIZABETH COATES JOSEPH MORRIS KATHLEEN OLIVARES MONICA GONZALEZ JAMES HALL RONALD KRIST FAYE BARKSDALE HONORABLE REX BAKER III HONORABLE MICHAEL FIELDS BUCK PREWITT

ROBERT JENEVEIN, Plaintiff-Appellant, v. SEANA WILLING, Acting Executive Director of the Texas State Commission on Judicial Conduct;  R.C. ALLEN, III, Member of the Texas State Commission on Judicial Conduct;  ELIZABETH COATES, Member of the Texas State Commission on Judicial Conduct;  JOSEPH B. MORRIS, Member of the Texas State Commission on Judicial Conduct;  KATHLEEN H. OLIVARES, Member of the Texas State Commission on Judicial Conduct;  MONICA GONZALEZ, Member of the Texas State Commission on Judicial Conduct;  JAMES A. HALL, Member of the Texas State Commission on Judicial Conduct;  RONALD D. KRIST, Member of the Texas State Commission on Judicial Conduct;  FAYE BARKSDALE, Member of the Texas State Commission on Judicial Conduct;  HONORABLE REX G. BAKER, III;  HONORABLE MICHAEL FIELDS;  W.A. “BUCK” PREWITT, Commissioner of the State Commission on Judicial Conduct, Defendants-Appellees.

No. 09-50064

– April 30, 2010

Before JONES, Chief Judge, SMITH and ELROD, Circuit Judges.

After being censured by the Texas State Commission on Judicial Conduct, Robert Jenevein, a state judge, sued the members of the commission to have the censure expunged from his record.   The district court dismissed the suit, but we reversed and remanded in part, granting Jenevein partial expungement.   Jenevein appeals the denial of his motion for attorney’s fees as a “prevailing party” under 42 U.S.C. § 1988(b).  Because he is not a “prevailing party,” we affirm.

I.

The story behind the commission’s decision to censure Jenevein is described in detail in Jenevein v. Willing (“Jenevein I ”), 493 F.3d 551, 552-57 (5th Cir.2007).   In summary, Jenevein held a press conference in his courtroom, wearing his judicial robe, to respond to allegations about his wife contained in a petition pending in the Dallas County Court-at-Law, where he served.   He claimed that the allegations were baseless and that he considered them to be an abusive litigation tactic, designed to force his recusal from the case.   He explained that he had issued an emergency order at an earlier stage of the litigation and that, based on that order, the plaintiff’s lawyer likely believed Jenevein would rule against his client.   Later, Jenevein sent a follow-up email about the case and the press conference to seventy-six people.

On the basis of his press conference and email, the commission censured Jenevein for violating the Texas Code of Judicial Conduct and the Texas Constitution.   Jenevein attempted, unsuccessfully, to appeal the censure in state court.   He then sued the members of the commission, in their official capacities, in federal court under 42 U.S.C. § 1983, claiming the commission had violated the First Amendment, because his press conference and email comments were protected speech for which he could not be disciplined.   He sought to have the censure expunged.1  The district court denied all relief.

We reversed in part, holding that the First Amendment required that the censure be expunged “to the extent it reached beyond Judge Jenevein’s use of the courtroom and his robe to send his message.”  Jenevein I, 493 F.3d at 562.   We held that “the censure order survive[d] strict scrutiny to the extent that it [was] directed at Judge Jenevein’s use of the trappings of judicial office to boost his message, his decision to hold a press conference in his courtroom, and particularly stepping out from behind the bench, while wearing his judicial robe, to address the cameras,” because “[t]he state has a compelling interest in preserving the integrity of the courtroom, and judicial use of the robe.”  Id. at 560.   We ordered that the censure be expunged, however, “[t]o the extent that the commission censured Judge Jenevein for the content of his speech, shutting down all communication between the Judge and his constituents.”  Id. On remand, the district court denied attorney’s fees on the ground that the censure was a judicial act, by judicial officers, that § 1988(b) specifically exempts from serving as the basis for attorney’s fees.2  Jenevein appeals.

II.

Section 1988(b) gives federal courts discretion to “allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs” of litigating under § 1983.   The district court passed over, without discussion, the threshold question of whether our partial reversal in Jenevein I made Jenevein a prevailing party for purposes of § 1988.   We review that question of law de novo.  Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471, 482 (5th Cir.2006).

“To qualify as a prevailing party, the plaintiff must (1) obtain actual relief, such as an enforceable judgment or consent decree;  (2) that materially alters the legal relationship between the parties;  and (3) modifies the defendant’s behavior in a way that directly benefits the plaintiff at the time of the judgment or settlement.”  Walker v. City of Mesquite, Tex., 313 F.3d 246, 249 (5th Cir.2002) (citing Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)).   To “prevail” under § 1988, a party need not procure a favorable judgment or settlement on every claim.  Fernandes v. Limmer, 663 F.2d 619, 637 (Former 5th Cir. Dec. 1981).   Nevertheless, “a technical victory may be so insignificant as to be insufficient to support prevailing party status.”   Tex. State Teachers Ass’n v. Garland Indep.   Sch. Dist., 489 U.S. 782, 792 (1989).  “Where the plaintiff’s success on a legal claim can be characterized as purely technical or de minimis,” he is not a prevailing party.  Id.

Jenevein obtained relief by way of Jenevein I, and we ordered the district court to expunge part of the censure.   That relief, however, along with its effect on the legal relationship between Jenevein and the commission, and the benefit it conferred on Jenevein, were de minimis.   On remand, the district court left almost all of the original censure order untouched.   Only two recurring sentence fragments, referring to the specific content of Jenevein’s press conference and email, were stricken from the censure.3  All six violations of the Code of Judicial Conduct and Texas Constitution found by the commission remain on Jenevein’s record.

In Roark & Hardee LP v. City of Austin, 522 F.3d 533 (5th Cir.2008), bar owners asked the court, on First Amendment and due process grounds, to strike down and enjoin enforcement of a city ordinance that prohibited smoking in enclosed public places.   The district court complied but denied fees under § 1988.   Reversing in part, we upheld the ordinance’s constitutionality under the First Amendment, though we left in place the district court’s finding that it violated due process to the extent it allowed the city to revoke permits and licenses without providing expeditious judicial review.   We also considered the plaintiff’s cross-appeal asserting that the district court had abused its discretion by denying attorney’s fees.  “Considering the numerous other claims Plaintiffs lost and the fact that the City [could] still enforce the license revocation provision, as long as it provide[d] expeditious judicial review,” we held that the bar owners’ success was “at most, de minimis.”  Id. at 556.

Jenevein’s position is similar to that of the bar owners.   Though he received partial vindication in Jenevein I, the commission’s censure remains in effect.   Its impact on his record, like the ordinance’s impact on the bar owners’ businesses, was not diminished.   Accordingly, any relief Jenevein can claim was de minimis, so he is not a prevailing party under § 1988.

Jenevein argues that he is a prevailing party like the plaintiffs in Walker and Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.1980).   In Walker, homeowners challenged a remedial order requiring the construction of public housing projects in “predominantly white” neighborhoods.  Walker, 313 F.3d at 248.   After an appeal on the merits, we found the remedial order unconstitutional and remanded for the revision and stay-but not total dismissal-of the order.  Id. The homeowners then requested attorney’s fees, which the district court denied, in part because it found the homeowners were not prevailing parties.  Id. at 249.   A second appeal followed, and we reversed.   Crucially, we held that “the Homeowners achieved exactly the outcome they desired” in the litigation and thus were prevailing parties.  Id. at 250.

Unlike the homeowners in Walker, Jenevein did not receive exactly the outcome he sought.   All the violations found by the censure remain on his record.

In Familias Unidas, a group of Mexican-American students and adults challenged the constitutionality of a state law that gave county judges the power to exact public disclosure of the membership of organizations considered to be interfering with the peaceful operation of public schools.  Familias Unidas, 619 F.2d at 394.   The plaintiffs won declaratory relief, and the statute was struck down, but they did not receive actual damages.   We held that the plaintiffs could recover attorney’s fees under § 1988-except for those costs related to their pursuit of actual damages-because they prevailed with respect to the central issue of the case, the constitutionality of the statute.4  Id. at 405.

Jenevein has not achieved anything close to what the Familias Unidas plaintiffs accomplished.   Those plaintiffs won the lasting benefit of having a law struck down, never again to be enforced against them.   Jenevein had a few clauses removed from a censure, which otherwise remains in full effect.

In sum, the relief Jenevein received from the partial expungement of the commission’s censure was de minimis.   Therefore, he is not a prevailing party under § 1988 and may not recover attorney’s fees.   Because he is not a prevailing party, we need not address the holding that the commission’s censure constituted a judicial act performed by judicial officers.5

AFFIRMED.

FOOTNOTES

1. FN1. Jenevein also alleged that his Fourteenth Amendment right to due process had been violated, and he sought attorney’s fees for defending himself during the censure proceeding.   The district court dismissed both claims, and Jenevein did not raise them on appeal.

2. FN2. Section 1988(b) provides:In any action or proceeding to enforce a provision of section [ ] ․ 1983 ․ of [title 42] ․ the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.(Emphasis added.)

3. FN3. For example, in the three paragraphs addressing violations stemming from the press conference, the court struck the following language from the censure:Judge Jenevein’s actions on July 28, 2000, during the court’s normal business hours, in holding a press conference in his courtroom, while wearing his judicial robe, in order to read a prepared statement concerning the Yahoo Case and his personal feelings and criticisms about the conduct of Freidman and his clients in connection with that still-pending Case, was a willful violation of the Code of Judicial Conduct and violated Article 5, Section 1-a(6)A of the Texas Constitution.In the three paragraphs addressing Jenevein’s email, the court struck the following language:Judge Jenevein’s actions on August 8, 2000, during the court’s normal business hours, in using the county computer system to send the unsolicited communication to approximately seventy-six (76) family members, friends, lawyers, and judges, in order to further discuss the Yahoo Case, Friedman, and the July 28th press conference, was willful conduct that is clearly inconsistent with the proper performance of his duties and violated Article 5, Section 1-a(6)A of the Texas Constitution.

4. FN4. In Texas State Teachers Association, 489 U.S. at 789, the Court clarified that, to be considered a prevailing party, one need not necessarily prevail in the “central issue” of the litigation, so long as he “succeed[s] on any significant issue in the litigation which achieves some of the benefit the parties sought in bringing the suit.”  (Citation omitted.)   In Farrar, 506 U.S. at 111-12, the Court explained further that a plaintiff “prevails” whenever “actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”   Neither of those decisions conflicts with Familias Unidas or with our decision today.   In Familias Unidas, the plaintiffs obtained relief on a significant issue-indeed, the most significant issue-that materially altered the relationship between the parties in a way that directed benefited them.   Jenevein did not achieve that level of success;  his relief, as we have explained, was de minimis.

5. FN5. Although the district court based its dismissal on the “judicial act” ground, and we affirm on the ground that Jenevein is not a prevailing party, “[w]e may affirm on any grounds supported by the record.”  Wells v. SmithKline Beecham Corp., No. 09-50244, 2010 U.S.App. LEXIS 5894, at *6 (5th Cir. Mar. 22, 2010) (citing Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir.2007)).   The parties contested the prevailing-party status in the district court, and we requested and received supplemental letter briefs on that issue.

JERRY E. SMITH, Circuit Judge:

U.S. Supreme Court Conservatives Weaken Fourth Amendment and Fail to Stand Up to Unwarranted Police Power

Friday, May 27th, 2011

U.S. Supreme Court Conservatives Weaken Fourth Amendment and Fail to Stand Up to Unwarranted Police Power

What’s wrong with the police kicking in the door of an apartment after they smell marijuana drifting from it, if they knock hard, announce who they are and then hear what sounds like evidence being destroyed?

Some lower courts have said the answer is pretty much everything, because the police themselves created the pretext for barging in. But the Supreme Court ruled last week that such a warrantless search does not necessarily violate the Fourth Amendment, according to a vague new standard for determining whether the police violated the protection against unreasonable search, or threatened to do so.

They sent the case back to the Kentucky Supreme Court, which is going to have a hard time understanding the new standard — and in any case never resolved whether any evidence was, in fact, destroyed.

Ruth Bader Ginsburg, the lone dissenter in this strange decision, wisely warned that the new rule gave the police “a way routinely to dishonor” the constitutional requirement that they obtain a warrant, by manufacturing an exception to it. There are already exceptions for “exigent circumstances,” emergencies like an imminent risk of death or a danger evidence will be destroyed. But the urgency usually exists when the police arrive at the scene. In this case, the police caused the exigent circumstances themselves.

The new rule undermines the rule of law by shifting the power to approve a forced entry from a magistrate to the police. It empowers the police to decide whether circumstances allow them to kick in the door.

The majority opinion by Justice Samuel Alito Jr. says that the “exigent circumstances” rule applies even though the police triggered the danger that evidence would be destroyed. Apartment-dwellers with nothing to hide, the justice said, are at fault if they don’t take advantage of their right to refuse entry when the police knock. (As if this would be realistic even in Justice Alito’s neighborhood.)

Justice Ginsburg asks, “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”

Her dissent is a reminder of the enduring value of privacy, as well as of her value to American law. It is unsettling that she is the only justice to insist that the law hold the line on its definition of exigent circumstances so that our “officers are under the law,” as Justice Robert Jackson once put it. But it is reassuring to have her stand up for the Fourth Amendment and to police power that is literally and constitutionally unwarranted.

KY. SUPREME COURT RULING MAKES SIGNIFICANT CHANGE IN PATERNITY LAW – overrules 2008 Louisville case

Wednesday, May 25th, 2011

The Kentucky Supreme Court in J.A.S. vs. C.H.E.  on May 19, 2011 overruled prior rulings which denied paternity consideration for the real father of a child if the mother was married.

 This issue was last reviewed by the Ky. Supreme Court in 2008 in in J.N.R. v. O’Reilly, 264 S .W.3d 587 (Ky. 2008.   In that case the court denied consideration of the alleged real father of a child to be considered since the mother was married at the time of conception of the alleged illegitimate child.

 The decision in J.A.S. vs.  C.H.E. in the Kenton Circuit Court discussed the Kentucky Paternity statutes and finds that only a presumption of paternity is created by statute but that such presumption may be overcome by adequate proof, and the alleged natural father can pursue paternity rights.

 This case makes a significant change in Kentucky paternity law.

 SUPREME COURT OF KENTUCKY

J .A.S . APPELLANT

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 2009-CA-001378-OA

KENTON CIRCUIT COURT NO. 08-CI-03307

HON. LISA O . BUSHELMAN, JUDGE, APPELLEE

KENTON CIRCUIT COURT

AND

2010-SC-000045-MR

RENDERED : MAY 19, 2011  TO BE PUBLISHED

V.

C .H .E . REAL PARTY IN INTEREST

OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING

It is to be regretted that questions like these should ever arise in

the courts of this commonwealth . Kentucky’s matrons are famed

for their high sense of virtue and exemplary conduct; and it is to be

regretted that the conduct of Mrs. Minnie R . Froman was so radical

a departure from this fair fame as to impel us to declare her son,

Soloman White Froman, illegitimate .

Thus spoke Kentucky’s highest court in 1889, in the case of Goss v. Froman,

89 Ky. 318, 12 S .W . 387, 388 (1889), declaring that a child conceived by

Minnie R . Froman during her marriage was illegitimate because it was not the

child of her husband .

Upon those grounds, she moved to dismiss the paternity action, relying exclusively upon the lead opinion in J.N.R. v. O’Reilly, 264 S .W.3d 587 (Ky. 2008), which, under facts substantially similar to those before us now, posited the view that KRS Chapter 406 deprived Kentucky courts of subject matter jurisdiction to adjudicate a paternity issue involving a married woman whose child was conceived and born amid no cessation of her marital relationship . 1

J.N.R. resulted in separate opinions by five of the seven justices on this

Court. We refer to the opinion of Justice Minton (now Chief Justice Minton) as

the “lead” opinion simply because it is first in line of the five opinions . While a

majority of four justices concurred in the result reached by the lead opinion,

they arrived at that result by at least two very different routes of legal analysis.

None of the J.N.R. opinions garnered the support of more than two justices .

Specifically, only one justice (Lambert) concurred with the rationale expressed

in Justice Minton’s lead opinion . Ware v. Commonwealth, 47 S .W .3d 333, 335

(Ky. 2001) (quoting 20 Am. Jur. 2d Courts § 159 (1995)), reminds us that “[a]

minority opinion has no binding precedential value . . . [and] if a majority of the

court agreed on a decision in the case, but less than a majority could agree on

the reasoning for that decision, the decision has no stare decisis effect.

While the persuasive influence of any of the J.N.R. opinions remains worthy of consideration, none should be cited as a holding of this Court. To the extent that J.N.R. is perceived or deemed to have binding precedential authority, it is overruled.

we conclude that the trial court had subject matter jurisdiction over this matter pursuant to KRS 406 .051 and KRS 406 .180 because the action is brought under KRS. Chapter 406 to determine paternity of a child whose biological parents are allegedly not married to each other, and that C.H .E . has standing to assert his claim because he is a putative father authorized under KRS 406 .021 to file a complaint to have paternity

determined .

We do not agree that KRS 406 .011 is the jurisdictional turnstile that limits access to court for paternity claims, or that it establishes the definition of “child born out of

wedlock .” The statute does exactly what its heading portends : it abrogates the

common law rule that a man has no legal obligation to support his illegitimate

child and it codifies the traditional presumption of paternity.

KRS 406.011 does not bar the right of an eligible party to have paternity legally determined.

(THE KENTUCKY PATERNITY STATUTE) … does not bar the claim

that a man other than her husband may actually be the father. It simply

provides that one challenging the legitimacy of a child born to a married

mother within ten months after the cessation of her “marital relationship”

cannot prevail without proof sufficient to overcome the presumption of

paternity.

KRS 406.011 does not bar the right of an eligible party to have paternity legally determined.

Appellant’s interpretation of the statute as a jurisdictional barrier would

significantly alter the historic presumption of paternity by making it

irrebuttable . Under that view, whenever the presumption arose its effect would

be conclusive . It would not be a “presumption of paternity” ; it would be a

“conclusion of paternity.”

We close the discussion of this point by noting again that an opinion of

this Court based upon Appellant’s construction of KRS 406 .011 would render

irrebuttable the traditional presumption of paternity and would excuse a man

from his paternal obligation simply because his lover remained married to her

husband . It is incompatible with the express statement of KRS 406 .011 that

the father of the child is obligated to support it, and it represents such a

radical departure from traditional Kentucky jurisprudence established in

numerous decisions prior to J.N.R. that we respectfully decline the opportunity

to adopt it.

The presumption begins with the simple proposition that a child .born to

a married woman is legitimate ; that is, it presumes that the husband is the

father. It is long established and well settled that the presumption of paternity

is rebuttable .

“The rule is that where there is opportunity for access [sexual intercourse

of the wife with the husband] it will be presumed that a child born in wedlock

is legitimate, and the presumption is so great it cannot be overcome except by

evidence of the strongest character, and so convincing as to remove the question

of a reasonable doubt.” Ratliff v. Ratliff, 298 Ky. 715, 183 S .W.2d 949, 952

(1944) (emphasis added) .

in Bartlett, 705 S .W.2d at 472-473, we recognized that HLA blood testing, 14 along with other attendant circumstances, could supply the evidence “necessary to overcome

the presumption of legitimacy and the requirement of proof beyond a

reasonable doubt,” noting further that “[w]hen the advances of science serve to

assist in the discovery of the truth, the law must accommodate them .”

Scientific advances made since Bartlett enable even more accurate testing of

genetic markers through DNA analysis.

OPINION BY JUSTICE VENTERS, Abramson, Noble and Schroder, JJ., concur. Minton, C .J ., dissents by separate opinion . Cunningham, J ., dissents by separate opinion in which Scott, J ., joins .

You can obtain accident reports online

Tuesday, May 24th, 2011

If you need to obtain a traffic accident report, call your local police agency or the KSP and get the “local code or the officer’s badge number”. Get the KSP post number when you call them.

Go to www.kyonlinereports.com.

Enter the name of the driver, the date of the accident, the local code or the officer’s badge number, and then you can purchase a copy of the accident report for $10 online.

It will take about ten minutes after you submit your purchase for the report to be e-mailed to you.

We tried it and it worked fine.

How to Obtain a Traffic Accident Report:
Kentucky State Police collision reports can be purchased electronically at www.kyonlinereports.com.
To obtain a copy of a traffic collision report a person needs to contact the Investigating Agency. Each agency has a different dissemination procedure.
The Kentucky State Police procedure for requesting a copy of a collision report is as follows:
An authorized person may obtain a copy of a collision report, in person or by written mailed request, from the Kentucky State Police Post that worked the collision. Written requests made to the Kentucky State Police must include a self addressed/stamped envelope.
The cost of a copy of a paper collision report is $5.00 per report. Payments submitted to the Kentucky State Police must be by check or money order made payable to the Kentucky State Treasurer. Payment for a requested collision report must be received by the Kentucky State Police before a copy of the report will be disseminated.
Persons authorized to receive copies of a Collision Report per KRS. 189.635 include:
1. Parties to the accident;
2. Parents or guardians of a minor who is a party to the accident;
3. Insurers or their written designee for insurance business purposes of any party who is the subject of the report;
4. Attorneys of the parties
5. Media / For More Information Contact:
Lt. David Jude
Media Relations Branch
(502) 782-1780
6.
7. Online Vehicle Crash Reports Provide Convenience
8. Date of News Release: 02/11/2010
9. (Frankfort, Ky.) — As a convenience to motorists, Kentucky Uniform Police Traffic Collision Reports for vehicle crashes throughout the state are available for purchase online. The cost is $10 per report and requests can be made through the Kentucky State Police web site at www.kentuckystatepolice.org or by visiting www.kyonlinereports.com.
10. The reports are available on the sites within seven to 10 working days from the date of the collision.
11. To download the report, motorists need to enter their last name, the date of the collision, the local code or the investigating officer’s badge number and the name of the investigating agency, which is available on a scroll down menu.
12. Payment can be made by VISA, MasterCard, American Express, Discovery Card or PayPal.
13. Per KRS 189.635, crash reports are only available to a party of the accident, the parent or guardian of a minor who is party to the accident, insurers of any party who is subject to the report or an attorney of the parties involved.
14.


15. About this site Feedback Privacy Disclaimer Individuals with Disabilities
Text-only Version
Copyright © 2002-2011 Kentucky State Police, all rights reserved
16.


17. Kentucky State Police Headquarters
919 Versailles Road
Frankfort, KY 40601
502-782-1800

At Large Law Firms, A New Position is Created for Associates Who Will Never Become Partners and receive smaller salaries

Tuesday, May 24th, 2011

WHEELING, W.Va. — The nation’s biggest law firms are creating a second tier of workers, stripping pay and prestige from one of the most coveted jobs in the business world.

Make no mistake: These are full-fledged lawyers, not paralegals, and they do the same work traditional legal associates do. But they earn less than half the pay of their counterparts — usually around $60,000 — and they know from the outset they will never make partner.

Some of the lawyers who have taken these new jobs are putting the best face on their reduced status. “To me there’s not much of a difference between what I’m doing now and what I would be doing in a partner-track job,” said Mark Thompson, 29, who accepted a non-partner-track post at Orrick, Herrington & Sutcliffe when he could not find a traditional associate job. “I still feel like I’m doing pretty high-level work — writing briefs, visiting client sites, prepping witnesses for hearings.”

Asked whether he hopes someday to switch onto the partner track, given the higher pay for this same work, he is diplomatic. “I’m leaving all my possibilities open,” he said.

Lawyers like Mr. Thompson are part of a fundamental shift in the 50-year-old business model for big firms.

Besides making less, these associates work fewer hours and travel less than those on the grueling partner track, making these jobs more family-friendly. And this new system probably prevents jobs from going offshore.

But as has been the case in other industries, a two-tier system threatens to breed resentments among workers in both tiers, given disparities in pay and workload expectations. And as these programs expand to more and more firms, they will eliminate many of the lucrative partner-track positions for which law students suffer so much debt.

Mr. Thompson is one of 37 lawyers in Orrick’s new program, which is based in this small Rust Belt city an hour southwest of Pittsburgh. An international firm headquartered in San Francisco, Orrick is one of a handful of law firms, including WilmerHale and McDermott Will & Emery, experimenting with ways to control escalating billing rates.

“For a long time the wind was at the back of these big law firms,” said William D. Henderson, a historian at Indiana University-Bloomington.

“They could grow, expand and raise rates, and clients just went along with absorbing the high overhead and lack of innovation. But eventually clients started to resist, especially when the economy soured.”

For decades, firms used essentially the same model: charging increasingly higher rates for relatively routine work done by junior associates, whose entry-level salaries in major markets have now been bid up to $160,000 (plus bonus, of course), a sum reported by the big law schools. Even under pressure to reduce rates, firms are reluctant to lower starting salaries unilaterally for fear of losing the best talent — and their reputations.

“Everyone acknowledges that $160,000 is too much, but they don’t want to back down because that signals they’re just a midmarket firm,” said Mr. Henderson. “It’s a big game of chicken.”

So now firms are copying some manufacturers — which have similarly inflexible pay because of union contracts — by creating a separate class of lower-paid workers.

At law firms, these positions are generally called “career associates” or “permanent associates.” They pay about $50,000 to $65,000, according to Michael D. Bell, a managing principal at Fronterion, which advises law firms on outsourcing.

Use These Helpful Phrases If Your Flight Gets Canceled

Sunday, May 22nd, 2011

 “Operator, please connect me to customer service.” “The first thing you should do is call the airline, even while you’re waiting in line to be rerouted,” says Brett Snyder of Cranky Concierge, an air-traveler assistance firm. “This way, you’re essentially cutting the line in front of you.” To expedite the rebooking process at the major airlines, keep these numbers in your wallet (click here for a downloadable version):

“Can I get you a sandwich?” If the phone lines are jammed and you do have to speak to someone in person, “don’t forget that ticket agents have been doing this all day, and many haven’t had a break,” says Snyder, who says that offering a sandwich or coffee can help differentiate you from other demanding customers.

“What about Rule 240?” No longer an actual rule, this term refers to the airlines’ “contract of carriage.” Terms vary among airlines, but “most major airlines have to take your ticket and endorse it toward the next available flight, even if it’s a competitor’s,” says Peter Greenberg, author of Tough Times, Great Travel ($10, amazon.com). One caveat: You can’t take advantage of this if you checked bags.

SAVE  THESE  IMPORTANT NUMBERS:More Holidays

Airline Customer Service Numbers
South West Airlines 800-435-9792

American Airlines 800-433-7300

Continental Airlines 800-525-0280

Delta 800-221-1212

JetBlue Airways 800-538-2583

Northwest Airlines 800-225-2525

United Airlines 800-241-6522

US Airways 800-428-4322

SouthWest Airlines Customer service 800-435-9792

CITY POLICE HAVE ARREST POWERS OUTSIDE OF CITY

Saturday, May 21st, 2011

QUESTION: “I am trying to ascertain whether or not a police officer of a 4th class city has the authority to make a speeding/traffic stop outside of city limits.”

LawReader Answer by Senior Editor Stan Billingsley – May 21, 2011

 Sorry, but the legislature has designated police officers of 1st through 5th. class cities as “deputy sheriffs”.

KRS 95.019(1) states that The chief of police and all members of the police force in cities of the first through fifth classes shall possess all of the common law and statutory powers of constables and sheriffs. They may exercise those powers, including the power of arrest for offenses against the state, anywhere in the county in which the city is located, but shall not be required to police any territory outside of the city limits.

Com. v. Bishop, 245 S.W.3d 733 (Ky., 2008)

On March 15, 2004, Detective Patrick Robinson of the Manchester City Police Department arrested Appellees Johnny Bishop and Christopher Sester for drug-related offenses at a residence located outside of the Manchester city limits but within Clay County, Kentucky. After the grand jury returned indictments against

[245 S.W.3d 734]

both men, Bishop filed a motion to dismiss, which Sester joined, arguing that the arrest was unlawful because it was effectuated by a Manchester city policeman and occurred outside of the Manchester city limits. Bishop based his argument on a 1987 Municipal Order that amended certain sections of the Manchester Personnel System, the pertinent amendment being that all Manchester city police were to remain within the city limits unless an emergency arose. Despite KRS 95.019, which gives city police county-wide arrest powers, the trial court agreed with Bishop, and on October 13, 2004, entered an order dismissing Bishop’s indictment because it was based on an unlawful arrest. The Court of Appeals affirmed and, upon the Commonwealth’s motion, this Court granted discretionary review. After reviewing the applicable law, we find that the 1987 Municipal Order, while valid, does not affect Manchester city police officers’ statutorily authorized county-wide arrest powers. Therefore, we reverse the Court of Appeals decision, reinstate the indictments against Bishop and Sester, and remand this case for further proceedings not inconsistent with this opinion.

Bishop argued that due to a municipal order enacted by the City of Manchester on April 20, 1987, Detective Robinson had no jurisdiction to arrest him outside of the Manchester city limits and thus, his arrest was unlawful. The 1987 Municipal Order on which Bishop relies was enacted to amend certain portions of Part 1, the Policies and Procedures section, of the Manchester Personnel System, which the city adopted on July 18, 1983. Bishop focused on Section 8.1(2) of the Personnel System’s Policies and Procedures, which the 1987 Municipal Order amended to include the provision that “[n]o city policeman or police car is to leave the Manchester City limits while on duty, unless an emergency arises.” Even though Bishop acknowledged that KRS 95.019 gives city police officers in fourth-class cities the same county-wide arrest powers as sheriffs, he argued that the City of Manchester nonetheless properly restricted that arrest power to its own geographical limits by enacting the 1987 Municipal Order. Thus, Bishop contended, his arrest by a Manchester city police officer outside of the city limits was invalid.

Neither party in this case disputes that KRS 95.019 and Kentucky case law give city police officers in fourth-class cities county-wide arrest powers. KRS 95.019(1) states that

The chief of police and all members of the police force in cities of the first through fifth classes shall possess all of the common law and statutory powers of constables and sheriffs. They may exercise those powers, including the power of arrest for offenses against the state, anywhere in the county in which the city is located, but shall not be required to police any territory outside of the city limits.

In Commonwealth v. Monson, 860 S.W.2d 272, 273 (Ky.1993), this Court interpreted KRS 95.740(1), which was repealed in 1994 and replaced with KRS 95.019, as clearly giving police officers of fourth-class cities the same county-wide arrest powers as sheriffs. Thus, with this matter not in contention, the main issue in this case is the validity of Manchester’s 1987 Municipal Order and its effect, if any, on the arrest powers conferred on city police officers in KRS 95.019.

A COURT OF APPEALS JUDGE HAS ISSUED A TEMPORARY RESTRAINING ORDER AGAINST A RULING BY GRANT CIRCUIT JUDGE STEPHAN BATES.

Saturday, May 21st, 2011

 Defense attorney Tasha Scott of Florence, Ky. sought injunctive relief from the Court of Appeals due to a contempt ruling by Judge Bates who ,”without notice to the Petitioner or his counsel and without allowing a hearing on the matter, found the Petitioner to be in indirect criminal contempt and ordered that the Petitioner be held in the custody of the Grant County Sheriff.”

 Tasha Scott stated in her brief, “.  This contempt finding was made outside of the personal  presence of the Court and without sufficient evidence being presented in order to make said ruling.  The Court has not made any written findings in this matter nor entered a written order.”

It is reported that several items of equipment were repossessed by a creditor, and that Judge Bates considered this a sale by the defendant Michael A. Stamper.

The temporary order from the Court of Appeals ordered that Stamper be immediately released from custody.  The full Court of Appeals will now consider the ex parte order.

It appears from the brief by Tasha Scott that a litigant who violates some court order out of the presence of the court is entitled to a due process hearing which includes the opportunity to introduce proof and to have advance notice of the issues in the hearing.

Tasha Scott’s brief was issued within hours of Judge Bates order.

The Tasha Scott Brief to the Ct. of Appeals- May 20, 2011:

                                                               *************

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

CASE NO. __________________

MICHAEL A. STAMPER                                                                             PETITIONER

v.

STEPHEN L. BATES, CIRCUIT COURT JUDGE

GRANT CIRCUIT COURT                                                             

and

MIA R. STAMPER, REAL PARTY IN INTEREST                                               RESPONDENTS

PETITION FOR WRIT OF PROHIBITION AND/OR MANDAMUS

 

Comes now Michael A. Stamper, by and through counsel, and states that Respondent Judge erroneously, without notice to the Petitioner or his counsel and without allowing a hearing on the matter, found the Petitioner to be in indirect criminal contempt and ordered that the Petitioner be held in the custody of the Grant County Sheriff, who has lodged him in the Grant County Detention CenterPetitioner petitions the Court of Appeals for a Writ in the nature of prohibition voiding the contempt Order issued by the Hon. Stephen L. Bates, Circuit Court Judge, Grant Circuit Court, and to release the Petitioner from the confines of the Grant County Detention Center and to set bail in accordance with the statutes of this Commonwealth until such time as a hearing can be held on this matter.  Without the intervention of the this Court, the Petitioner will be irreparably harmed by the actions of the Circuit Court.  This Petition is brought under Civil Rule 81, as well as in accordance with the Kentucky Revised Statutes.  INTRODUCTION

 

            Petitioner states the following grounds in support of his Petition:

            1.         The case in which this issue arises is styled Mia R. Stamper v. Michael A. Stamper, Grant Circuit Court Case No. 07-CI-00050.  

            2.         The trial judge is Hon. Stephen L. Bates, c/o Grant County Courthouse, 224 S.  Main Street, Williamstown, KY 41097, phone:  859-824-7516, fax: 859-824-6494, e-mail: unknown.

            3.         Mia Stamper is represented by Joanne Grogan, 9824 Prechtel Road, Cincinnati, OH  45252, phone: 513-385-7025, fax: 513-385-7025, e-mail: jgrog@fuse.net.

            4.         Michael Stamper is represented by Tasha K. Scott, 6900 Houston Road, Bldg. 700, Suite 34, Florence, KY 41042, phone: 859-491-1011, fax: 859-491-1899, e-mail: tasha@tashascott.com, and Amy H. Anderson, 27 East Fourth Street, Covington, Kentucky 41011, phone: 859-957-0154, fax: 859-491-1343, e-mail: anderson-amy@hotmail.com.

 

FAIR AND ACCURATE SUMMARY OF EVIDENCE

NECESSARY FOR THIS PETITION

 

            1.         Petitioner is the spouse of Mia Stamper.  Their dissolution of marriage proceeding was filed on January 29, 2007 and, after numerous delays, was scheduled for trial on May 18, 2011, with Judge Stephen L. Bates presiding.    

            2.         On the second day of trial, the Petitioner presented a witness in his case-in-chief who was a disinterested third party bank vice-president who testified to a repossession of certain equipment held by the Petitioner post-separation.  The testimony revealed that the equipment was ultimately sold by the Bank to Petitioner’s father.

            3.         At the beginning of the third day of trial, without notice to the Petitioner or to his counsel, Judge Bates ordered that the Petitioner was in contempt for allegedly disposing, destroying or otherwise selling marital assets by the sale of property to a third party, in violation of a previous order prohibiting that action.  This contempt finding was made outside of the personal presence of the Court and without sufficient evidence being presented in order to make said ruling.  The Court has not made any written findings in this matter nor entered a written order.

            4.         Judge Bates ordered the Petitioner to be held in the custody of the Grant County Sheriff and he was placed in the Grant County Detention Center.  The Judge denied Petitioner’s motion to set bail.  Petitioner is being held without bond in the Grant County Detention Center.  Petitioner has not been sentenced, but is merely being held without bond or release date.

            5.         Upon objection by counsel for the Petitioner, Judge Bates stated that after court had adjourned, he pondered the matter and decided that the witness’ testimony proved to him that Petitioner had violated the said prior order prohibiting the sale, transfer or conveyance of the marital assets.  He further stated, in response to counsel’s objection, that “[f]rom his [bank vice-president's] testimony, and as I pondered this, regardless of what the Respondent might testify or what his father might testify, which would be the only other parties that might be involved, that would not in any way be adequate to contradict the clear testimony of this gentleman as to how this went down..”  It is important to note that Petitioner’s father, a non-resident of this state, has been made a “de facto party” to this case, a term which has yet to be defined.  Further, Petitioner’s father’s counsel has not actively participated in this matter on the father’s behalf.  Petitioner’s father is represented by Hon. Daniel Guidugli, a retired Court of Appeals Judge.

            A transcription of the morning proceedings is as follows:

5-20-11 at 8:31:49 am

Judge:             Before we start today, I am advising Mr. Stamper I find him in contempt of Court for violation of this Court’s Order of April the 2nd of 2007. It says he will not dispose, destroy or otherwise sell any assets. Based on the testimony from Whitaker Bank yesterday, although he [Stamper] has not testified, not his father, anything they say will be self-serving. The evidence is clear from that testimony that you are in contempt of Court. You are in custody of the Sheriff at this time and you may not leave this building. I will decide on your ultimate penalty at the end of today’s proceedings. If you leave the courthouse in any way, without my authority, you will be charged with escape the next time the grand jury meets  which is a Class D felony. Are you aware of that sir?… Thank you. Your next witness, please.

Scott:              Your Honor, on behalf of my client, on that finding of the Court, I would object on his behalf. And on the grounds that I believe he is entitled to, under case law for contempt that occurs outside of the presence of the Court, that he would be entitled to Due Process at a minimum, notice and a right to be heard.

Judge:             I think he has been heard. I’ve ruled as I have, I’ll consider that later, if I choose to do so, thank you. Your next witness, please.

            6.         Petitioner was not put on notice that there would be a contempt hearing independent of the underlying proceeding, nor was he told that the bank vice-president’s testimony would be considered in a contempt action.  Rather, the bank vice-president testified only as a witness in the underlying matter, the dissolution of marriage, relative to the repossession of business assets.  Further, Petitioner was not given an opportunity to be heard on the issue, and was not permitted to address the contempt issue by recalling the bank president as a witness to clear up any misconceptions by the Judge.

            7.         The Judge acted summarily in violation of Petitioner’s Constitutional right of due process in that he has not been provided notice of the alleged finding of contempt and he has not had the opportunity to be heard and present evidence in a Court of law in his defense. 

            8. A transcript of the applicable portion of the Court’s afternoon proceedings is as follows:

5-20-11 at 1:40:11

Judge:             Any other issues you would like to address today, then?

Scott:              Judge, I think we have a couple things we need to put on the record.

 

Judge:             Please.

 

Scott:              I think we had talked in Chambers, you had expressed you, um, I’m searching for the word here, I don’t know if disgust is too strong…

 

Anderson:      Belief…

 

Scott:              Belief that there had been some subterfuge between, um, I guess Mr. Stamper  and either his father or Mr. Arnold, I’m not quite certain what you were referring and I do not want to put words in your mouth and I think based upon that testimony of Mr. Arnold you have chosen to find Mr. Stamper in contempt of this Court’s prior Orders not to sell assets, am I correct?

 

Judge:             Not to sell, transfer or convey.

 

Scott:              OK.  I have objected to your finding of contempt. I understand that it is criminal contempt, because of the type of contempt, whether it is civil or criminal, I believe, is determined by the type of punishment the Court assesses. And because it is a punishment to punish, not to actually accomplish any other goal, that he would be… I guess then you look at whether it was direct contempt or indirect contempt. Direct contempt being committed in the presence of the Court, indirect contempt being without the presence of the Court. Since these actions occurred outside the presence of the Court I believe he is entitled to a hearing under Cooke v. United States. I believe he is entitled to a hearing that requires the presentation of evidence and due process and notice. And none of those items have occurred, in our opinion. On the basis of that, I object to the finding of contempt against my client.

I understand, as you had stated in Chambers, your belief that Mr. Stamper is not entitled to a jury trial. I would concede that he is not entitled to a jury trial on that issue, but that instead he would be entitled to a hearing on that issue.

 

Judge:             Anything else you have to say?

 

Scott:              I would ask the Court to set a bond.

Judge:             The motion to set a bond is denied. The type of contempt, I will determine by an Order that I will issue in this regard. But that the finding is based on the testimony of a disinterested witness, the bank, that you called. From his testimony, and as I pondered this, regardless of what the Respondent might testify or what his father might testify, which would be the only other parties that might be involved, that would not in any way be adequate to contradict the clear testimony of this gentleman as to how this went down. And I’m gonna say this further, and it should be said that the discussions in Chamber were about dates being moved and those type things and in my accommodation for counsel for Respondent to not come out here at four o’clock and tell him he was not going home. As a courtesy, to try to tell you that.

 

Scott:              I appreciate that.

 

Judge:             That was the reason it came up. But the other part of this is this. This has been kicked around in my Court for about 6 months, and the representations has always been there are not trucks.

ARGUMENT IN SUPPORT OF POINTS AND AUTHORITIES

            “Civil contempt” is defined as when someone fails to follow a court order to do something, with that something usually being for the benefit of a party litigant.  A judge may incarcerate someone for civil contempt in order to motivate the person to obey the court order, but the contemptuous one is entitled to be released upon compliance with the court’s order.  In contrast, “criminal contempt” is when a person disobeys a court order out of disrespect for the rules or orders of court.  The primary purpose of criminal contempt is to punish the contemptuous conduct.

            “Indirect criminal contempt” is committed outside the presence of the court and requires a hearing and the presentation of evidence to establish a violation of the court’s order;  it may be punished only in proceedings that satisfy due process.  U.S.C.A. Const.Amend. 14.    

            The facts upon which Judge Bates relied was committed outside the presence of the court, as it involves actions in the repossession and sale of marital assets which occurred in 2009, after the separation of the parties.

            In the recent case of Gormley v. Judicial Conduct Commission, Ky., 332 S.W.3d 717 (2010), the Supreme Court held that a proceeding that satisfies due process is required before a judge can hold a party in indirect criminal contempt in a case.  Specifically, it states that “while a court has the power to hold a person in contempt of court for actions that occur outside the sensory perception of the judge, the court may not exercise that power without holding a hearing that provides the person with advance notice of the contempt proceeding and with a full opportunity to be heard that is conducted in full accord with a person’s rights to due process of law.”  That case, factually similar to the within action, involved actions that occurred in the courthouse hallway, about which the Judge held an impromptu criminal contempt of court hearing.  Unlike that case, and even more egregious because of it, Petitioner in this case was not even told that contempt was being considered for his actions.  The Gormley court held that this amounted to bad faith on the part of the judge.

                                                                        Respectfully submitted,

                                                                                                                                               

                                                                        Tasha K. Scott, KBA #89114

                                                                        6900 Houston Road

                                                                        Bldg. 700, Suite 34

                                                                        Florence, KY  41042

                                                                        859-491-1011

                                                                        859-491-1899 (fax)


 

CERTIFICATE OF SERVICE

 

            I hereby certify that a true and correct copy of the foregoing Petition for Writ of Prohibition was served via regular U.S. Mail, postage prepaid, on the _____ day of May, 2011, on the following:

Kentucky Court of Appeals

Sam Givens, Clerk

360 Democratic Drive

Frankfort, KY  40601

Hon. Stephen L. Bates

Circuit Court Judge

224 S. Main Street

Williamstown, KY  41097

Via fax 859-824-6494

Joanne F. Grogan, Esq.

9854 Prechtel Road

Cincinnati, Ohio  45252

Via fax 513-385-7025

                                                                                                                                                                                                                                    Tasha K. Scott

FEDERAL COURT IN DENVER TO RULE ON RIGHT TO LIE AS FIRST AMENDMENT RIGHT

Saturday, May 21st, 2011

In 2009, a Colorado man named Rick Duncan was a rising star among local veterans groups, advocating on behalf of struggling soldiers and holding forth about his own powerful experiences returning from Iraq as a wounded Marine.

The problem was none of it was true, not even his name.

Mr. Duncan was actually Richard G. Strandlof, a troubled drifter who had never served in the military. Instead, he used his bogus story to work his way into the company of prominent politicians and admiring veterans.

Mr. Strandlof was eventually arrested by the F.B.I. and charged with violating the Stolen Valor Act, a 2006 law that makes it a federal crime to lie about being a military hero.

But though he admitted conjuring the entire tale, Mr. Strandlof has been fighting the case against him, arguing that the law violates his right to free speech. Simply telling a lie, his lawyers assert, does not always constitute a crime.

Now, a federal appeals court in Denver is weighing whether the act is indeed unconstitutional. Last July, a judge dismissed the case against Mr. Strandlof on First Amendment grounds, but prosecutors appealed.

Mr. Strandlof’s case is the latest legal challenge to the Stolen Valor Act. The appellate court’s ruling in Colorado — expected in the next few months — is being eagerly awaited by legal experts and veterans groups, as it will most likely determine whether the United States Supreme Court takes up the matter.

Since Congress passed the Stolen Valor Act, the Justice Department has prosecuted more than 60 people for violating it — penalties can range from up to a year in prison to fines and community service. Mr. Sterner says thousands of cases are reported each year.

But the recent challenges have left the law’s future uncertain.

Last year, the United States Court of Appeals for the Ninth Circuit ruled the law unconstitutional in the case of Xavier Alvarez, a former board member for a municipal water district near Los Angeles. Mr. Alvarez had bragged about being wounded in combat and claimed he had received the Medal of Honor. In truth, he never served in the military.

In 2008, Mr. Alvarez pleaded guilty on the condition that he could appeal. He was sentenced to three years of probation, ordered to perform 416 hours of community service and fined $5,000. But the appeals court reversed his conviction, ruling in a 2-to-1 decision that the false statements covered under the act were overly broad.

In the majority opinion, Judge Milan D. Smith Jr. wrote that if the court upheld the act, “then there would be no constitutional bar to criminalizing lying about one’s height, weight, age or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke.”

But a federal judge in Virginia upheld the law in January in the case of Ronnie L. Robbins, a former revenue commissioner of Dickenson County who had claimed while campaigning that he was a decorated Vietnam veteran. Mr. Robbins, in fact, was never deployed overseas while in the Army.

In his ruling, the judge, James P. Jones, said that lying about being a decorated soldier did not warrant First Amendment protection, and that privacy laws would be sufficient to keep the government from intruding into everyday exaggerations. In March, a jury found Mr. Robbins guilty, and he is scheduled for sentencing in July.

With such divergent rulings, eyes are turned toward the case of Mr. Strandlof, whose tales were so convincing he was able to start his own veterans group.

Oral arguments before the federal appeals court here in Denver were heard last week. Mr. Strandlof’s federal public defender, John T. Carlson, has said that false statements covered by the law could not be grouped with other free speech exceptions like defamation, fraud and perjury. If Stolen Valor is upheld, he argued, the government could find itself regulating any false statements, whether harmful or not.

“For good or bad, we live in a world that tolerates considerable amounts of false speech,” Mr. Carlson wrote in an e-mail response to questions about the case, “from the exaggerations, omissions and little white lies that we all tell sometimes to the big, ideologically inflected lies that dot our culture.”

Conversely, federal prosecutors in the case contend that lying about being a war hero is inherently harmful — to the military awards system and to the soldiers who truly earned their honors. Indeed, proponents of the act maintain that the yarns spun by war fabulists almost always lead to monetary gain or acclaim.

This month, Representative Joe Heck, Republican of Nevada, introduced a revised Stolen Valor Act that would make it a crime of fraud to benefit, or intend to benefit, from lying about military awards.

“It’s not O.K. to misrepresent yourself as a physician and practice medicine,” Mr. Heck said. “It’s not O.K. to misrepresent yourself as a police officer. Why should you be able to misrepresent yourself as member of the military, specifically if you’re trying to gain something of value?”

Kentucky Supreme Court Allows Media Access to Contempt of Court Hearings of Jurors

Thursday, May 19th, 2011

The Kentucky Supreme Court has ruled that Jefferson Circuit Court Judge Susan Shultz Gibson should have allowed the public and media access to a contempt-of-court hearing for a juror last year.

In a unanimous decision, the court ruled that while there is “continuing confusion” among courts in Kentucky, criminal contempt hearings for jurors should be open to the public.

Judge Gibson said Thursday that she “along with all judges take very seriously both the need to have open and accountable courts and the need to protect the privacy interests of jurors, particularly when potentially disclosing what happens in jury deliberations, which are supposed to be confidential. I think the Supreme Court’s opinion gives much-needed guidance on a matter which even the justices acknowledge has been a source of continuing confusion for courts.”

Kentucky Counties face growing legal bills to ACLU in Ten Commandments Cases

Thursday, May 19th, 2011

May 18, 2011

Several Kentucky counties have continued to litigate their right to post the Ten Commandments on the walls of government buildings.   They continue to lose in the courts, and now the bills for courts costs and attorney fees being awarded to the ACLU are coming home to roost.

This week, U.S. District Judge Jennifer Coffman awarded an additional $23,366 in attorney fees and costs to the American Civil Liberties Union of Kentucky for its work in challenging the displays, which were ruled unconstitutional.

Pulaski and McCreary counties now owe the ACLU a total of $456,881, nearly all of it for attorney fees. That figure doesn’t include mounting interest.

It’s not clear how the two counties would pay the bill, officials from both said Wednesday.

The judgment is not covered under McCreary County’s insurance policy, and the relatively poor county — hard-pressed to provide services as it is — has nothing extra in the budget this fiscal year or next to pay the bill, Judge-Executive Doug Stephens said.

Pulaski County Judge-Executive Barty Bullock was not available for comment Wednesday, but Magistrate Glenn Maxey said the fiscal court had not identified a specific way to pay the judgment.

Maxey said “We don’t have no $250,000 that we want to pay them with,” referring to the ACLU.

The counties owe the ACLU the money because the civil-rights organization won the court case challenging the counties’ decision to post copies of the Ten Commandments.

Federal law allows the winning parties in civil-rights cases to be paid reasonable fees by the losing litigants, Sharp said.

Indiana Justices discard 300 years of law – Ends right to resist illegal arrest

Thursday, May 19th, 2011

“The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215,” wrote Justice Steven David – the newest justice, appointed by Gov. Mitch Daniels. “We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.”

Ft. Wayne Journal  Published: May 18, 2011

 

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!

–William Pitt, Earl of Chatham,

18th century English Parliament debate

The U.S. Supreme Court cited this speech in a 1958 case, ruling that police improperly arrested a man because they entered his home illegally. Incredibly, the Indiana Supreme Court last week decided this U.S. Supreme Court ruling – along with centuries of case law – no longer applies in the Hoosier state because it is, essentially, passé.

The Indiana court ruled 3-2 that Hoosiers have no right to resist the unlawful entry of police into their homes.

“The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215,” wrote Justice Steven David – the newest justice, appointed by Gov. Mitch Daniels. “We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action.”

The court ruled that the centuries-old standard no longer applies because if police wrongly enter a home, residents can sue them and, unlike hundreds of years ago, get quick bail, have a quick court date and not be tortured in jail.

“(T)he right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law,” the court ruled, though no written statute was changed and no precedent-setting court ruling provided a basis for the decision, other than the court’s own.

In fact, the U.S. Supreme Court ruled just this week in the case of a Kentucky man whom police arrested after bursting into his apartment without a warrant. Police said they smelled marijuana and thought the man was trying to destroy incriminating evidence, and the case revolved around the circumstances of when police may enter a home without a warrant.

Justice Samuel Alito – who wrote the opinion – suggested residents are not required to allow police to come in. “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame,” Alito wrote – suggesting a constitutional right not to allow police entry.

Except, now, in Indiana.

One of the few cases cited in last week’s flimsy eight-page ruling in Indiana was a 1985 Indiana Court of Appeals case, in which that court “ultimately focused on the heightened expectation of privacy in one’s home and recognized a right to resist an unlawful entry into a home by a police officer.” The court did not attempt to explain exactly what happened in the past 26 years to gut that ruling.

U.S. Supreme Court sides with Ky. police in warrantless search

Monday, May 16th, 2011
May 16, 2011 .

The Supreme Court on Monday ruled against a Kentucky man who was arrested after police burst into his apartment without a search warrant because they smelled marijuana and feared he was trying to get rid of incriminating evidence.

Voting 8-1, the justices reversed a Kentucky Supreme Court ruling that threw out the evidence gathered when officers entered Hollis King’s apartment.

 

The court said there was no violation of King’s constitutional rights because the police acted reasonably. Only Justice Ruth Bader Ginsburg dissented.Officers knocked on King’s door in Lexington and thought they heard noises that indicated whoever was inside was trying to get rid of incriminating evidence.Justice Samuel Alito said in his opinion for the court that people have no obligation to respond to the knock or, if they do open the door, allow the police to come in. In those cases, officers who wanted to gain entry would have to persuade a judge to issue a search warrant.But Alito said, “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame.”In her dissent, Ginsburg said her colleagues were giving police an easy way to routinely avoid getting warrants in drug cases.”Police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant,” she said.The case concerned exceptions to the Fourth Amendment requirement that police need a warrant to enter a home.The issue was whether warrantless entry was justified after the officers’ knock on the door triggered a reaction inside that sounded like the destruction of evidence.An odd set of facts led to Monday’s ruling.Police were only at King’s apartment building because they were chasing a man who sold cocaine to a police informant. The man entered King’s building and ducked into an apartment. The officers heard a door slam in a hallway, but by the time they were able to look down it, they saw only two closed doors.They didn’t know which one the suspect had gone through, but, smelling burnt pot, chose the apartment on the left.In fact, the suspect had gone into the apartment on the right. Police eventually arrested him, too, but prosecutors later dropped charges against him for reasons that were not explained in court papers.

Florida Republicans Seek Overhaul of Courts – Issue to be submitted to Voters

Thursday, May 5th, 2011

By DON VAN NATTA Jr.

MIAMI — The Florida Senate has decided to put major changes in the state court system before voters next year but only after rejecting the most contentious proposal, which would have split the Supreme Court in two.

The debate over the most sweeping judicial overhaul package in the country ended late Monday in a partial victory for Republicans and Speaker Dean Cannon, who had championed the changes.

The fight pitted Republicans calling for the broad changes against Democrats, lawyers and senior and retired judges, who called their efforts an attempt to politicize the bench by stripping the judiciary of its independence and giving the governor power to name judges.

In the end, there were not enough Republicans willing to split the Supreme Court into separate divisions for criminal and civil cases. The change would have given Gov. Rick Scott, a Republican, the power to appoint three new justices to hear appeals of civil cases.

Voting along party lines late Monday, the Senate instead approved a package of changes that increases the Legislature’s influence on the state court system.

The measure would give the House access to investigations of judges and allow the Legislature to repeal judicial procedural rules enacted by the Florida Supreme Court. Perhaps most important, the changes would allow the Senate to confirm the governor’s appointments of justices.

Critics said that all the changes, including the rejected Supreme Court provision, would have returned the state’s judiciary to the era of cronyism. A half-century ago, Florida’s judiciary was so riddled with old-school politics that a courthouse joke’s punch line packed the sting of truth: “What do you call a sitting judge? A friend of the governor.”

“Members, we’re going down a slippery slope,” Senator Christopher L. Smith, a Fort Lauderdale Democrat, said in Monday’s debate. “We’re going into the judicial branch.”

Five Republican senators, most of whom are also lawyers, agreed with opponents of the bill, which included former justices, senior judges and Bob Graham, a Democrat and former governor and United States senator.

Mike Haridopolos, the Senate president, told reporters he had failed to deliver enough Republican votes to get the 60 percent needed to pass the bill with the Supreme Court provision intact. “The person to blame is me,” he said.

Legislative tug-of-wars with the judiciary occur in some state houses every year. But the tussles are usually limited to a single, narrow issue. What has made Florida’s fight different is the breadth of the proposed changes.

The debate also came at a time when the court system, like Florida itself, is struggling with a financial crisis. Fewer lawsuits are being filed, which means a decline in filing fees, and that has left the courts with a $74 million shortfall. The resolutions in the Legislature guarantee full financing, but several senior judges said financial security for the courts in exchange for a less independent bench was a bad trade-off.

In the past month, the battle became intensely partisan and even personal. Republican legislators talked about the need to rein in the Supreme Court’s power. (Last year, the court tossed out three ballot initiatives championed by the Legislature, both houses of which are controlled by Republicans.)

“Our Supreme Court of Florida has failed us over and over,” Representative Charles E. Van Zant, Republican of Palatka, said last month on the House floor. “This Legislature will send a message that should be sent.”

Predictably, the fervor of the advocates for the changes alarmed some current and former judges, including Raoul G. Cantero, who had been appointed to the Supreme Court by Gov. Jeb Bush, a Republican.

“If I were on the court, I’d be very disturbed by what is going on in the Legislature,” said Mr. Cantero, who retired in 2008. “There is a strong antijudiciary feeling that I feel is very counterproductive.”

The proposals, which are amendments to the State Constitution, would then be decided by Florida voters next year. Sixty percent of state voters are needed for the amendments to be approved.

The bill was a priority of Speaker Cannon, Republican of Winter Park.

“Is the judiciary independent? Yes,” Mr. Cannon said in a recent interview. “Omnipotent? No. Florida went too far with power to the judiciary after the late ’60s and early ’70s, and all we are doing is trying to establish a more efficient judicial branch.”

Critics argued that Mr. Cannon was motivated in part by revenge against the Supreme Court for striking down the three ballot initiatives approved by the Legislature. The justices concluded that the ballot initiative about political redistricting was intended to mislead voters.

“That’s completely untrue,” Mr. Cannon said of the critics’ accusation. “People who live in the status quo fight against any change of the status quo. But that doesn’t mean these changes aren’t what’s best for the state of Florida.”

After the vote Monday night that stripped out the proposal to split the state’s highest court, Mr. Cannon remained upbeat. “It’s a win,” he told reporters. “It’s absolutely a win.”

WHY THE SUPREME COURT SHOULD RULE QUICKLY TO AMEND SCR 3.130 (8.2)

Wednesday, May 4th, 2011

 

By LawReader Senior Editor Stan Billingsley                             May 4, 2011

U.S. District Judge Danny Reeves recently interpreted SCR 3.130 (8.2) to prohibit speech by lawyers that is “true but reckless”.  This ruling dramatically affects all Kentucky lawyers and judges and merits swift review by the Kentucky Supreme Court.

 Judge Reeves ruled that the Federal Courts do not have subject matter jurisdiction of state Bar Association rules. This ruling of the U.S. District Court appears to conflict with U.S. Supreme Court rulings and numerous other rulings where the Federal Courts have assumed jurisdiction over unconstitutional bar rules.

Judge Reeves’ interpretation does not limit prohibited statements to a pending trial or hearing, and includes letters or statements made by lawyers concerning legislative or executive branch bodies as well as judicial officers or public legal officers, which were made after the final ruling.

U.S. District Judge Danny Reeves ruling will almost certainly be appealed to the Sixth Circuit Court of Appeals, but that may take several years.   In the meantime the free speech of lawyers is subject to the total control of the KBA Bar Counsel.

The Kentucky Supreme Court should in our opinion immediately review the SCR interpreted by Judge Reeves.   The Kentucky Supreme Court wrote SCR 3.130 (8.2) and they can rewrite it to limit the broad and vague application it now has been granted.

The Kentucky Supreme Court adopted SCR 3.130 (8.2) in January 1990.  This SCR has now been interpreted by the KBA Bar Counsel to limit any writing or speech of a lawyer concerning a judge or public legal officer, which can be construed to be “reckless”.  

The rule was intended to apply to “false” statements by lawyers which challenged the “integrity” or “qualifications for office” of a judicial officer.   The current application of the rule has been extended to include a letter by former State Senator John M. Berry Jr. to the Legislative Ethics Commission.    Berry’s letter has not been found by the KBA to be “false” and they do not cite any allegation that Berry challenged the “integrity” or “qualifications for officer” of any judicial officer.  Nevertheless the KBA obtained a sanction against Sen. Berry for his letter to the Legislative Ethics Commission and now the Federal Court has ruled that they have no jurisdiction to review the constitutionality of the rule.

The rule does not contain any definition for the word “reckless”, and in practice it appears to be applied as any statement which offends anyone.   We suggest that this ruling prohibits the constitutional right of lawyers to “petition their government for a redress of their grievances”.

Judge Reeves decision in the John M. Berry Jr. /ACLU case against the KBA, held that there is no jurisdiction in the Federal Courts for a Section 1983 Civil Rights action challenging the constitutionality of this limitation on free speech.   Judge Reeves’ writes that there is a compelling state interest to regulate the free speech of lawyers.  

The author has written all members of the Supreme Court and submitted a request that the Court reconsider that rule, and amend it to limit its interpretation by the KBA Bar Counsel’s office as authority for the restriction of free speech by lawyers.  (See proposal by Retired Judge Billingsley to the Ky. Supreme Court below.)

The intent of the Rule is to limit outbursts by lawyers during trials which interfere with the deliberations or which attempt to intimidate the trial judge or influence the outcome of the pending proceedings.   We would suggest that it was never intended to prohibit a lawyer from writing a letter stating his opinions about a legal ruling after the ruling was final.

A Kentucky state stature has created a standard which prohibits “any person” from  being held in contempt for any statement or writing made outside “the presence of the court or judge in the courthouse during the sitting of the court.”  The current interpretation of the SCR is not limited to pending cases or attempts to influence a pending case.  The State Stature is much more narrowly drawn and appears to solve the problem of a pending case not being interfered with.

The statute states: “KRS 432.240  No contempt for criticism out of court – No court or judge shall proceed by process of contempt or impose a fine against any person who animadverts upon or examines into the proceedings or conduct of such court or judge, by words spoken or writing published, not in the presence of the court or judge in the courthouse during the sitting of the court.”

   One distinguished jurist recently said that he saw no reason for the judiciary to be applying this rule to administrative hearings conducted by the Executive or Legislative Branches.  We also find troubling the language in SCR 3.130 (8.2) which allows it to be applied to “public legal officers”.  That term is not defined in the SCR and may be applied to comments about administrative hearing officers, investigators, prosecutors, police officers, bailiffs, etc.   We emphasize that this means that a lawyer can never make a “true but reckless” statement about the conduct of a member of the protected class.

We would suggest that there is some urgency for the Supreme Court to review the existing language of SCR 3.130 (8.2).  We are told that amendments to Supreme Court Rules are only considered about every two years.  We hope that the Supreme Court will recognize the draconian effect of this rule after Judge Reeves Federal Ruling issued on April 12, 2011.

Another consideration which supports a quick review of this rule is the fact that from time to time challenges to Bar rules are successful.  We recall one Federal suit against the Judicial Conduct Commission in which the Federal Court in Louisville awarded costs and attorney fees to the successful party of about $20,000.   It is rumored that one case which has not been finalized may result in an award against the judicial budget of some $300,000 in costs and attorney fees.

While it is not clear what effect a rules amendment would have on the pending case of John M. Berry Jr. and the ACLU against the KBA and Bar Counsel, if Berry and the ACLU are successful, and considering that an appeal to the Sixth Circuit is likely to be necessary, the resulting award against the judicial budget could easily exceed the rumored award of $300,000 in another case.

The Supreme Court has the power to amend the rule which is on appeal to the Sixth Circuit, and such an amendment might reduce the exposure of the judicial budget. 

The Supreme Court has great power to influence the conduct of the Bar Counsel, and if they chose to do so, could “encourage” a dismissal of the charges against John M. Berry Jr. regarding his letter to the Legislative Ethics Commission.

We certainly hope that this urgent situation results in consideration by the Kentucky Supreme Court long before the usual two years.

We have sent the following request to the Kentucky Supreme Court requesting an amendment to SCR 3.130 (8.2):

                                                                                                                                                     REQUEST FOR AMENDMENT OF SCR 3.130 (8.2)
 

This submission respectfully requests the court to consider the amendment of SCR 3.130 (8.2). The Kentucky Supreme Court in 1990 adopted SCR 3.130. (8.2).  the Court has the authority to amend this rule.

We would opine that the ABA originally drafted 8.2 as a “guideline” and the ABA language was adopted by the Ky. Supreme Court virtually without change. 

This rule as recently applied by the KBA Inquiry Commission in the John M. Berry Jr. case, cited this rule to support their issuance of a Warning Letter to John M. Berry, Jr. without ever giving him a due process hearing, without ever revealing all the evidence against him and in doing so took close to two years.  Under this broad application of the rule, no attorney may write or speak about a court or hearing officer ruling without subjecting themselves to ethics sanctions by the KBA.

 The KBA Inquiry Commission has never to our knowledge explained what statement in Berry’s letter to the Legislative Ethics Commission was “false”, or what statements in his letter questioned the “integrity” or “qualifications for office” of a member of the protected class. 

 Their procedure allowed them to find Berry had violated SCR 3.130 (8.2), to issue a formal Warning Letter, and then dismissing the case thereby denying Berry the right to appeal to the Board of Governors and the Supreme Court.

The proposed amendments to SCR 3.130 (8.2) preserve the ability of the KBA to sanction those attorneys who disrupt an ongoing trial, or attempt to influence the outcome of a pending case.

As applied in the Berry case, the hearing of the Legislative Ethics Commission was final before Berry wrote his letter to the LEC. He did not interrupt a hearing, and his letter was not delivered until after the hearing committee issued a formal ruling, therefore he did not attempt to influence the outcome of a pending case.   His letter was not profane, and made no threats. Yet the Inquiry Commission after almost two years of proceedings found he had violated SCR 3.130 (8.2).

Berry and the ACLU filed a federal civil rights action in U.S. District Court.  The trial judge opined that under the Kentucky rule that lawyers could be sanctioned for “true but reckless” statements.  That would appear to conflict with the U.S. and Ky. constitution.  Judge Reeves concluded that  his court had no jurisdiction to hear a claim dealing with a Bar Rule.

We concede that Federal Court rulings allow limitations on free speech in situations where there is a compelling state interest to do so.  But we suggest that statements made out of the court, after the conclusion of the trial, and which are “true” should be excepted from the reach of SCR 3.130(8.2).  (The Berry letter is attached as an Exhibit.)

The fact that the attorney has no right to appeal in Berry’s case demonstrates that this issue will not come before the Ky. Supreme Court as a “case or controversy” but the court may at anytime amend their own SCR. 

 Had Berry had the right to appeal the ruling of the Inquiry Commission, this case might have taken a much different course.

By submission of this request for the Kentucky Supreme Court to consider amendment of SCR 3.130(8.2) we do not challenge the “integrity” or “qualifications for office” of  any officer of the  KBA, the Inquiry Commission, or U.S. District Judge Danny Reeves.  We merely request a review of how the language of the current rule can be interpreted so broadly that it may infringe on Free Speech rights. 

The Kentucky Supreme Court adopted this rule, and they can amend it.

 

THE CURRENT RULE:

 

SCR 3.130(8.2) Judicial and legal officials

 

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

      (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

HISTORY: Adopted by Order 89-1, eff. 1-1-90 

(No definitions are provided for Current Rule.)

 

                                           AUTHORITY FOR AMENDMENT

    We suggest that SCR 3.130 (8.2) violates Section 8 of the Ky. Constitution. which grants free speech rights to all citizens and specifically forbids  “any branch of government” from making a law “to restrain the right thereof”.

                                                 KENTUCKY CONSTITUTION

Section 8 – Kentucky ConstitutionFREEDOM OF SPEECH AND OF THE PRESS.

“Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.” Text as Ratified on: August 3, 1891, and revised September 28, 1891. – History: Not yet amended.

Section 1 – Kentucky Constitution

“Rights of life, liberty, worship, pursuit of safety and happiness, Free Speech, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms.”

 

 

THE PROPOSED AMENDMENTS TO SCR 3.130 (8.2):

 

      SCR 3.130 (8.2) Judicial and legal officials

     (a) A lawyer shall not make a statement that the lawyer knows to be false, (Amendment #1- DELETE: “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.

     Amendment #2 – Add this new phrase based on the current language of KRS 432.240:

     “It shall not be a violation of this Supreme Court Rule for any attorney to animadvert upon or examine into the proceedings or conduct of such court or judge, by words spoken or writing published, not in the presence of the court or judge in the courthouse, or not in the presence of the adjudicatory officer or public legal officer, during the sitting of the court.”

 

     Amendment #3 Add this section:

     

      “No sanction shall be made under this Rule which is not supported by substantial evidence.    

       No sanction shall be made under this rule which does not include a finding of facts which specifically references: (1) the statements alleged to have been “false” and (2) the supporting evidence therefore, and (3) the statements which are alleged to have concerned a “lack of integrity” or “qualifications for office” of the protected official.  All findings of the Inquiry Commission may be appealed to the Board of  Governors and the Supreme Court.”                                                

                                                              EXPLANATION

The language deleted in Amendment #1 removes the basis for a finding by U.S. District Judge Danny Reeves, that under SCR 3.130 (8.2) a Kentucky lawyer may be sanctioned for “true but reckless” statements.  The current language allows the conclusion that constitutionally protected language which is true, can still be the basis for an ethics sanction.

 We would suggest that the Court has a state interest in regulating the false statements of lawyers, and in regulating their conduct in the court room or conduct which may be an attempt to influence the outcome of a pending trial.  We submit that Ky. Constitution Section 

The language in proposed Amendment #2 above is taken from a current statute which applies to all citizens.

See: KRS 432.240  No contempt for criticism out of court – which states:

“No court or judge shall proceed by process of contempt or impose a fine against any person who animadverts upon or examines into the proceedings or conduct of such court or judge, by words spoken or writing published, not in the presence of the court or judge in the courthouse during the sitting of the court.”

Amendment #3 deals with the situation as found in the John M. Berry case where it has never been explained what statement, in Berry’s letter to the Legislative Ethics Commission, was “false”.   This proposed amendment would place a specific burden on the KBA to show what statement was “false” and the supporting evidence for that conclusion.

 It has never been explained how Berry questioned the “integrity” or “qualifications for office”.   A copy of the Berry letter is attached. 

It appears in the Berry ethics case that he was sanctioned for merely saying the Legislative Ethics Commission misinterpreted the law.  We submit that opining that another has made a mistake of law, does not “falsely” question their “integrity” or “qualifications for office”.

 

DEFINITION

   Merriam-Webster Dictionary Definition: “Animadvert” – to pay attention to,  to censure

PROPOSED DEFINITIONS:

    “Adjudicatory officer“  -  Hearing officer or Trial Commissioner in an administrative hearing before the Judicial, Executive or Legislative branch of government, who is authorized to conduct hearings and issue findings of fact.

   “Public legal officer“   -  Same as “Adjudicatory officer” above.

 

 

The Berry letter which was found to be “inappropriate” by the Inquiry Commission and resulted in a non-appealable ethics warning letter being placed in the attorneys personnel file.

THE BERRY LETTER:

********

Oct. 5, 2007

Kentucky Legislative Ethics Commission 22 Mill Creek Park Frankfort, Ky. 40601

Dear Chairman Troutman and Commission Members:

As you know, my brother Wendell, and I attempted to attend your meeting on August 14, 2007. Before commencing the preliminary inquiry relative to the complaint filed against Senator David L. Williams, we were asked to leave along with other members of the public, the media and the complainant, Richard Beliles, on behalf of Common Cause of Kentucky. The Inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pubic (sp) and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order entered July 29, 2007 that exonerated him, was contrary to the undisputed evidence that was presented.

It is very unlikely that a legislator would ever come before the Commission and confess guilt. it is almost as unlikely that witnesses consisting of legislative staff, lobbyists, or others who have a special interest in the public policy decisions which are influenced by the legislator would take a chance of alienating by testifying, in his presence, to anything except their high regard for him. Your Order implies that the absence of such testimony warrants the finding that there is no probable cause to believe that there was any wrongdoing, or even the appearance of it, and, therefore, no adjudicatory proceeding would be in order. I do not agree with your conclusion and I believe that the evidence filed with the complaint, with the other facts you found by the order, clearly indicate that what was going on was unethical and a violation of the statutes which your are charged to enforce.

I looked first at the letter written by Senator Williams which was an invitation to all of the invitees to participate in a joint venture to raise money to finance the campaigns of Republican candidates for the State Senate. The letter itself depicts the capitol dome with the senator’s name and high office printed underneath. Across the capitol dome are the words, “Senate Majority Event”. The letter stresses the importance of Senator Williams in the conduct of Senate business and the personal importance to him of the invitee’s cooperating in this effort to elect Republican candidates to the Senate. The purpose of the solicitation is to maintain and grow the Senate Republican majority which is necessary to keep Senator Williams in the position of President and therefore, well positioned to attend to the business of the invitees. The letter is signed by Senator Williams and underneath his signature the invitees are once again reminded that he is the Senate President.

The letter, although not an exact copy of senate stationary, is set up so as to appear to be his letterhead and he repeatedly speaks of himself as the Senate President. Anyone aware of the importance of public policy decisions to fund-raisers would be aware also of the extent to which the power and influence of Senator Williams could affect their interests and, therefore, of the importance of having his goodwill. To ignore the invitation would be risky business for them. All of this is clearly contrary to, or in violation of, or questionable under, the follows:

KRS 6.606 Purpose of Code

The proper operation of democratic government requires that a public official be independent and impartial; that government policy and decisions be made through the established processes of government; that a public official not use public office to obtain private benefits; that a public official avoid action which creates the appearance of using public office to obtain a benefit; and that the public have confidence in the integrity of its government and public officials.

KRS 6.731 General Standards of conduct; penalties

A legislator, by himself or through others, shall not intentionally:

(1) Use or attempt to use his influence as a member of the General Assembly in any matter which involves a substantial conflict between his personal interest and his duties in the public interest. Violation of this subsection is a Class A misdemeanor; ……

(3) Use or attempt to use his official position to secure or create privileges, exemptions, advantages, or treatment for himself or others in direct contravention of the public interest at large. Violation of this subsection is a Class A misdemeanor. …..

(5) Use public funds, time, or personnel for partisan political campaign activity, unless the use is:

(a) Authorized by law, or

(b) properly incidental or another activity required or authorized by law, such as elections to constitutional or party offices within the General Assembly. Violation of this subsection is a Class A misdemeanor.

(6) Use of his official legislative stationery, or a facsimile thereof, to solicit a vote or a contribution for his or another person’s campaign for election or reelection to public office, or use the great seal of the Commonwealth on his campaign stationery or campaign literature. For purposes of this subsection, “official legislative stationery” means the stationery used by a legislature on a day-to-day basis for correspondence related to his duties as a member of the General Assembly. Violation of this subsection is ethical misconduct.

KRS 6.767 Prohibition against acceptance of campaign contributions from legislative agents penalty

A member of the General Assembly, candidate for the General Assembly, or his campaign committee shall not accept campaign contributions from a legislative agent. Violation of this provision is ethical misconduct.

OLEC 06-03 OPINION

1. A member of the General Assembly may not ask or direct a lobbyist to solicit campaign contributions for a political party or a legislative campaign.

A careful reading of the letter which Senator Williams sent to the invitees leads but to one conclusion, which is that the most powerful member of the Kentucky State Senate, representing himself personally and the Majority Caucus, was putting the arm on people, who have a vital special interest in public policy decisions, for campaign contributions, and that he was doing so in order to maintain the majority and to keep himself in his position as President. If the letter is then read in the context of the above statues, it is just as clear that his conduct violates those statutes.

This conclusion is reenforced by all of the things that occurred between the time that the letter was written and the luncheon on May 23rd. The material distributed at the luncheon is especially offensive in that it solicits contributions to the senate political caucus, which will finance the campaigns of individual senators. It further recommends that, in addition to the $2,000 per person ticket of admission to the fundraiser, invitees should contribute a minimum of $5,000. And it further suggests that attendees can achieve much greater benefit, including seat at the head table with the featured speaker and Senate President David L. Williams, for $50,000.

In all of these documents, from the letter of invitation to the fact sheet and the benefit sheet, Senator Williams is prominently featured. he was the featured speaker at the event at which the information was given to all guess including the lobbyists. This episode as a whole constitutes a blatant misuse of power in order to obtain large contributions from lobbyists and others with a big stake in government programs and projects. It is not clear how the Commission could have justified Senator Williams conduct and dismissed the complaint. There is no question that he as well as his official position and influence were being used for the benefit and advantage of the senate candidates and himself.

There were approximately seven grounds cited by you in your order to support your exoneration of Senator Williams. None of these grounds either standing alone or collectively warrant the result. How many complainants could be expected to have firsthand knowledge of violations? Mr. Beliles did have first-hand knowledge of the documents that clearly set forth the plan and the motive behind it. They were presented to your and admitted as evidence. What value is it to know that an alleged violator made a telephone call verbally requesting an opinion, without all of the facts and asking only one very limited and irrelevant question? When did the hiring of go-betweens to carry out an illegal plan in order that the planners and organizers “could get away from it” become a justification for anything? Is it further mitigating if the people you hire know little or nothing about the law? The implications here are obvious, but in the opinion of the Commission, appear to be sufficient to establish nothing less than the best of intentions. If the lobbyists question the legality of what is being done, you solve the problem by simply instructing them to make their checks payable to the party and not to the caucus. If all else fails, but the Senator was at the time in a hurry, then he is exonerated on the basis of the legal proposition that “haste makes waste”.

If the law as it stand is inadequate to allow you in this case to find any violation, ethical misconduct, impropriety, or even the appearance of it, then the law needs to be changed and I hope that you would be instrumental in attempting to get that done.

Very truly yours,

(s) John M. Berry Jr.

JMBjr:mc

******************

Indiana Federal Prosecutor to Increase Prosecution of State Offenses to Crack Down on Violent Crime

Sunday, May 1st, 2011

 

Violent crimes could bring federal charges

BY EVAN SHIELDS  MADISON COURIER STAFF WRITER    APRIL 30, 2011

Joe Hogsett, U.S. attorney for the Southern District of Indiana, announced a new policy this week that would crack down on violent crime by allowing repeat offenders to be prosecuted at the federal level.

Cases tried at the federal level would result in longer sentences for those convicted, and anyone on trial would be detained from the time of their arrest until after the trial with no chance for bail or bond.

“When people are arrested and they realize they’re being charged with a federal crime, their eyes open just a little bit wider,” said Jefferson County Sheriff John Wallace.

Hogsett announced what he called his “historic and unprecedented” initiative at The Madison Courier office with Wallace and Madison Assistant Police Chief Jeremey Perkins.

Madison isn’t the only place Hogsett is announcing the new policy; he is in the middle of a trip across the southern part of the state announcing the plans.

“I think it’s very important that the United States attorney and the federal law enforcement community … play a more supportive and more complementary role with local law enforcement than perhaps they have in the past,” Hogsett said.

Hogsett is targeting offenders of violent crimes and those who are repeat offenders. Two of the biggest crimes that Hogsett sees in the state are related to drugs and guns.

“The reality is Indiana, as a state, is a drug import state,” Hogsett said. “The plain fact is Indiana, as a state, is an export state for illegal firearms.”

The county prosecutor, with help from law enforcement and community leaders, will decide which cases to try to take to the federal level. Drug cases could be expected to be sent to be prosecuted at the federal level.

“The big problem we have down here, like most rural places, is the methamphetamine problem,” Wallace said.

Madison is not a violent area compared with Indianapolis or Evansville – two of the biggest cities in Hogsett’s district – but there’s still a chance that outbreaks of crime can occur anywhere, Hogsett said.

In the past, local law enforcement agencies would spend a good deal of time working on a case to send up to the federal level, only to have the U.S. attorney’s office send the case back saying it didn’t qualify.

Hogsett said most local law enforcement agencies have told him they’ve simply stopped bothering to send cases because they usually wouldn’t get taken. Wallace and Perkins both said they had heard that before, but they both said they are eager to see that change.

“It’s really good to know we have these contacts that we could utilize that, in the past, we really haven’t been able to utilize,” Perkins said.

The initiative was started by U.S. Attorney General Eric Holder, who Hogsett said told all the U.S. attorneys to get out into the communities and help protect the safety of citizens and law enforcement officials.

Hogsett mentioned David Moore, an officer with the Indianapolis Metropolitan Police Department who was shot earlier this year when he pulled over a repeat offender who had stolen a car. Moore died three days later.

“That’s what we’re trying to do, is get those kind of menaces off the streets of the communities of southern and central Indiana,” Hogsett said.

Wallace said more officers across the nation have died as a result of gunshots than traffic accidents or other incidents on the job. And the number is gradually on the climb.

The FBI said from 2009 to 2010, the number of officers killed in the line of duty rose 37 percent. There were 160 officers killed across the country.

Hogsett said he is going to make seven commitments through this initiative:

• Federally prosecute more gun crimes than ever.

• Increase the use of law enforcement tools such as wiretaps, undercover operations, surveillance, search warrants and grand juries.

• Actively use federal drug and gun laws for the “worst of the worst” to allow for stiffer sentences and pre-trial detention.

• Aggressively employ a multi-agency law enforcement approach to investigate, arrest and aid in prosecution.

• Commit to training all law enforcement officers on the evidence necessary to maximize successful federal prosecution.

• Help find the financial support necessary to aid in sustaining local crime-fighting efforts.

• Commit the personnel necessary to prosecute illegal guns, drugs, narcotics trafficking and gangs.

So far, this program has resulted in 22 pending federal trials across the state, all of whom could face a sentence of life in prison. The most recent arrests were announced Wednesday in Terre Haute, where 13 people were arrested on charges of dealing methamphetamine.

“In essence, we want to become more aggressive as federal prosecutors in assisting local law enforcement in identifying the most repeat, chronic and violent offenders and assist local prosecutors in getting those folks off the street,” Hogsett said.

There are several reasons why Hogsett feels that federal prosecution can be a better solution for repeat offenders. First, he said, bail and bonds are available for anyone lodged at a local facility. Hogsett has heard stories about drug dealers who get released on bail before the police officers can even finish paperwork.

In state-prosecuted cases, the burden of proof rests on the state to prove whether certain allegations occurred. In federally-prosecuted cases, the burden of proof rests on the individual to prove he or she is not a risk to the general public.

This allows for a pre-trial detention for anyone being prosecuted at the federal level that will last through the end of the trial. Federal prosecutions will also carry a longer sentence than what state law calls for.

Once incarcerated, the state system allows inmates to receive one day of credit for one day of good time, which could result in someone sentenced to 10 years being released in as little as three to five years.

More often than not, Hogsett said, people who serve sentences at a federal prison will serve 100 percent of the sentence.

When someone is convicted of a crime by the state, he or she would be sent to a local prison that would be within driving distance of Madison. If a person is convicted of a federal crime, Hogsett said they will likely be taken across the country, serving a sentence in a prison in Montana, Utah, Arizona or another state that is far-removed from Madison.

“The point being, you can be taken completely away from the environment of criminal element, enterprise and activity that you’ve been engaged in,” Hogsett said. “You get them out of the community.”

Another reason to share resources in an attempt to prosecute at the federal level is to prevent criminals from stepping up to more severe crimes. Wallace said it’s often the case that criminals will start off with minor crimes and work their way up to bigger crimes. He wants to see the criminals off the streets before they move up to something more violent.